The FAA's authority to issue rules on 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 issued under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General Requirements.” Under that section, the FAA is charged with prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority.

In addition, section 336, “Secondary Cockpit Barriers,” of the FAA Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 2018), 1 directs the Administrator of the FAA to issue an order requiring installation of a secondary flightdeck barrier on “each new aircraft that is manufactured for delivery to a passenger air carrier in the United States operating under the provisions of part 121 of title 14, Code of Federal Regulations.”

This proposed rule would implement  2 Section 336 of the FAA Reauthorization Act of 2018 by proposing to require the installation and use of an installed physical secondary barrier (IPSB) that would be deployed (closed and locked) whenever the flightdeck door is opened while the airplane is in flight. The purpose of this IPSB would be to impede unauthorized access to the flightdeck. The IPSB would be required to resist intrusion and meet certain physical standards, but still permit line-of-sight visibility between the flightdeck door and the cabin.

This proposal would affect operators conducting passenger-carrying operations under 14 CFR part 121 with transport category airplanes operating in the United States by requiring the operators to use the IPSB, when installed, as part of their procedures for opening the flightdeck door. This proposed rule would apply to transport category airplanes manufactured two years after the effective date of a final rule.

On October 5, 2018, Congress enacted the FAA Reauthorization Act of 2018. Section 336 of the Act states:

Following the events of September 11, 2001, the FAA adopted standards for flightdeck security in January 2002 by adding 14 CFR 25.795 and amending § 121.313. 3 Those amendments were intended to make the flightdeck resistant to forcible intrusion and small firearms, and prevent unauthorized entry into the flightdeck. These requirements were based on International Civil Aviation Organization (ICAO) standards, 4 and recommendations of the Aviation Rulemaking Advisory Committee  5 (ARAC), which were developed by the Design for Security Harmonization Working Group. ARAC includes representatives of aircraft owners and operators, airmen and flight crewmembers, airports, aircraft maintenance providers, aircraft manufacturers, public citizen and passenger groups, training providers, and labor organizations.

Even a strong and secure flightdeck door, however, must occasionally be opened, in order to provide for necessary events such as lavatory breaks and meal service. Between the time of opening and closing the flightdeck door (door transition), the open flightdeck has some degree of vulnerability to attack. Such an attack could happen quickly, and arguably leave insufficient time for the cabin crew to react.

Therefore, in 2007, the FAA promulgated requirements  6 to address the security of the flightdeck when the flightdeck door was opened, however briefly. Specifically, the FAA adopted §§ 121.584 and 121.587 to require that the flightdeck door be locked when the airplane is in operation, unless it is necessary to open it to permit access by authorized persons, and require compliance with FAA-approved procedures for opening the door.

As a result of these new requirements, air carriers and type design holders developed various methods and designs, including use of crewmembers and equipment and, in limited cases, IPSBs, 7 to help secure the flightdeck during the period when the flightdeck door was open during flight. To provide guidance and recommendations for these different methods and designs, RTCA, Inc. 8 formed a committee to develop recommended procedures and standards for airplane secondary barriers. In 2011, RTCA produced DO-329, “Aircraft Secondary Barriers and Alternative Flight Deck Security Procedures.” DO-329 describes various means of addressing the times when the flightdeck door must be opened. In this context, these means can be combinations of people, procedures and/or equipment. The document does not recommend one of these means over another, but provides advice on the use of each one to meet the objective of a secure flightdeck. Subsequently and based on the RTCA's report, the FAA issued Advisory Circular (AC) 120-110, “Aircraft Secondary Barriers and Alternate Flight Deck Security Procedures,” in 2015. That AC references various means of compliance with § 121.584(a)(1), which prohibits the flightdeck door from being unlocked during flight unless the operator has an approved procedure and visual device to verify that the area outside the flightdeck door is secure.

On June 20, 2019, to facilitate the implementation of the mandate in Section 336 to require secondary barriers on certain aircraft, the FAA tasked ARAC  9 to recommend standards for IPSB. The ARAC formed the Flightdeck Secondary Barrier Working Group, under the Transport Airplane and Engine Subcommittee, to carry out the tasks. The Working Group included representatives from manufacturers, air carriers, and pilot and flight attendant unions. On February 27, 2020, the Working Group submitted its “Recommendation Report to Aviation Rulemaking Advisory Committee for Implementation of Section 336 of Public Law 115-254” (the Report)  10 to ARAC. ARAC accepted the Report in March of 2020 and forwarded it to the FAA. 11

The Report contained 21 recommendations, most of which were by consensus. This NPRM incorporates those consensus recommendations. 12 The Report included suggestions on the scope and potential cost of the requirement for IPSB, as well as the performance standards that the FAA should include in a proposed rule. The FAA carefully considered all recommendations and plans to address certain recommendations appropriately through guidance. The following summarized recommendations are pertinent to this regulatory proposal.

The Report recommended that:

Lastly, the Report recommended the FAA not impose a similar requirement for all-cargo operations or operations conducted under 14 CFR part 129. 15 The Report suggested the FAA consider whether the operational rule should account for smaller airplanes, because such airplanes may only have one cabin crewmember and flights of lesser duration, and the flightdeck door may be less likely to be opened.

The FAA proposes to require installation of an IPSB on certain airplanes used by air carriers to conduct passenger-carrying flights and for which the applicable operating rules (14 CFR 121.313(f)) require a reinforced flightdeck door. 16 Such IPSBs would be required to meet certain new design requirements, which would be set forth in a new paragraph (4) to § 25.795(a).

Part 25 prescribes airworthiness standards for the issuance of type certificates, and changes to those certificates, for transport category airplanes. 17 Each person who applies for such a certificate or change for such airplanes must show compliance with the applicable requirements in part 25. As such, the proposed part 25 revisions establish the IPSB performance standards, but do not specify which aircraft need IPSB installed, or that the IPSB must be used when showing compliance with § 121.584. This is accomplished by proposed changes to part 121. 18

The IPSB would need to resist intrusion and meet certain strength and other standards, as described below.

The proposed requirement for resisting intrusion into the flightdeck must meet three criteria. First, the IPSB must be “physical,” i.e., an object rather than only procedures. Second, the IPSB must be a “barrier,” in that it must occupy sufficient space that it cannot be avoided ( i.e., by going over, under, or around it) to get access to the flightdeck door. Third, to resist intrusion, the IPSB must impede physical force in the event a person tries to overcome the IPSB, including by attempting to open or push through it.

The IPSB would be required to resist certain intrusion loads applied in both the direction of the flightdeck and the direction of the passenger cabin, 19 at the most critical locations on the IPSB. Given the variety of IPSB designs and failure modes that are possible, this rule would require application of the loads at the most critical locations for the particular design. For each load requirement, an applicant would have to identify and justify the most critical locations to apply these loads for its particular design. The applied loads would be considered ultimate loads. 20

The FAA proposes the use of static, rather than dynamic, loads  21 for this requirement. Specifically, the FAA proposes a 600-pound static load in the direction of the flightdeck. This proposal is consistent with Recommendation 1 of the Report, which was derived from Working Group discussions regarding the potential means available on board ( i.e., persons) to exert such loads, coupled with the proprietary results of intrusion testing conducted by airframe manufacturers. Regarding the need to resist intrusion loads applied in the direction of the passenger cabin i.e., by a person pulling on the barrier, the IPSB and the flightdeck door are effectively the same. Therefore, an acceptable load of 250 pounds in the direction of the passenger cabin would correspond to the constant 250-pound tensile load requirement in § 25.795(a)(2) for the flightdeck door. This would allow some commonality with testing of the flightdeck door.

The FAA proposes static rather than dynamic loads for these performance standards because the purpose of the IPSB is to provide resistance to intrusion during the comparatively short time necessary for the flightdeck door to be reopened by the flightcrew member and then closed and locked. This is in contrast to a barrier such as a flightdeck door, which must provide near-continuous security throughout the flight. For such barriers, the required dynamic loads of § 25.795(a)(1) are designed to simulate how the door may have to respond in service. For the IPSB, a simpler assessment—of static strength (as assessed by its ability to withstand applied loads)—in combination with the other proposed requirements, provides an acceptable way to determine that the IPSB resists access. Because dynamic load testing is generally more conservative than static load testing, an applicant could choose to use dynamic testing in order to demonstrate compliance with the static load performance requirements.

The FAA's proposed guidance on methods of testing these static load requirements is in proposed AC 25.795-X, which is discussed in the “Proposed Guidance” section of this document.

This proposed rule would require the IPSB be designed to slow the time by which a person could reach the flightdeck for at least the time required to open and reclose the flightdeck door, but no less than 5 seconds. This is the time cited in Recommendation 18 of the Report. This duration is reasonable and consistent with the purpose of the IPSB. The proposed requirement that the IPSB need only resist intrusion to the flightdeck when the flightdeck door is opened would permit the IPSB to be deployed as needed and stowed when not needed.

The FAA proposes that the IPSB provide enough line-of-sight visibility to allow crewmember situational awareness of the area between the passenger cabin and the entry to the flightdeck. Due to the physical nature of the IPSB, maintaining situational awareness of the area between the passenger cabin and the vestibule area when the IPSB is deployed is important if crewmembers on either side of the IPSB need to act. The proposed design would be evaluated during certification to assess whether it meets the above performance standard. For example, such visibility could be accomplished via the type of material used to construct the IPSB or via open space ( e.g., holes, slots, or other openings) in the IPSB. This visibility requirement would be codified in new § 121.313(l).

Such openings, however, could defeat the purpose of the IPSB if they allowed a person to reach through the barrier and grab the open flightdeck door. Therefore the FAA proposes to require, in new § 25.795(a)(4), that the IPSB prevent a person from doing so. The FAA would provide compliance guidance in Advisory Circular 25.795-X. This guidance would allow an applicant to show compliance using methods that include anthropometric reference values of a 50th percentile male, coupled with a maximum recommended spacing for any openings in the barrier. 22

The FAA requests comment on its proposed method of certifying IPSB installations. The FAA proposes that, during its certification of the IPSB installation, the requirements of §§ 25.365, 25.803, 25.813, 25.815, 25.1411, and 25.1447 would not apply to IPSBs in the deployed configuration. An IPSB, when deployed to block access to the flightdeck, cannot reasonably be expected to meet certain design requirements for transport category airplanes, such as those relating to rapid decompression, emergency evacuation, aisle width, and accessibility to the emergency equipment. Moreover, because this rule would not require that the IPSB be deployed during taxi, takeoff, and landing, and because the IPSB should be immediately stowed after use, the amount of time that the IPSB is deployed should be very brief in comparison to the duration of the flight. This configuration-based compliance method would be similar to the FAA's longstanding method of certification of lavatory doors, in which the FAA considers the position of the door when making compliance findings. Depending on the proposed design, it may be necessary for an applicant to petition for exemption from certain regulations during the certification process.

The FAA proposes that the design of the IPSB, whether deployed or stowed, must allow for necessary crewmember activities. This would include providing adequate space for activities that include crew change-outs, restroom breaks, meal service, etc.

The FAA proposes a new paragraph (l) in § 121.313 that would require all airplanes that § 121.313(f) requires to have a lockable door, and all transport category airplanes that have a door installed between the flightdeck and any other occupied compartment, to incorporate an IPSB that meets the requirements of proposed § 25.795(a)(4). This proposed requirement would apply to newly-manufactured airplanes two years after the effective date of this rule. This approach is consistent with the FAA's existing method of implementing the requirements for reinforced flightdeck doors and is discussed in more detail below. If the operating rules require a flightdeck door on the airplane, § 25.795, which currently specifies the requirements for the flightdeck door, would add the requirements for the IPSB.

An FAA requirement to simply install an IPSB would not necessarily ensure that the IPSB is deployed. Therefore, the FAA also proposes that operators incorporate the use of the IPSB into their flightdeck door opening procedures required by § 121.584. These procedures contain requirements to verify, prior to unlocking or opening a flightdeck door, that the area outside the flightdeck door is secure and, if someone outside the flightdeck seeks to have the flightdeck door opened, then that person is not under duress. New § 121.584(a)(3) would require an operator to deploy (close and lock) the IPSB, if one was required to be installed on that airplane in accordance with new § 121.313(l), before opening the flightdeck door during flight.

An operational procedure included in the operator's methods of compliance with § 121.584 would apply to uses of the IPSB. Some or all of the operator's existing procedures could be retained ( e.g., the procedure for a flight attendant to enter the flightdeck when one of the flightcrew leaves, to meet the requirements of § 121.587(b)), while others may need to be removed or replaced ( e.g., the use of a serving cart as an improvised non-installed barrier). Depending on the operator's procedures for opening the flightdeck door, an IPSB has the potential benefit of requiring only one flight attendant to carry out those procedures. One flight attendant could both deploy the secondary barrier, and enter the flightdeck when a pilot leaves the flightdeck. In contrast, typical current procedures for opening the flightdeck door necessitate more than one flight attendant.

The requirements of § 121.584 are only applicable when the flightdeck door is to be unlocked or opened. To comply with § 121.584 and protect the area just outside the flightdeck door, deployment of the IPSB would occur prior to unlocking or opening the flightdeck door. The FAA expects that the IPSB would remain deployed until after the flightdeck door is closed and locked. Accordingly, the IPSB would be in the stowed position during taxi, takeoff, landing, and the majority of flight.

Any training for operation of the IPSB should be tailored to meet operational requirements of various designs. Non-prescriptive examples of procedures are found in appendix B of the Report.

The FAA proposes a compliance time of two years, after which any transport category airplane manufactured and used in passenger-carrying operations under part 121 would be required to have an IPSB meeting the requirements of proposed § 25.795(a)(4). The FAA proposes this 2-year compliance time, rather than the 18 or 36 months recommended in the Report, for several reasons. There are very few in-production IPSBs currently in existence, so most designs would be new. The means of showing compliance with proposed § 25.795(a)(4) have not yet been developed nor used previously for any of the IPSB that do exist. Consequently, part of the compliance time would be needed for both the applicant and the FAA's validation and refinement of the methods of compliance for both current and new designs. The requirements are complex and there are a large number of different airplane models likely to be affected. Many airplanes that would be required to have an IPSB will require design modification to permit IPSB installation.

For the purposes of this proposal, the FAA considers the date of manufacture to be the date on which inspection records show that an airplane is in a condition for safe flight. This is not necessarily the date on which the airplane is in conformity with the approved type design, or the date on which a certificate of airworthiness is issued, because some items not relevant to safe flight, such as passenger seats, might not be installed at that time. It could be earlier, but would be no later, than the date on which the first flight of the airplane occurs. 23

The FAA proposes to apply the requirements of proposed § 121.313(l) to passenger-carrying, transport category airplanes operating under part 121, and not to those airplanes operating under 14 CFR part 129.

Part 129 governs foreign operators who operate either within the United States, or who operate solely outside the United States, but with airplanes registered in the United States. 24 When the FAA adopted the reinforced flightdeck door requirements in part 121, the agency was concerned that aircraft operations subject to part 129 would be more attractive targets for terrorist actions if security was not similarly improved. Therefore, in June of 2002 the FAA adopted 14 CFR 129.28  25 to require foreign air carriers to have the same level of flightdeck security as domestic air carriers. In this case, the requirement for an IPSB would be applicable to newly-manufactured airplanes only. The portion of the total fleet made up by airplanes that are both newly manufactured, and subject to part 129, is very small, so the difference in risk between the domestic fleet and the international fleet would not be significant under this proposal.

Moreover, after September 11, 2001, the need to require reinforced flightdeck doors was recognized internationally, and civil aviation authorities throughout the world worked together, and with ICAO, to establish uniform standards. 26 The FAA's requirements were mirrored by the civil aviation authorities of most other countries. In contrast, at this time neither ICAO nor other countries are imposing an IPSB requirement. An FAA requirement levied on foreign air carriers for an IPSB would therefore be un-harmonized, and as noted above, would not significantly change the composition of the international fleet since it would only apply to newly-produced airplanes. The FAA anticipates that, if there are no changes in fleet composition, by the time full adoption of IPSBs among the part 121 fleet occurs, approximately 35% of the part 121/129 fleet will lack an IPSB. Should the fleet change, or an IPSB requirement become an international standard, the FAA may reconsider its current position.

The FAA invites comments on applying proposed § 121.313(l) to all transport category airplanes, as well as to all airplanes with a flightdeck door. During a short flight, the flightdeck door may not need to be opened. ARAC therefore recognized that, for short flights, the IPSB may not provide the intended benefit. However, there is no obvious design parameter, such as passenger capacity or airplane gross weight, which correlates with short flights. Also, the maximum range of all of the airplane models that would be covered by this proposed rule exceeds the maximum flight time at which opening the flightdeck is unlikely. Therefore, this proposal does not consider an airplane's size or range, or duration of flight, but invites comment on whether any such limitations are appropriate.

The FAA developed proposed AC 25.795-X, “Installation of Physical Secondary Barriers for Transport Category Airplanes.” This proposed AC would provide guidance on acceptable means, but not the only means, of showing compliance with proposed § 25.795(a)(4).

In addition, the FAA has proposed revisions to AC 120-110, “Aircraft Secondary Barriers and Alternate Flight Deck Security Procedures,” dated April 14, 2015, to add discussion regarding the installation of IPSB and address other operational issues.

The FAA will post these two proposed ACs to the docket for comment. The FAA will also post them to its “Aviation Safety Draft Documents Open for Comment” web page at www.faa.gov/aircraft/draft_docs/.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the impacts of the proposed rule. The FAA provides a detailed Regulatory Impact Analysis in the docket of this rulemaking.

In conducting these analyses, the FAA determined that this proposed rule (1) has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) would not have a significant economic impact on a substantial number of small entities; (4) would not create unnecessary obstacles to the foreign commerce of the United States; and (5) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

During many flights, the flightdeck door must be opened for lavatory breaks, meal service, rest periods, crew changes, etc. Between the time of opening and closing the flightdeck door (door transition), the open flightdeck has some degree of vulnerability to attack. This is especially the case for transcontinental and international flights. During these openings, an attack on the flightdeck could happen quickly; this could leave insufficient time for passengers and cabin crew to react. However, there have been no breaches of a flightdeck since the September 11, 2001 terrorist attacks.

The purpose and functional benefit of IPSBs, which Congress directed the FAA to require by mandate, is to enhance the flightdeck security procedures of 14 CFR 121.584 by slowing the time by which an unauthorized person could reach the flightdeck by at least the time required to open and reclose the flightdeck door. 27

A Briefing Note  28 (Stewart and Mueller, 2019) provided to the ARAC Flightdeck Secondary Barrier Working Group by one of the members, applied an engineering technique—reliability analysis—to the Transportation Security Administration's (TSA) “Layers of Security”  29 to estimate the benefits of secondary barriers in reducing the vulnerability of the U.S. commercial fleet to a 9/11-like terrorist attack. This approach requires estimates of “disruption rates” for the various TSA layers of security and also requires an estimate of the probability of a 9/11-like terrorist attack. Estimates of security layer disruption rates are very difficult to make and, accordingly, are highly uncertain. For example, Stewart and Mueller estimate a disruption rate of 15% for the TSA Airport Checkpoint Screening security layer, whereas Martonosi and Barrett  30 estimate the disruption rate to be 50%. Estimating the probability of a 9/11-like terrorist attack is also difficult since there has been only one such event. Consequently, estimating quantified benefits of the proposed IPSB requirements is problematic. Accordingly, the FAA does not endorse the analysis or conclusions of this Briefing Note.

However, based on estimates of costs of the 9/11 attacks, we have conducted a break-even analysis. An authoritative study  31 of the costs to New York City of the 9/11 attacks provides an estimate of $26.6 billion in physical capital and short-term earnings losses, 32 which amounts to $38.86 billion in 2021 dollars. 33 What remains is to estimate the cost of the 2,763 lives lost in the9/11 attacks. Using DOT's $11.8 million dollar estimate of the Value of Statistical Life (VSL), 34 that loss is $32.60 billion, which added to the physical capital and earnings losses, makes the total New York City costs to be $71.46 billion. We estimate the cost of a single-airplane9/11-type attack (and the value of an averted attack) to be half that at $35.73 billion. The break-even analysis estimates what the annual probability of a single-airplane 9/11-type attack must be in order for the proposed rule to break even, i.e., for the benefits of the proposed rule to be equal to its costs. Dividing the $236.5 million cost  35 of the proposed rule by the $35.7 billion averted attack value yields the break-even annual probability of an attack to be 0.66%. Multiplying this calculated break-even probability of attack times the $35.7 billion averted attack value necessarily returns the $236.5 million break-even expected value of averting an attack. Such a break-even analysis implicitly assumes that the proposed rule is completely effective. Thus, here the proposed rule breaks even under the assumptions that the probability of an attempted attack is as high as 0.66 percent per year and that the proposed rule would be 100% effective in thwarting any such attack.

The FAA requests comments on the incremental benefits of this proposed rule, including additional information and data to quantify benefits.

The FAA uses the cost estimate of $35,000 provided by the Report for the purchase and installation of an IPSB. Costs are estimated in two stages since this proposed rule would require IPSBs be installed on each new airplane that is manufactured for delivery to a passenger air carrier operating under part 121. First-stage costs are calculated for the 25-year period, 2023-2047, during which the fleet operating under part 121 gradually becomes fully equipped with IPSBs. Second-stage costs are calculated to include in the analysis a full 25-year airplane life cycle (2048-2072) for which the entire part 121 fleet is equipped with IPSBs.

In the preliminary analysis of the proposed rule, the FAA estimates the rule would begin to apply to new airplanes operating under part 121 by the end of 2023. The FAA uses its Aerospace Forecast 2020-2040 to estimate the annual increase in the passenger fleet operating under part 121. 36 The sum of the forecast increase in the fleet and the number of retirements determines the annual increase in new airplanes operating under part 121 and therefore the annual number of IPSBs that would be installed in airplanes destined for part 121 operations. Annual retirements are estimated assuming a retirement rate (3.57%) that is consistent with the 2020-2040 forecast of the number of airplanes in part 121 operations. A similar analysis is done to determine the IPSB training costs of pilots and flight attendants, except that training costs apply to current as well as future pilots and flight attendants.

As previously noted, second-stage costs are calculated in order to include a full 25-year airplane life cycle (2048-2072) for which the entire part 121 fleet is equipped with IPSBs. For this second stage, the FAA is well beyond the terminal date of the FAA forecast and, accordingly, assumes a constant growth rate for the part 121 fleet. The constant growth rates for pilots and flight attendants are as before.

Stewart and Mueller also discuss potential added risks associated with IPSBs, including, for example, that crew vigilance and responsiveness might be reduced in the presence of an IPSB. The FAA notes that it does not find significant downsides to the installation of the ISPBs if all other relevant regulations are complied with.

Table 1 summarizes the total costs of the proposed rule by combining stage one and stage two costs. At a seven percent discount rate, the present value total costs of the proposed rule are $236.5 million with annualized costs at $20.3 million. At a three percent discount rate, the present value total costs of the proposed rule are $505.0 million with annualized costs at $ 29.0 million.

At this time neither other countries nor ICAO have identified secondary barriers as a security priority. Therefore, extending the IPSB requirement to foreign air carriers would be un-harmonized. After the events of September 11, 2001, the FAA did apply the hardened flightdeck door requirement to foreign air carriers, but the need for hardened flightdeck doors was recognized internationally and the FAA's standards were reflected in the requirements of most other countries. The FAA estimates that by the time IPSBs are fully adopted among part 121 aircraft, 35% of operating commercial passenger aircraft (parts 121 and 129) will not have an IPSB.

ARAC recognized that, for short flights, the flightdeck door may not need to be opened, in which case the IPSB would not provide the intended benefit. However, ARAC was unable to identify any airplane design parameter, such as passenger capacity or airplane gross weight that correlates with short flights. Also, the range of all the airplane models that would be affected by this proposed rule exceeds the maximum flight length at which opening the flightdeck door is unlikely. Therefore, this proposal does not address an airplane's size or range, or duration of flight, but invites comment on whether any such limitations are appropriate.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The FAA is publishing this Initial Regulatory Flexibility Analysis (IRFA) to aid the public in commenting on the potential impacts to small entities from this proposal. The FAA invites interested parties to submit data and information regarding the potential economic impact that would result from the proposal. The FAA will consider comments when making a determination or when completing a Final Regulatory Flexibility Assessment.

Under sections 603(b) and (c) of the RFA, an IRFA must contain the following:

(1) A description of the reasons why the action by the agency is being considered;

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule;

(3) A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and

(6) A description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

Publication of the rule will satisfy the requirements of section 336 of the FAA Reauthorization Act of 2018. This law requires that the FAA issue an order for the installation of Secondary Cockpit Barriers on each new airplane that is manufactured for delivery to a passenger air carrier in the United States operating under title 14 Code of Federal Regulations (CFR) part 121.

The objective of the proposed rule is to require all airplanes in part 121 passenger operations to have an Installed Physical Secondary Barrier (IPSB). The IPSB would be deployed between the flightdeck and passenger compartments before the flightdeck door was opened so as to protect the flightdeck during the time that the door was opened and closed. This rulemaking is issued under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General Requirements.” Under that section, the FAA is charged with prescribing regulations and minimum standards for the design and performance of airplanes that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority.

There are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

The FAA used the definition of small entities in the RFA for this analysis. The RFA defines small entities as small businesses, small governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3), the RFA defines “small business” to have the same meaning as “small business concern” under section 3 of the Small Business Act. The Small Business Act authorizes the Small Business Administration (SBA) to define “small business” by issuing regulations.

SBA has established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS). 38 These size standards generally define small businesses based on the number of employees or annual receipts.

NAICS has classified certificate holders operating under part 121 in either NAICS 481111, Scheduled Passenger Air Transportation or NAICS 481211, Nonscheduled Chartered Passenger Air Transportation, or both. Since the size standard for either industry is the same at 1500 employees, it is of no concern in which of the two industries they are classified.

In the regulatory impact analysis for this rulemaking, a total of 43 operators operating under part 121 were identified in the FAA's National Vital Information Subsystem (NVIS) data base. Table 2 lists 23 of these operators identified in this study as having less than 1500 employees and therefore potentially subject to consideration under the Regulatory Flexibility Act. Twelve of these operators were identified as small based on airline employment data (Table 2, col. 3) from the DOT Bureau of Transportation Statistics. 39 The remaining eleven operators were identified as having less than 1500 total employees on the basis of their numbers of operations and maintenance employees (also from the NVIS database). One of the small operators, Piedmont Airlines, was excluded from the regulatory flexibility analysis as it is a wholly-owned subsidiary of American Airlines. Since the remaining 22 small operators are more than 50% of the part 21 operator population, the FAA estimates that a substantial number of small firms are affected by this rulemaking.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0980; Project Identifier MCAI-2022-00448-P” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Michael Schwetz, Aviation Safety Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-17, Amendment 39-21815 (86 FR 68905, December 6, 2021), (AD 2021-23-17), for all Hoffmann GmbH & Co. KG model HO-V 72 propellers. AD 2021-23-17 was prompted by reports of cracks at different positions on two affected propeller hubs. AD 2021-23-17 requires amending the existing AFM by inserting abnormal propeller vibration instructions, visual inspection and NDT inspection of the propeller hub and, depending on the results of the inspections, replacement of the propeller hub with a part eligible for installation. The agency issued AD 2021-23-17 to prevent failure of the propeller hub.

Since the FAA issued AD 2021-23-17, the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2022-0061, dated April 4, 2022 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket at www.regulations.gov by searching for and locating Docket No. FAA-2022-0980.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed the following service information:

• Hoffmann Propeller Service Bulletin SB057 C, dated February 22, 2022. This SB specifies procedures for tightening the propeller blade retention nut.

• Hoffmann Propeller Service Bulletin SB059 B, dated February 23, 2022. This SB specifies procedures for tightening the propeller blade retention nut with the correct torque and inspecting the propeller blade for shake.

This proposed AD would also require Hoffmann Propeller GmbH & Co. KG Service Bulletin SB E53 Rev. D, dated February 18, 2021, which was previously approved by the Director of the Federal Register for incorporation by reference on January 10, 2022 (86 FR 68905, December 6, 2021). The service bulletin describes procedures for visual and NDT inspections of the propeller hub for cracks.

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

The FAA reviewed the following service information:

• Hoffmann Propeller Service Bulletin SB058 A, dated February 2, 2022. This SB specifies the updated definition of the counterweight angle.

This proposed AD would retain all of the requirements of AD 2021-23-17. This proposed AD would also require a maintenance records review and, depending on the results of the maintenance records review, tightening of each propeller blade retention nut to specified torque values. Depending on the results of the maintenance records review, this proposed AD would require initial and repetitive physical inspections of the propeller blade for shake. If any axial play is detected during inspection, this proposed AD would require the removal of the propeller from service and the performance of an NDT inspection of the propeller hub.

The FAA estimates that this AD, if adopted as proposed, would affect 35 propellers installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0977; Project Identifier AD-2022-00419-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Scott Stevenson, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA received a report of a crack found on an LPT stage 5 disk at the forward arm area. The manufacturer's analysis revealed that the crack was due to high-vibratory stress caused by a bladed disk mode that resulted in the initiation of multiple high cycle fatigue (HCF) cracks that connected, resulting in a long circumferential crack. As a result of its analysis, the manufacturer published service information that specifies procedures for the removal of the affected LPT stage 5 disk, part number (P/N) 4117T14P02, and replacement with an LPT stage 5 disk, P/N 4117T14P03. The replacement LPT stage 5 disk, P/N 4117T14P03, has a modified geometry (thicker forward arm) that will improve the HCF capability and reduce the likelihood of a crack. This condition, if not addressed, could result in failure of the LPT stage 5 disk, loss of engine thrust control, and reduced control of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed GE CF34-8C Service Bulletin (SB) 72-0352 R00, dated September 20, 2021, and GE CF34-8E SB 72-0240 R00, dated September 20, 2021. These SBs, differentiated by engine model, describe procedures for removing and replacing the affected LPT stage 5 disk, P/N 4117T14P02, with a new LPT stage 5 disk, P/N 4117T14P03.

This proposed AD would require the removal of the affected LPT stage 5 disk and replacement with a part eligible for installation.

The FAA estimates that this AD, if adopted as proposed, would affect 112 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The Social Security Number Fraud Prevention Act of 2017 (the Act) (Pub. L. 115-59; 42 U.S.C. 405 note), which was signed on September 15, 2017, restricts Federal agencies from including individuals' SSNs on documents sent by mail, unless the head of the agency determines that the inclusion of the SSN on the document is necessary (section 2(a) of the Act). The Act requires agency heads to issue regulations specifying the circumstances under which inclusion of an SSN on a document sent by mail is necessary. These regulations, which must be issued not later than five years after the date of enactment, shall include instructions for the partial redaction of SSNs where feasible, and shall require that SSNs not be visible on the outside of any package sent by mail (section 2(b) of the Act). This proposed rule would revise NASA's regulations under the Privacy Act (14 CFR part 1212.6, consistent with the requirements in the Act. The proposed regulation would also clarify the procedural requirements pertaining to the inclusion of SSNs on documents that NASA sends by mail.

Statutory Authority: The National Aeronautics and Space Act (the Space Act), 51 U.S.C. 20101 et seq., authorizes the NASA Administrator to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law. The Social Security Number Fraud Prevention Act of 2017, 42 U.S.C. 405 note, authorizes and requires agencies to promulgate rules related to the mailing of documents that contain an SSN.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, harmonizing rules, and promoting flexibility. This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to prepare an initial regulatory flexibility analysis to be published at the time the proposed rule is published. This requirement does not apply if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 605(b)). This proposed rule does not have any economic impact on small entities.

This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any direct effects on state and local governments within the meaning of the Executive Order. Therefore, no Federalism assessment is required.

For reasons discussed in the preamble, NASA amends 14 CFR part 1212 as follows:

On January 5, 2021, section 4204 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Public Law 116-315 (the Act), amended VA's authority for the VA Homeless Providers Grant and Per Diem (GPD) Program in 38 United States Code (U.S.C.) 2012. The GPD Program provides grants to recipients and eligible entities to provide transitional housing with supportive services for veterans experiencing homelessness as they transition to permanent housing. The purpose of the GPD Program is to promote the development and provision of supportive housing or supportive services with the goal of helping homeless veterans achieve residential stability, increase their skill levels and income, and obtain greater self-determination. Section 2012 establishes the parameters for the rate of per diem payments VA will provide to a grant recipient or eligible entity for services furnished to homeless veterans. VA implements section 2012 in regulation in 38 Code of Federal Regulations (CFR) part 61.

The Act amended the parameters in which VA can adjust the per diem amount and established an additional amount of per diem for veterans with minor dependents. Therefore, we propose to amend 38 CFR part 61 to reflect these statutory changes. We also propose to make technical edits to part 61 and eliminate outdated terminology and cross-references.

As noted above, VA is proposing several substantive changes to part 61 to implement the Act.

Section 61.1 of 38 CFR provides the definitions for the GPD Program. In this rulemaking, we propose to add a definition to the list of definitions in § 61.1. The Act amended section 2012 to revise subsection (a)(2)(A)(iii) to establish an additional amount available to a recipient of a grant or eligible entity for services to homeless veterans when the eligible veteran has care of a minor dependent. We would, therefore, propose to add a definition of minor dependent to clearly state who VA considers a minor dependent for purposes of this additional per diem amount.

VA conducted a review of many States and Federal agencies to determine how it should define the term minor dependent; however, we found that the States and Federal agencies have varying definitions of minor dependent. We also found that some Federal agencies, such as VA, do not define the term minor dependent, but instead define the term child. Section 101(4) of title 38, U.S.C., defines the term child for VA's purposes generally as a person who is unmarried and is (1) under the age of eighteen years; (2) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (3) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution. The definition also includes a detailed description of the required familial relationship to the veteran.

For the purposes of the definition of minor dependent for the GPD program, we propose to adopt VA's definition of child in section 101(4) with minor changes. We would define minor dependent as someone who is unmarried, is identified by the veteran as a family member when presenting for GPD services, and is either under the age of 23 years old or is 23 years old or older and became permanently incapable of self-support before reaching the age of 23. We would exclude emancipated children, as they have taken the affirmative step to establish their independence, meaning they are no longer dependents. Instead of utilizing the detailed and nuanced description of the relationship between the minor dependent and the veteran that is in section 101(4), for the purposes of the GPD program, we would permit the veteran to identify the minor dependent as a family member. This is consistent with how we administer other grant programs, such as the Supportive Services for Veteran Families Grant Program. It is also important because it would allow for flexibility for this population of veterans who may not have traditional family structures. In addition, instead of distinguishing between the age of 18 and up to 23 years old based upon completion of educational training, we would permit all individuals to be minor dependents up to 23 years old. Doing so would make it easier for veterans and their minor dependents so that no verification of educational training would be required.

The Act amended section 2012 by adjusting the parameters under which VA can pay grant recipients and eligible entities. Section 2012(a)(2), as amended, continues to provide that the rate for such per diem payments shall be the daily cost of care estimated by the grant recipient or eligible entity, as adjusted by VA, excluding other sources of income. The Act revised section 2012(a)(2)(A) by adding an additional amount for services provided to a homeless veteran caring for a minor dependent (as discussed above). The Act also revised section 2012(a)(2)(B) to provide that any adjustment may not result in a rate that is lower than the rate in effect under this paragraph as in effect immediately preceding the date of enactment of the Navy SEAL Bill Mulder Act of 2020 (Title IV of the Act, which had a date of enactment of January 5, 2021) and may not result in a rate that exceeds the rate that is 115 percent of the rate authorized for State homes for domiciliary care under 38 U.S.C. 1741(a)(1)(A). The Act also added a new item in section 2012(a)(2)(B)(i)(II)(bb) that provided that the rate may be determined based on locality.

In this rulemaking, we propose to amend 38 CFR 61.33, regarding payment of per diem, to be consistent with the Act. Current § 61.33(c) provides the rate of per diem payment for each veteran in supportive housing shall be the lesser of: (1) the daily cost of care estimated by the per diem recipient minus other sources of payments to the per diem recipient for furnishing services to homeless veterans that the per diem recipient certifies to be correct (other sources include payments and grants from other departments and agencies of the United States, from departments of local and State governments, from private entities or organizations, and from program participants); or (2) the current VA State home program per diem rate for domiciliary care, as set by the Secretary under 38 U.S.C. 1741(a)(1). We, therefore, propose to amend paragraph (c) to align with the statutory changes made by the Act.

We would amend paragraph (c)(2) to state the maximum allowable rate is the rate as adjusted by the Secretary under 38 U.S.C. 2012(a)(2)(B)(i)(II)(aa) and made available on the program's website. Referencing the statutory citation will direct the public to the criteria, and if there is a change to the statutory language in the future, VA would not necessarily need to amend its regulations to be in alignment with the new changes. Rather, VA would maintain seamless compliance with evolving statutory authorities by implementing the necessary changes regarding the rate through Notices of Funding Opportunities (NOFO), grant agreements, and the program website. We note that the maximum rates are currently posted on the GPD Program's website which will not reflect rates that are lower than $49.91 ( https://www.va.gov/HOMELESS/GPD_ProviderRate.asp ), and we propose to continue to provide the rates on such a public-facing VA website.

The Act also established a new subsection (e) in section 2012 that allows reimbursement of certain fees charged to a recipient of a grant under section 2011, 2013, or 2061, or a recipient of per diem payments under section 2012 of title 38 for the use of the homeless management information system (HMIS) described in section 402(f) of the McKinney Vento Homeless Assistance Act (42 U.S.C. 11360a(f)) in amounts the Secretary determines reasonable, and if the Secretary determines that the grant or per diem payment recipient is unable to obtain information contained in such system through other means and at no cost to the recipient. However, the GPD program historically considered these fees to be allowable costs that could be calculated as part of the indirect or direct cost of the grant, as applicable; per diem recipients can continue to include the costs of accessing HMIS into the cost of care calculations as usual, and if HMIS costs result in a rate that exceeds the cap, those costs can be accommodated. Therefore, we would continue to include these costs in the per diem payments, and we do not believe it necessary to amend the regulations accordingly. Nevertheless, VA understands the importance of HMIS participation and would continue to emphasize its importance to the fullest extent through other means, such as through NOFOs, grant agreements, the case management program, and other communication tools.

We note that VA published a final rule on June 25, 2021, 86 FR 33518, that inadvertently removed an exception to the rate of payment for individual veterans, in what was previously in the introductory sentence in 38 CFR 61.33(b) and in paragraph (b)(3). The omitted language should have been included in the introductory sentence of current paragraph (c) and as paragraph (c)(3). We propose to correct this omission. We would amend the introductory sentence of paragraph (c) to now add an exception under paragraph (c)(3). We are also proposing to add a new paragraph (c)(3) to restate the exception that was omitted in the prior final rule with no edits to the language aside from correcting the citation from paragraph (b)(1) to reference paragraph (c)(1). Paragraph (c)(3) would state for a veteran who is placed in housing that will become permanent housing for that veteran upon termination of supportive housing services, the rate of payment shall be the lesser of 150 percent of the current VA State home program per diem rate for domiciliary care, as set by the Secretary under 38 U.S.C. 1741(a)(1) or the daily cost of care estimated pursuant to paragraph (c)(1) of this section.

As previously noted, the Act added a new item in section 2012(a)(2)(B)(i)(II)(bb) that provided that the rate may be determined based on locality. VA is not exercising this authority at this time.

In this rulemaking we also propose to add a new paragraph (d) to address the rate of payment for a veteran who has care of one or more minor dependents. The Act established that, for purposes of calculating the rate for per diem payments, in the case of a homeless veteran who has care of a minor dependent while receiving services from the grant recipient or eligible entity, the daily cost of care of the homeless veteran shall be the sum of the daily cost of care of the homeless veteran plus, for each such minor dependent, an amount that equals 50 percent of such daily cost of care. See 38 U.S.C. 2012(a)(2)(A)(iii). For clarity and consistency with our current regulatory structure, VA believes it would be more appropriate to create a separate paragraph for the additional rate for veterans who have minor dependents when implementing this provision.

The rate would be calculated by determining the rate of the individual veteran pursuant to paragraph (c) and then adding 50 percent of that rate for each minor dependent. Instead of specifically stating that we would add 50 percent of the rate for each minor dependent, we would cite to the statutory authority at 38 U.S.C. 2012(a)(2)(A)(iii). Referencing the statutory authority could allow for VA to quickly make any changes to the rate structure were Congress to make any future amendments to how the rate should be calculated. In addition, we would state that the additional rate would be made available on the GPD Program's website. Proposed paragraph (d) would also require that the veteran be receiving services from the grant recipient or eligible entity, consistent with the Act, and would require the minor dependent to occupy a bed on the same day for which a veteran-care rate is paid. This would be consistent with the language in section 2012(a)(2)(A)(iii).

In addition to the substantive changes discussed above, VA also proposes a number of technical or grammatical amendments to part 61.

We propose to make technical edits throughout part 61 to replace the term Notice of Fund Availability or NOFA with Notice of Funding Opportunity. We would be making these edits to mirror the term as it is used in other sections of the CFR, specifically 2 CFR 200.204, which governs Notices of Funding Opportunity for discretionary grants and cooperative agreements. These edits would not change the meaning of the definition as stated in § 61.1. For this reason, we propose to amend §§ 61.1, 61.3, 61.11, 61.12, 61.14, 61.15, 61.18, 61.31, 61.32, 61.41, 61.51, 61.52, 61.54, and 61.92.

Part 61 of 38 CFR does not consistently capitalize the term State as it applies to one of the 50 States, Commonwealths, or territories of the United States. As such, we propose to capitalize the term State by amending §§ 61.1, the definitions of public entity and State, 61.11(b)(6), 61.13(d)(10), (f), and (g), 61.15(a)(6) and (a)(7), 61.31(b)(4), 61.51(b)(6), 61.53(c)(6), 61.61(e), 61.62(c), 61.80(a) and (b)(4), 61.92(d)(7), (f), and (g).

We propose to remove the term area or community from the list of definitions in § 61.1. VA defines the term area or community as a political subdivision or contiguous political subdivisions (such as a precinct, ward, borough, city, county, State, Congressional district, etc.) with a separately identifiable population of homeless veterans. We propose to remove the definition of area or community because VA no longer relies on the area or community as the term is currently defined. Instead, VA relies on the VA medical facility areas, which are stated in the NOFOs.

We propose to remove the term fixed site from the list of definitions in § 61.1. VA defines the term fixed site to mean a physical structure that under normal conditions is not capable of readily being moved from one location to another location. VA believes that this term can rely on the common dictionary definition of the term and does not see that any additional clarification is provided by this regulatory definition.

We propose to make a technical correction to the definition of homeless in § 61.1 by correcting the statutory citation at the end of the definition. In the current definition, we define homeless to have the meaning given that term in section 103 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11302(a)). To correct the citation, we propose to add subsections (b) and (d) after the citation to section 11302(a) to now state 42 U.S.C. 11302(a), (b), and (d). This correction is made to include relevant clarifications from the law about the definition of homeless. No other edits to the meaning of this paragraph would be intended by this change.

As previously stated in this rulemaking, we propose to amend the term Notice of Fund Availability to now state Notice of Funding Opportunity. In addition, we also propose to clarify that Notices of Funding Opportunities are published on the Office of Management and Budget (OMB)-designated website (as required by 2 CFR 200.204 and OMB's Management Procedures Memorandum No. 2021-01). We propose to make this edit because grant opportunities generally are no longer published in the Federal Register , but rather they are posted on the Grants.gov website. We would not specify the website address in case the website changes again in the future. No other edits to the meaning of this paragraph would be intended by this change.

We propose to remove the definition of the term rehabilitation in the list of definitions in § 61.1. VA defines the term rehabilitation to mean the improvement or repair of an existing structure but excludes minor or routine repairs. This definition is no longer indicative of what rehabilitation means for GPD grants. The term rehabilitation can have a variety of meanings, which would depend on the scope of a particular funding opportunity. As such, we would omit the definition in the regulation and continue to define rehabilitation in the NOFO, as needed.

We propose to remove the definition of the term total project cost from the list of definitions in § 61.1. VA defines the term total project cost to mean the sum of all costs incurred by a recipient for the acquisition, rehabilitation, and new construction of a facility, or van(s), identified in a grant application. VA believes that this definition of the term is no longer broadly applicable to GPD projects because the types of projects have expanded beyond capital projects. Furthermore, Federal-wide cost principles for grants adequately define what constitutes total costs in 2 CFR 200.402. Therefore, additional clarification would not be provided by the current definition.

Section 61.12 establishes the threshold requirements that must be met for the capital grants program. Paragraph (e) states that the application must demonstrate compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4601-4655). However, because the timeline between application and award is usually several months, the actual property that will be acquired is typically not determined until after the capital grant has been awarded. As a result, compliance with the URA would occur after VA awards a capital grant at the time the grantee demonstrates site control before receiving capital grant payments. Therefore, VA believes that this compliance requirement would be best placed under site control in § 61.17. This proposed amendment would not change current practice. We, therefore, propose to remove paragraph (e) from § 61.12 and redesignate current paragraphs (f) through (i) as new paragraphs (e) through (h), respectively. We would also add a new paragraph (b) to § 61.17 to state the site must be in compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4601-4655). No changes in the meaning of this paragraph would be made by this change. We would also redesignate current paragraphs § 61.17(b) and (c) as new paragraphs (c) and (d), respectively.

Section 61.13 establishes the rating criteria for the capital grant. Paragraph (g) contains the rating criterion addressing coordination with other programs. Paragraph (g) states that VA will award up to 200 points based on the extent to which applicants demonstrate that they have coordinated with Federal, State, local, private and other entities serving homeless persons in the planning and operation of the project; it then lists examples of such entities. In addition, it states that applicants are required to demonstrate that they have coordinated with the VA medical care facility of jurisdictionand/or VA Regional Office of jurisdiction in their area. We propose to remove the reference to the VA Regional Office of jurisdiction in their area because the GPD program is coordinated by the Veterans Health Administration via the VA medical facilities and not VA Regional Offices. Therefore, we propose to state that applicants are required to demonstrate that they have coordinated with the VA medical facility of jurisdiction.

Paragraph (g) also specifies that VA will award up to 50 points of the 200 points based on the extent to which commitments to provide supportive services are documented at the time of application. Up to 150 points of the 200 points will be given to the extent applicants demonstrate that: (1) they are part of an ongoing community-wide planning process within the framework described above which is designed to share information on available resources and reduce duplication among programs that serve homeless veterans; (2) they have consulted directly with the closest VA Medical Center and other providers within the framework described above regarding coordination of services for project participants; and (3) they have coordinated with the closest VA Medical Center their plan to assure access to health care, case management, and other care services. We propose to remove these specific criteria because that information is not useful in reviewing, scoring, and selecting high-quality applications. We believe that the portion of paragraph (g) we propose to remain in the rule would continue to hold applicants accountable for coordinating with other programs but would provide the necessary flexibility for VA reviewers to score those applications based on the type and quality of coordination that will result in the best services for veterans even as changes to how communities are organized may arise. We also would make a minor grammatical edit for clarity by adding a comma after “private” in the list of entities serving homeless persons.

Section 61.15 establishes the procedures for obtaining additional information for the capital grants, as necessary, and for awarding such grants. Paragraph (a)(4) requires that the applicant submit documentation establishing compliance with the National Historic Preservation Act (NHPA) (16 U.S.C. 470). However, this citation is no longer correct as the provisions of the NHPA were moved by Public Law 113-287 (December 19, 2014). The correct statutory citation is 54 U.S.C. 300101 et seq. Part 106 of the NHPA (54 U.S.C. 306108) requires Federal agencies to take into account the effects of an undertaking on historic properties. Regulations implementing part 106 (36 CFR part 800) provide how Federal agencies meet this statutory responsibility. We propose to amend paragraph (a)(4) with the current NHPA citation and to state that the applicant may be asked to submit documentation establishing compliance with 36 CFR part 800, the regulations implementing section 106 of the NHPA (54 U.S.C. 306108). No other change to the meaning of this paragraph would be intended by this change.

Paragraph (a)(5) requires the applicant to submit information necessary for VA to ensure compliance both with Uniform Federal Accessibility Standards (UFAS) and the Americans with Disabilities Act (ADA) Accessibility Guidelines. In 1968, VA was a major advocate for The Architectural Barriers Act, Public Law 90-480, which ensured that buildings financed with Federal funds were so designed and constructed as to be accessible to everyone. This law required all construction, renovation, or leasing with Federal funds meet Uniform Federal Accessibility Standards (UFAS). These standards brought all Federal agencies under a common accessibility guideline for the first time. The Americans with Disabilities Act (ADA) of 1990 set accessibility requirements for State and local government, as well as private sector projects, similar to the requirements set for Federal projects through the Architectural Barriers Act. Today, VA follows U.S. General Services Administration and other standard-setting agencies in replacing UFAS with the Architectural Barriers Act Accessibility Standard (ABAAS) for Federal facilities. As such, we propose to amend paragraph (a)(5) to now state that the applicant must ensure compliance both with Architectural Barriers Act Accessibility Standards and the Americans with Disabilities Act Accessibility Guidelines. This is not a substantive change for applicants, and no other change to the meaning of this paragraph would be intended by this change.

Paragraph (a)(8) requires the applicant, as necessary, to ensure compliance with the provisions of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq. ) and its implementing regulations (40 CFR parts 1500-1508). As required by NEPA, VA established agency-specific procedures to implement the requirements of NEPA at 38 CFR part 26. We propose to amend paragraph (a)(8) to also reference VA's implementing regulations and to direct the reader to the NEPA requirements specific to VA. Therefore, we propose to amend paragraph (a)(8) to state that the applicant, as necessary, must submit information necessary for VA to ensure compliance with the NEPA, the generally applicable regulations implementing NEPA (40 CFR parts 1500-1508), and VA's agency-specific regulations implementing NEPA (38 CFR part 26). No other change to the meaning of this paragraph would be intended by this change.

We propose to revise paragraph (a) of § 61.80 to be consistent with 38 U.S.C. 2011(b)(5)(B). Paragraph (a) of § 61.80 does not contain the statutory phrase “or such other comparable fire and safety requirements as the Secretary may specify” and only references the Life Safety Code of the National Fire Protection Association. Including the statutory language in the regulation would more closely follow the language of the statute and would continue to ensure the safety of veterans who reside in supportive housing or who receive support from service centers. No other edits to the meaning of this paragraph would be intended by this change.

Section 61.92 establishes the application and rating criteria for grants for case management services. We propose to make a technical edit to § 61.92(b) to correct a typographical error. Paragraph (b) states that to be eligible for a case management grant, an applicant must receive at least 750 points (out of a possible 1000) and must receive points under paragraphs (c) through (f) of this section. This paragraph should have referenced paragraphs (c) through (g) of this section, not paragraphs (c) through (f), and we propose to make this edit. As previously stated, we would also revise the term Notice of Fund Availability (NOFA) to now state Notice of Funding Opportunity, where it appears in this section. No other edits to the meaning of this section would be intended by this change.

As stated, paragraphs (c) through (g) list the rating criteria for applicants. Paragraph (g) provides the criteria addressing coordination with other programs and states VA will award up to 200 points based on the extent to which the applicant demonstrates that it has coordinated with Federal, State, local, private, and other entities serving homeless persons or persons at risk for homelessness in the planning and operation of the case management services project; it then lists examples of such entities. In addition, it states that applicants are required to demonstrate that they have coordinated with the VA medical care facility of jurisdiction or VA Regional Office of jurisdiction in their area. We propose to remove the reference to the VA Regional Office of jurisdiction in their area because the GPD program is coordinated by the Veterans Health Administration via the VA medical facilities and not VA Reginal Offices. Therefore, we propose to state that applicants are required to demonstrate that they have coordinated with the VA medical facility of jurisdiction.

Paragraph (g) further specifies that VA will award up to 50 points of the 200 points based on the extent to which commitments to provide supportive services are documented at the time of application. Up to 150 points of the 200 points will be given to the extent applicants demonstrate that: (1) they are part of an ongoing community-wide planning process within the framework described in this section, which is designed to share information on available resources and reduce duplication among programs that serve homeless veterans ( e.g., Continuum of Care); (2) they have consulted directly with the closest VA medical facility and other providers within the framework described in this section regarding coordination of services for project participants; and (3) they have coordinated with the closest VA medical facility their plan to assure access to health care, case management, and other care services. We propose to remove these specific criteria because, as previously stated in this rulemaking, this information is not useful in reviewing, scoring, and selecting high-quality applications. We believe that the portion of paragraph (g) we propose to retain in the rule would continue to hold applicants accountable for coordinating with other programs but would provide the necessary flexibility for VA reviewers to score those applications based on the type and quality of coordination that will result in the best services for veterans even as changes to how communities are organized may arise.

We also make other minor grammatical edits for clarity, such as in section 61.32, removing a comma and adding the word “the”.

In addition, § 61.92 currently contains an incomplete Office of Management and Budget (OMB) information collection control number. The information collection in this regulation has been approved by OMB and has been assigned OMB control number 2900-0554. We propose to update § 61.92 to correctly reflect OMB's control number.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this proposed rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The provisions associated with this rulemaking do not involve costs to small entities because the GPD Program provides Federal awards ( e.g., grant money) to small entities. Although the small entities must apply for Federal awards, there are no out-of-pocket expenses ( e.g., no filing fees) created by this rulemaking. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

This proposed rule would amend 38 CFR 61.11, 61.12, 61.15, 61.31, 61.41, 61.51, 61.80, and 61.92, which contain provisions constituting collections of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). However, no new or proposed revised collections of information are associated with this proposed rule. The information collection requirements for §§ 61.11, 61.12, 61.15, 61.31, 61.41, 61.51, 61.80, and 61.92 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0554. However, in earlier rulemakings, VA did not update § 61.92 to correctly reflect OMB control number 2900-0554. As noted above, we propose to correct this omission through this rulemaking by updating the reference in § 61.92 to OMB control number 2900-0554.

The Assistance Listing number and title for the program affected by this document is 64.024, VA Homeless Providers Grant and Per Diem Program.

Denis McDonough, Secretary of Veterans Affairs, approved this document on July 13, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 61 as set forth below:

The revisions and additions read as follow:

The revision reads as follows.

The revisions and additions read as follows:

The revision reads as follows.

The revisions read as follows:

I. What action is EPA proposing?

EPA is proposing to approve changes to the Kentucky SIP that were received by EPA on March 29, 2021. Kentucky's March 29, 2021, submittal seeks to remove from the SIP permits that are currently held by LL Flex, LLC, Louisville Laminating Plant (LL Flex) in Louisville, Kentucky, and that contain a volatile organic compound (VOC) bubble  1 for the facility to meet Reasonably Available Control Technology (RACT) requirements. At the same time, this revision seeks to replace those permits with a Board Order issued by the Air Pollution Control Board (Board) of Jefferson County.

In 1990, EPA approved a revision to the Kentucky SIP that added an emission reduction plan in the form of a “bubble rule” for the Alcan Foil Products  2 (now LL Flex) plant in Louisville, Kentucky. See 55 FR 20268 (May 16, 1990). That revision allowed the facility to average, or “bubble,” VOC emissions from nine rotogravure printing/coating machines in lieu of achieving compliance with Jefferson County's SIP-approved graphic arts VOC RACT regulation—Regulation 6.29, “Standard of Performance for Existing Graphic Arts Facilities Using Rotogravure and Flexography”—on a line-by-line  3 basis. The revision treated the nine machines as one affected facility and required the facility to achieve a VOC emissions reduction equivalent to at least 20 percent of the baseline emissions from the affected units. 4 Jefferson County included these provisions in permits issued by the District to Alcan Foil Products (now LL Flex), and those permits were incorporated by reference into the Kentucky SIP. Specifically, the May 16, 1990, approval incorporated into the SIP the Air Pollution Control District of Jefferson County's (APCDJC's) Permits 103-74, 104-74, 105-74, 106-74, 110-74, and 111-74, as effective on February 28, 1990.

Subsequently, in 1998, EPA approved a revision to the Kentucky SIP that provided additional flexibilities in plant operations of Reynolds Metals Company (now LL Flex) so that customer printing demands could be satisfied. See 63 FR 1927 (January 13, 1998). The revision lowered the daily maximum VOC emissions allowed from the facility's nine rotogravure printing/coating machines but retained the 266.2 tons per year limit for the facility and increased the number of operating days allowed. Additionally, the revision removed the maximum operating speeds for the nine machines. Jefferson County included these provisions in permits issued by the District to Reynolds Metals Company, and those permits were incorporated by reference into the Kentucky SIP. Specifically, the January 13, 1998, approval incorporated into the SIP updates to the previously approved APCDJC Permits 103-74, 104-74, 105-74, 106-74, 110-74, and 111-74, as effective on April 16, 1997.

Jefferson County has chosen to submit a SIP revision to remove the permits incorporated by reference and replace them with a Board Order, which was issued by the District to the facility on November 18, 2020, and which imposes control requirements that are at least as stringent than those in the permits. 5 6 This way, the Board Order would become the source-specific SIP-approved provision, and any future amendments made by the District to the facility's permits for matters that are unrelated to the Board Order conditions will not necessitate a SIP revision.

EPA has reviewed the Board Order and preliminarily determined that it achieves a level of VOC emissions control that is at least as stringent as the requirements of the permits that were incorporated by reference into the SIP in 1990 and revised in 1998. Specifically, EPA notes the following similarities and differences between the Board Order proposed for incorporation into the SIP and the permits proposed for removal from the SIP: (1) the Board Order applies to eight of the nine machines that are identified in Condition 2 of the permits—one of the nine original machines (number 16) has been removed from the facility and will no longer be operated; (2) the Board Order continues to allow the machines to operate 365 days per year; (3) while Condition 5.f of the permits requires that compliance reports be submitted to the District monthly, the Board Order allows semiannual compliance reporting, which is consistent with EPA's 1999 Recordkeeping and Reporting Burden Reduction rulemaking, see 64 FR 7458 (February 12, 1999); (4) the Board Order continues to limit VOC emissions to 1,458 pounds per day and 266.2 tons per year; (6) Condition 7 of the permits requires the machine owner or operator to comply with a daily RACT allowable limitation for all inks and coatings used of 65 percent by weight control for solvent-based inks run on the machines within the bubble, usage of 75 percent water by volume in the volatile portion of water-based coatings/inks, or usage of high solids content coatings/inks with greater than 60 percent nonvolatile material on a water-free basis. The Board Order retains this requirement but adds a new compliance option allowing for all inks and coatings to contain no more than 0.5 pounds of VOC per pound of solids, which is consistent with SIP-approved Rule 6.29, Section 3, provision 3.1.3 ( see 58 FR 54516 (October 22, 1993) and 82 FR 47376 (October 12, 2017)). 7 The SIP revision includes a quantitative analysis from LL Flex demonstrating that this option, if utilized, would not increase VOC emissions. 8

EPA has preliminarily determined that approval of this SIP revision would not increase air pollutant emissions from LL Flex and will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable Clean Air Act (CAA) requirement based on LL Flex's quantitative demonstration and on the nature of the differences between the Board Order and the SIP-approved permits, as modified in 1998.

In this action, EPA is proposing to include in a final EPA rule amended regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, as described in Sections I and II of the preamble, EPA is proposing the incorporation by reference of Jefferson County's source-specific Board Order for LL Flex, LLC, effective on November 18, 2020. Also in this document, EPA is proposing to remove APCDJC Permits 103-74, 104-74, 105-74, 106-74, 110-74, and 111-74, effective on February 28, 1990, for Alcan Foil Products and effective on April 16, 1997, for the Reynolds Metals Company, from the Kentucky SIP, which were incorporated by reference in accordance with requirements of 1 CFR 51.5. EPA has made, and will continue to make, the SIP generally available at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

EPA is proposing to approve the March 29, 2021, SIP revision and replace the existing source-specific permits for the LL Flex facility in the Kentucky SIP with the November 18, 2020, Board Order.

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

• is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments. CMS will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the individual will take actions to harm the individual. CMS continues to encourage individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments.

The Vision for Medicare ( https://www.cms.gov/blog/building-cms-strategic-vision-working-together-stronger-medicare ) puts the person at the center of care and drives towards a future where people with Medicare receive more equitable, high quality, and whole-person care that is affordable and sustainable. Through this Request for Information (RFI), the Centers for Medicare & Medicaid Services (CMS) is seeking feedback on ways to strengthen Medicare Advantage (MA) in ways that align with the Vision for Medicare and the CMS Strategic Pillars ( https://www.cms.gov/cms-strategic-plan ). An additional goal of this RFI is to create more opportunities for stakeholders to engage with CMS, in line with the agency's Strategic Pillars that prioritize increased engagement with our partners and the communities we serve throughout the policy development and implementation process. We encourage input from a wide variety of voices on the questions below, including beneficiary advocates, plans, providers, community-based organizations, researchers, employers and unions, and all other stakeholders.

CMS defines health equity as “the attainment of the highest level of health for all people, where everyone has a fair and just opportunity to attain their optimal health regardless of race, ethnicity, disability, sexual orientation, gender identity, socioeconomic status, geography, preferred language, or other factors that affect access to care and health outcomes” ( https://www.cms.gov/pillar/health-equity ). The CMS Framework for Health Equity ( https://www.cms.gov/About-CMS/Agency-Information/OMH/equity-initiatives/framework-for-health-equity ) lays out how CMS is working to advance health equity by designing, implementing, and operationalizing policies and programs that support health for all the people served by our programs, eliminating avoidable differences in health outcomes experienced by people who are disadvantaged or underserved, and providing the care and support that our enrollees need to thrive. We seek feedback regarding how we can enhance health equity for all enrollees through MA.

1. What steps should CMS take to better ensure that all MA enrollees receive the care they need, including but not limited to the following:

• Enrollees from racial and ethnic minority groups.

• Enrollees who identify as lesbian, gay, bisexual, or another sexual orientation.

• Enrollees who identify as transgender, nonbinary, or another gender identity.

• Enrollees with disabilities, frailty, other serious health conditions, or who are nearing end of life.

• Enrollees with diverse cultural or religious beliefs and practices.

• Enrollees of disadvantaged socioeconomic status.

• Enrollees with limited English proficiency or other communication needs.

• Enrollees who live in rural or other underserved communities. 1

2. What are examples of policies, programs, and innovations that can advance health equity in MA? How could CMS support the development and/or expansion of these efforts and what data could better inform this work?

3. What are effective approaches in MA for screening, documenting, and furnishing health care informed by social determinants of health (SDOH)?  2 Where are there gaps in health outcomes, quality, or access to providers and health care services due partially or fully to SDOH, and how might they be addressed? How could CMS, within the scope of applicable law, drive innovation and accountability to enable health care that is informed by SDOH?

4. What have been the most successful methods for MA plans to ensure access to language services for enrollees in different health care settings? Where is improvement needed?

5. What socioeconomic data do MA plans leverage to better understand their enrollees and to inform care delivery? What are the sources of this data? What challenges exist in obtaining, leveraging, or sharing such data?

6. For MA plans and providers that partner with local community-based organizations (for example, food banks, housing agencies, community action agencies, Area Agencies on Aging, Centers for Independent Living, other social service organizations) and/or support services workers (for example, community health workers or certified peer recovery specialists) to meet SDOH of their enrollees and/or patients, how have the compensation arrangements been structured? In the case of community-based organizations, do MA plans and providers tend to contract with individual organizations or networks of multiple organizations? Please provide examples of how MA plans and providers have leveraged particular MA supplemental benefits for or within such arrangements as well as any outcomes from these partnerships.

7. What food- or nutrition-related supplemental benefits do MA plans provide today? How and at what rate do enrollees use these benefits, for example, for food insecurity and managing chronic conditions? How do these benefits improve enrollees' health? How are MA Special Needs Plans (SNPs) targeting enrollees who are in most need of these benefits? What food- or nutrition-related policy changes within the scope of applicable law could lead to improved health for MA enrollees? Please include information on clinical benefits, like nutrition counseling and medically-tailored meals, and benefits informed by social needs, such as produce prescriptions and subsidized/free food boxes.

8. What physical activity-related supplemental benefits do MA plans provide today? At what rate do enrollees use these benefits? How do these benefits improve enrollees' health? What physical activity-related policy changes within the scope of applicable law could lead to improved health for MA enrollees?

9. How are MA SNPs, including Dual Eligible SNPs (D-SNPs), Chronic Condition SNPs (C-SNPSs), and Institutional SNPs (I-SNPs), tailoring care for enrollees? How can CMS support strengthened efforts by SNPs to provide targeted, coordinated care for enrollees?

10. How have MA plans and providers used algorithms to identify enrollees that need additional services or supports, such as care management or care coordination? Please describe prediction targets used by the algorithms to achieve this, such as expected future cost and/or utilization, whether such algorithms have been tested different kinds of differential treatments, impacts, or inequities, including racial bias, and if bias is identified, any steps taken to mitigate unjustified differential outcomes. For MA plans and providers that do test for differential outcomes in their algorithms, please provide information on how such tests function, how their validity is established, whether there is independent evaluation, and what kind of reporting is generated.

11. How are MA plans currently using MA rebate dollars to advance health equity and to address SDOH? What data may be helpful to CMS and MA plans to better understand those benefits?

CMS is committed to providing affordable quality health care for all people with Medicare. We seek feedback regarding how we can continue to strengthen beneficiary access to health services to support this goal in MA.

1. What tools do beneficiaries generally, and beneficiaries within one or more underserved communities specifically, need to effectively choose between the different options for obtaining Medicare coverage, and among different choices for MA plans? How can CMS ensure access to such tools?

2. What additional information is or could be most helpful to beneficiaries who are choosing whether to enroll in an MA plan or Traditional Medicare and Medigap?

3. How well do MA plans' marketing efforts inform beneficiaries about the details of a given plan? Please provide examples of specific marketing elements or techniques that have either been effective or ineffective at helping beneficiaries navigate their options. How can CMS and MA plans ensure that potential enrollees understand the benefits a plan offers?

4. How are MA plans providing access to behavioral health services, including mental health and substance use disorder services, as compared to physical health services, and what steps should CMS take to ensure enrollees have access to the covered behavioral health services they need?

5. What role does telehealth play in providing access to care in MA? How could CMS advance equitable access to telehealth in MA? What policies within CMS' statutory or administrative authority could address access issues related to limited broadband access? How do MA plans evaluate the quality of a given clinician or entity's telehealth services?

6. What factors do MA plans consider when determining whether to make changes to their networks? How could current network adequacy requirements be updated to further support enrollee access to primary care, behavioral health services, and a wide range of specialty services? Are there access requirements from other federal health insurance options, such as Medicaid or the Affordable Care Act Marketplaces, with which MA could better align?

7. What factors do MA plans consider when determining which supplemental benefits to offer, including offering Special Supplemental Benefits for the Chronically Ill (SSBCIs) and benefits under CMS' MA Value-Based Insurance Design (VBID) Model? How are MA plans partnering with third parties to deliver supplemental benefits?

8. How are enrollees made aware of supplemental benefits for which they qualify? How do enrollees access supplemental benefits, what barriers may exist for full use of those benefits, and how could access be improved?

9. How do MA plans evaluate if supplemental benefits positively impact health outcomes for MA enrollees? What standardized data elements could CMS collect to better understand enrollee utilization of supplemental benefits and their impacts on health outcomes, social determinants of health, health equity, and enrollee cost sharing (in the MA program generally and in the MA VBID Model)?

10. How do MA plans use utilization management techniques, such as prior authorization? What approaches do MA plans use to exempt certain clinicians or items and services from prior authorization requirements? What steps could CMS take to ensure utilization management does not adversely affect enrollees' access to medically necessary care?

11. What data, whether currently collected by CMS or not, may be most meaningful for enrollees, clinicians, and/or MA plans regarding the applications of specific prior authorization and utilization management techniques? How could MA plans align on data for prior authorization and other utilization management techniques to reduce provider burden and increase efficiency?

We strive to deliver better, more affordable care and improved health outcomes. Key to this mission are care innovations that empower the beneficiary to engage with their health care and other service providers. We seek feedback regarding how to promote innovation in payment and care delivery, and accountable, coordinated care responsive to the specific needs of each person enrolled in MA.

1. What factors inform decisions by MA plans and providers to participate (or not participate) in value-based contracting within the MA program? How do MA plans work with providers to engage in value-based care? What data could be helpful for CMS to collect to better understand value-based contracting within MA? To what extent do MA plans align the features of their value-based arrangements with other MA plans, the Medicare Shared Savings Program, Center for Medicare and Medicaid Innovation (CMMI) models, commercial payers, or Medicaid, and why?

2. What are the experiences of providers and MA plans in value-based contracting in MA? Are there ways that CMS may better align policy between MA and value-based care programs in Traditional Medicare (for example, Medicare Shared Savings Program Accountable Care Organizations) to expand value-based arrangements?

3. What steps within CMS's statutory or administrative authority could CMS take to support more value-based contracting in the MA market? How should CMS support more MA accountable care arrangements in rural areas?

4. How are providers and MA plans incorporating and measuring outcomes for the provision of behavioral health services in value-based care arrangements?

5. What is the experience for providers who wish to simultaneously contract with MA plans or participate in an MA network and participate in an Accountable Care Organization (ACO)? How could MA plans and ACOs align their quality measures, data exchange requirements, attribution methods and other features to reduce provider burden and promote delivery of high-quality, equitable care?

6. Do certain value-based arrangements serve as a “starting point” for MA plans to negotiate new value-based contracts with providers? If so, what are the features of these arrangements (that is, the quality measures used, data exchange and use, allocation of risk, payment structure, and risk adjustment methodology) and why do MA plans choose these features? How is success measured in terms of quality of care, equity, or reduced cost?

7. What are the key technical and other decisions MA plans and providers face with respect to data exchange arrangements to inform population health management and care coordination efforts? How could CMS better support efforts of MA plans and providers to appropriately and effectively collect, transmit, and use appropriate data? What approaches could CMS pursue to advance the interoperability of health information across MA plans and other stakeholders? What opportunities are there for the recently released Trusted Exchange Framework and Common Agreement  3 to support improved health information exchange for use cases relevant to MA plans and providers?

8. How do beneficiaries use the MA Star Ratings? Do the MA Star Ratings quality measures accurately reflect quality of care that enrollees receive? If not, how could CMS improve the MA Star Ratings measure set to accurately reflect care and outcomes?

9. What payment or service delivery models could CMMI test to further support MA benefit design and care delivery innovations to achieve higher quality, equitable, and more person-centered care? Are there specific innovations CMMI should consider testing to address the medical and non-medical needs of enrollees with serious illness through the full spectrum of the care continuum?

10. Are there additional eligibility criteria or benefit design flexibilities that CMS could test through the MA VBID Model that would test how to address social determinants of health and advance health equity?

11. What additional innovations could be included to further support care delivery and quality of care in the Hospice Benefit Component of the MA VBID Model? What are the advantages and disadvantages of receiving the hospice capitation payment as a standalone payment rather than as part of the bid for covering Parts A and B benefits?

12. What issues specific to Employer Group Waiver Plans (EGWPs) should CMS consider?

We are committed to ensuring that Medicare beneficiaries have access to affordable, high value options. We request feedback on how we can improve the MA market and support effective competition.

1. What policies could CMS explore to ensure MA payment optimally promotes high quality care for enrollees?

2. What methodologies should CMS consider to ensure risk adjustment is accurate and sustainable? What role could risk adjustment play in driving health equity and addressing SDOH?

3. As MA enrollment approaches half of the Medicare beneficiary population, how does that impact MA and Medicare writ large and where should CMS direct its focus?

4. Are there additional considerations specific to payments to MA plans in Puerto Rico or other localities that CMS should consider?

5. What are notable barriers to entry or other obstacles to competition within the MA market generally, in specific regions, or in relation to specific MA program policies? What policies might advantage or disadvantage MA plans of a certain plan type, size, or geography? To what extent does plan consolidation in the MA market affect competition and MA plan choices for beneficiaries? How does it affect care provided to enrollees? What data could CMS analyze or newly collect to better understand vertical integration in health care systems and the effects of such integration in the MA program?

6. Are there potential improvements CMS could consider to the Medical Loss Ratio (MLR) methodology to ensure Medicare dollars are going towards beneficiary care?

7. How could CMS further support MA plans' efforts to sustain and reinforce program integrity in their networks?

8. What new approaches have MA plans employed to combat fraud, waste, and abuse, and how could CMS further assist and augment those efforts?

The goals of Medicare can only be achieved through partnerships and an ongoing dialogue between the program and enrollees and other key stakeholders. We request feedback regarding how we can better engage our valued partners and other stakeholders to continuously improve MA.

1. What information gaps are present within the MA program for beneficiaries, including enrollees, and other stakeholders? What additional data do MA stakeholders need to better understand the MA program and the experience of enrollees and other stakeholders within MA? More generally, what steps could CMS take to increase MA transparency and promote engagement with the MA program?

2. How could CMS promote collaboration amongst MA stakeholders, including MA enrollees, MA plans, providers, advocacy groups, trade and professional associations, community leaders, academics, employers and unions, and researchers?

3. What steps could CMS take to enhance the voice of MA enrollees to inform policy development?

4. What additional steps could CMS take to ensure that the MA program and MA plans are responsive to each of the communities the program serves?

Please note, this is a request for information (RFI) only. In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration, are not generally considered information collections and therefore not subject to the PRA.

This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposal (RFP), applications, proposal abstracts, or quotations. This RFI does not commit the U.S. Government to contract for any supplies or services or make a grant award. Further, we are not seeking proposals through this RFI and will not accept unsolicited proposals. Responders are advised that the U.S. Government will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. In addition, this RFI does not commit the Government to any policy decision and CMS will follow established methods for proposing future policy changes, including the MA Advance Notice and Rate Announcement process. We note that not responding to this RFI does not preclude participation in any future procurement or rulemaking, if conducted. It is the responsibility of the potential responders to monitor this RFI announcement for additional information pertaining to this request. In addition, we note that CMS will not respond to questions about the policy issues raised in this RFI.

Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & Medicaid Services, approved this document on July 26, 2022.

The North Atlantic right whale ( Eubalaena glacialis ) was severely depleted by commercial whaling and, despite protection from commercial harvest since 1935, has not recovered. Following two decades of growth between 1990 and 2010, the species has been in decline over the past decade (Pace et al. 2017; Pace 2021), with a recent preliminary population estimate of fewer than 350 individuals remaining. North Atlantic right whale abundance began to decline in 2010 due to a combination of increased human-caused mortality and decreased reproductive output (Pace et al. 2017). The decline coincided with changes in whale habitat use patterns, characterized by the whales' increasing use of areas with few protections from anthropogenic harm (Davis et al. 2017; Meyer-Gutbrod and Greene 2018; Record et al. 2019). The species' decline has been exacerbated by an ongoing Unusual Mortality Event (UME) that NMFS declared in 2017, pursuant to section 404 of the Marine Mammal Protection Act (MMPA), and includes an unprecedented 51 known mortalities and serious injuries to date, impeding the species' recovery. NMFS interprets the regulatory definition of serious injury as any injury that is “more likely than not” to result in mortality, or any injury that presents a greater than 50 percent chance of death to a marine mammal (NMFS 2014). Thus, lethal strike events are those that have or are likely to result in a mortality.

Entanglement in fishing gear and vessel strikes are the two primary causes of right whale mortality and serious injury. Human-caused mortality to adult females, in particular, is limiting recovery of the species (Moore et al. 2005, 2021; Corkeron et al. 2018; Hayes et al. 2019; Sharp et al. 2019). Anthropogenic trauma was the sole source of mortality for right whale adults and juveniles for which a cause of death could be determined between 2003 and 2018 (Sharp et al. 2019). North Atlantic right whale calving rates dropped from 2017 to 2020, with zero births recorded during the 2017-2018 season. The 2020-2021 calving season had the first substantial calving increase in five years, with 20 calves born, followed by 15 calves during the 2021-2022 calving season. However, mortalities continue to outpace births, and best estimates indicate fewer than 100 reproductively active females remain in the population.

NMFS has determined that the Potential Biological Removal (PBR) for the species—defined by the MMPA as “the maximum number of individuals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population”—is 0.7 whales (NMFS 2021). This means that for the species to recover, the population cannot sustain, on average over the course of a year, the death or serious injury of a single individual due to human causes. Observed human caused mortality far exceeds this level and a recent assessment of total right whale mortality estimates range-wide indicates that observed deaths likely captured only about 36 percent of the actual total deaths between 1990 and 2017 (Pace et al. 2021). Right whale abundance will continue to decline, imperiling species recovery, unless human caused mortality is substantially reduced in the near term.

North Atlantic right whales inhabit U.S. waters year-round but predominate during late fall through early summer. Within U.S. waters, the whales primarily forage in the greater Gulf of Maine region (Pershing et al. 2009; Davies et al. 2014). The species' only known winter calving area lies within the South Atlantic Bight between northern Florida and North Carolina (Keller et al. 2012; Gowan and Ortega-Ortiz 2014). The Mid-Atlantic region serves both as a migratory habitat for whales moving between calving areas and northern foraging grounds, as well as a foraging habitat. Right whales can be highly mobile, traveling upwards of 40 nautical miles per day, or, when engaged in certain behaviors ( e.g., foraging), relatively stationary, remaining within several miles for days (Baumgartner and Mate 2005; Crowe et al. 2021). The whales' primary distribution includes seasonal coastal habitats characterized by extensive commercial and recreational vessel traffic.

North Atlantic right whales are vulnerable to vessel strike due to their coastal distribution and frequent occurrence at near-surface depths, and this is particularly true for females with calves. The proportion of known vessel strike events involving females, calves, and juveniles is higher than their representation in the population (NMFS 2020). Mother/calf pairs are at high risk of vessel strike because they frequently rest and nurse in nearshore habitats at or near the water surface, particularly in the Southeast calving area (Cusano et al. 2018; Dombroski et al. 2021). Calving females have the longest residence time of any demographic group on the Southeast calving ground, staying on average about three months in the region before traveling with their nursing calves to northern foraging areas (Krzystan et al. 2018). Right whales nurse their calves for up to a year. This promotes rapid calf growth (Fortune et al. 2012) but also places mother/calf pairs at increased risk of vessel interactions, not only within the Southeast calving ground but also along the Mid-Atlantic and New England coasts, which are important migratory and foraging areas for right whales.

Numerous studies have indicated that slowing the speed of vessels reduces the risk of lethal vessel collisions, particularly in areas where right whales are abundant and vessel traffic is common and otherwise traveling at high speeds (Vanderlaan and Taggart 2007; Conn and Silber 2013; Van der Hoop et al. 2014; Martin et al. 2015; Crum et al. 2019). In 2008, NMFS implemented 10-knot (5.1 meters/second (m/s)) vessel speed restrictions for a five-year period for most vessels greater than or equal to 65 ft (19.8 m) in overall length within designated areas commonly referred to as Seasonal Management Areas (SMAs) along the U.S. East Coast to reduce the risk of mortality and serious injury from vessel strike (73 FR 60173, October 10, 2008 (50 CFR 224.105)). NMFS later removed the five-year “sunset” provision from the speed rule (78 FR 73726, December 9, 2013; 79 FR 34245, June 16, 2014), and the rule continues in effect today.

Reducing vessel speed is one of the most effective, feasible options available to reduce the likelihood of lethal outcomes from vessel collisions with right whales. Previous investigations indicate that NMFS' speed regulations at 50 CFR 224.105 for most vessels greater than or equal to 65 ft (19.8 m) in length reduced the risk of lethal vessel strikes to right whales (Conn and Silber 2013; Laist et al. 2014). In 2021, NMFS released the North Atlantic Right Whale Vessel Speed Rule Assessment (hereafter “speed rule assessment”) documenting a reduction in observed right whale serious injuries and mortalities resulting from vessel strikes since implementation of the speed rule in 2008 (50 CFR 224.105), but highlighting the need for additional action to more effectively address the risk of vessel strikes to right whales (NMFS 2020).

NMFS is addressing risk from fishing gear entanglement through separate regulatory actions from this proposed rule as informed by the Atlantic Large Whale Take Reduction Team (ALWTRT) and continues to work on additional measures to further reduce lethal entanglements. The MMPA directs NMFS to reduce incidental entanglements in commercial fisheries that cause mortalities and serious injuries of marine mammal stocks above a biological reference point ( i.e. PBR) through a consensus-based Take Reduction Process. The ALWTRT is a large stakeholder group NMFS has convened numerous times since 1996 to develop recommendations to reduce mortality and serious injury of right whales and other large whales covered under the Atlantic Large Whale Take Reduction Plan. The ALWTRT continues to meet regularly to develop recommendations to further modify the Plan and reduce right whale entanglements in commercial fisheries.

NMFS has implemented a combination of regulatory requirements and voluntary programs aimed at modifying mariner behavior and/or increasing mariner awareness of right whale presence to reduce vessel collision risk. Together, these efforts address two aspects of reducing strike risk: (1) reducing the spatial overlap of right whales and vessels, and (2) reducing the speed of vessels in areas and at times when right whales are likely to be present. Below is a summary of vessel strike reduction actions implemented by NMFS and other Federal partners to date.

(1) “Take” Prohibitions. Both the Endangered Species Act (ESA) and the MMPA generally prohibit the unauthorized “take” of North Atlantic right whales. Under the ESA, “take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (16 U.S.C. 1532(19)). Under the MMPA, “take means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill.” (16 U.S.C. 1362(13)).

(2) ESA Section 7 Consultations. As required by Section 7(a)(2) of the ESA, as amended (ESA; 16 U.S.C. 1531 et seq. ), all U.S. Federal agencies must consult with NMFS to ensure that any actions they authorize, fund, or carry out that may affect ESA-listed species under NMFS jurisdiction are not likely to jeopardize the continued existence of those species or adversely modify or destroy their designated critical habitat. When Federal agencies authorize vessel activities potentially co-occurring with right whales and engage in consultations with NMFS, they often implement measures governing vessel speed designed to reduce the risk of right whale interactions.

(1) North Atlantic Right Whale Vessel Speed Rule. In 2008, NMFS implemented a rule requiring most vessels equal to or greater than 65 ft (19.8 m) in length to transit at speeds of 10 knots (5.1 m/s) or less in designated SMAs (73 FR 60173, October 10, 2008) pursuant to its authority under the MMPA and ESA. Some vessels are exempt from this requirement including military vessels, vessels owned, operated or contracted by the Federal government, and vessels engaged in enforcement or search and rescue activities (50 CFR 224.105(a)). Although these vessels are exempt from the speed rule, they are not exempt from consultation under section 7 of the ESA. During consultations, mitigation measures, including reduced speeds, may be recommended or specified to reduce the threat of vessels collisions with right whales. Regulatory requirements, such as those proposed here that contain a maximum vessel speed but no minimum, are separate from any requirements specified as part of ESA section 7 consultations and are not expected to result in the need to reinitiate existing consultations (50 CFR 402.16). In addition, subject to specific requirements, vessels may deviate from the speed restriction ( i.e., exceed the speed limit), under limited circumstances, to maintain safe maneuvering speeds (50 CFR 224.105(c)). Vessels employing this safety deviation must make a notation in the vessel logbook detailing the event. Ten SMAs were designated along the U.S. East Coast with seasonally active periods reflective of temporal trends in right whale habitat use. The locations of the SMAs were informed by vessel traffic ( i.e., port entrances were assumed high traffic areas relative to other areas) and right whale distribution data at the time the rule was established. NMFS selected the 10-knot (5.1 m/s) speed limit based on analyses of large whale vessel strike events where the vessel speed at the time of impact was known. Researchers found the probability of whale mortality increased substantially with vessel speed, with the greatest increase occurring between speed of 10 to 14 knots (5.1 to 7.2 m/s; Vanderlaan and Taggert 2007). Based on these findings, NMFS determined that the use of speed restrictions was an effective means to reduce the likelihood and severity of vessel collisions.

(2) 500 Yard (457.2 m) Minimum Approach Distance. In 1997, NMFS implemented a minimum approach distance for vessels in the vicinity of North Atlantic right whales in an effort to reduce harassment and risk of injury (62 FR 6729, February 13, 1997). It is illegal for a vessel to approach within 500 yards (457.2 m) of a right whale, and if a vessel finds itself within 500 yards (457.2 m) it “must steer a course away from the right whale and immediately leave the area at a slow safe speed” (50 CFR 224.103(c)(1-2)). Exceptions are made if “compliance would create an imminent or serious threat to a . . . vessel” (50 CFR 224.103(c)(3)).

(1) Great South Channel Area To Be Avoided (ATBA). An ATBA is an International Maritime Organization (IMO)-established vessel routing measure within a specified area to avoid navigational hazards or environmentally sensitive areas. In June 2009, an ATBA was established in the Great South Channel to the east of Cape Cod, MA after gaining approval from the IMO. All vessels greater than or equal to 300 gross tons are recommended to avoid this area between April 1 and July 31.

(2) Recommended Routes. In 2006, a joint U.S. Coast Guard/NOAA effort established recommended routes for vessels transiting across Cape Cod Bay and into/out of ports in Florida and Georgia. The routes are recommended between January and May in Cape Cod Bay and between November and April off Florida and Georgia. Mariners are recommended to follow the routes to minimize their transit distance through important right whale habitat areas.

(3) Modification to the Boston Traffic Separation Scheme (TSS). In 2007, following a successful application to the IMO led by the Stellwagen Bank National Marine Sanctuary and NMFS, a modified TSS (commonly referred to as a shipping lane) was implemented to the north of Cape Cod, MA for vessel traffic navigating to and from the Port of Boston. The modification narrowed the TSS and shifted its route to the north around Cape Cod to reduce the overlap with large whale foraging grounds.

(4) Dynamic Management Areas (DMAs) and Right Whale Slow Zones. NMFS implemented a voluntary DMA program concurrently with the mandatory speed rule in 2008. A DMA is triggered when a group of three or more right whales are sighted in close proximity. Beginning in 2020, the NMFS Greater Atlantic Region modified the DMA program to include acoustically triggered Slow Zones. Once the trigger is met, NMFS establishes a boundary around the whales for 15 days and encourages vessels either to avoid the area or transit through at speeds less than 10 knots (5.1 m/s). DMAs/Slow Zones may be extended if whales remain in the area. The agency alerts mariners to DMA and Slow Zone declarations through website postings, emails to lists of interested parties, U.S. Coast Guard Local Notices to Mariners, and U.S. Coast Guard Broadcast Notices to Mariners.

In January 2021, NMFS released an assessment evaluating the effectiveness of the North Atlantic right whale speed rule and associated voluntary DMA program (NMFS 2020) and invited the public to submit comments. The review found that the speed rule had made progress in reducing vessel strike risk to right whales but that additional action is warranted to further reduce the threat of vessel collisions. While it is not possible to establish a direct causal link between speed reduction efforts and the relative decline in observed right whale mortality and serious injury events following implementation of the speed rule, the preponderance of evidence suggests speed reductions, as implemented, have helped. NMFS' data on documented vessel strike events continues to affirm the role of high vessel speeds (> 10 knots (5.1 m/s)) in lethal collision events and supports existing studies implicating speed as a factor in lethal strikes events. NMFS has documented five right whale vessel strike cases in U.S. waters that resulted in non-serious injuries for which vessel speed is known. Only one of the five vessels involved was transiting in excess of 10 knots (5.1 m/s) at the time of the collision. In contrast, of the nine documented lethal right whale vessel collisions in U.S. waters since 1990 for which vessel speed is known, eight involved vessels transiting in excess of 10 knots (5.1 m/s).

Since the speed rule first went into effect, NMFS has documented 12 right whale mortality and serious injury events involving vessel collisions in U.S. waters, along with an additional five mortality and serious injury events involving unknown whale species, possibly right whales. These figures likely underestimate the total number of lethal right whale vessel strikes in U.S. waters. Strikes occurring farther offshore and/or involving large ocean-going vessels are likely underreported in the data because most large ships are not able to detect interactions with large whales, and whales that die well offshore are less likely to be detected overall. Based on estimates of total right whale deaths, documented mortalities from all sources represent approximately one-third of actual annual right whale mortality range-wide (Pace et al. 2021). Thus, in addition to the observed events, NMFS recognizes that additional lethal vessel strike events likely went undetected in U.S. waters.

A detailed examination of documented right whale vessel strike events in the U.S. further reveals the following:

(1) Vessels less than 65 ft (19.8 m) in length accounted for five of the 12 documented lethal strike events in U.S. waters since 2008, demonstrating the significant risk this unregulated vessel size class can present to right whales.

(2) Vessel strikes continue to occur all along the U.S. coast from the Gulf of Maine to the Florida coast. There is no indication that strike events only occur in “hot spots” or limited spatial/seasonal areas.

(3) Strikes occur both inside and outside active SMAs, but in many cases, the location of the strike event remains unknown. Four of the five collision events involving vessels less than 65 ft (19.8 m) in length occurred inside active SMAs, although the vessels involved were not subject to mandatory speed restrictions due to their size.

(4) Of the six lethal vessel strike cases documented in U.S. waters and involving right whales since 1999 where vessel speed is known, only one involved a vessel transiting at under 10 knots (5.1 m/s) (~9 knots (4.6 m/s)), although in most cases, we lack vessel speed data associated with collision events.

(5) Females, calves, and juveniles are disproportionately represented in the vessel strike data. This is concerning given the paucity of reproductively active females remaining in the population and their critical role in stabilizing the population decline.

(6) Non-lethal vessel collisions with right whales continue to occur. NMFS' best estimates indicate that vessel strikes (in U.S. waters or first seen in U.S. waters) have resulted in at least 26 non-serious right whale injuries since 2008, although these data do not account for the possibility of blunt force trauma injuries, which are not usually visibly detectable and make accurate assessments of strike injuries challenging.

Despite NMFS' best efforts, the current speed rule and other vessel strike mitigation efforts are insufficient to reduce the level of lethal right whale vessel strikes to sustainable levels in U.S. waters. NMFS has determined that additional action is needed to address gaps in current management programs and better tailor mitigation efforts. In evaluating potential changes to the current speed rule NMFS considered up-to-date strike risk modeling, data on right whale strike events, species distribution, and vessel traffic characteristics in right whale habitat, and the extensive and informative comments received in response to the 2020 speed rule assessment.

NMFS proposes changes to the existing North Atlantic right whale vessel speed regulations. The proposed measures detailed below seek to reduce the risk of mortality and serious injury from vessel strike events in U.S. waters and include the following:

(1) Changes to the spatial boundaries and timing of mandatory SMAs to better address areas and times where vessel strike risk is high;

(2) Inclusion of most vessels greater than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length in the vessel size class subject to the speed restriction;

(3) Implementation of a Dynamic Speed Zone (DSZ) framework to implement mandatory speed restrictions when whales are known to be present outside active SMAs; and

(4) Updates to the speed rule's safety deviation provision.

Since implementation of the speed rule in 2008, the distribution of right whales has shifted, resulting in a misalignment between areas of high vessel strike risk and current SMA spatial and temporal bounds. Improved data on vessel traffic and right whale distribution/habitat use further highlight this discrepancy and the need to adjust SMA boundaries to better address the risk of collisions. For example, after 2010, right whales began to frequent the region south of Martha's Vineyard and Nantucket, MA, and are now regularly observed in large aggregations foraging in the area (Leiter et al. 2017). Prior to this period, that region, while part of right whale habitat, was not identified as an important foraging area. In 2021 alone, 67 voluntary DMAs and Slow Zones were declared (28 of which were off Martha's Vineyard and Nantucket), demonstrating the ongoing spatial and temporal mismatch between whale aggregations and vessel strike protections.

The goal for vessel speed regulation remains unchanged—to reduce the likelihood of right whale serious injuries and mortalities from vessel collisions. To maximize the reduction of vessel strike risk, NMFS developed proposed modifications to the SMAs using a coast-wide vessel strike mortality risk model, North Atlantic right whale visual sighting (NARWC 2021) and acoustic detection (NEFSC 2022) data, recent vessel traffic Automatic Identification System (AIS) data, and information on other relevant planned ocean activities, including offshore wind development.

Additional factors were considered when developing proposed SMA spatial boundaries and timing to optimize effective right whale protection, including minimizing impacts on the regulated community:

(1) NMFS sought to provide robust protection for right whales over a 10 to 15 year time horizon, and design built-in adaptivity to climate change and other factors to ensure that the speed rule remains resilient to shifts in right whale distribution and habitat use over time. This timeframe also provides a stable and predictable long-term regulatory structure for the maritime community.

(2) NMFS aimed to identify the smallest spatial and temporal footprint possible for speed restricted areas to minimize the extent of regulatory action while achieving necessary conservation goals. This assumes a framework will be in place to implement mandatory speed restrictions dynamically to address right whales outside the proposed SMAs (see Mandatory Dynamic Speed Zones).

(3) Changes to speed regulation areas/boundaries focused on reducing vessel traffic operating at speeds in excess of 10 knots (5.1 m/s), since high transit speed is implicated in strike events, and we have the ability to modify this aspect of vessel operation in right whale habitats.

NMFS evaluated the risk of right whales being struck and killed by vessels in U.S. waters along the East Coast using an encounter risk model (Garrison et al. 2022). This model simulates the likelihood of a fatal vessel strike based on six sources of information: (1) the spatial distribution and density of right whales; (2) the spatial distribution and amount of vessel traffic; (3) the likelihood that a whale and a particular vessel will be in close proximity; (4) the likelihood that a whale will be near the surface during the interaction; (5) the likelihood that a whale will successfully move to avoid the interaction; and (6) the likelihood of mortality if a collision occurs. A similar approach was previously applied to large whales on the U.S. West Coast (Rockwood et al. 2017, 2020) and right whales occurring off the coast of Florida (Crum et al. 2019).

NMFS modeled the spatial distribution of right whales using a compilation of aerial survey data collected by the agency and many different external research groups. The model and approaches are similar to those described in Roberts et al. (2016) and Gowan and Ortega-Ortiz (2014) and reflect the distribution of right whales since 2010 (Roberts et al. 2021). Environmental variables were used to predict the monthly changes in right whale distribution between Florida and the Nova Scotian shelf.

NMFS characterized vessel traffic using data collected via satellite and terrestrial based AIS that transmits information on vessel movements, speed, and characteristics for those vessels that carry AIS units. For each spatial cell in the right whale distribution model, NMFS summarized the length of transit, time of transit, and average speed of each vessel from the available AIS data. These data were summarized monthly for 2017-2019. Generally, most vessels greater than or equal to 65 ft (19.8 m) in length are required to carry AIS transceivers. While many vessels less than 65 ft (19.8 m) in length also carry AIS, they are likely to be under-represented in these data, and therefore, the risk of interactions with right whales is under-represented in the model.

NMFS modeled the likelihood of a whale-vessel encounter using the approach described in Martin et al. (2015), where the probability of close encounter between a whale and a vessel within a given spatial cell is a function of vessel size, whale swimming speed, and vessel speed. Given a close encounter, the probability that a whale will be near the surface (in the upper 10 m (32.8 ft) of the water column) where it would be susceptible to a vessel strike was estimated based on available data on dive-surface behavior from animal-borne tags from different regions where whales occur (Baumgartner and Mate 2003; McGregor and Elizabeth 2010; Parks et al. 2011; Baumgartner et al. 2017; Dombroski et al. 2021).

It remains unclear how right whales respond to close approaches by vessels (<1509 ft (460 m)) and the extent to which this allows them to avoid being struck. Rockwood et al. (2017) and Crum et al. (2019) examined different ways of accounting for avoidance behaviors within encounter risk models. Conn and Silber (2013) indicated that encounter rates were higher with fast-moving vessels than expected, which may be consistent with successful avoidance of slower vessels by whales. NMFS' model included a potential avoidance behavior accounting for random effects of the distance at which a whale reacts, the speed the whale swims to escape, and the direction the whale chooses to swim. This approach accounts for the increased likelihood that a whale will escape a slower moving vessel and includes the large amount of uncertainty in whale behavioral response to approaching vessels.

In this framework, if a collision between a whale and a vessel occurs, the likelihood that the collision will be fatal is a function of vessel speed. NMFS applied the model of Conn and Silber (2013) to evaluate this probability. It should be noted that the data in this model are primarily from larger vessels, so it may be less appropriate for some of the small vessels included in the current analysis.

We used the mortality risk model (Garrison et al. 2022) to evaluate areas and times with the highest risk of vessel strike mortalities for right whales. Areas of highest risk are primarily associated with places where there is both a high density of vessel traffic and high density of right whales. In U.S. waters, these areas correspond generally to the Atlantic East Coast region, particularly between late fall and early spring (November through April). The highest risk areas occurred in the Mid-Atlantic between Cape Hatteras, North Carolina, and New York, and in relatively shallow waters over the continental shelf. High-density vessel traffic areas in approaches to major commercial ports pose the greatest risk of vessel strike mortalities. While vessels less than 65 ft (19.8 m) in length are under-represented in the AIS data, the spatial distribution of the risk of interactions with these vessels were also examined. In general, the risk of interactions with vessels less than 65 ft (19.8 m) in length was higher close to shore. NMFS examined the monthly spatial distribution of vessel strike risk to identify regions and times where slowing vessel traffic to speeds less than 10 knots (5.1 m/s) would have the greatest impact on reducing the overall risk of vessel strike mortalities for right whales.

Once these spatio-temporal areas were identified, NMFS compared them with additional opportunistic and survey-based right whale sightings information, including demographics, acoustic detections of right whale presence, and additional information, where available, on possible future activities that might impact vessel traffic, including proposed and leased wind energy sites and U.S. Coast Guard proposed vessel safety fairways (85 FR 37034, June 19, 2020). It is important to note that the risk model is not informed by right whale sightings prior to 2010, opportunistic sightings, or acoustic detections. Additionally, as discussed above, vessel traffic from boats less than 65 ft (19.8 m) in length are under-represented in the model. Comparing these additional data with areas identified by the risk model informed optimal revised SMA boundaries based on the totality of information available.

NMFS then used the risk model to simulate the maximum overall reduction in risk of lethal right whale strikes that could be achieved with the revised SMA boundaries. The revised boundaries were identified based on evaluation of those areas and times with the greatest chance of reducing lethal strikes to right whales. For the simulation, we artificially set the speed of transits within the revised SMA time-space boundary that had an average speed greater than 10 knots (5.1 m/s) to the 10-knot (5.1 m/s) speed that would be required. We then re-calculated the total risk of vessel strike mortality for this simulated dataset and compared to the status quo, thereby providing an estimate of the lethal strike risk reduction, in time and space, should the SMA boundaries be revised to be the expanded SSZs.

Based on this analysis of the proposed SMA boundaries and the additional risk reduction expected to accrue from the use of mandatory DSZs (see Mandatory Dynamic Speed Zones), NMFS anticipates the proposed revisions would address over 90% percent of the risk reduction that can be achieved by reducing vessel speeds to 10 knots (5.1 m/s), relative to the status quo. While the risk model underestimates the strike risk associated with traffic from vessels greater than 35 ft (10.7 m) to less than 65 ft (19.8 m) in length, given the expected coastal distribution of this traffic based on available data, we anticipate this component of strike risk will be sufficiently accounted for by the revised SMA boundaries/timing.

NMFS proposes changes to the current boundaries and effective periods of the areas seasonally subject to the 10-knot (5.1 m/s) speed restriction along the U.S. East Coast to better address the ongoing risk of right whale mortality and serious injury from vessel collisions (Figure 1). To more accurately describe them, we will refer to the areas as Seasonal Speed Zones (SSZs) (rather than Seasonal Management Areas or SMAs). The new SSZs include substantial spatial and temporal changes in the Northeast and Mid-Atlantic regions, and more modest changes in the Southeast region. The proposed SSZs with effective dates each year are summarized as follows with geographic coordinates provided in the proposed regulatory text:

NMFS proposes no active SSZs between July and October, and only the Great South Channel Zone would be active during the month of June. This is consistent with data showing fewer right whales present in U.S. waters during this time period. Proposed SSZs were developed with the understanding that DSZs would be used to implement mandatory speed restrictions when appropriate outside of active SSZs. NMFS anticipates that the combination of SSZs and DSZs will provide the spatial and temporal coverage necessary to significantly reduce the risk of lethal strike events attributable to vessel traffic transiting in excess of 10 knots (5.1 m/s).

The existing North Atlantic right whale vessel speed rule (50 CFR 224.105) does not address the threat of mortalities and serious injuries from strike events involving vessels less than 65 ft (19.8 m) in length. Recent vessel strike events have highlighted the lethality of collisions involving vessel sizes not subject to the existing speed rule. Since 2020 alone, four right whale vessel strikes in U.S. waters resulted in mortalities and serious injuries: (1) a calf was seriously injured off Florida/Georgia in January 2020; (2) a calf was killed off New Jersey in June 2020; (3) a calf was killed off Florida in February 2021; and (4) its mother was seriously injured by the same vessel. For three of the four events, the vessels involved in the collisions were known to be between 35 (10.7 m) and 65 ft (19.8 m) in length and traveling in excess of 20 knots (10.3 m/s) at the time.

Since 2005, operators of vessels less than 65 ft (19.8 m) in length have reported eight right whale vessel strikes in U.S. waters. Six resulted in right whale serious injuries or mortalities. The reporting vessels ranged in length from 17-54 ft (5.2-16.5 m), with vessels involved in mortality and serious injury events ranging in size from 42-54 ft (12.8-16.5 m) in overall length. The vessel speeds at the time of the strike events ranged from less than 5 knots (2.6 m/s) to approximately 28 knots (14.4 m/s) (Henry et al. 2011, 2021; Wiley et al. 2016). Of the eight strike events involving vessels less than 65 ft (19.8 m) since 2005, five (including the recent strikes involving a mother/calf pair) occurred within active SMAs where most vessels 65 ft (19.8 m) and over are required to travel at 10 knots (5.1 m/s) or less.

In seven of the eight events involving vessels less than 65 ft (19.8 m) in length, mariners reported no sighting of the whales prior to impact with the vessel. Vessel strikes can occur even when circumstances are seemingly optimal for avoidance as illustrated by two right whale vessel strikes involving research vessels less than 65 ft (19.8 m) in length with trained observers aboard that occurred in Cape Cod Bay during daylight hours (Wiley et al. 2016). These events demonstrate that mariner experience and vigilance alone can be insufficient to protect against vessel collisions.

Furthermore, since 2009, operators of vessels less than 65 ft (19.8 m) in length have reported an additional six vessel collisions (including five serious injuries) with undetermined large whale species in U.S. waters that may have involved right whales based on the location and timing of the events (Henry et al. 2017). Documented vessel strike deaths of Southern right whales ( Eubalaena australis ) off Australia and South Africa involving a 34-ft (10.4-m) vessel and 44-ft (13.4-m) vessel respectively, further demonstrate the lethal risk vessels less than 65 ft (19.8 m) in length can pose to right whale species more broadly (Peel et al. 2016; Vermeulen et al. 2021).

Other jurisdictions have instituted speed restrictions for vessels less than 65 ft (19.8 m) in length to mitigate vessel strike risk for North Atlantic right whales. Following a series of right whale vessel strike events, Canada expanded the length of vessels covered by dynamic mandatory 10-knot (5.1 m/s) speed restrictions in the Gulf of St. Lawrence in 2019 to include vessels 13 m (42.7 ft) or greater in length. Also in 2019, the state of Massachusetts introduced regulations restricting the speed of most vessels less than 65 ft (19.8 m) in length to 10 knots (5.1 m/s) or less when transiting through waters within, and to the north of, Cape Cod Bay during the months of March and April each year to provide protection for foraging right whales following vessel strike events in the Bay (322 CMR 12.05). Massachusetts has received no reports of strikes involving vessels less than 65 ft (19.8 m) in length, nor reports of safety concerns from mariners in this area since implementation of the regulation. The State has extended these vessel speed restrictions into the month of May during years when right whales remained in the Bay.

Collisions with vessels less than 65 ft (19.8 m) in length pose a danger to both the whale and vessel occupants. There are numerous cases from around the world of vessels sustaining significant damage, and even sinking, following collisions with whales (Ritter 2012; Peel et al. 2018). For example, two vessel-whale collisions that occurred in March 2009 and February 2021 resulted in vessel damage significant enough to require passenger rescue by the U.S. Coast Guard. Sailing vessels can be at particular risk of substantial damage due to their deliberately light construction (Ritter 2012) even though most transit at speeds at or under 10 knots (5.1 m/s). Moreover, collisions with vessels less than 65 ft (19.8 m) in length with whales have resulted in injuries to vessel occupants (NMFS unpublished data).

For the reasons detailed above, NMFS proposes to expand the size class of vessels currently subject to speed restrictions to include most vessels greater than or equal to 35 ft (10.7 m) to less than 65 ft (19.8 m) in overall length. Most vessels within this size class are not subject to U.S. Coast Guard AIS carriage requirements, but based on limited available AIS data and U.S. Coast Guard vessel registration data (USCG 2021), this change may affect up to 8,500-10,000 vessels (albeit to varying degrees). Best estimates indicate that approximately 80 percent of these vessels are larger recreational boats, with commercial fishing (7 percent) and passenger vessels (6 percent) the next most common types. The remaining vessel types include work boats, pilot boats, tug and tow vessels, and other commercial vessels. The total number of affected vessels is likely substantially overestimated, particularly for recreational boats, since available data lack detail about where, when, and how frequently a boat operates within areas subject to speed regulation.

Though NMFS' 2006 proposed speed rule included the concept of mandatory DMA speed restrictions that fall outside active SMAs (71 FR 36299, June 26, 2006), the 2008 final speed rule did not. Instead, the agency announced it would implement a voluntary DMA program creating short-term “dynamic” areas within which NMFS sought voluntary compliance with restricted speeds based on sightings of right whale aggregations. In 2020, NMFS modified the DMA program to include acoustically triggered Right Whale Slow Zones in the NMFS Greater Atlantic Region (Maine to Virginia), given the increasing availability of near-real time acoustic detectors able to accurately identify right whale presence. If followed, dynamic speed reduction areas provide vessel strike risk reduction to aggregations of right whales or areas with persistent right whale presence outside active SMAs in near-real time. The program was intended to provide protection for right whales in areas/times not covered by SMAs. As discussed above, shifts in right whale distribution and habitat use since the current SMAs were established in 2008 have resulted in a substantial number of DMA and Slow Zone declarations.

NMFS 2008 speed rule stated the agency would “monitor voluntary compliance” and if cooperation was not satisfactory would “consider making them mandatory, through a subsequent rulemaking” (73 FR 60173, October 10, 2008). Despite NMFS' best efforts to reach out to vessel operators about dynamic speed reduction areas and educate the maritime community about the need for right whale vessel strike mitigation, NMFS' speed rule assessment determined that vessel cooperation levels are low, and therefore, the reduction in risk provided by the voluntary DMAs is minimal (NMFS 2020).

As discussed above, the proposed SSZs boundaries/timing are designed to address most vessel strike risk attributable to vessels transiting in excess of 10 knots (5.1 m/s). Based on an evaluation of recent voluntary DMAs and acoustically triggered Slow Zones, 54 of the 67 DMAs/Slow Zones triggered during 2021 (80.6 percent) would fall within the proposed SSZs. In other words, only 13 (19.4 percent) of 2021 DMAs/Slow Zones would have been triggered if the proposed SSZ boundaries were in effect. This indicates that the existing misalignment between the current SMA boundaries and elevated risk areas is substantially, but not wholly, captured by the proposed SSZs. Thus, even after adjusting the geographic boundaries and timing of the static SSZs to more accurately reflect the best available data on right whales and vessel strike risk, there is still a role for dynamic speed restrictions to protect other areas where right whales occur less predictably.

In examining the totality of information available to inform changes to the location and timing of SSZ boundaries, it became clear that for some areas and seasons, static speed management may not be sufficient as a sole strategy to reduce vessel strike risk. This is primarily the case in areas where right whale presence is less predictable or more ephemeral and/or where elevated strike risk is more moderate.

Static speed restrictions best serve areas with reliable right whale presence and elevated strike risk. For example, right whales reliably occur within the South Atlantic Bight calving ground each and every season (November through April). The total number of individuals present will vary from year to year (Krzystan et al. 2018), but this calving, and likely mating, habitat is an essential area for right whale reproduction and is designated (81 FR 4837, January 27, 2016) as critical habitat under the ESA. The consistency of right whale presence (especially vulnerable mothers/calf pairs) combined with high levels of vessel traffic along the Southeast coast are the primary reasons vessel strike risk in this region is best managed via a static SSZ.

In other times/areas, however, right whale presence may be less predictable and/or elevated vessel strike risk more moderate. For example, during late fall and winter, right whales have been documented over many years in the central Gulf of Maine, frequently engaged in foraging. Right whales have been visually or acoustically detected in this area during most, but not every fall/winter season, and vessel strike risk is lower in this area, relative to other parts of the U.S. East Coast, due to lower levels of vessel traffic transiting at high speeds. Vessel strike risk modeling indicates a benefit to right whales from vessel speed restriction in this area but to a lesser degree than other places/times. With adequate seasonal monitoring for right whale presence, a dynamic area speed restriction is ideally positioned to provide vessel strike protection in this area when and where it will be most beneficial to right whale conservation.

To address elevated vessel strike risk in areas outside SSZs, NMFS is proposing to implement a mandatory DSZ framework to replace the current voluntary DMA/Slow Zone program. Under this proposed framework protocol, as described below, a mandatory DSZ would be created for an area outside an active SSZ, within U.S. waters from Maine to Florida, based on (1) a confirmed visual sighting of a right whale aggregation (three or more whales in close proximity) or a confirmed right whale acoustic detection (since it is not possible to quantify the number of individual whales present) and (2) NMFS determination that the area to be designated as a DSZ has a greater than 50 percent likelihood of right whale presence during a minimum effective period of 10 days (periods shorter than this may present practical challenges for implementation).

Existing protocols for the current voluntary DMA/Slow Zone program are proposed as a minimum trigger threshold to inform a new DSZ. Under these protocols, NMFS establishes voluntary 15-day DMAs when three or more right whales are sighted within close proximity. Depending on the size and geographic spread of the right whale aggregation, the spatial extent of the DMA is determined based on a local density method as outlined in Clapham and Pace (2001), with most zones approximately 400 square nautical miles (sq nm; 1,372 sq kilometers (sq km)). NMFS declares voluntary Slow Zones in the NMFS Greater Atlantic Region when a right whale acoustic detection is confirmed. Acoustically triggered Slow Zones extend approximately 20 nm from the detection source and remain effective for 15 days. DMAs/Slow Zones may be extended if additional sightings or acoustic detections meeting the thresholds above are detected within the latter half of the 15 day effective period. Once the initial detection trigger has been met, NMFS would then determine whether the potential DSZ has a greater than 50 percent likelihood that right whales would continue to be present within the zone (not to exceed 2,500 sq nm (8,575 sq km) commensurate with the size of the aggregation for visual detections or 400 sq nm (1,372 sq km) for acoustic detections). As with the current voluntary DMA/Slow Zone program, DSZs may be extended if additional sightings or acoustic detections meeting the minimum thresholds occur within the effective period.

Drawing upon the agency's long-time expertise implementing voluntary dynamic areas over the last 13 years, NMFS' process for determining and implementing DSZs would follow an objective, rigorous and replicable protocol, informed by inputs such as the number of right whales detected, the dispersion of the aggregation, and whale behavior (if known). Furthermore, NMFS would provide details of the DSZ determination when providing public notice of a DSZ designation. Ensuring that DSZs meet a minimum trigger threshold and a greater than 50 percent likelihood of continued right whale presence standard would provide confidence that these zones will effectively achieve the goal of providing targeted protection to right whales (in areas not protected by static zones) from elevated vessel strike risk while avoiding unnecessary regulation of vessel speed.

The boundaries and timing of temporary DSZs for right whales are by their very nature uncertain until the conditions that trigger one are present. Once those conditions are determined to be in place, however, the need for those DSZs to be effective to protect right whales is immediate. Implementing DSZs through publication of Federal Register notices does not allow for timely implementation of a DSZ and could result in unnecessary avoidable risk of both vessel strikes of right whales and potentially mariner safety. The time normally required to file and publish a DSZ's boundaries and effective period in the Federal Register would delay implementation and diminish the value and effectiveness. Thus, this proposed rule allows NMFS to implement timely DSZs without prior publication in the Federal Register as follows.

When NMFS determines that the criteria for establishing a DSZ, or DSZ extension, have been met, NMFS will announce notice of the DSZ or DSZ extension through publication on the agency's website, via U.S. Coast Guard Notices to Mariners, NOAA Weather Radio announcements, and through other practicable appropriate means, as well as by Notice in the Federal Register as soon as practicable. NMFS requests public comment on other effective means for notifying the public, including social media, smartphone apps, email notifications and text alerts to which mariners, harbormasters, port officials, pilots, and the public can subscribe. As stated earlier, the proposed SSZs will accrue a net expansion of vessel strike risk coverage compared to the areas in the current speed regulation, including many areas/times where voluntary DMAs and Slow Zones have been common. NMFS anticipates that under the proposed DSZs framework, the prevalence of these zones will be less frequent, given the more rigorous coverage provided by the proposed SSZ boundaries. Additionally, since 2008, nearly all voluntary DMAs and Slow Zones were triggered on the continental shelf, with 93 percent occurring in the NMFS Greater Atlantic Region (Maine to Virginia). Accordingly, NMFS anticipates that proposed DSZs would continue to be most common north of North Carolina and within coastal and shelf waters.

NMFS requests public comment on the proposed DSZ framework for the proposed mandatory DSZ program. NMFS particularly invites comment on: (1) the geographic areas that should be subject to mandatory DSZs; (2) the appropriate design of trigger thresholds using confirmed right whale acoustic and/or visual detections as well as the appropriate methodology for determining spatial extent as it relates to the greater than 50 percent likelihood standard for presence; and (3) the forms of notice mariners would find most practicable for receiving timely declarations of new DSZs.

The use of dynamic strategies to manage vessel speed for right whale protection is already customary, and employed in U.S. waters. The State of Massachusetts dynamically extends the effective period of its small vessel speed restrictions in Cape Cod Bay if the continued presence of right whales is detected in the Bay, as the State did in 2021 (Massachusetts Division of Marine Fisheries 2021). NMFS' long-time (since 1997) approach regulations also require mariners to modify their vessel operations (including speed and/or direction of travel) in real-time if they encounter right whales while transiting. Mariners must remain 500 yards (457.2 m) away from right whales unless compliance would create a serious threat to vessel safety. This strategy is also used in Canadian waters. Since 2018, Canada has implemented a seasonal system of mandatory dynamic right whale speed restrictions within the Gulf of St Lawrence shipping lanes and during the summer, creates a dynamic Restricted Area to further protect foraging aggregations, as needed, based on right whale detections, and announced through Transport Canada Ship Safety Bulletins (Transport Canada 2021a, 2021b).

Year-round visual and acoustic monitoring of right whale habitat outside proposed active SSZs will be essential to the effectiveness of the proposed mandatory DSZs. NMFS' coast-wide vessel strike mortality risk model indicates where and when elevated strike risk is present, and can serve as a resource for identifying monitoring needs (Garrison et al. 2022). In 2019, NMFS convened an expert working group to provide recommendations to enhance right whale monitoring along the U.S. East Coast. The effort culminated in a detailed report that included recommendations for monitoring right whale distribution (Oleson et al. 2020). NMFS continues to review recommendations from the monitoring report and is taking monitoring needs for proposed mandatory DSZs into consideration as it works with external partners to optimize right whale monitoring efforts.

NMFS established a safety deviation provision within the 2008 speed rule (50 CFR 224.105) to accommodate situations where transit at speeds of 10 knots (5.1 m/s) or less during severe conditions would threaten human or navigational safety. Following a review of vessel transit data and compliance information as part of the speed rule assessment (NMFS 2020), NMFS investigated options to better understand the extent of safety impacts from the speed rule and to monitor use of the safety deviation provision. Current regulations lack a mechanism by which the agency can efficiently identify which vessels are employing the safety deviation and when and where use of the safety deviation may be common. Existing information collection protocols lack sufficient detail to determine the circumstances surrounding a deviation and to assess situations where a vessel may lack reasonable grounds to employ the safety deviation. NMFS further recognizes that the current safety deviation language lacks recognition of emergency situations that do not involve a maneuverability issue, when a vessel may have immediate cause to exceed the 10-knot (5.1 m/s) speed restriction due to a medical or other emergency involving the health or life of a vessel passenger.

The proposed inclusion of vessels less than 65 ft (19.8 m) in length within the vessel size class subject to speed regulation presents a new safety issue unique to smaller and lighter boats. During severe weather conditions, vessels less than 65 ft (19.8 m) in length may face maneuverability and associated safety issues. While some vessel operators can easily avoid such conditions, others may need to be out on the water during severe weather events to provide essential maritime services, or as a part of other work obligations.

To address the issues stated above, NMFS proposes to retain the current safety deviation provision with several changes:

(1) Expansion of the safety deviation provision to include emergency situations that present a threat to the health, safety, or life of a person;

(2) Inclusion of a new provision, applicable only to vessels less than 65 ft (19.8 m) in length, which allows such vessels to transit at speeds greater than 10 knots (5.1 m/s) within areas where a National Weather Service Gale Warning, or other National Weather Service Warning ( e.g., Storm Warning, Hurricane Warning) for wind speeds exceeding those that trigger a Gale Warning is in effect. No reporting of these speed deviations would be required; and

(3) Modification of the safety deviation reporting protocols to eliminate the vessel logbook entry requirement in favor of a new requirement for vessels to submit an online report to NMFS within 48 hours of employing a safety deviation detailing the circumstances and need for the deviation.

The proposed regulations would require a vessel operator to submit, via a NMFS website, the same information currently contained in the logbook entry along with new information relevant to the deviation event, including:

(1) Vessel name, length overall, draft (at the time of the deviation) and where applicable, the vessel IMO number and Maritime Mobile Service Identity (MMSI) number;

(2) Reason for the deviation: (a) maneuverability constraints, or (b) emergency;

(3) Date, time, latitude, and longitude where deviation began;

(4) Date, time, latitude, and longitude where deviation ended;

(5) Speed or average speed at which the vessel transited during the deviation;

(6) Wind speed and direction at the time of the deviation;

(7) Information on water current speed and direction at the time of the deviation, including measurements from the vessel acoustic doppler current profiler (ADCP), if the vessel is equipment with this device;

(8) If the vessel was operating within a restricted/dredged channel, indicate whether one-way or two-way vessel traffic was present within the channel at the time the deviation was employed;

(9) The vessel master, and, if the vessel was under pilotage, the pilot, must attest to the accuracy of the information contained within the Report. If the vessel was under pilotage, indicate the name of the harbor pilot;

(10) Opportunity to briefly provide additional narrative (300 word limit), if desired, to explain the circumstances of a safety deviation.

NMFS specifically invites comment on the proposed reporting requirements, including comments on whether a web-based reporting mechanism is practicable for mariners, who should be responsible for completing and attesting to reports (for example, whether pilots should be responsible for completing and attesting to reports when a vessel is under pilotage), and on requiring more robust logbook recordkeeping in lieu of the new reporting requirements proposed herein.

NMFS recognizes that under certain conditions, vessel maneuverability and/or navigational safety may be hampered by transiting at reduced speeds, especially within port entrance areas. NMFS' current and proposed speed regulations acknowledge this through the safety deviation provision that is available when vessel maneuverability is compromised by the speed restriction. Given the totality of changes proposed herein, particularly the expanded size class of vessels subject to regulation, most pilot vessels operating within port entrance areas will likely be newly subject to speed regulation. NMFS solicits comments on options for alternative speed reduction programs specifically within port entrance areas that best maintain navigational safety while providing comparable vessel strike protections to right whales. Alternative programs would be conducted and resourced by external partners, include comprehensive monitoring of right whale presence, and provide a level of vessel strike risk reduction equivalent to that achieved through the measures described in this rule.

NMFS is also clarifying that the prohibitions set forth in Section 9(g) of the ESA would apply to the speed restrictions and reporting requirements set forth in this rule. Additionally, consistent with Section 10(g) of the ESA, NMFS clarifies that any person claiming the benefit of an exception to this rule has the burden of proving that the exception applies. Sections 9(g) and 10(g) of the ESA would apply irrespective of these changes. However, NMFS believes it is appropriate to provide additional notice to the public of how these provisions would apply under the proposed rule. This clarification would also provide consistency with other rules designed to protect North Atlantic right whales. With limited exception, regulations at 50 CFR 224.103(c) currently provide that it is unlawful “to commit, attempt to commit, to solicit another to commit, or cause to be committed” an approach within 500 yard of a North Atlantic right whale. The approach regulation also makes clear that a person claiming the applicability of an exception has the burden of proving that the exception applies.

The proposed rule includes one change to the exemptions for certain vessels at 50 CFR 224.105(a). Currently the speed regulations exempt vessels that are owned or operated by, or under contract to, the Federal Government, and that exemption extends to foreign sovereign vessels when they are engaging in joint exercises with the U.S. Department of the Navy. This proposed rule would extend the exemption to foreign sovereign vessels engaging in joint exercises with the U.S. Coast Guard. All other exemptions remain unchanged. As stated earlier, an exemption from the speed regulations does not affect a federal agency's consultation requirement under section 7 of the ESA, and reduced speeds may be recommended or specified as part of a section 7 consultation to reduce the threat of vessels collisions with right whales. Federal action agencies should continue to monitor their actions to determine if reinitiation of a consultation is warranted based on triggers specified at 50 CFR 402.16. This proposed action, however, does not provide a basis for reinitiation.

NMFS designed the proposed changes to provide necessary enhanced protection for endangered right whales while minimizing impacts on human use of ocean resources for commerce and recreation. NMFS recognizes that vessels regularly operating at speeds in excess of 10 knots within areas/times designated for speed restriction in this proposed rule will likely experience delayed transit times within these areas, although there will be no restrictions on when or where a vessel may transit.

In addition to considering public comments from stakeholders regarding impacts of the proposed rule, NMFS will continue to work with key federal partners, including the U.S. Coast Guard, Bureau of Ocean Energy Management, U.S. Army Corps of Engineers, and Marine Mammal Commission, to ensure mariner safety and address stakeholder concerns regarding the proposed changes. For example, NMFS is aware of the nascent offshore wind energy industry and the substantial overlap of likely future wind energy development with the proposed Seasonal Speed Zones, possible Dynamic Speed Zones, and right whale habitat generally. The proposed changes would provide a stable regulatory landscape for companies as they plan future vessel-based operations for offshore energy construction and long-term management, while providing necessary protection for right whales throughout the U.S. portions of their habitat.

NMFS anticipates the proposed rule will impact a larger number of recreational boaters and anglers than the current rule, due mostly to the inclusion of vessels equal to or greater than 35 ft in length. Recreational fishing is widely enjoyed and generates billions of dollars in overall economic contribution along the U.S. East Coast (Lovell et al. 2020). To better understand the impacts of the proposed rule on recreational angling, NMFS invites public comment on the degree to which the mandatory speed limit (for most vessels equal to or greater than 35 ft in length) may impact recreational angling within the active proposed Seasonal Speed Zones and Dynamic Speed Zones. NMFS anticipates that the seasonal nature of most speed restrictions will minimize the impacts of the proposed rule on recreational activities. In the Southeast and Mid-Atlantic, the proposed restrictions will be in effect during seasons with less recreational angler activity. In the greater New England area, most seasonal speed restrictions occur during periods of colder weather, when recreational activity is low, although this region is most likely to see Dynamic Speed Zones triggered during seasons of higher recreational activity based on right whale distribution data.

In addition to the proposed vessel speed measures herein, NMFS plans to continue an ongoing review of vessel routing measures to examine the effectiveness of such measures and investigate opportunities to further reduce the spatial and temporal overlap of vessels and right whales through routing measures, if warranted. Effective outreach to the mariner community remains an important means of ensuring speed regulations are understood and adhered to by the regulated community. NMFS is engaged in ongoing research to identify effective means to communicate with this community.

NMFS also recognizes the role whale avoidance technologies may one day play in preventing vessel collisions, and remains open to the future application of these technologies, if proven safe and effective. The use of onboard marine mammal observers is another strategy employed to reduce vessel strike events. For some activities and vessel types, the addition of marine mammal observers can provide an added mechanism to prevent vessel strikes in conjunction with other conservation measures; however, documented right whale vessel strikes involving vessels with trained observers demonstrate the inconsistency of this tool.

While the proposed rule is designed to address lethal right whale vessel strike risk, NMFS anticipates ancillary benefits, including reduced vessel strike risk, will accrue to other marine species. Endangered and protected cetaceans, pinnipeds, sea turtles, and certain fish species inhabit the regions/seasons covered by the proposed action. Vessel strikes are an ongoing threat to all large whale species and are contributing to two ongoing Unusual Mortality Events involving minke ( Balaenoptera acutorostrata ) and humpback whales ( Megaptera novaeangliae ). Researchers have found that the majority of large whale vessel strike mortalities involve vessels transiting at speeds greater than 10 knots (Laist et al. 2001; Jensen and Silber 2004; Vanderlaan and Taggart 2007; Conn and Silber 2013). NMFS expects both the spatial and temporal expansion of SSZs and inclusion of vessels equal to or greater than 35 ft in length will provide additional beneficial vessel strike risk reduction to other large whale species.

Numerous studies have linked reduced vessel transit speeds with a reduction in ocean noise (McKenna et al. 2012, 2013; Leaper et al. 2014; Gassmann et al. 2017; MacGillivray et al. 2019; Duarte et al. 2021). The proposed rule is expected to reduce radiated underwater ocean noise particularly in areas where substantial numbers of vessels would slow their speeds to 10 knots (5.1 m/s) or less. This change in speed would subsequently reduce noise disturbances, such as sound masking, for marine species occurring in overlapping areas/seasons. Additionally, for certain vessel types, the proposed rule is expected to result in reduced fuel use, and thus emissions, by slowing more vessels over a larger net spatial and temporal area compared to current conditions. NMFS anticipates these reductions would contribute to enhanced air quality, and support lower fossil fuel emissions, a priority for climate change mitigation, benefiting both human health and marine species.

As with the current speed regulation, NMFS recognizes that vessel compliance and effective enforcement is critical to the effectiveness of the proposed rule. Overall vessel compliance with the current speed rule is monitored based on protocols and procedures outlined in the 2020 vessel speed rule assessment (NMFS 2020). NMFS uses the distance weighted average vessel speed to identify sections of transits that exceed 10 knots and considers the total distance at or under 10 knots as the best metric of apparent compliance. NMFS has seen increasing levels of vessel compliance over time since the speed rule first went into effect in 2008.

NOAA has already taken steps to address ongoing enforcement challenges and prepare for new challenges resulting from the inclusion of vessels equal to or greater than 35 ft in length. Specifically, the Office of Law Enforcement has upgraded capabilities for tracking vessel speed at sea, initiated research of new vessel tracking technologies, and started investigating land-based and aerial monitoring options. NMFS has also commenced staff level discussions with the U.S. Coast Guard regarding possible modification of current AIS carriage requirements to include additional vessel types and sizes. Furthermore, as discussed above, NMFS is proposing changes to the speed rule specifically designed to enhance monitoring and enforcement.

The inclusion of vessels equal to or greater than 35 ft in length under the proposed rule will involve some increased enforcement costs since many vessels in this size class are not equipped with AIS and cannot be monitored in the same way as AIS-equipped vessels. Moving forward, NOAA believes a diversified enforcement approach is needed. This would involve expanding at-sea operations in appropriate locations, using additional technologies to monitor vessel speed, providing compliance assistance to the regulated community, including outreach, and bringing enforcement cases in appropriate circumstances.

These enhancements to NOAA's enforcement efforts are not expected to substantially raise costs. NOAA intends to efficiently and effectively enforce the proposed rule building upon ongoing at-sea enforcement efforts, and we anticipate receiving continued assistance from enforcement partners such as the U.S. Coast Guard and State law enforcement agencies. The increase in potentially affected vessels under the proposed rule is not necessarily commensurate with an increase in enforcement costs. While more vessels may be subject to speed regulation under the proposed rule, enforcement will focus on those vessels posing the greatest risk to right whales. Proposed changes to the safety deviation reporting protocols should also streamline enforcement.

NOAA brings civil administrative enforcement cases to achieve both specific and general deterrence. Violations of the current speed rule can result in significant monetary penalties, which serve as a deterrent to other potential violators. Outreach can also be an effective tool to improve compliance. This year, NOAA sent approximately 400 letters to vessels suspected of violating the speed limit to encourage compliance. NOAA is committed to continuing and expanding outreach efforts under the proposed rule.

NMFS is proposing this rule pursuant to its rulemaking authority under MMPA section 112(a) (16 U.S.C. 1382(a)), and ESA section 11(f) (16 U.S.C. 1540(f)).

A Draft Environmental Assessment for this proposed action was prepared and is available at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.

An informal consultation under ESA section 7 is currently underway for this proposed action. Consultation will be completed before a final rule is issued.

This proposed rule has been determined to be significant under E.O. 12866 and NMFS has prepared a draft Regulatory Impact Review (RIR). NMFS estimates that approximately 15,899 vessels would be affected by the proposed revisions to the current speed rule at an estimated cost of just over $46 million per year. Affected vessels include those that are: (1) subject to speed regulation and (2) documented or estimated to transit in excess of 10 knots (5.1 m/s) within the proposed SSZs and potential DSZs. Of the 15,899 vessels identified, 9,220 (59 percent) are recreational/pleasure boats, 3,575 (22 percent) are ocean-going commercial ships, and 3,124 (19 percent) are commercial, industrial and other vessel types, although the number of affected vessels less than 65 ft (19.8 m) is likely overestimated. The largest proportion of the overall estimated cost of the proposed changes is borne by ocean-going commercial ships (35 percent) followed by passenger vessels (26 percent) and industrial work vessels (18 percent). NMFS invites public comment on potential economic, operational or safety impacts from the proposed changes.

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. We anticipate a total of 2,524 small entities (individual vessels) would be affected by the proposed rule with an estimated annual cost, as a percentage of revenue, ranging from 0.06% to 2.09%, depending on the vessel type, with passenger and pilot vessels most impacted. Commercial fishing and passenger vessel entities make up a combined 60% of the total small entities affected by the rule, although as a proportion of revenue the cost of this impact is substantially lower for commercial fishing vessels. A full description of the proposed action, and the legal basis and objectives of the action, are discussed above and are not repeated here.

The proposed action includes no day-to-day reporting requirements. A vessel operator only needs to submit a brief electronic report to NMFS if they use the safety deviation provision due to limited maneuverability affecting vessel safety or an emergency. Since these safety/emergency situations are expected to be rare, the impact on small entities should be minimal. No special professional skills are needed to submit the report other than knowledge of the vessel and the conditions relevant to the safety deviation.

NMFS considered a number of alternatives in its Draft RIR and Draft Environmental Assessment but did not identify any significant alternatives which would accomplish the stated objective of this proposed rule. Alternatives considered included:

(1) Alternative 1 (No Action Alternative) would maintain the status quo. No action would be taken and vessel traffic along the U.S. East Coast would continue as is under 50 CFR 224.105.

(2) Alternative 2 would restrict the speed of most vessels greater than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length to 10 knots(5.1 m/s) or less within existing SMAs.

(3) Alternative 3 would modify the spatial and temporal boundaries of the existing SMAs to create newly proposed SSZs. The size class of vessels subject to speed regulation would remain unchanged.

(4) Alternative 4 would restrict the speed of most vessels greater than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length to 10 knots(5.1 m/s) or less within existing SMAs, and establish a mandatory DSZ program.

(5) Alternative 5 (Preferred Alternative) would modify the spatial and temporal boundaries of the existing SMAs to create newly proposed SSZs, add vessels greater than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length to the vessel size class subject to speed regulation, and establish a mandatory DSZ program.

The changes proposed in this action are designed to significantly reduce the risk of lethal vessel strike events involving right whales in support of broader efforts to stabilize the rapid, unsustainable decline in population. Maintaining the status quo (Alternative 1) would not result in any additional reduction in strike risk. Alternative 2 would address strike risk from most vessels greater than or equal to 35 ft (10.7 m) and less than 65 ft (19.8 m) in length but fails to fix the spatial and temporal misalignment of current SMAs, leaving right whales vulnerable to vessel collision in many areas. Alternative 4 partially addresses this issue by further extending mandatory protections through the DSZ framework, but given the broad spatial/temporal extent of the areas NMFS has identified as high risk outside the current SMAs, the use of a dynamic framework would be inadequate to mitigate the constant strike risk in certain areas/seasons, and would create a cumbersome and less predictable regulatory environment. Alternative 3 successfully addresses much of the spatial and temporal misalignment of current SMAs but fails to address the risk from vessels less than 65 ft (19.8 m) in length, which account for at least 42% of documented lethal strike events in U.S. waters since the speed rule was implemented in 2008. Only Alternative 5, (the action proposed herein) provides a high likelihood (>90%) of substantial reduction in lethal strike events involving most vessels greater than or equal to 35 ft (10.7 m) transiting at speeds greater than 10 knots (5.1 m/s), assuming full compliance with the proposed rule.

The proposed action is not expected to have a disproportionately high effect on minority populations or low-income populations under E.O. 12898.

The proposed action does not contain policies with federalism implications under E.O. 13132.

This proposed action contains a revision to the existing collection-of-information authorization (OMB Control number 0648-0580) for this rule under the Paperwork Reduction Act (PRA). The appropriate PRA documents will be submitted following publication of the proposed rule.

For the reasons set out in the preamble, the National Oceanic and Atmospheric Administration proposes to amend 50 CFR part 224 as follows: