DOE is responsible for investing billions of taxpayer dollars in new or expanded efforts in the research and development, demonstration, and deployment of clean energy projects and clean energy infrastructure throughout the United States and its territories. DOE must comply with NEPA (42 U.S.C. 4321, et seq. ) to inform its decisions about these actions, including decisions related to financial assistance ( e.g., grants, loan guarantees) to the private and public sector. DOE also must fulfill its responsibilities under other laws such as the National Historic Preservation Act and the Endangered Species Act. In addition, DOE is committed to providing meaningful and timely opportunities for engagement with local communities, Tribal Nations, and others potentially affected by its decisions.

Central to implementation of NEPA is the principle that the extent of analysis should be proportional to the potential for significant environmental impacts. Accordingly, the Council on Environmental Quality (CEQ) established three types of NEPA review: categorical exclusion, environmental assessment, and environmental impact statement. ( See e.g., 40 CFR parts 1501 and 1502.) An agency prepares an environmental assessment or environmental impact statement when the proposed action may result in significant environmental impacts, or the significance of potential impacts is unknown.

A categorical exclusion is a category of actions that a federal agency has determined, in its agency NEPA procedures, normally do not have a significant effect on the human environment (40 CFR 1508.1(d)). DOE's categorical exclusions are listed in appendices A and B to subpart D of its NEPA procedures ( 10 CFR part 1021 ). Actions that qualify for a categorical exclusion do not require preparation of an environmental assessment or environmental impact statement.

A DOE proposal to establish or modify a categorical exclusion must be accompanied by technical support demonstrating why DOE has concluded that the category of actions normally does not pose the potential for significant environmental impacts. Once established in its procedures, before determining that a categorical exclusion applies to any particular proposed action, DOE evaluates whether that proposed action meets the conditions contained in the categorical exclusion and whether there are any extraordinary circumstances associated with the proposed action that pose the potential for significant environmental impacts. For more information on DOE's process for applying a categorical exclusion to a proposed action see 10 CFR 1021.410 and Conditions That Are Integral Elements of the Classes of Action in Appendix B at the start of appendix B to subpart D of DOE's NEPA procedures in 10 CFR part 1021.

The Infrastructure Investment and Jobs Act (aka, Bipartisan Infrastructure Law), the Inflation Reduction Act, the CHIPS and Science Act, and DOE's annual appropriations all provide funding for DOE to lead the nation's transition to a clean energy economy and improve the resilience of its energy infrastructure. DOE's website includes information on this funding, such as a general web page on the Bipartisan Infrastructure Law, list of DOE programs funded by the Bipartisan Infrastructure Law, fact sheet on the Inflation Reduction Act, and statement regarding the CHIPS and Science Act.

With respect to these laws and initiatives, DOE seeks information to help it identify activities associated with its furtherance of clean energy projects and clean energy infrastructure that should be considered for new or revised categorical exclusions. DOE requests that interested parties:

• Identify a specific category of actions related to clean energy projects and clean energy infrastructure that is not covered by existing DOE categorical exclusions, but that is likely to meet the standard of not having a significant effect on the human environment; and

• Provide suggestions for revising DOE's existing categorical exclusions related to clean energy projects and clean energy infrastructure.

Along with the above information, interested parties should provide:

(1) A brief explanation of the rationale for any suggested new categorical exclusions or revisions to the existing ones,

(2) Any limits or conditions that should be included in the new or revised categorical exclusions to ensure that the category of actions normally does not pose the potential for significant environmental impacts, and

(3) Technical or empirical support for the suggested changes to DOE's categorical exclusions.

Responses should be submitted to doe-nepa-rulemaking@hq.doe.gov by December 30, 2022. Submitted information will be included in the public record of any associated rulemaking, should DOE decide to undertake revisions to its NEPA regulations.

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

This document of the Department of Energy was signed on November 8, 2022, by Samuel Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C. 701n), commonly and hereinafter referred to as “Public Law 84-99” authorizes the Corps to undertake certain emergency management activities. Specifically, Public Law 84-99 authorizes an emergency fund to be expended in preparation for emergency response to any natural disaster, in flood fighting and rescue operations, or in the repair or restoration of any flood control work threatened or destroyed by flood. These activities may include the strengthening, raising, extending, realigning, or other modification thereof as may be necessary in the discretion of the Chief of Engineers for the adequate functioning of the work for flood control and subject to the condition that the Chief of Engineers may include modifications to the structure or project, or in implementation of nonstructural alternatives to the repair or restoration of such flood control work if requested by the non-Federal sponsor. The emergency fund may also be expended for use in the emergency protection of federally authorized hurricane or shore protection when in the discretion of the Chief of Engineers such protection is warranted to protect against imminent and substantial loss to life and property. In addition, the emergency fund may be expended for the repair and restoration of any federally authorized hurricane or shore protective structure or project damaged or destroyed by wind, wave, or water action of other than an ordinary nature. Such repair and restoration must be completed to either the pre-storm level or the design level of risk reduction, whichever provides greater protection, when, in the discretion of the Chief of Engineers, such repair and restoration is warranted for the adequate functioning of the structure or project for hurricane or shore protection, subject to the condition that the Chief of Engineers may include modifications to the structure or project to address major deficiencies or implement nonstructural alternatives to the repair or restoration of the structure if requested by the non-Federal sponsor. The emergency fund may also be expended for emergency dredging for restoration of authorized project depths for Federal navigable channels and waterways made necessary by flood, drought, earthquake, or other natural disasters. In any case in which the Chief of Engineers is otherwise performing work under this section in an area for which the Governor of the affected State has requested a determination that an emergency exists or a declaration that a major disaster exists under the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5121 et seq. ], the Chief of Engineers is further authorized to perform on public and private lands and waters for a period of 10 days following the Governor's request any emergency work made necessary by such emergency or disaster. Such work must be essential for the preservation of life and property, including, but not limited to, channel clearance, emergency shore protection, clearance and removal of debris and wreckage endangering public health and safety, and temporary restoration of essential public facilities and services. The Chief of Engineers, in the exercise of his discretion, is further authorized to provide emergency supplies of clean water, on such terms as he determines to be advisable, to any locality which he finds is confronted with a source of contaminated water causing or likely to cause a substantial threat to the public health and welfare of the inhabitants of the locality.

The Corps' Public Law 84-99 Program is multi-faceted program that encompasses disaster preparedness, response and recovery activities in support of Federal, State, Tribal, and local stakeholders. The Corps' Public Law 84-99 Rehabilitation Program is a voluntary disaster recovery program that provides for the rehabilitation ( e.g., repair) of damage to eligible Federal and non-Federal flood risk management projects damaged by flood or coastal storms.

The Corps and other Federal agencies can assist communities in assessing, communicating, and managing their flood risks and can help them prepare for and respond to a flood, hurricane, or other natural disaster. However, State, Tribal, and local governments, and those living and working behind a flood or coastal storm risk management project have the primary responsibility and role in this effort. The residual flood risk associated with their projects is a result of how those projects are expected to perform under a range of potential floods, and the consequences that would result from their failure during a flood.

The focus of this rulemaking is the Public Law 84-99 program. In addition to Public Law 84-99, the Corps has other authorities. For example, through its Planning Assistance to States program and its Flood Plain Management Services program, the Corps is able to assist a community to identify and evaluate options where the flood risk is increasing due to climate change. Similarly, through these planning and technical assistance programs, the Corps is able to encourage and facilitate a collaborative approach to address complex natural resources issues and Tribal treaty rights. However, the Corps generally does not perform this kind of work through the Public Law 84-99 program. The Corps also recognizes the importance of environmental justice. It applies this policy both in the Public Law 84-99 program and under its other authorities.

Part 203 of Title 33 of the CFR is the Corps' implementing regulation for Public Law 84-99 and was last promulgated in 2003 (68 FR 19357, April 21, 2003). Engineering Regulation 500-1-1 provides internal agency-specific procedures implementation guidance for implementing Public Law 84-99.

1. Does this action apply to me? This action is directed to the public in general, but will be of particular interest to a variety of organizations, to include legally constituted non-Federal public bodies responsible for operating and maintaining flood and coastal storm risk management projects (referred to as “non-Federal sponsors” in 33 U.S.C. 701n), State, Tribal, territorial, and local emergency management agencies, water resources agencies, environmental agencies, fish and wildlife management agencies and organizations, and floodplain, dam, and levee safety managers. This proposed rule applies to many communities nationwide, including those with environmental justice interests, and commenters are encouraged to provide their views and inputs on environmental justice strategies related to this rulemaking effort.

2. What should I consider as I prepare my comments for submission? Commenters not familiar with current policy should review the references section. These resources are available on the Federal eRulemaking portal at http://www.regulations.gov. For ease of comment review and consideration, commenters should consider referencing a specific section or paragraph of 33 CFR part 203. In addition to solicitation on the specific changes being proposed, the Corps solicits comments in general on other issues or concerns related to this part that commenters may wish to raise. For example, commenters may provide comments on how best to incorporate nature-based solutions into this program. For these comments, the commenter should state the issue or concern, provide or reference any supporting documentation ( e.g., reports, statistical data, and studies), and make a proposal or recommendation about how to improve the regulation.

This rule includes a proposed change in the focus of the Rehabilitation Program. The eligibility of a levee system for consideration for rehabilitation assistance after a flood was once based only on inspections conducted by the Corps. More recently, the Public Law 84-99 program has been transitioning to risk-informed eligibility determinations for projects, which are based on an evaluation of the non-Federal sponsor's overall risk management activities, including information developed through inspections. Additional changes are also proposed to effectively implement recent amendments to Public Law 84-99.

Since the last revision in 2003, significant disasters, including Hurricane Katrina (2005), Hurricane Sandy (2012), flooding on the Mississippi and Missouri Rivers (2008, 2011, and 2013), and Hurricanes Harvey, Irma, and Maria (2017) have provided a more detailed understanding of the nature and severity of the risks associated with coastal storms and floods. These significant events provided information regarding project performance and the effects of climate change that the Corps has considered when formulating this rule update.

During Hurricane Katrina, the Federal response was found to be reactive once State and local governments had exhausted available response resources, and was not necessarily anticipatory. This rule update provides ability to lend expertise and gain a greater understanding of State, Tribal, and local needs and requirements in order to improve their ability to prepare for, respond, and recover from natural disasters. Lessons learned have also resulted in the “whole of community” principles outlined in the National Preparedness Goal and supporting frameworks and which are incorporated in this rule update.

Additionally, the maturation of risk-informed decision-making approaches and technological advancements from a purely standards-based perspective has influenced the outlook on how Public Law 84-99 activities should be implemented, with a shift towards better alignment with the Corps Levee Safety and National Flood Risk Management Programs. Risk-informed decision making uses an iterative process to reduce risk over time by identifying the areas of acceptable risk, monitoring the acceptable risk, and then devoting resources to manage the sources of unacceptable risk in priority order. The process begins by capturing activities and efforts within three overarching categories: risk assessment, risk management, and risk communications. Through this process, the Corps and non-Federal sponsors assess the flood risk to property, infrastructure, public safety, and the environment; and seek to reduce that risk in stages by addressing the highest priority flood risk management deficiencies first, and by working with elected officials and other risk managers to identify other priority areas for investment. Through risk communication, people living and working behind flood risk management projects also can make informed decisions regarding flood insurance, evacuation measures, flood proofing, and relocation. Risk assessment, risk management, and risk communication concepts are included in this proposed update.

Given these developments since the last revision in 2003, the Corps is proposing to repeal and replace part 203. The proposed revisions include updated eligibility criteria for rehabilitation assistance under Public Law 84-99. The proposed criteria are more risk-informed, with the intended result of improved targeting of non-Federal sponsor investments.

In addition to the lessons learned identified previously and the evolution of Corps and national policy related to risk-informed decision making and disaster risk management, the proposed revisions reflect the enactment of the following statutes, which amended or otherwise affected the Public Law 84-99 program:

1. Subsection 3029(a) of the Water Resources Reform and Development Act of 2014 (WRRDA) (Pub. L. 113-121) grants the Chief of Engineers authority to restore eligible hurricane or shore protection works to the design level of risk reduction and, under certain circumstances, to make modifications to flood control and hurricane or shore protection works damaged during flood or coastal storms events, as well as the authority to implement nonstructural alternatives in the repair and restoration of hurricane or shore protection works if requested by the non-Federal sponsor.

2. Section 3011 of WRRDA 2014 mandates that a levee system shall remain eligible for rehabilitation assistance under Public Law 84-99 as long as the system's non-Federal sponsors continue to make satisfactory progress, as determined by the Secretary of the Army, on an approved system wide improvement framework or letter of intent.

3. Section 1176 of the Water Resources Development Act of 2016 (WRDA) (Pub. L. 114-322, Title I) provides an express definition of “nonstructural alternatives,” as that term is used in Public Law 84-99, and authorizes the Chief of Engineers, under certain circumstances, to increase the level of risk reduction of flood control works when conducting repair or restoration activities to such works under Public Law 84-99.

4. Section 1160 of the Water Resources Development Act of 2018 (WRDA) (Pub. L. 115-270, Title I) provides the option of realignment to the kinds of modifications that can be made to flood control works; and changes the authorized level of restoration for coastal storm risk management (CSRM) projects.

5. Section 1161 of the Water Resources Development Act of 2018 (WRDA) (Pub. L. 115-270, Title I), as amended by section 120 of the Water Resources Development Act of 2020 (Division AA, Pub. L. 116-260), authorizes the Chief of Engineers to repair or restore Federal and non-Federal flood risk management (FRM) projects and federally authorized CSRM projects when the costs of the repair or restoration work exceed the benefits, if the non-Federal sponsor agrees to pay, in cash or in-kind contributions, all costs in excess of the benefits of the repair or restoration work and the Secretary determines that the damage to the structure was not a result of negligent operation or maintenance and that repair of the project could benefit another Corps project.

The section titles referred to in this section of the preamble reflect the titles in the proposed regulatory text which may be different than what is reflected in the currently codified regulatory text.

1. No rule update: In this alternative, the Corps would follow status quo and continue to implement all changes through agency discretion and internal regulations. This alternative was not selected because the Public Law 84-99 amendments are very prescriptive and public rulemaking is necessary to ensure implementing policy will achieve its intended purpose as described in the proposed rule.

2. Repeal and replace only those provisions that pertain to the Public Law 84-99 Rehabilitation and Inspection Program: In this alternative, the Corps would issue a separate rule for the Public Law 84-99 Rehabilitation Program and would repeal the provisions in the current rule that affect that program. This alternative was not selected because it would result in two published rules for the Public Law 84-99 program. That could result in misunderstandings of program activities and inhibit transparency.

3. Repeal and replace all of the current rule (selected alternative): In this selected alternative, the Corps proposes to incorporate and integrate the current state of the practice of flood risk management principles and concepts through the provision of agency policy codified in a federal rule. The intended benefit is to encourage broader community flood risk management activities by non-Federal project sponsors specific to the flood risk management projects they operate and maintain and in coordination with the applicable communities. This rule alternative also consolidates recent Public Law 84-99 amendments into one comprehensive rule, ensuring the public has a clear understanding of the responsibilities and requirements.

Section 203.11 General. Minor editorial changes are proposed for clarity to better describe the purpose of this section of the regulation and to reflect the requirements of Public Law 84-99, as amended (33 U.S.C. 701n). Editorial changes also are proposed for clarity and accuracy to better reflect the current authorities and activities of the Corps under Public Law 84-99, such as changing “flood control works” to the more appropriate “flood risk management projects.” In addition, two new subsections are proposed for “Form of Assistance” and “Availability of Assistance.” The “Form of Assistance” proposed text clarifies that direct assistance is only provided to responsible State, Tribal, territorial, and local interests rather than individuals and that the Corps generally does not transfer Federal funds for the non-Federal performance of assistance activities. The “Availability of Assistance” subsection proposed text clarifies that Public Law 84-99 assistance is only provided when similar assistance is not reasonably available from other Federal agencies.

Section 203.12 Definitions. To enhance transparency and common understanding, new definitions are proposed for coastal storm risk management projects; emergency repair, rehabilitation, and restoration; Federal coastal storm risk management project; Federal flood risk management projects; flood risk management projects; Tribal Nation; interim risk reduction measures (IRRM); Lands, Easesment, Right-of-Way, Relocation, and Disposal/Borrow sites (LERRDs); levee segment; levee system; maintenance; non-Federal flood risk management project; nonstructural alternatives; operation; rehabilitation; repair; replacement; responsible State, Tribal, and local interests. In general, these are terms commonly used by the Corps. Updated definitions are proposed for Governor, to clarify that the Governor is the chief executive of a State; and non-Federal Sponsor, to clarify the applicable types of agreements. The current definition of Federal project, flood control project, hurricane shore protection project (HSPP), non-Federal project, repair and rehabilitation are proposed to be removed as the proposed new and updated definitions would supersede the content in those existing definitions to provide added granularity and clarity.

Section 203.13 Federally-recognized Tribal Nations and the Alaska Native corporations. Minor changes are proposed. There is an exception proposed for tribes regarding emergency water assistance as the statute defines such assistance is provided to States. The proposed exception is required to ensure emergency water assistance may be provided to tribes, albeit indirectly through the States. In other Public Law 84-99 assistance areas, the Tribal Nations may submit requests for assistance directly to the Corps.

Section 203.14 Exceptions to policy. An “exception to policy” section is proposed in order to ensure flexibility when accomplishing activities, prescribed in this rule, with complex and/or unforeseen interdependencies.

Section 203.21 Emergency preparedness assistance. A new section is proposed to clarify the purpose of this assistance to Federal, State, Tribal, and local agenciesTribal, which is to help support their efforts to prepare for a specific identified storm or forecasted high water event that may lead to flooding. It also provides examples of types of emergency preparedness activities.

Section 203.22 Emergency preparedness responsibilities of non-Federal sponsors. This existing section is being renamed to use “emergency” rather than “disaster” to identify the broader set of circumstances and emergency nature of the preparedness responsibilities of non-Federal sponsors. It is also being renumbered to accommodate the new section proposed above.

Through experience gained in recent disasters, the Corps has learned that increased local preparedness capability is crucial to subsequent natural disaster response and recovery. Changes are proposed to improve local capability for disaster preparedness and planning, primarily through technical assistance in support of this goal. Preparedness planning and training are proposed to be listed as separate subsections for clarity and emphasis on the respective actions under the responsibility of the non-Federal sponsor. Floodplain management and interim risk reduction measures are recognized as a local reponsibility in this proposed rule. The current subsection on the Corps Rehabilitation and Inspection Program (RIP) is proposed to be replaced by the “Emergency repair, rehabilitation, and restoration assistance” subsection to reflect the proposed transition to a risk-informed eligibility determination. The proposed subsection also clarifies the actions a non-Federal sponsor must undertake to maintain eligibility for the Public Law 84-99 Program.

Subpart C is proposed to be rearranged for clarity and to eliminate redundancies with the addition of a new section at § 203.33. Much of the content remains the same as the current regulation other than the changes described below.

Section 203.31 General. The title of the section is proposed to be modified from the existing “Authority” to reflect that the section describes both the authority of the Corps and the responsibilities of non-Federal sponsors for Emergency Operations. Changes are also proposed in this section to remove duplicative information already found in the proposed renumbered §§ 203.32 and 203.33.

Section 203.31(b) is being proposed to modify the current regulation at § 203.31(a), which states that the Corps' flood response measures are not appropriate for projects which protect strictly agricultural lands. The new subsection allows for the Corps, in some cases, to provide such measures for an FRM project that primarily reduces the flood risk to agricultural lands. This allows for Corps assistance to be provided in these limited situations and reflects the contribution of agricultural lands to the national economy.

Section 203.31(c) is proposed to establish the non-Federal sponsor's role and responsibilities for certain Emergency Operations activities. These are not new responsibilities. Rather, the propsoed changes serve to ensure understanding of the role and responsibilities of the non-Federal sponsor for those Emergency Operations activities.

Section 203.32 Flood response procedures. Language is proposed and intended to address coordination with other Federal agencies to ensure there is appropriate consideration of relevant statutes related to environmental and cultural resources taking into account the exigency of the circumstances. This proposed addition recognizes that environmental and cultural resource protection statutes are applicable to emergency actions and that coordination with other agencies at the time of or in advance of the emergency response may be necessary. The proposed language recognizes the importance of these statutory requirements and ensures appropriate compliance and coordination occurs. As proposed, Corps Districts should evaluate their emergency response portfolio in coordination with other relevant agencies ( e.g., the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or the applicable State Historic Preservation Office) and their response partners to determine whether programmatic compliance or establishment of common standard operating procedures in advance of any emergency response may be appropriate.

Section 203.33 Post flood response procedures. Minor changes are proposed to simplify and clarify post flood response policy.

Changes to this subpart title are proposed to incorporate the more appropriate title “flood risk management projects” as opposed to the formerly used term “flood control works.” In addition, the coastal storms have been removed from the title as coastal storm risk management is now proposed to be discussed in the revised Subpart E—Emergency Repair, Rehabilitation, and Restoration Assistance for Federal Coastal Storm Risk Management (CSRM) projects, to provide clarity in distinguishing between the FRM and CSRM projects. Lastly, reference to the Corps' Rehabilitation and Inspection Program is proposed to be removed from the title to reflect the change in focus of the program from the RIP to the risk-informed determinations.

As discussed previously, this proposed section introduces revised criteria for initial and continued eligibility in the Rehabilitation Program, modifications to existing flood risk management projects, and the System Wide Improvement Framework (SWIF). By incorporating lessons learned from recent disasters, the proposed changes will help non-Federal sponsors improve their flood risk management. Risk-informed decision making uses an iterative process to reduce risk over time by identifying the areas of acceptable risk, monitoring the acceptable risk, and then effectively devoting resources to manage the sources of unacceptable risk in priority order. The proposed changes in this subpart will transition from eligibility criteria for rehabilitation assistance based on an inspection to a risk-informed approach, primarily based on an evaluation of a broader set of non-Federal sponsor's risk management activities.

The changes are necessary to encourage broad flood risk management actions, including establishing investment priorities at the local level based on risk and cost-effectiveness, and to achieve greater flexibility to protect and restore natural resources. The proposed changes also are intended to promote community discussion and engagement in a broader set of actions to help communities manage flood risk; and to encourage dialogue and problem solving.

Section 203.41 General. The current section is proposed to be completely replaced. The changes proposed in this section introduce the reframing of the current inspection-only program for eligibility determinations to the updated risk-informed determinations of the Rehabilitation Program. It outlines both the proposed initial and continuing eligibility criteria for Federal and non-Federal FRM projects to include the components required and process for obtaining an eligibility determination. These proposed changes provide clarity and transparency to the program.

Section 203.42 Initial eligibility assessment of non-Federal flood risk management projects. The current section is proposed to be retitled and completely replaced to be consistent with the proposed risk-informed approach. Therefore, the proposed language eliminates the current focus on an inspection-only approach to support the initial eligibility assessment (IEA) for non-Federal FRM projects in favor of the risk-informed approach based on a broader assessment. This section proposes to provide the process for the IEA and outlines the content of the required initial eligibility application. As proposed, IEAs would be primarily based on an evaluation of a broader set of non-Federal sponsor's risk management activities through an initial eligibility application package and assessment for non-Federal Flood Risk Management Projects, as opposed to solely through a traditional inspection. However, the Corps will also conduct a site inspection as part of the IEA to supplement the application materials received. The application as proposed would require documentation of the level of risk reduction provided by the non-Federal FRM project and an assessment of the expected performance of the project, as well as documentation of maintenance status and identification of any deficiencies of the project. Much of the information required in the proposed application was already included in the current § 203.48 describing the inspection procedures for the Corps. With the focus now on a broader set of non-Federal sponsor's risk management activities and a risk-informed decision-making approach, it is appropriate to incorporate these elements in the proposed application by a non-Federal sponsor rather than limit them to the Corps' inspection procedures. Once completed, the assessment is proposed to be provided to the non-Federal sponsor of the non-Federal FRM project for awareness and transparency, and a record will also be maintained by the Corps. The results of the assessment will determine initial eligibility for emergency repair, rehabilitation, and restoration assistance. The proposed eligibility criteria would ensure the non-Federal sponsor has sufficiently demonstrated its project meets the level of function necessary for inclusion in the Public Law 84-99 program, that the project will essentially function as designed and intended. The proposed regulation also provides for the non-Federal sponsor to provide additional information and request reconsideration of an assessment if it does not agree with the initial eligibility determination.

Federal flood risk management projects would be automatically granted initial eligibility in the Rehabilitation Program under the proposed language, based upon the provision of notice of construction completion, similar to the current initial eligibility pathway.

Section 203.43 Continuing eligibility assessment of Federal and non-Federal flood risk management projects. The current section is proposed to be completely retitled and replaced to be consistent with the proposed risk-informed approach, and therefore eliminates the focus on an inspection-only approach to support the continuing eligibility assessment (CEA) for Federal and non-Federal FRM projects. The proposed text in this section provides the procedures and content of required elements for a CEA. As proposed, the CEA would assess the non-Federal sponsor's risk management activities through: implementation of its project Operation, Maintenance, and Inspection Activities; a review of emergency preparedness planning; and a review of public outreach activities accomplished to share FRM project condition and performance. Inspection information would be verified in accordance with their provided plan. The CEA also would include a review of the participation for the non-Federal sponsor in past inspections and assessments conducted by themselves or with the Corps. The CEA would identify changed project conditions that could impact project performance. The CEA would also verify that the criteria required for the IEA to maintain its eligibility are being met. The specific requirements for a favorable CEA determination would be defined in the project partnership agreement, O&M manual, or Levee Owner's manual for non-Federal sponsors. The proposed criteria would demonstrate whether the non-Federal sponsor has continued to maintain the project to ensure it will essentially function as designed and intended, and also would include emergency planning and public outreach to ensure it is adequately prepared for an emergency at the local level. The Corps believes that improved local preparedness capabilities are crucial to ensure natural disaster preparedness and planning.

A favorable CEA determination under § 203.43, or continued progress under an approved system-wide improvement framework under § 203.50, would be required for the non-Federal sponsor to retain its eligibility for emergency repair, rehabilitation, and restoration assistance, which is similar to the current practice.

Section 203.44 Emergency repair, rehabilitation, and restoration of Federal and non-Federal flood risk management projects. Minor changes are proposed. The section title is proposed to be modified for updating to the current terminology of FRM projects and to include both Federal and non-Federal projects. The proposed language provides the eligibility requirements for emergency repair, rehabilitation, and restoration activities, which are the same for Federal and non-Federal FRM projects. The proposed regulation eliminates inspection ratings, which are no longer proposed to be used to determine eligibility; instead, assessments of the previously described activities would be performed. Also, the proposed text provides that all applicable environmental compliance requirements must be satisfied to make clear that even these emergency activities must comply with relevant environmental statutes. In addition, the proposed rule describes the non-Federal sponsor's responsibility to provide a share of certain costs. Lastly, a new subsection is proposed which is moved from its current location at § 203.46 to clearly articulate the required economic justification and minimum threshold for construction costs for emergency repair, rehabilitation, and restoration efforts under the Pubic Law 84-99 program. An increase is proposed to the minimum repair cost for the rehabilitation of flood risk management projects from $15,000 to $50,000 and is necessary to warrant Federal involvement. Considerations in setting a minimum damage threshold include the Corps' cost to complete Project Information Reports, experience with the application of the existing minimum damage threshold, and feedback from non-Federal sponsors regarding their investments in operation and maintenance activities. These new clarifications ensure transparency for the non-Federal sponsor regarding the cost and economic justifcation requirements to qualify for consideration for assistance.

Section 203.45 Emergency repair, rehabilitation, and restoration of Federal flood risk management projects. This section in the current regulation has been combined into one section under proposed § 203.44. In addition, the exception found in the current regulation regarding certain conditions to cooperation agreements for Federal FRM projects has been relocated to § 203.114.

Section 203.46 Restrictions. This section is largely unchanged. The Corps will not generally provide emergency repair, rehabilitation, and restoration assistance under Public Law 84-99 to address damages by occurrences other than floods or coastal storms. However, other natural disasters may impact the structural integrity of a FRM project and trigger an emergency flooding situations. Those cases are proposed to be evalauted on a case-by-case basis.

Section 203.47 Modifications to flood risk management projects during rehabilitation. Changes are necessary to implement provisions for the authority under Subsection 3029(a) of WRRDA 2014 and Section 1176 of WRDA 2016, which authorize modification to flood risk management projects under certain conditions. This section proposes to prescribe how a non-Federal sponsor may request modification of an existing flood risk management project that is undergoing rehabilitation under Public Law 84-99 in order to address major deficiencies or in certain circumstances to increase the level of risk reduction or pump station capacity.

The proposed section (a) provides the criteria for when the Corps would consider requests for a modification to address major deficiencies. It also provides examples of allowable features of modifications to address major deficiencies, such as incorporating features to make the overall levee system more durable ( e.g., low sills, riprap, and hardening features), constructing setback levees, or floodproofing.

The proposed section (b) provides allowances for consideration of a new set of modifications to increase the pre-flood level of risk reduction or pump station capacity. New criteria are also proposed for consideration under these types of modifications.

The proposed criteria in both subsections would ensure that the modifications are appropriate to undertake through the Public Law 84-99 program. This limitation will ensure the Corps can give continue to give priority to short-term emergency repairs and to the rehabilitation and restoration of projects that have sustained extensive damage. Where a non-Federal sponsor wants to construct major modification of a flood or coastal storm risk management project after a flood or coastal storm, the Corps is able to provide technical and planning assistance outside of the Public Law 84-99 program.

In addition, a new section is proposed to outline the procedures for a request for modifications to ensure a consistent and transparent process. Also, new sections are proposed to clarify cost-sharing requirements with the non-Federal sponsor, to provide the requirement for modifications to be economically justified, and to clarify that modifications will not be undertaken under Public Law 84-99 to achieve a purpose that is not related to flood risk management, as those are outside the bounds of the intent of Public Law 84-99 program.

Section 203.48 Inspections and risk assessments for flood risk management projects. Editorial changes and removal of duplicative information are proposed. For example, inspection activities are now proposed to be prescribed in §§ 203.42 and 203.43 as a component of the broad set of non-Federal sponsor's risk management activities and requirements in the IEAs and CEAs and as such can be removed from this section. Much of the content as described in the current inspection procedures is now included in the IEA and CEA descriptions as part of the proposed risk-informed approach for information to be provided by the non-Federal sponsor.

Section 203.49 Levee Management Guide. The existing § 203.49 (Rehabilitation of hurricane and shore protection projects) is proposed to be removed in its entirety as the contents are now found in Subpart E. The existing § 203.50 content on non-structural alternatives is moved to the proposed Subpart F. The current § 203.51 is now moved and renumbered as this proposed section. Only minor changes are proposed for consistency with the proposed changes herein ( e.g., referring to eligible projects as opposed to “active” projects under the inspection-only RIP).

Section 203.50 System-wide improvement framework. This proposed new section implements Section 3011 of WRRDA 2014, which provides that a levee system shall remain eligible for rehabilitation assistance under Public Law 84-99 as long as the system's non-Federal sponsor(s) continues to make satisfactory progress under an approved system-wide improvement framework (SWIF). As proposed, a SWIF is a plan developed by a non-Federal sponsor(s) and accepted by the Corps to conduct a series of improvements to a levee system (or multiple levee systems within a watershed) to address system-wide deficiencies that are complex or time-consuming to correct.

The proposed changes ensure committed non-Federal sponsors have the opportunity to transition their levees over time to Corps standards. By using a SWIF, non-Federal sponsors can prioritize deficiencies to address the highest risk first to achieve system-wide risk reduction. In the requirements for a SWIF, the proposed rule recognizes that some non-Federal sponsors may also need to engage at the Federal, State, and local levels to address complex levee system issues in a more long-term, comprehensive approach to identify solutions that optimize resources; prioritize improvements and corrective actions based on risk; and coordinate overlapping or competing programs and requirements. The Corps also is proposing to expand the use of a SWIF to maintain the eligibility of these non-Federal sponsors where they are making progress to correct complex system-wide issues or to address a complex natural resources issue such as consultation/mitigation actions for resources subject to the Endangered Species Act or Tribal treaty rights.

Subpart E is proposed to prescribe Rehabilitation Assistance activities specific to CSRM projects formerly found in Subpart D of the 2003 version of 33 CFR part 203.

Section 203.61 General. Minor changes are proposed to the current § 203.49(a) to update the terminology from hurricane and shore protection projects to CSRM projects. In addition, the proposed language states that the Corps may include modifications to a CSRM project to address major deficiencies and describes the circumstances where nonstructural alternatives may be employed.

This proposed revised section clarifies that emergency repair, rehabilitation, and restoration assistance for Federal CSRM projects generally is limited to the project's design profile template. However, at the request of the non-Federal sponsor, the Corps may evaluate restoration to a pre-storm profile as a restoration alternative where the pre-storm profile is greater than the design profile template and is deemed necessary to ensure adequate functioning of the project. The current regulation text states that the assistance is limited to the pre-storm condition that allows for adequate functioning of the project.

This proposed language implements Subsection 3029(a) of WRRDA 2014, under which the Corps would be able to restore hurricane or shore protection works to the design level of risk reduction. As proposed, rehabilitation assistance for CSRM projects generally is limited to the project's design profile, which is the level of restoration that will allow for the adequate functioning of the structure. The proposed language also implements Subsection 1160 of WRDA 2018, which allows consideration of restoration to the pre-storm profile, which is the profile that existed the day prior to the storm. In some circumstances, the pre-storm profile may be greater than the design profile and restoration to the pre-storm profile may be necessary to ensure adequate functioning of the project based on project-specific conditions, such as greater than anticipated erosion rates or as a result of climate change. The proposed language uses the project's design profile as the baseline profile for assistance, and also provides that the Corps may evaluate circumstances when the pre-storm profile may be more appropriate. In addition, if restoration to the pre-storm profile is not necessary to ensure adequate functioning of the project, the proposed language clarifies that the Corps may use Public Law 84-99 funds to restore a beach to its the pre-storm profile only if the incremental costs above the costs to restore to the design profile are subject to the cost-sharing that would apply for periodic nourishment and the non-Federal sponsor requests the Corps to proceed on that basis. This would ensure the Corps does not default to and cover the costs for the restoration to the pre-storm profile where that exceeds what the Corps views as required for the adequate functioning of the project.

The proposed language also clarifies that an extraordinary storm is the event which triggers emergency repair, rehabilitation, and restoration assistance. A proposed definition for extraordinary storm is found in § 203.63.

The revised language also proposes to clarify that Federal CSRM projects would not be eligible for assistance if the non-Federal sponsor has not established and maintained adequate conditions of public use and access. This language also clarifies the roles and responsibilities of the non-Federal sponsor to qualify for Corps assistance to ensure the Corps is only repairing, rehabilitating, or restoring. Restoration activities beyond the authorized design profile or pre-storm condition (where determined appropriate) are considered beyond the scope of the Public Law 84-99 program.

The proposed language also clarifies conditions for Corps assistance on Federal CSRM projects located completely or partially within a unit of the Coastal Barrier Resources System, focusing on whether or not an exception to a statutory limitation on Federal expenditures within the System has been provided.

Section 203.62 Non-Federal sponsor responsibilities for CSRM projects. Clarification of non-Federal Sponsor roles and responsibilities are proposed in this new proposed section.

Section 203.63 Emergency repair, rehabilitation, and restoration of Federal CSRM projects. This proposed section includes the proposed definition of “extraordinary storm,” which entails minor modifications to the existing definition found at § 203.49(b)(6). Proposed modifications include removing the specific category of storm or exceedance frequency required to meet the term, but retains a finding that an extraordinary storm event is the cause of the substantial damage to a Federal CSRM project, such that it no longer provides significant risk reduction benefits. The key terms further proposed to be defined relate to the “duration or severity” and the “substantial damage” incurred. The Corps has found over the 18 years since the regulation was last promulgated that limiting the term of “duration or severity” to specific criteria of a particular category of storm event, for example, did not always correlate to the damage caused. For example, lower category repetitive storms within a short period of time may combine to have a greater effect than a single higher category storm. In addition, criteria are proposed for identifying when “substantial damage” has been incurred, some of which are carried forward from the current regulation with modifications to modernize costs. New criteria are also proposed with respect to “substantial damage”, based on the Corps' experience in implementing the program, such as where only hard structural features of the project were damaged. One new subsection is proposed to be consistent with other aspects of the program, by including a requirement for the rehabilitation to be economically justified. The proposed rule also clarifies that Corps assistance under the Public Law 84-99 program is available for a Federal CSRM project only if an extraordinary storm significantly compromised the project's ability to provided risk reduction.

Section 203.64 Modifications to CSRM projects undergoing rehabilitation. The proposed changes implement Subsection 3029(a) of WRRDA 2014. This section prescribes how a non-Federal sponsor may request modification of an existing coastal storm risk management project as part of the emergency repair, rehabilitation, and restoration of the project under Public Law 84-99. As proposed, a modification is a work effort that consists of the addition of new features, elements, components, or items, or the upgrading of existing ones, which would improve the structural integrity of the project, but would not increase its level of risk reduction or have the effect of expanding the area for which the project is effective in reducing the coastal storm risk. The scope of modifications, as proposed, ensures the Corps can effectively perform short-term emergency repairs. This section maintains consistency, to the extent practicable, with previous discussions of modifications to FRM projects.

The content for this proposed subpart is currently found in § 203.50 but is proposed to be included as a separate subpart for clarity and ease of reference. The separate subpart also allows for more focused discussion of the nonstructural alternatives (NSAs) and how they may be applied for both FRM and CSRM projects. This proposed subpart replaces the current subpart F for “Advanced Measures,” which is now proposed in subpart I.

Section 203.71 General. This proposed section implements Subsection 3029(a) of WRRDA 2014 and provides for the consideration of NSAs in lieu of the repair and restoration of projects. As proposed, the Corps may implement nonstructural alternatives to the rehabilitation, repair, or restoration of flood or coastal storm risk management projects at the request of the non-Federal sponsor, which may include efforts to restore or protect natural resources, including streams, rivers, floodplains, wetlands, or coasts, if those efforts are related to achieving a reduction in the flood or coastal storm risk. The proposed section carries forward the Corps' existing policy regarding NSAs with minor changes.

A requirement for an amendment to the project partnership agreement (PPA) is proposed to be included. This ensures the PPA is updated to reflect the changes of including NSAs in the project to ensure the PPA is consistent with the current state of the project.

Another proposed change is to include more specificity as to when exceptions to the limitation on Corps expenditures may be approved. The current regulation provides that the limitation may be waived when compelling reasons exist but does not provide examples or criteria of what such compelling reasons may be. The proposed regulatory text provides specific criteria for when such exceptions may be approved for improved public awareness and transparency in the process.

The content for this proposed subpart is currently found in subpart E but is proposed to be moved to this subpart for organizational purposes as a result of edits made to other subparts. This proposed subpart replaces the current subpart G for “Local Interests/Cooperation Agreements,” which is now proposed in subpart J. The subpart title is proposed to be renamed from the current “Emergency Waters Supplies: Contaminated Water Sources and Drought Assistance” to reflect the specific focus of this proposed subpart on the emergency drinking water assistance. The “Drought Assistance” topic is proposed to be covered in a new separate subpart at subpart H. This allows for improved clarity and discussion on these separate assistance efforts provided under the Public Law 84-99 program. The proposed subpart G carries forward the Corps' existing policy regarding drinking water assistance in response to contaminated water sources with minor changes.

Section 203.81 General. Minor changes are proposed for improved readability. The duration of assistance is now proposed to be included in § 203.82 but maintains the current text with minor changes for clarity.

Section 203.82 Eligibility criteria and procedures. This proposed section proposes minor clarifying changes to the eligibility criteria and procedures contained in the existing subpart E. For example, a Tribal official, in addition to a Governor, may request assistance under this section. The proposed section also clarifies that a Cooperation Agreement (CA), as described in subpart J, is required for Corps assistance under this section.

The content for this proposed subpart is currently found in subpart E but is proposed to be moved to this subpart for organizational purposes as a result of edits made to other subparts. This proposed subpart adds a new subpart to the CFR. The subpart title is proposed to be renamed from the current “Emergency Waters Supplies: Contaminated Water Sources and Drought Assistance” to reflect the specific focus of this proposed subpart on drought assistance. This allows for improved clarity and discussion on this distinct assistance effort provided under the Public Law 84-99 program. The proposed subpart H carries forward the Corps' existing policy regarding drought assistance with minor changes.

Section 203.91 General. Minor changes are proposed for readability. In addition, the proposed language designates the Corps Deputy Commanding General for Civil and Emergency Operations as the official who designates a drought distressed area. The definitions included in the current regulation text at § 203.62 are proposed to be included in this section.

Section 203.92 Eligibility criteria and procedures. Editorial and clarifying changes are proposed. For example, a Tribal official may request assistance directly under this section, without a requirement to make this request through the Governor of the State in which the Tribal lands are located, as is currently provided in the existing regulation text. This proposed section also includes the contents of the written request, which now are provided in § 203.62. This section also proposes that a CA is required for Corps assistance, which is consistent with CA requirements proposed for other Corps assistance efforts provided under this program. In addition, this section proposes to provide clarity and transparency to the responsibilities of the non-Federal sponsor for drought assistance under this section.

The content for this proposed subpart is currently found in subpart F but is proposed to be moved to this subpart for organizational purposes as a result of edits made to other subparts. This proposed subpart adds a new subpart to the CFR. The proposed subpart I carries forward the Corps' existing policy regarding advance measures with minor changes.

Section 203.101 General. Minor clarifying changes are proposed. The primary proposed modification is to allow a Tribal official, in addition to a Governor, to request assistance under this section.

Section 203.102 Eligibility criteria and procedures. Minor changes are proposed for clarity and readability.

The content for this proposed subpart is currently found in subpart G but is proposed to be moved to this subpart for organizational purposes as a result of edits made to other subparts. This proposed subpart adds a new subpart to the CFR. The proposed subpart J carries forward the Corps' existing policy regarding cooperation agreements with minor changes. The title is proposed to be modified from the current, “Local Interests/Cooperation Agreements” to only include “Cooperation Agreements” for clarity on the specific focus of this section on the cooperation agreements and to eliminate unnecessary text.

Section 203.111 General. Minor changes and removal of duplicative information are proposed for improved readability.

Section 203.112 Non-Federal sponsor requirements. Minor changes and additional non-Federal sponsor requirements are proposed regarding consideration of the non-Federal sponsor's prior performance capability. In addition, elements of local cooperation required for asssistance provided under Subpart C are proposed.

Section 203.113 Funds and cost sharing. Minor changes are proposed for improved clarity. In addition and as proposed, assistance provided under Subpart I in which “permanent construction standards” are applied would be now subject to a 35 percent non-Federal cost share. Cost share requirements are also proposed when accomplishing modification activities to flood or coastal storm risk management projects under Subparts D and E. These proposed changes are consistent with the cost-sharing for this type of work under other Corps Civil Works authorities. The proposed changes also implement provisions for the authority under Subsection 1161(a) of WRDA 2018 in which a non-Federal sponsor may contribute funds for all costs in excess of benefits and subject to the conditions outlined in § 203.113 of this proposed rule. Subsection 1161(b) of WRDA 2018 is not addressed in this proposal due to the sunset provision of that authorization. Instead, the Corps will continue to implement this provision through existing guidance (“Implementation Guidance for Section 1161 of the Water Resources Development Act of 2018, Cost and Benefit Feasibility Assessment, dated 12 April 2019.)

Section 203.114 Project partnership agreements. Minor changes are proposed for improved clarity and readability.

Section 203.115 Procedures and responsibilities upon completion of Corps work. Minor changes are proposed for improved clarity and reability.

Over time, cities and towns have developed behind levees and along our coasts, and the nature of the risk posed by the movement of water in a flood or storm in our rivers, lakes, and coasts has changed due to a variety of factors ( e.g., more stormwater runoff due to development, building of upstream dams, and climate change). As such a standards-only-based approach ( i.e., focus on the condition of the levee or beach only) may not address some of the sources of unacceptable risk. For a programmatic perspective, of the nearly 6,600 miles of levees currently in the Rehabilitation Program, 4,850 miles are Federal levees (federally authorized and constructed, but locally owned, operated, and maintained) and 1,750 miles are non-Federal levees (locally constructed, and locally owned, operated, and maintained). Overall, the changes to this regulation will provide greater flexibility to the Federal government and non-Federal sponsors and improve the effectiveness of Federal and local investments in riverine and coastal projects. These proposed changes take advantage of our increased understanding of project risks, moving from an assessment of how the project is expected to perform to a focus on a broader set of actions to reduce risk through effective operation, maintenance, planning, and execution actions; and to improve emergency warning and evacuation, and the ability of communities and individuals to understand and manage project-related risks. Informed by more detailed understanding of risk for flood risk management projects, the Federal government and non-Federal sponsors are able to apply available resources to the risk management activities that most effectively reduce flood risk and avoid expenditures that have little risk reduction benefit.

Changes reflected in this proposed rule are aimed at encouraging and enabling emergency managers, local officials, and members of the public to identify risks where loss of life may occur, and to prepare for actions when needed to move people out of harm's way. Non-Federal sponsors may see an initial cost increase associated with documenting activities necessary for eligibility for the Rehabilitation program, however the assessment and risk management activities are activities already required as non-Federal sponsors and will likely result in efficient use of available resources.

The Corps uses the funds appropriated in its Flood Control and Coastal Emergencies account to pay for most of its costs for the work covered by this rule. Over a recent 10-year period—from fiscal year (FY) 2012 through FY 2021—the Corps spent an average of roughly $307 million per year from this account on the Public Law 84-99 program. The Corps uses most of this funding to repair damaged flood and coastal storm risk management projects.

The Corps also uses funds appropriated in its Operation and Maintenance account to pay a portion of the work used as data for eligibility determinations, outlined in this proposed rule. For example, the Corps spends an average of roughly $30 million per year to inspect locally owned levee systems that the Congress has authorized as a Corps project.

We anticipate the costs to the Federal government to implement this program to remain roughly the same under the proposed rule.

The Corps received input from State and Federal agencies, stakeholders, and other interested parties through the issuance of an Advanced Notice of Proposed Rulemaking (ANPR). The ANPR was published in the Federal Register on February 13, 2015 (80 FR 8014; Federal Register Document #2015-03033) soliciting public comment on specific policy revision concepts being considered for this proposed rulemaking. In response to the ANPR, we received 267 comments from 47 organizations and individuals. Of the 47 submissions, 23 were from non-Federal sponsors who contributed almost half (173) of all comments received. The remaining comments were received from eight individuals, five associations, four Tribal nation organizations, and four State government agencies. Overall, the comments were generally supportive of the policy revision concepts outlined in the ANPR and recognized the value of using risk-informed approaches for decision making. There was widespread support among commenters for continuing the System-wide Improvement Framework (SWIF) policy. Several commenters indicated some concerns about the proposed concepts and how they may impact non-Federal sponsors. Commenters noted that the collaboration and flexibility provided by this framework positively contributed to good decision making, however several said that the current two-year timeframe under the current SWIF policy was too short. There was a perception among commenters that the Corps would be deemphasizing the role and use of inspections for eligibility determinations and commented that continuing these inspections was important. Other Federal agencies mentioned the need for compliance with all applicable statutes. We have carefully considered all of these comments in developing the proposed rule.

For additional information, see the following references:

a. Review under the National Environmental Policy Act. As required by the National Environmental Policy Act (NEPA), the Department of Army prepares appropriate environmental analysis for its activities affecting the quality of the human environment. We have preliminarily determined that this proposed revision to the regulation, if finalized, would not constitute a major Federal Action significantly affecting the quality of the human environment because the part 203 regulations require that the Corps conduct an action-specific NEPA analysis before undertaking any activities that could potentially affect the quality of the human environment. The draft Environmental Assessment to support this preliminary determination is available at http://www.regulations.gov for public comment. The preliminary determination that an Environmental Impact Statement (EIS) will not be required for the promulgation of these regulations will be reviewed in consideration of the comments received.

b. Unfunded Mandates Reform Act. The Unfunded Mandates Reform Act does not apply to this proposed rule because this rule provides policy for emergency assistance at the request of any State, Tribal, local government, or non-Federal sponsor. The Corps has also found, under section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

c. National Technology Transfer and Advancement Act. This proposed rule does not involve technical standards and as such there is no anticipated requirements under this Act.

d. Executive Order 12866. Executive Order 12866 (58 FR 51735, October 4, 1993), defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rule has been found to be a significant regulatory action, because it raises novel policy issues in how the Corps implements its Natural Disaster Procedures. Accordingly, the rule was submitted to the Office of Management and Budget (OMB) for review.

e. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This proposed rule does not impose any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act is required.

f. Executive Order 13132: Federalism. This rule will not have substantial direct effects on the states, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

g. Regulatory Flexibility Act. The Regulatory Flexibility Act (RFA), as amended (5 U.S.C. 601 et seq. ) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of the proposed rule on small entities, a small entity is defined as: (1) A small business based on SBA size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The U.S. Army Corps of Engineers certifies that this proposed revision to the regulation does not have a significant economic impact on a substantial number of small entities. The proposed modifications to the regulation, and the regulation as a whole, do not place any regulatory burdens on small entities or have a significant economic impact on such entities. The regulation merely provides a construct under which the Corps can provide limited forms of emergency assistance and project rehabilitation to State, local, and Tribal governments upon request from the same. Although small entities might benefit from such emergency assistance—just as large entities and private individuals might—the provision of such assistance under the regulation does not place any burden on small entities nor does it entail direct involvement by such entities.

h. Congressional Review Act (5 U.S.C. 801 et seq.). Pursuant to the Congressional Review Act, this proposed rule has not been designated a major rule, as defined by 5 U.S.C. 804(2). This proposed rule is not a “major rule” as defined by 5 U.S.C. 804(2), because it is not likely to result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based enterprises to compete with foreign- based enterprises in domestic and export markets.

i. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Under Executive Order 13175, the Federal government may not issue a regulation that has substantial, direct effects on one or more Tribal Nation, on the relationship between the Federal government and Tribal Nation, or on the distribution of powers and responsibilities between the Federal government and Tribal Nations, and imposes substantial direct compliance costs on those communities, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance cost incurred by the Tribal Nation governments, or we consult with those governments. If complying by consulting, Executive Order 13175 requires us to provide the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of prior consultation with representatives of affected Tribal Nation governments, a summary of the nature of Tribal Nation concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13175 requires that agencies develop an effective process permitting elected officials and other representatives of Tribal Nation governments an opportunity to provide timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities. This proposed revision to the regulation, and the regulation as a whole, do not impose significant compliance costs on any Tribal Nation or otherwise have substantial direct effects on the same. The regulation merely provides a construct under which the Corps can provide limited forms of emergency assistance and project rehabilitation to State, Tribal, and local governments upon request from the same. Whether the Corps provides emergency assistance under the regulation is completely at the discretion of State, local and Tribal governments. When requested, and otherwise permissible, the Corps' provision of such services does not affect the distribution of power or responsibilities between the Federal government and Tribal Nations. In the event that Tribal Nations have concerns with the proposed regulation, they may submit them through the normal comment process or to request government-to-government consultation.

Accordingly, for the reasons set out in the preamble, 33 CFR part 203 is proposed to be revised as follows:

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

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

On January 26, 2022, the submittal for VCAPCD Rule 74.2 was deemed complete by operation of law.

We approved an earlier version of Rule 74.2 into the SIP on July 6, 2011 (76 FR 39303). The VCAPCD adopted revisions to Rule 74.2 on November 10, 2020. CARB submitted the amended rule to the EPA on July 26, 2021, as an attachment to a letter of the same date. If we take final action to approve the November 10, 2020 version of Rule 74.2, it will replace the previously-approved version of the rule in the VCAPCD portion of the applicable California SIP.

Emissions of VOCs contribute to the production of ground-level ozone, smog and particulate matter (PM), which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Architectural coatings are coatings that are applied to stationary structures and their accessories. They include house paints, stains, industrial maintenance coatings, traffic coatings, and many other products. VOCs are emitted from the coatings during application and curing, and from the associated solvents used for thinning and clean-up.

VCAPCD Rule 74.2 regulates VOC emissions from architectural coatings. The rule was updated to conform to CARB's Suggested Control Measures (SCM) for Architectural Coatings, May 2019. More specifically, to conform with CARB's 2019 update of the SCM for architectural coatings, VCAPCD added new categories of coatings, tightened VOC limits for certain other categories of coatings, added new limits for colorants, updated test methods, and clarified and tightened certain definitions and administrative requirements. VCAPCD estimates that aligning Rule 74.2 with the CARB 2019 SCM for architectural coatings will reduce VOC emissions by 22.12 tons per year ( i.e., approximately 0.06 tons per day (tpd)) in Ventura County. 1 In addition, the Ventura County 2016 Air Quality Management Plan includes revisions to Rule 74.2 as one of the control measures in the plan. 2 While not needed to meet CAA requirements for the 2008 ozone national ambient air quality standard (NAAQS), revisions to Rule 74.2 are intended to provide emissions reductions for the 2015 ozone NAAQS and to fulfill State air quality requirements. 3 The EPA's technical support document (TSD) has more information about this rule.

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require reasonably available control technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The VCAPCD regulates an ozone nonattainment area classified as Serious nonattainment for the 2008 and 2015 8-hour ozone National Ambient Air Quality Standards (40 CFR 81.305). Because there is no relevant EPA CTG document for architectural coatings and because there are no major architectural coating sources within Ventura County, architectural coatings are not subject to RACT requirements. However, as a nonattainment area for ozone, Ventura County is subject to the requirement to implement all reasonably available control measures (RACM) as needed to attain the 2008 and 2015 ozone NAAQS by the applicable attainment dates.

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

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. National Volatile Organic Compound Emission Standards for Architectural Coatings, 40 CFR 59, Subpart D.

5. California Air Resources Board (CARB) Suggested Control Measure for Architectural Coatings, May 2019.

We have evaluated the enforceability of submitted VCAPCD Rule 74.2 with respect to applicability and exemptions; standard of conduct and compliance dates; sunset provisions; discretionary provisions; and test methods, recordkeeping and reporting, and have concluded that the rule continues to be enforceable for the purposes of CAA section 110(a)(2)(A).

We have also determined that the submitted rule implements RACM-level controls for this particular area source because the VOC content limits are more stringent than the corresponding federal requirements in Table 1 to Subpart D of 40 CFR part 59, “Content Limits for Architectural Coatings,” and are consistent with CARB's 2019 SCM.

Third, we have found that, because the submitted rule tightens VOC content limits for certain coating categories and restricts certain existing exemptions, it would not interfere with any applicable requirement concerning attainment or reasonable further progress (RFP) or any other requirement of the CAA, and as such, may be approved under CAA sections 110(l) and 193. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, and for the reasons given above, the EPA proposes to fully approve the submitted rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until December 15, 2022. If finalized as proposed, this action would incorporate the submitted architectural coatings rule into the federally enforceable SIP, and the submitted rule would replace the corresponding existing SIP version of the rule in the VCAPCD portion of the California SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the November 10, 2020 version of VCAPCD Rule 74.2, listed in Table 1 of this preamble, which regulates emissions of VOCs from architectural coating operations. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

In addition, the state did not evaluate environmental justice considerations as part of its SIP submittal. There is no information in the record inconsistent with the stated goals of Executive Order 12898 (59 FR 7629, February 16, 1994) of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

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

Throughout this document “we,” “us,” or “our” means the EPA.

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These NAAQS are established under CAA section 109, and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter (PM), and sulfur dioxide. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to EPA for approval and any changes a state makes to the approved SIP must also be submitted to the EPA for approval.

The EPA approved SIP for Texas includes Title 30 of the Texas Administrative Code (30 TAC), Chapter 111 (Control of Air Pollution from Visible Emissions and Particulate Matter), Subchapter B (Outdoor Burning). EPA approved Texas regulation 30 TAC 111.209(5) allows, under certain conditions, outdoor burning of waste at a site that is (1) designated for consolidated burning of waste generated from specific residential properties and (2) located outside of a municipality and within a county with a population of less than 50,000. Among the conditions is that (1) burning at the designated site is supervised by an employee of a fire department who is part of the fire protection personnel and (2) the fire department employee must notify the Texas Commission on Environmental Quality (TCEQ) 24 hours in advance of any scheduled supervised burn (30 TAC 111.209(5)(F)). Only trees, grass, leaves, branch trimmings, or other plant growth may be burned under this provision.

In response to Texas House Bill 2386 (85th Texas Legislature, 2017), TCEQ amended 30 TAC 111.209(5), to include volunteer firefighters, acting within the scope of their duties, to fulfill the supervision requirements for the burning of waste at these sites. EPA received the amendment as a SIP revision on October 22, 2021.

CAA section 110(l) provides that EPA shall not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. The outdoor burning allowed under 30 TAC 111.209(5) applies at designated sites for consolidated burning of waste generated from specific residential properties which are located outside of a municipality and within a county with a population of less than 50,000.

El Paso County is the only Texas county designated as nonattainment for PM. However, the outdoor burning allowed under 30 TAC 111.209(5) would not be allowed in El Paso County, because the county's population is greater than 50,000. 1 Allowing volunteer firefighters, in addition to fire department employees, to supervise the burning and meet the supervision requirements at these sites is not expected to result in a change in emissions or ambient concentrations of a criteria pollutant or its precursors. Thus, the revision would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.

We are proposing to approve revisions to the Texas SIP that pertain to particulate matter standards and outdoor burning regulations. The revision allows volunteer firefighters to fulfill supervision requirements for the burning of specific types of waste at designated sites for consolidated burning of wastes generated from specific residential properties located outside of a municipality and within a county with a population of less than 50,000. Specifically, we are proposing to approve a revision of 30 TAC 111.209(5) submitted on October 22, 2021.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Texas regulations as described in Section III Proposed Action of this document. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and in hard copy at the EPA Region 6 office.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”  2 The EPA is providing additional analysis of environmental justice associated with this action for the purpose of providing information to the public.

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Texas. 3 The EPA then compared the data to the national average for each of the demographic groups. The results of the demographic analysis indicate that, for populations within Texas, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is significantly higher than the national average (62.4 percent versus 43.1 percent). Within people of color, the percent of the population that is Hispanic or Latino is higher than the national averages (40.2 percent versus 18.9 percent). The percentage of people living in poverty in Texas is higher than the national average (13.4 percent versus 11.6 percent). The percentage of people aged 25 and over with a high school diploma in Texas is slightly below the national average (84.4 percent versus 88.5 percent) and for the same age group, the percentage with a bachelor's degree or higher education is slightly lower than the national average (30.7 percent versus 32.9 percent).

Particulate matter contains microscopic solids or liquid droplets that are so small that when inhaled can cause serious health problems. Short and/or long-term exposure to elevated concentrations of PM emissions may contribute to the development of asthma and may potentially increase susceptibility to respiratory infections. People with asthma, as well as children and the elderly are generally at greater risk for the health effects of PM. As discussed in Section II of this action, the EPA proposes to approve the request to allow volunteer firefighters, in addition to fire department employees to supervise the burning and to meet the supervision requirement at the burn site. The PM emissions are not expected to result in impacts to the PM NAAQS because the emissions are temporary and the requirements limit the burn site area location to areas that do not show problems attaining or maintaining air quality with regard to PM emissions. Therefore, we believe that these existing open burning regulations and resulting emissions will not lead to disproportionately high or adverse human health or environmental health effects on communities with environmental justice concerns.

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

• 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).

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

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

On August 26, 2021, the New Hampshire Air Resources Division (ARD) submitted a revision to its State Implementation Plan. The revision consists of an order establishing reasonably available control technology (RACT) requirements for Fujifilm Dimatix, Inc.

On August 26, 2021, the New Hampshire ARD submitted to EPA as a SIP revision request order RO-0006 establishing RACT requirements to limit emissions of volatile organic compounds (VOCs) for Fujifilm Dimatix, Inc. located in Lebanon, New Hampshire. Fujifilm Dimatix, Inc. requested a source specific RACT order for VOCs for an adhesive process as well as the use of emission reduction credits (ERCs) to offset the gap between future actual emissions and allowable emissions. Fujifilm Dimatix, Inc. uses adhesives that bond metal to metal substrates to produce piezoelectric ink jet print heads and printing systems. The request included a technical justification and an evaluation of capture and control device technologies that were evaluated. Fujifilm Dimatix, Inc. evaluated the feasibility of using an alternative adhesive and add-on controls but could not find a suitable alternative coating or cost-effective, technically feasible control technology. New Hampshire reviewed and concurred with the facility's request, and on July 8, 2021, issued Order No. RO-0006 to the Fujifilm Dimatix, Inc. Order No. RO-0006 includes a 12.2 tons per year cap for VOC emissions, a VOC content limit for adhesives used by the facility, requirements for how the adhesives shall be applied, work practice standards, and recordkeeping and reporting requirements. Fujifilm Dimatix, Inc. will continue to investigate alternative spray equipment technology and employ good operating practices in order to minimize air emissions. We are proposing approval of the order into the New Hampshire SIP because it is consistent with CAA requirements for VOC RACT and with New Hampshire's Env-A 1200, VOCs RACT regulation.

EPA is proposing to approve the New Hampshire SIP revision requests as described above. The SIP revisions meet section 110(l) of the CAA because the revisions will not interfere with any applicable requirement concerning attainment and reasonable further process, or any other applicable requirement of the CAA. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference RACT Order RO-0006, dated July 8, 2021, which establishes RACT requirements for Fujifilm Dimatix, Inc. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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 Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

In addition, the 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

On October 14, 2022, the Commission issued a notice of proposed rulemaking for new regulations on demurrage and detention billing requirements. 1 In the NPRM, the Commission determined that the proposed rule did not constitute a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and that preparation of an environmental impact statement is not required. 2 The Commission also noted that the FONSI and environmental assessment would be available for inspection on the docket at https://www.regulations.gov.

The Commission is issuing this document to notify the public that the FONSI is now available on the docket. This Finding of No Significant Impact would become final within 10 days of publication of this document in the Federal Register unless a petition for review is filed by using the Federal eRulemaking Portal at www.regulations.gov.

This is a summary of the Commission's Sixth Further Notice of Proposed Rulemaking, document FCC 22-76, released September 30, 2022. This summary is based on the public redacted version of document FCC 22-76, the full text of which can be obtained from the following internet address: https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov, or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

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

1. The ability to make telephone calls is essential to allowing incarcerated people to stay connected to their family and loved ones, clergy, counsel, and other critical support systems. While unreasonable rates, charges, and practices associated with calling services present significant barriers to all incarcerated people, the obstacles are much larger for those who are deaf, hard of hearing, deaf-blind, or who have a speech disability. The Commission refers to this class of people generally as incarcerated people with communication disabilities. Because functionally equivalent means of communication with the outside world are often unavailable to incarcerated people with communication disabilities, they are effectively trapped in a prison within a prison. Consistent with the Commission's statutory obligations, in document FCC 22-76, the Commission takes strides to improve access to communications services for incarcerated people with communication disabilities.

2. The Commission has an obligation under section 225 of the Communications Act of 1934, as amended (the Act), to ensure those with communication disabilities receive service that is functionally equivalent to that received by those without such disabilities. This obligation supplements and focuses the Commission's obligation under section 201(b) of the Act to ensure all people, including incarcerated people, have access to calling services under just and reasonable rates, terms, and practices. In May 2021, the Commission reaffirmed its commitment to ensure that incarcerated people with disabilities have access to functionally equivalent telecommunications services. That Order also lowered, on an interim basis, the Commission's caps on the amounts inmate calling services (ICS) providers serving prisons or jails with 1,000 or more incarcerated people may charge for interstate calls and capped, for the first time, the providers' charges for international calls. To enable the Commission to set permanent, cost-based interstate and international rate caps for facilities of all sizes and to, if appropriate, adjust its caps on ancillary services fees, that Order required all calling services providers to submit detailed cost data based on prescribed allocation methodologies. The Commission also issued an accompanying document proposing to expand access to all eligible relay services for incarcerated people with communication disabilities and seeking comment on a number of other issues, including the methodology to be used in setting permanent interstate and international rate caps, the need for periodic data collections, and additional reforms to the ancillary service charge rules.

3. The Commission seeks comment on various matters to build on the actions it takes today and to obtain additional stakeholder input required to implement further reforms for incarcerated people with communication disabilities. The Commission seeks additional comment on whether to allow enterprise registration for internet Protocol Captioned Telephone Service (IP CTS) in carceral settings and how to address the special circumstances faced by some inmate calling services providers in jurisdictions with average daily populations of fewer than 50 incarcerated persons. IP CTS is a captioned telephone service in which captions are delivered via the internet to an internet Protocol-enabled device.

4. The Commission also seeks additional evidence and comment from stakeholders to enable further reforms concerning providers' rates, charges, and practices in connection with interstate and international inmate calling services. First, the Commission seeks comment on refining the rules adopted today concerning the treatment of balances in inactive accounts. Second, it seeks comment on expanding the breadth and scope of the Commission's existing consumer disclosure requirements. Third, it asks the stakeholders to update the record on certain issues in light of the providers' data collection responses. Specifically, the Commission seeks comment on how the Commission should use the data to establish just and reasonable permanent caps on interstate and international rates and associated ancillary service charges consistent with the statute. The Commission invites further comment on allowing inmate calling services providers to offer pilot programs allowing consumers to purchase calling services under alternative pricing structures. Finally, the Commission seeks comment on whether it should expand the definitions of “Jail” and “Prison” to ensure that they capture the full universe of confinement facilities with residents who may access interstate and international communications services, and on how its proposals may promote or inhibit digital equity and inclusion.

5. The Commission expects these actions will bring much-needed relief to incarcerated people with communication disabilities by easing the obstacles these individuals face in communicating with loved ones. At the same time, the Commission expects its other reforms aimed at reducing certain charges and curtailing abusive practices to benefit all incarcerated people by easing the financial burdens that such charges and practices place on the incarcerated and those they call.

6. The impact that unjust and unreasonable rates, fees, and practices have on incarcerated people, as well as the Commission's efforts to ameliorate that impact, are well-documented, and need not be repeated here.

7. Communication Disabilities and Calling Services for Incarcerated People. Telecommunications Relay Services (TRS) are telephone transmission services that provide the ability for an individual who is deaf, hard of hearing, deaf-blind or who has a speech disability to engage in communication by wire or radio in a manner that is functionally equivalent to the ability of a hearing person who does not have a speech disability to communicate using voice communication services. In 2013, the Commission clarified that section 225 of the Act and the Commission's implementing regulations prohibit inmate calling services providers from assessing an additional charge for a TRS call, in excess of the charge for an equivalent voice inmate calling services call. In 2015, the Commission went further, amending its rules to prohibit inmate calling services providers from levying or collecting any charge at all for a TRS call placed by an incarcerated individual using a text telephone (TTY) device. The Commission reasoned that, by exempting TRS calls from the fair compensation mandate of section 276 of the Act, Congress indicated an intent that such calls be provided for no charge.

8. In 2015, the Commission affirmed that the general obligation of common carriers to ensure the availability of “mandatory” forms of TRS—TTY-based TRS and speech-to-speech relay service (STS)—applies to inmate calling services providers. TTY-based TRS allows an individual with a communication disability to communicate by telephone with another party, such as a hearing individual, by using a TTY device to send text to a communications assistant (CA) over a circuit-switched telephone network. To connect a hearing individual as the other party to the call, the CA establishes a separate voice service link with the hearing party and converts the TTY user's text to speech. The CA listens to the hearing party's voice response and converts that speech to text for the TTY user. A TTY is a machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system. STS allows individuals with speech disabilities to communicate with voice telephone users through the use of specially trained CAs who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by that person. This obligation to ensure the availability of TRS also applies to providers of interconnected Voice over internet Protocol (VoIP) services. However, the Commission did not require those providers to provide access to other relay services—Video Relay Service (VRS), Captioned Telephone Service (CTS), IP CTS, and internet Protocol Relay Service (IP Relay). VRS is a form of TRS that allows people with hearing and speech disabilities who use sign language to communicate with voice telephone users through video equipment. The video link allows the CA to view and interpret the party's signed conversation and relay the conversation back and forth with a voice caller. CTS is used by persons who can speak but who have difficulty hearing over the telephone. Placing a telephone call from a screen-equipped telephone, the user can simultaneously listen to the other party to the call and read captions of what the other party is saying. IP Relay is a form of TRS that permits an individual with a hearing or a speech disability to communicate in text using an internet Protocol-enabled device via the internet. For consumers who are deaf-blind, IP Relay service is often the sole or primary means of communicating via telephone. The Commission reasoned that, because it had not required that all common carriers provide access to these services, it was not able to require inmate calling services providers to do so. In 2015, the Commission sought additional comment on the implications of video calling and video visitation services for incarcerated individuals who are deaf or hard of hearing. In 2020, the Commission sought comment on whether additional forms of TRS should be made available to incarcerated individuals, and what the Commission could do to facilitate such access.

9. In 2021, after reviewing the record of this proceeding, and noting that there is far more demand for “non-mandatory” relay services, such as VRS and IP CTS, than for “mandatory” TTY-based relay service, the Commission found that access to commonly used, widely available relay services, such as VRS and IP CTS, is equally or more important for incarcerated people with communication disabilities than it is for the general population. Therefore, to ensure that such individuals have functionally equivalent access to communications, the Commission proposed to amend its rules to require that inmate calling services providers give access wherever feasible to all relay services eligible for TRS Fund support. The Commission also sought comment on whether changes to its TRS rules would be necessary in conjunction with expanded TRS access for incarcerated people, and the Commission proposed to amend section 64.6040 of its rules to clarify that the prohibition on inmate calling services providers charging for TRS calls applies to all forms of TRS, and that such charges must not be assessed on any party to a TRS call for either the relay service itself or the device used. In addition, the Commission also sought comment on whether to require inmate calling services providers to give access to direct, or point-to-point, video communication for eligible incarcerated individuals wherever they provide access to VRS, and whether to limit the charges that may be assessed for such point-to-point video service. Point-to-point video service enables two or more ASL users to place and receive video calls without the assistance of a CA. See 47 CFR 64.601(a)(32). In a 2021 document, the Commission primarily used the term direct video to refer to such calls. While the Commission considers direct and point-to-point to be synonymous in this context, the Commission uses the term point-to-point in this Order and its final rules, to avoid any risk that some parties might assume this service could only be provided by a Qualified Direct Video Entity pursuant to section 64.613(c) of its rules. Finally, the Commission sought comment on whether to extend its reporting requirements from just TTY service to all other forms of TRS.

10. Rate and Ancillary Services Fee Caps. Beyond the disability context, in the 2021 ICS document, the Commission took a number of actions that warrant specific attention here. Structurally, that Order applied separate rate caps to prisons, jails having average daily populations of 1,000 or more incarcerated people, and jails with lower average daily populations. Additionally, the Commission established interim interstate and international rate caps for prisons and for jails having average daily populations of 1,000 or more. Those rate caps are interim because flaws in the data submitted in response to the Second Mandatory Data Collection prevented the Commission from setting permanent caps for interstate and international inmate calling services and associated ancillary services that accurately reflect the costs of providing those services.

11. To account for this problem, the Commission directed the Wireline Competition Bureau (WCB) and Office of Economics and Analytics (OEA) to develop an additional data collection—the Third Mandatory Data Collection—to enable the Commission to set permanent rate caps for interstate and international inmate calling services that accurately reflect the providers' costs of providing those services, and to inform the evaluation and potential revision of the Commission's caps on ancillary service charges. After seeking public comment, WCB and OEA issued an Order requiring each inmate calling services provider to submit, among other information, detailed information regarding its inmate calling services operations, costs, revenues, site commission payments, security services, and ancillary services costs and practices. The providers' data collection responses were due June 30, 2022. The Commission has received responses from 14 providers, and WCB and OEA are analyzing those responses.

12. Looking forward, in 2021 the Commission sought comment on the methodology the Commission should use to adopt permanent per-minute rate caps for interstate and international inmate calling services, including seeking comment on certain aspects of reported costs, such as on site commission costs and other site commission reforms for facilities of all sizes, and on the costs of providing calling services to jails with average daily populations of fewer than 1,000 incarcerated people.

13. Ancillary Services Fee Caps and Practices. Building on the ancillary services charge rules that the Commission had adopted in 2015, in 2021 the Commission capped, on an interim basis, the third-party fees inmate calling services providers may pass through to consumers for single-call services and third-party financial transactions at $6.95 per transaction. The rules adopted in 2015 limited permissible ancillary services charges to only five types and capped the charges for each: (1) Fees for Single Call and Related Services—billing arrangements whereby an incarcerated person's collect calls are billed through a third party on a per-call basis, where the called party does not have an account with the inmate calling services provider or does not want to establish an account; (2) Automated Payment Fees—credit card payment, debit card payment, and bill processing fees, including fees for payments made by interactive voice response, web, or kiosk; (3) Third-Party Financial Transaction Fees—the exact fees, with no markup, that providers of calling services used by incarcerated people are charged by third parties to transfer money or process financial transactions to facilitate a consumer's ability to make account payments via a third party; (4) Live Agent Fees—fees associated with the optional use of a live operator to complete inmate calling services transactions; and (5) Paper Bill/Statement Fees—fees associated with providing customers of inmate calling services an optional paper billing statement. The Commission also sought comment on the relationship between these two ancillary services, and on reducing the caps for single-call services fees and third-party financial transactions fees for automated transactions to $3.00 and the cap for live agent fees to $5.95.

14. Consumer Disclosures. In 2021, the Commission adopted three new consumer disclosure requirements to promote transparency regarding the total rates charged consumers of inmate calling services. First, the Commission required providers to clearly, accurately, and conspicuously disclose any separate charge ( i.e., any rate component) for terminating international calls to each country where they terminate international calls on their websites or in another reasonable manner readily available to consumers. Second, the Commission required providers to clearly label any site commission fees they charged consumers as separate line items on consumer bills and set standards for determining when the fees would be considered clearly labeled. Finally, the Commission required providers to clearly label all charges for international calls, as separate line items on consumer bills.

15. Other Relevant Topics. In the 2021 ICS document, the Commission invited comment regarding several additional issues on which it takes action today. The Commission expressed concern about providers' practices regarding unused funds in inactive accounts and invited comment on whether the Commission should require refunds after a certain period of inactivity. The Commission proposed to amend the definitions of “Jail” and “Prison” in its rules by, among other actions, explicitly including facilities of the U.S. Immigration and Customs Enforcement (ICE) and the Federal Bureau of Prisons (BOP), whether operated by the law enforcement agency or pursuant to a contract, in its definition of “Jail,” and by adding the terms “juvenile detention facilities” and “secure mental health facilities” to that definition. The Commission also highlighted record evidence that some providers of inmate calling services may have been imposing duplicate transaction costs on the same payments, such as charging both an automated payment fee when a consumer makes an automated payment to fund its account, as well as charging a third-party financial transaction fee to cover credit/debit card processing costs on the same transaction. The Commission sought comment on whether providers engaged in such “double dipping,” as had been alleged in the record, and whether the Commission's rules clearly prohibit assessing multiple ancillary service charges per transaction or should be amended to implement such a prohibition. The Commission similarly sought comment on whether the credit card processing fees encompassed in the automated payment fee are the same credit card processing fees referred to in the third-party financial transaction fee.

16. Finally, the Commission sought comment in the 2021 ICS document on whether alternative pricing structures ( i.e., those that are independent of per-minute usage pricing) would benefit incarcerated people and their families. The Commission asked commenters to address the relative merits of different pricing structures, such as one under which an incarcerated person would have a specified—or unlimited—number of monthly minutes of use for a predetermined monthly charge. The Commission also asked whether it should allow providers to offer different optional pricing structures as long as one of their options would ensure that all consumers of inmate calling services have the ability to choose a plan subject to the Commission's prescribed rate caps. Relatedly, in response to a proposal from Securus, the Commission sought comment on whether the Commission should adopt a process for waiving the per-minute rate requirement to allow for the development of alternative pricing structures.

17. Enterprise Registration for IP CTS. The Commission seeks comment on whether to adopt a form of enterprise registration for IP CTS, limited to the correctional context, as advocated by some commenters to simplify the commencement of service to eligible incarcerated users. Do the modifications made in the accompanying Order to the Commission's registration requirements sufficiently address any registration-related barriers to the use of IP CTS in the incarceration context? Are there significant difficulties with individual registration that an enterprise registration option could overcome? If needed, how could an enterprise registration option be crafted to protect against waste, fraud, and abuse? What are the costs and benefits of allowing enterprise registration for IP CTS in the incarceration context?

18. Expanding the Scope of Inmate Calling Services Providers' TRS-Related Access Obligations. The Commission proposes to extend inmate calling services providers' TRS-related access obligations to require that access to advanced forms of TRS—VRS, IP Relay, and IP CTS as well as ASL point-to-point video calling, where broadband is available, and CTS where broadband is not available—be provided in jurisdictions with an average daily population of less than 50 incarcerated persons. The Commission seeks comment on this proposal. The Commission explains in the Order, to ensure that TRS and ASL point-to-point video are available to incarcerated persons to the fullest extent possible, the Commission believe the TRS-related access requirements of inmate calling services providers should be at least coextensive with those of correctional authorities—which are not subject to any population size limitation. As noted above, to justify less than full compliance with the Department of Justice's regulations implementing Title II of the ADA, a correctional authority has the burden of proving that compliance with this subpart would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

19. In the Order, the Commission set an average daily population of 50 as an initial threshold for the obligation to provide access to additional forms of TRS and ASL point-to-point video calling. Have video visitation systems continued to proliferate, or have other factors changed, such that broadband connections and video devices are now routinely provided to a broader range of city or county facilities?

20. What additional factors may determine the feasibility of providing access to internet-based forms of TRS? What specific additional costs, for devices or other resources, are incurred by correctional authorities in jurisdictions of this size in making internet-based TRS available? The Commission seeks additional information, for example, on the cost of tablets and other user devices suitable for allowing incarcerated individuals to access internet-based forms of TRS. What is the range of monthly inmate calling services revenue typically generated by city or county jails housing a daily population of fewer than 50 incarcerated people?

21. Is an average daily population of 50 the appropriate threshold for requiring access to all forms of TRS and point-to-point video service, or is a different threshold warranted? If the Commission adopts a lower threshold, how long a period should the Commission allow for providers to comply? Should the Commission require that an inmate calling services provider serving a smaller jurisdiction ensure that, to the maximum extent possible, individuals with disabilities have access to appropriate forms of TRS?

22. Disclosure of Charges in Accessible Formats. The Commission believes that providers of inmate calling services are subject to the same obligations as providers of telecommunications services and advanced communications services to provide information and documentation in a manner that is accessible to individuals with disabilities. To help ensure individuals with disabilities are fully informed about the costs of inmate calling services, the Commission proposes that any charges for inmate calling services, whether for voice, TRS, TTY-to-TTY, or point-to-point video, be disclosed to current and potential consumers of inmate calling services with disabilities in accessible formats. Accessible formats include, but are not limited to, large print, Braille, videos in American Sign Language and that are captioned and video described, emails, and printed materials. The Commission seeks comment on this proposal and belief.

23. The Commission seeks comment on whether it should refine the rules it adopt today concerning the treatment of unused funds in accounts that consumers use to pay for interstate and international inmate calling services and related ancillary services charges, including on whether the Commission should take any further steps to protect consumers from unjust and unreasonable practices regarding those funds. In the Order, the Commission exercises its authority under section 201(b) of the Act and prohibits providers of inmate calling services from seizing or otherwise disposing of unused funds in any account used to pay for interstate or international inmate calling services—except through a full refund to the account holder—until the account has been inactive for at least 180 consecutive days. At that point, the provider must make reasonable efforts to refund the balance in the account to the account holder and, if those efforts fail, must treat any remaining funds in accordance with applicable state law requirements. Should the Commission refine these rules to increase consumer protection? Why or why not? Should the Commission create exceptions to these rules? If so, what exceptions should the Commission allow? Are there additional requirements the Commission should adopt concerning the disposition of balances in inactive accounts? If so, what additional requirements do commenters recommend and why? Are there situations where refunds are impractical, impossible, or otherwise unduly burdensome, and, if so, what rules should apply in those situations?

24. Inactive Period. In the Order, the Commission adopts a rule requiring 180 days to pass before a provider may determine that an account has become inactive. Is this an appropriate time frame? Why or why not? The Commission also requires that the 180-day inactivity period be continuous, with any of the following actions by a consumer or an incarcerated person being sufficient to demonstrate activity: (i) depositing, crediting, or otherwise adding funds to an account; (ii) withdrawing, spending, debiting, transferring, or otherwise removing funds from an account; or (iii) expressing an interest in retaining, receiving, or transferring the funds in an account, or otherwise attempting to exert or exerting ownership or control over the account or the funds held within the account. The Commission seeks comment on what other actions should constitute expressing an interest in the deposited funds. Similarly, how would an account holder or incarcerated person exert control over the account? Are there other events that the Commission has not already identified that should demonstrate activity and cause the 180-day clock to restart? If so, what are they?

25. Timing of Refunds. The Commission's rules require that a provider must make reasonable efforts to refund the balance in the account to the account holder. Should the Commission require providers to issue refunds within a specified period of time after an account becomes inactive? Should the Commission consider a different period of time after some other event, such as release from incarceration? If so, what period would give providers sufficient time to process the refunds while ensuring that consumers receive their money in a timely manner? If the account holder requests a refund before the account becomes inactive, what is a reasonable time frame in which to issue such refund? Do providers need time to process a refund request after they receive the request? If so, what is that time frame? Do providers have the ability to issue a refund immediately upon request in some circumstances? If so, what would those circumstances be? Are there situations that should lead providers to immediately refund remaining amounts to account holders, even if the account has not been inactive for 180 days? If so, what are they? In particular, should the Commission require automatic refunds when the incarcerated person is released or transferred to a facility served by another provider? If so, should the situation vary if the account is held by a consumer other than the incarcerated person and can still be used by another incarcerated person? If not, what steps, if any, should the Commission take to ensure that the account holder has the opportunity to make an informed choice regarding whether to receive a refund?

26. Are there circumstances in which Commission intervention is unnecessary or an automatic refund would be impracticable or inappropriate? For example, Securus argues that the process for deactivating, and making refunds from, debit accounts when an incarcerated person is released or transferred is largely controlled by the facility and that the Commission should seek more information about such refunds. How, if at all, should the Commission refine its refund rules to recognize a facility's role in the refund process? Similarly, are there situations where a provider may not be aware that an incarcerated person has been released or transferred? If so, how can the Commission ensure that account holders have an opportunity to request refunds in those situations, or in other situations where an automatic refund is not feasible or sensible? Should the account holder be required to request a refund in writing, either by mail or email? Or would a telephonic request or some other type of request be preferable? What information would a provider need in order to verify the legitimacy of a refund request?

27. Release and Transfer Processes. The Commission seeks comment on the release and transfer processes to better understand the need for rules addressing those areas. Do providers receive notice when an incarcerated person is released or transferred and, if so, does the notice include the incarcerated person's future contact information? If not, what steps would be needed to ensure that providers receive all needed information about a release or transfer on a timely basis in order to efficiently refund money?

28. Contact Information. The Commission next invites comment on whether providers routinely receive the type of contact information they would need to notify account holders about inactive accounts and to refund unused balances to account holders. Should the Commission require providers to collect such information? What information is necessary to ensure that a notification actually reaches an account holder? Are the account holder's email address, physical mail address, or phone number each sufficient? Does the necessary information vary depending on whether the account holder is an incarcerated person who at some point will be released from incarceration, as opposed to a person who maintains an account for the incarcerated person's use? If so, how does the necessary information differ in those circumstances, and what information would be necessary in the different circumstances?

29. Notice to Account Holders. The Commission seeks comment on the need for rules addressing the manner in which providers notify consumers regarding matters affecting their accounts, as well as the content of any such notices. Should the Commission require providers to notify account holders regarding their inactive account and refund policies, and the status of their accounts, including when the accounts have been deemed inactive? If so, when and how should those notices be provided, and what information beyond the account balance and the account holder's right to a refund should the Commission require to be disclosed? What sort of notice, if any, should the Commission require providers to give account holders in situations where refunds are not automatic or where attempts to provide a refund have been ineffective? Should these notices include an explanation of any state unclaimed property laws, or other state laws, that may apply to the funds in their accounts? Should the Commission require providers to notify the incarcerated person in addition to the account holder? Should the Commission require providers to send additional notices to account holders who do not respond to the initial notices? Should the Commission specify the timing, content, and mode of dissemination of any additional notices? How should the subsequent notices inform the account holder that if they do not respond, their account may be subject to state unclaimed property law, or such other law affecting the account holder's rights to the balance?

30. Refund Mechanisms. The Commission seeks comment on the different methods providers can use to refund unused funds and on the relative benefits and burdens of each method. For instance, are providers able to refund payments made by credit card or from a bank account directly to the card or account? What other refund methods are available to the providers? When the account holder is an incarcerated person who has been released, how should the provider send a refund? Should it send a prepaid debit card or check to the person's forwarding address? What requirements should the Commission adopt to ensure providers quickly send refunds to recently released account holders? When the account holder is not the incarcerated person, would mailing a prepaid debit card or check to the account holder's billing address suffice? Why or why not? Which refund mechanisms are the most effective in returning funds to account holders while also minimizing the burdens on providers?

31. Controlling Judicial or Administrative Mandate. The Commission's rule regarding the disposition of funds in inactive accounts does not apply where a provider is acting in accordance with a controlling judicial or administrative mandate. The Commission proposes to retain this exception. The Commission also proposes to continue to treat as a controlling judicial mandate any court order requiring the incarcerated person to pay restitution, any fine imposed as part of a criminal sentence, and any fee imposed in connection with a criminal conviction to the extent these payments are made from the same account used to pay for calling services. The Commission invites comment on these proposals. Do they capture the full universe of judicial actions that a court may impose on an incarcerated person? If not, what language should the Commission incorporate into its rules to capture that universe?

32. The Commission also invites comment on whether it should consider a controlling judicial or administrative mandate to include a court or administrative agency order allowing or requiring the provider to act in a manner that would otherwise violate the Commission's rules regarding the disposition of funds in inactive accounts. The Commission's rule does not apply to the extent a court or administrative agency determines that a contract the provider and the account holder entered into prior to the release of today's Order allows or requires a different outcome. Is this the correct approach? Or should the Commission instead preclude enforcement of any such contract as contrary to section 201(b) of the Act's prohibition against unjust and unreasonable practices in connection with the provision of inmate calling services? Conversely, should the Commission allow account holders to knowingly and voluntarily waive any protections the Commission's rules provide regarding the disposition of funds in inactive accounts? If so, what notice and record keeping requirements, if any, should the Commission adopt to ensure that it will be able to determine whether account holders are fully informed of, and voluntarily waive, their rights under the Commission's rules?

33. Ultimate Disposition of Unclaimed Funds. The Commission invites comment on the ultimate disposition of unclaimed funds in a debit calling or prepaid calling account in circumstances where a provider's refund efforts fail and state law does not affirmatively require any particular disposition. What legal authority does the Commission have to act in this regard? Should the Commission adopt rules addressing that situation and, if so, what should those rules require? Are there any elements of state law, including state unclaimed property law, or provisions of the Uniform Unclaimed Property Act that the Commission should incorporate into the Commission's rules? Are there any state laws that provide inmate calling services-specific exceptions to otherwise applicable state unclaimed property? If so, what states have such laws and what do those laws say? Are there other types of consumer protection laws regarding the distribution or retention of balances in inactive accounts that the Commission should consider? If so, commenters should cite these other types of laws and explain their potential applicability in the inmate calling services context.

34. The Commission seeks comment on how it might improve its consumer disclosure rules, including extending the scope of those rules to reach more inmate calling services consumers. Specifically, the Commission proposes to build on prior reforms by requiring inmate calling services providers to make the same required disclosures of information available to all consumers, regardless of whether they receive an actual bill from a provider. The Commission seeks comment on a number of questions regarding how providers presently disseminate information regarding inmate calling services accounts to consumers and on whether it should make additional changes to its consumer disclosure rules. The reforms the Commission contemplates will help ensure that incarcerated people and those they call will receive clear and transparent information about providers' charges and fees that inmate calling service consumers need to make informed choices regarding their calling services options.

35. Background. Transparency regarding the charges and fees for inmate calling services and associated ancillary services is critical because it ensures that incarcerated persons and their families understand the prices they are, or will be, charged for the services they use, enabling them to make informed decisions when purchasing those services. The Commission's inmate calling services rules require a variety of consumer disclosures designed to improve transparency. The Commission first adopted inmate calling services consumer disclosure rules in 1998, requiring providers to make certain oral disclosures prior to the completion of interstate inmate calling services calls. The Commission also required that, prior to connecting a call, providers of inmate operator services are required to disclose orally the total cost of the call, including any surcharges or premise-imposed fees that may apply to the call, as well as methods by which to make complaints concerning the charges or collection practices upon request. Since that time, the Commission has expanded its inmate calling services rules, including the scope of the required consumer disclosures. In 2015, the Commission required calling services providers to clearly, accurately, and conspicuously disclose their rates and ancillary service charges to consumers on their websites or in another reasonable manner readily available to consumers.

36. As described above, in 2021, the Commission imposed two additional consumer disclosure requirements pertaining to consumer bills: (i) requiring providers to clearly label any site commission fees they charged consumers as separate line items on consumer bills and set standards for determining when the fees would be considered clearly labeled, and (ii) requiring providers to clearly label all charges for international calls, as separate line items on consumer bills. The Commission found these two requirements—the consumer billing rules—necessary to provide consumers with the ability to evaluate their bills and monitor whether they are receiving the protections of the Commission rate caps to which they are entitled. Since the Commission adopted these additional requirements, it has learned that consumers of inmate calling services often do not receive “bills” from their providers given the nature of their calling arrangements. As one party points out, an incarcerated individual using a debit or commissary account to pay for inmate calling services does not receive a “bill” from an inmate calling services provider. Indeed, many such consumers may not receive a statement of any kind after having paid for their calls. As a result, the information the Commission deems important regarding separate site commission rate components and international call charges may not be received by many calling service consumers.

37. Disclosures for Consumers Who Do Not Receive Bills. The Commission proposes to expand its consumer disclosure rules to cover consumers who do not receive bills from their inmate calling services providers. The Commission invites comment on this proposal and ask for detailed comment on how providers might implement it. The Commission also seeks comment on the timing and frequency of disclosures that are not included directly on consumers' bills. How should consumers be made aware of the availability of the information if it is not automatically provided? Should the information be disclosed to consumers automatically and on an ongoing basis, for example on any online account statement available to that consumer? Alternatively, would including the information on the providers' websites for each facility suffice to inform interested consumers? Or should such information be provided only upon request? If so, upon receiving a consumer request, how quickly should a provider be required to supply the consumer with the requested information? Would three to five business days be sufficient or do consumers need more timely receipt of the disclosures in order to manage their accounts effectively? Are inmate calling services providers able to respond to requests for charges for site commissions and international calls within three to five business days? If not, why not? Do consumers who do not receive bills currently receive disclosures regarding providers' charges for site commissions and international calls in some other way? When, if at all, do providers disseminate such information outside the billing context and how frequently is such information updated? Is it available today only upon request?

38. Who Should Receive Disclosures? The Commission seeks comment on whether account holders should receive disclosures from inmate calling services providers. The Commission's rules define a “consumer” as the party that pays for the inmate calling services. Should the Commission extend its consumer disclosure rules to include incarcerated persons who use inmate calling services accounts that others fund on the incarcerated persons' behalf? Should both the account holder and the incarcerated person have access to the bill or be able to obtain account-related information from the provider when the incarcerated person is not the account holder? Who should be permitted to request the disclosures in such circumstances, the account holder, the incarcerated person, or both? The Commission seeks comment on whether anyone other than consumers and incarcerated persons should have access to the required disclosures. Are there other parties who should have access to any required disclosures? The Commission proposes to require providers to make information about their rates, terms, and conditions of service, including information about site commissions and international rate components, available generally to the public through either the provider's website or other publicly available source. Making this information publicly available provides maximum transparency and helps ensure that prospective consumers and other interested parties have visibility into the inmate calling service rates and charges at each facility. Do commenters agree? Why or why not?

39. Statements of Account. The Commission seeks detailed information about how consumers who do not receive traditional bills access information regarding their accounts. Do all such consumers receive a “statement of account” or other account summary setting forth, among other information, the account balance and the charges they have incurred? If so, how are statements of account or similar documents provided to consumers? Are they provided in hard copy, electronically, or both? Are they available only upon request? How often are such statements or disclosures generated and updated? What type of hardware or software is required to produce these statements? Are they only available online such that consumers not having internet access are unable to retrieve them? Who has access to them, the incarcerated person, the consumer, or both? The Commission proposes to require that consumers of inmate calling services and/or incarcerated individuals must have available to them statements of account or similar disclosures if they do not receive bills. To the extent providers do not presently provide statements of account or other account summaries, how costly would it be to make them available? Would the cost be outweighed by the public interest benefits of such statements?

40. To the extent that consumers receive statements of account or other account summaries, the Commission seeks comment on what information, including inmate calling services-related expenditures, is disclosed in them. Is the information provided in an itemized list or only as a total amount charged? If the information is currently provided only on an aggregate basis, how burdensome would it be to provide an itemized statement? How burdensome would it be to add information regarding providers' charges for site commissions and international calls to statements of account or other account summaries?

41. What are the advantages and disadvantages of using statements of account or other account summaries to provide information to consumers rather than statements with itemized disclosures? What challenges do consumers currently face in accessing their account information, including specifically the information required by the Commission's consumer disclosure rules? Are there other challenges the Commission should consider in deciding how best to increase transparency in providers' charges and fees? How else can the Commission improve consumers' access to relevant information through changes to the Commission's consumer disclosure rules?

42. Reasonableness. The Commission seeks comment on what factors it should consider in assessing the reasonableness of different disclosure mechanisms. Are the Commission's current rules effective in providing information regarding rates, charges, and fees to people who are deaf, hard of hearing, deaf-blind, or have a speech disability? If not, how should the Commission revise those rules to make sure that its disclosure requirements are effective for all consumers? The Commission asks commenters to include details as to what form disclosures should take, how often they should be generated, how they could be accessed, and any other details needed to better inform its understanding. The Commission proposes that all disclosures, including those regarding reporting requirements and charges, be made in an accessible format for incarcerated persons with disabilities and invite comment on what steps it should take to implement this proposal. The Commission also asks for detailed proposals on how it can address any deficiencies in the current disclosure mechanisms to ensure that all consumers receive the clear, accurate, and timely information they need to make calling decisions and manage their accounts.

43. Methods of Dissemination. The Commission seeks comment on the best methods for ensuring that required disclosures reach consumers who do not receive bills. What are the differences in cost between providing disclosures on bills versus other methods? What other methods are available to providers and consumers? Do providers presently use paper statements, kiosks, or other means? What other methods should the Commission consider and why? Which methods are most effective in providing consumers with clear, accurate, and timely information regarding their accounts?

44. If providers do not distribute paper bills, do they disclose account-related information through other means? If so, what means do they use? Should providers be permitted to make required disclosures using only electronic means, such as websites or email, rather than on printed documents? If so, what specific alternative methods do commenters suggest the Commission allow? Should the Commission's rules specify how consumers may request copies of their bills, statements of account, or similar disclosures; and if so, how should such a request be made? Commenters are encouraged to explain how a request system would work and to describe any alternative suggestions in detail.

45. The Commission seeks comment on how consumers who lack access to the internet can receive information about the charges to their accounts and their account balances if it is not provided on paper bills. Do consumers have reasonable access to information made available over the internet or via electronic means? What alternatives are used? How do consumers inform the provider that they do not have consistent or reliable internet access and, thus, need an alternative method to access their account information and any relevant disclosures? If the only alternative method available is a paper bill or statement, should the Commission require that the provider deliver it to the consumer without charge? Consumers should be entitled to receive their bills and account statements in some accessible format free of charge. What specific changes should the Commission make to its rule permitting providers to charge consumers $2.00 per use when they provide optional paper billing statements?

46. Other Rule Changes. The Commission seeks comment on other ways its consumer disclosure rules could be amended to more effectively and efficiently provide consumers information that would help them understand the charges for inmate calling services and associated ancillary services. What, if any, other changes should the Commission make to its rules, beyond those the Commission already describes in document 22-76? Should other line-item disclosures be required on bills or other account statements? If so, what should those items be? Should the Commission adopt new billing requirements? Should the Commission require that inmate calling services providers issue bills on a periodic basis to all consumers, such as every month? Would it be helpful to add definitions for “bill,” “statement of account,” or any other terms in the Commission's rules? If so, what definitions do commenters propose?

47. The Commission's rules require inmate calling services providers to break out in separate line items any site commission fees and international call charges. Are there other rates or fees that the Commission should require providers to disclose as separate line items? Is there other information that the Commission should require providers to disclose? If so, commenters should make specific suggestions. The Commission invites commenters to suggest other proposed actions, alternatives, and rule modifications that it should consider, and to describe issues arising from the foregoing matters. The Commission encourages commenters to address whether any disclosures it requires should be part of an aggregate statement of account that includes all charges and fees incurred at the facility, for example commissary or other non-telecom-related charges, or whether the Commission should require a separate statement limited solely to inmate calling services-related disclosures. The Commission encourages commenters to offer specific language concerning any conforming rule changes in relation to any of the foregoing proposals.

48. Disclosing Rates and Charges. Finally, the Commission's current rules require inmate calling services providers to clearly, accurately, and conspicuously disclose their rates and ancillary service charges on their websites or in another reasonable manner readily available to consumers. Inmate calling services providers that offer interstate toll service are required to post their rates on their websites, and, to the extent they offer inmate operator services, their live agents are already required to make certain notifications to customers. The Commission seeks comment on how effective these disclosures have been at providing consumers with the information they need. To what extent do providers use websites to provide this information? Are the website disclosures easy for consumers—particularly those with less technical expertise—to navigate? Are there ways that inmate calling services provider websites could be modified for easier accessibility? If so, what steps would providers need to take to make those modifications? Do any providers use non-website disclosure methods? If so, what are those methods and how effective are they? Should the Commission mandate disclosures via website to the extent providers maintain a website and in some other manner to ensure that all current or potential inmate calling service consumers can access the required disclosures?

49. The Commission seeks further comment on how it should use the responses to the Third Mandatory Data Collection to establish reasonable, permanent caps on rates and ancillary service charges for interstate and international calling services for incarcerated people. That data collection required each inmate calling services provider to report, among other information, detailed company-wide and facility-specific data reflecting the costs they incurred in providing, and the revenues they received from providing, inmate calling services and associated ancillary services. In the 2021, the Commission sought comment on various issues relating to the establishment of such caps, and the Commission renews its request for comment on these and additional issues to assist with deciding whether to establish rate caps and suggest additional changes to its rules.

50. Mandatory Data Collection Responses. The Commission begins by seeking comment on the providers' responses to the Third Mandatory Data Collection, because the Commission expects to rely on these responses when evaluating the appropriate changes to its rules. The Commission asks whether the information in those responses meets the standard that the Commission applied in the Rates for Interstate Inmate Calling Services, Final Rule, 86 FR 40682 (July 28, 2021) ( 2021 ICS Order ), where it examined the providers' responses to the Second Mandatory Data Collection for completeness, internal consistency, and credibility, among other criteria. Do any of the responses deviate from the collection instructions in a way that undermines the value and usefulness of the information provided? If so, how should the Commission correct for such deviations in its evaluation of the information? Are any of the Mandatory Data Collection responses similarly incomplete in that they omit material information? If so, which ones and how are they incomplete? One commenter suggests that certain providers' Annual Reports state that the providers charge no ancillary service fees, when they actually do charge such fees. How should the Commission respond if any provider failed to file a response? Because providers have unique access to such information, what, if any, evidentiary presumptions should the Commission apply if providers failed to file required information?

51. The Commission also seeks comment on whether the data included in the responses appear accurate and reliable, and properly reflect the providers' actual costs of providing interstate and international inmate calling services and associated ancillary services. Are there deficiencies in the provided data, such that the Commission should remove apparent invalid or otherwise anomalous data from its analyses? Should the Commission exclude information submitted by providers that is materially deficient and use the responses from the remaining providers in a manner that, if practicable, compensates for the missing data to set permanent caps for all providers? If not, why not and what should the Commission do in the alternative?

52. Are there data for particular providers or facilities that appear so atypical or implausible as to warrant adjustment or exclusion? For example, if there are any providers whose reported annual total costs exceed their reported annual total revenues, should the Commission adjust the providers' reported costs by treating their reported revenues as an upper bound on those providers' actual costs? If the Commission makes such an adjustment, should it reduce the reported costs allocated to each facility by the same proportion by which reported annual total costs exceed reported annual total revenues? Similarly, if there are any facilities or contracts whose reported annual costs exceed their reported annual revenues, should the Commission treat the reported revenues as an upper bound on those facilities' or contracts' actual costs? If the Commission makes such an adjustment, how should it reallocate the difference among the remaining facilities or contracts? Conversely, is there any evidence that providers have reported costs at the facility level that exceed revenues during the early years of contracts, and proceed to make up the deficits during later years? If so, how should the Commission account for that? How else might the Commission adjust reported costs that exceed reported revenues?

53. Do any providers allocate costs in a manner that overstates costs for certain types of facilities and understates them for others, or otherwise misallocates costs? If so, would relying on those providers' cost allocations lead to rate caps that are unreasonably high for certain facility or contract types but unreasonably low for others? Should the Commission adjust reported costs in such instances, and if so, how?

54. Allowable Costs. The Commission invites comment on how it should ensure that providers' reported costs of providing inmate calling services and associated ancillary services reflect prudently incurred investments and expenses that are “used and useful” in the provision of those services. The Commission has historically treated costs as used and useful only to the extent they are necessary to the efficient conduct of a utility's business, presently or within a reasonable future period. Do the providers' reported costs meet this standard? In particular, are any provider's reported costs outside the range that a reasonably efficient provider would be expected to incur, given the types of facilities it serves? The DC Circuit did not foreclose an efficient provider approach, but in relevant part held only that the data on which the Commission had relied in developing the efficient provider approach that was before the court was flawed, and that the Commission had not adequately accounted for conflicting data. Precisely what adjustments, if any, should the Commission make to exclude costs that are not used and useful from its rate cap calculations?

55. Some commenters have suggested that certain types of expenditures, such as those for providers' security and surveillance services, should be excluded from providers' costs, as they are attributable to functions or services that are distinct from the provision of calling services. The Commission invites comment on this view. In particular, which of the security and surveillance costs that providers included in their filings relate to functions that meet the used and useful standard? Worth Rises suggests that any security or surveillance functions, beyond those that the Communications Assistance for Law Enforcement Act (CALEA) imposes on communications providers generally, are neither necessary for the provision of inmate calling services nor of services to consumers or the general public.

56. Factors Affecting Costs. The Commission also seeks further comment on factors that affect providers' costs and how it can practicably account for those factors in its analysis. Do the data support the size and facility tiers the Commission adopted in the 2021 ICS Order, or do they lend themselves to other alternative tiers? Should the Commission consider eliminating tiers altogether in favor of a single interstate rate cap for all facilities, regardless of size? The Commission also seeks comment on whether average daily population, as opposed to another measure, is the best variable to use if it divides jails into tiers. Commenters should explain how use of alternatives to average daily population would be administratively feasible.

57. Certain commenters suggest that relying on a facility's average daily population fails to account for the additional costs rapid turnover imposes on providers at smaller facilities. Do the data collection responses show that variations in turnover rates, or similar measures such as accounts opened and closed or admissions and releases, result in variations in provider costs that the Commission should consider? Commenters identify certain additional factors, including the greater likelihood of damage to equipment and the need to rely on contract technicians rather than full-time employees, as cost drivers for providers serving smaller facilities. Do the data collection responses sufficiently capture these factors? Do those responses indicate that other variables, such as geographic location or rurality, affect providers' costs of providing calling services and associated ancillary services? How can the Commission account for the various cost drivers in an administratively feasible way in setting permanent interstate and international rate caps?

58. Permanent Rate Caps. The Commission asks parties to present their own analyses of the data in providers' data collection responses and to suggest methodologies it might use to set reasonable interstate and international provider-related rate caps. The interim rate caps adopted in the 2021 ICS Order have two components: a provider-related rate component, designed to allow providers to recover the costs they incur in providing interstate and international inmate calling services; and a facility-related rate component designed to compensate providers for certain site commission payments they are obligated to make to facilities. The 2021 ICS Order employed a zone of reasonableness approach in setting separate interim provider-related rate caps, a process that involved three distinct steps. The Commission first used the cost data that providers had submitted in response to the Second Mandatory Data Collection to establish the maximum upper bounds of providers' reported costs to set interstate provider-related rate caps for prisons and larger jails. Because the data the Commission used in setting the upper bounds may have overstated the providers' prudently incurred and used and useful costs of providing inmate calling services, the Commission then made reasonable, conservative adjustments to the reported data and used the adjusted data to establish the lower bounds of its zones of reasonableness. Finally, the Commission relied on its analysis of the record evidence and on the Commission's agency expertise to pick, from within those zones, reasonable interim interstate rate caps for prisons and larger jails.

59. Should the Commission similarly employ a zone of reasonableness approach in setting permanent provider-related rate caps? If so, what data should the Commission use to set the upper and lower bounds of each zone of reasonableness? In the 2021 ICS Order, the Commission set the upper bounds of the zones of reasonableness using industry-wide mean contract costs per minute, plus one standard deviation relative to that mean. The Commission set the lower bounds relying on widely accepted statistical tools, including the k -nearest neighbor method, to adjust for deficiencies in the provided data. If not, what alternative should the Commission use instead? If the Commission continues to employ a zone of reasonableness approach, is it necessary or appropriate to retain the one standard deviation above and below industry-wide mean costs in setting the upper and lower bounds of each zone? Alternatively, should the Commission simply establish its upper and lower bounds based on industry-wide mean costs, and develop an alternative process to ensure an opportunity for cost recovery for high-cost providers? If so, what should that process be? Or should the Commission use another measure to set the bounds instead, such as the interquartile range statistical methodology that one commenter suggests? Should the Commission disregard providers, contracts, or facilities with costs that vary significantly from the costs of other similarly situated providers, contracts, or facilities in setting its upper and lower bounds? How should the Commission determine whether this significant variation reflects costs that are prudently incurred and used and useful in the provision of inmate calling services? What adjustments should the Commission make to exclude reported costs that were not prudently incurred or are not used and useful from its rate cap calculations?

60. The Commission seeks comment on the appropriate permanent rate caps given providers' responses to the Third Mandatory Data Collection. If the Commission employs a zone of reasonableness approach, what factors should the Commission consider in selecting permanent rate caps from within the zone for each rate tier? In particular, how should the Commission ensure that each provider is fairly compensated for its prudently incurred costs that are used and useful in the provision of inmate calling services and ensure that consumers are charged just and reasonable interstate and international rates? Should the Commission set rate caps that would ensure that the majority of providers, contracts, and facilities are able to recover their prudently incurred, used and useful costs, while avoiding overcompensation, and use a separate process to address outliers? If so, what process should the Commission use to ensure that the outliers are not compensated for their inefficiencies? For example, should the Commission separate providers, contracts, or facilities according to factors that drive costs such as size, turnover, or other factors, and then conclude that providers, contracts, or facilities within each group should have largely similar costs? Should such an approach also account for possible differences in providers' cost allocation methodologies, as set forth in their reported costs? Would it be appropriate to establish separate rate caps for each provider, or groups of providers? Would this similarly allow for cost recovery without the need to include a buffer? Would that change in approach distort the bidding market by, for example, giving providers with higher rate caps an advantage in seeking new or renewed contracts? Would it raise other new concerns, such as a heightened risk of abuse in providers' future cost reporting?

61. The Commission also seeks comment on how the collected data should affect its resolution of other issues relating to its rate cap calculations. The Commission seeks comment on the benefits, issues, and obstacles of analyzing the collected data at the contract or company-wide level, as opposed to the facility level. Would analyzing the data at the contract level help to develop cost allocations that better reflect commercial reality? Alternatively, would a focus on contract-level costs increase the likelihood of widespread overcompensation? Could the Commission segregate contracts according to size, inmate turnover, composition of facilities, or other factors that drive costs? If the Commission's rate caps were to allow every provider to fully recover its allowable costs at the contract or the company-wide level, would there be any concern that the costs allocated to some facilities would exceed the provider's revenues from those facilities? Or would it suffice, in those circumstances, if the provider's revenues from each facility equaled the portion of its allowable costs directly assigned or directly attributed to the facility plus an additional amount to offset a portion of the provider's other costs?

62. Treatment of Ancillary Services. The Commission seeks comment on how it should use the responses to the Mandatory Data Collection to reevaluate and, if appropriate, revise its ancillary services rules and fee caps. The Commission's current rules permit providers to charge fees for ancillary services in addition to the per-minute fees they charge consumers for interstate and international calls. Do the reported data provide a reasonable allocation of costs between inmate calling services and various ancillary services? If so, do those data demonstrate that the current ancillary services fee caps are commensurate with the reasonable costs of those services? If not, how can the Commission cap ancillary service charges to levels that more accurately reflect costs?

63. Some commenters suggest the Commission should remove costs related to ancillary services from its calculations of its per-minute rate caps. Should the Commission take that approach? Alternatively, are some or all of these services an inherent part of providing inmate calling services, and consequently should the Commission include those costs in its per-minute rate cap calculations and eliminate some or all charges for ancillary services? For instance, would it be reasonable for the Commission to include all costs that providers incur in processing credit and debit card payments in the Commission's per-minute rate cap calculations and preclude providers from imposing separate charges in connection with those payments? Would it make sense for providers to recover all their billing costs through per-minute charges, rather than splitting that recovery among calling services and the providers' ancillary services? Should the Commission instead analyze both sets of services together, and require that total revenues from both inmate calling services and permissible ancillary services not exceed the combined reasonable costs of both service types? Which approach would provide the best overall rate structure?

64. Under what circumstances should the Commission continue to permit separate ancillary service fees? For example, should the Commission do so where the service is only supplied at the customer's discretion? For ancillary services that commenters recommend that the Commission continues to separate fees, the Commission seeks comment on whether it should adjust the current caps. The Commission asks commenters to present their own analyses of ancillary services cost and revenue data and to suggest methodologies it might use to adjust the ancillary services fee caps. Should the Commission develop separate zones of reasonableness for each type of permissible ancillary service? If so, how should the Commission calculate the upper and lower bounds of each service, and what factors should the Commission consider in picking a new cap from within the zone? If not, why not and what alternative approach should the Commission use?

65. The Commission seeks further comment on whether the reported data reveal a need for additional revisions to its ancillary service charges rules. In 2021, the Commission highlighted record evidence concerning the assessment of duplicate transaction costs on the same payments, and it sought comment on whether the credit card processing fees encompassed in the automated payment fee are the same credit card processing fees referred to in the third-party financial transaction fee. The Commission sought comment on whether providers engaged in such “double dipping,” as alleged in the record, and whether the Commission's rules clearly prohibit assessing multiple ancillary service charges per transaction or should be amended to implement such a prohibition. In response, PPI urges the Commission to prohibit inmate calling services providers from charging both automated fee payments and third-party transaction fees arising from the same transaction because, carriers are recouping payment-card processing costs twice over. PPI contends that when carriers impose the $3 fee allowed under 47 CFR 64.6020(b)(1) while also making customers pay the carrier's card processing costs under 47 CFR 64.6020(b)(5), this constitutes an unreasonable charge, unjust enrichment, and circumvention of the Commission's stated purpose in promulgating ICS rules. Similarly, NCIC asks the Commission to prohibit third-party transaction fees which lead to double billing of inmate calling services customers. Several parties also argue that including credit card processing fees as part of the third-party pass-through allowance was a mistake and has led to abuse. Securus agrees that such double recovery, if it is occurring, would be inappropriate and the Commission should clarify that a credit card processing fee may only be imposed once for the same transaction or payment. On the other hand, Securus claims that it may impose an automated payment fee that recovers the internal costs in managing accounts and may also impose a third-party credit card processing fee to cover the costs imposed on Securus by a third-party credit card payment processing company if a credit card is used to fund a prepaid account. Securus agrees that a straightforward requirement barring duplication of the same charges for the same transaction or payment would be appropriate, but contends that it should be entitled to recover that third-party cost. Securus and GTL also argue that the Commission should not assume that the assessment of more than one transaction fee for a single transaction means that double recovery is taking place. Similarly, GTL asserts that the Commission consistently has maintained a distinction between Automated Payment Fees assessed by an inmate calling services provider on a qualifying transaction and the attendant Third-Party Financial Transaction Fees a provider may pass through to the consumer to facilitate the completion of that transaction.

66. The Commission invites comment on these issues related to transactions that involve credit card processing, including whether the data show that providers assess multiple ancillary services charges for a single transaction. Do the data from the Third Mandatory Data Collection demonstrate that providers are recovering payment card processing costs twice? If so, which data show this double recovery? Do commenters agree with NCIC and PPI that the inclusion of credit card processing in connection with third-party financial transaction fees was a mistake? Why or why not? Should the Commission clarify that payment card processing fees may not be imposed multiple times for a single transaction or payment, but still allow providers to charge both an automated payment fee as well as a third-party financial transaction fee for a single transaction, in order to recover costs imposed by a third-party credit card payment processing company, as Securus suggests? Or should the Commission disallow the inclusion of payment card processing costs in connection with third-party financial transaction fees?

67. Do the data show evidence of other forms of potentially duplicative charges with respect to ancillary service charges? The Commission likewise seeks comment on whether there are scenarios in which the imposition of more than one ancillary service charge may be appropriate. If so, which data? NCIC offers documentation that certain inmate calling services providers may be imposing additional ancillary fees on inmate calling services consumers in contravention of the Commission's rules. NCIC alleges that the imposition of additional transactional fees has grown to be a significant revenue generator for certain inmate calling services providers and provides evidence that certain providers may be tacking on additional fees for online deposits. For example, in one instance, a provider appears to have charged a $3.00 transaction fee and a 6% credit card processing fee (among other fees) on a $10 deposit. The Commission invites comment on these purported practices, and whether these fees recover valid costs or are leading to double recovery for providers.

68. The Commission seeks comment on further reforms it should make to fees for single-call services and third-party financial transaction fees to ensure that charges are just and reasonable. As an initial matter, in the Order, the Commission lowers the caps on fees for single-call services and third-party financial transaction fees to $3.00 for automated payment transactions and $5.95 for live agent transactions. PPI suggests that the Commission should impose even lower caps after the conclusion of the data collection. Do the data from the Third Mandatory Data Collection support lowering these caps, as PPI suggests? If so, to what levels? Securus on the other hand asserts that the automated payment fee recovers the internal costs in managing accounts. What are the costs associated with managing accounts? Should those costs be recoverable through the automated payment fee? Or should those costs be factored into the per-minute inmate calling services rates? Commenters should be as specific as possible identifying circumstances under which any such costs should be factored into the per-minute inmate calling services rates.

69. Some commenters argue that live agents may not be available in single-call services. Do other commenters agree with this assessment? One commenter suggests that the fee for single-call services should be no more than $0.25 to cover credit card transaction fees. The Commission seeks comment on this cap. Should the Commission consider prohibiting inmate calling services providers from imposing anticipated taxes on consumers at the time of a deposit? NCIC suggests that without knowing each call's end point, the provider cannot determine the actual tax obligation arising from a call, resulting in overcollection by the provider. How should the Commission ensure that consumers are not overcharged by providers for anticipated federal, state, or local taxes?

70. PPI asserts that single-call services are losing popularity and are becoming uncommon in the industry, given that, by definition, they require third-party billing. PPI contends that carriers still commonly allow or encourage customers to pay for calls on a one-off basis, but billing is typically done directly by the carrier without the involvement of a third party. Do commenters agree? How prevalent are single-call services? For those who are newly incarcerated, are single calls the only way to make initial contact with loved ones outside of the correctional facility? If not, what other options are available? How do providers bill for single-call services? If a provider uses a third party to bill for single-call services, and also assesses an automated payment fee on consumers who elect to pay by credit card, should the Commission allow providers to assess both a third-party payment fee and an automated payment fee for the same transaction? Relatedly, the Commission is concerned that consumers without a credit or debit card may be unable to pay for single calls from an incarcerated individual because payment using a credit or debit card appears to be the only option for consumers to pay for such calls at the time the call is made. NCIC conducted test calls and discovered that a consumer without an account or enough funds to pay for a call could either pay using a payment card or decline the call. Do commenters agree that consumers must use a payment card to pay for single calls? If not, how can consumers pay for single calls if they do not have a credit or debit card? How can the Commission ensure that incarcerated people are able to successfully initiate communication using single-call products? Should the Commission prohibit any transaction fees on single calls?

71. Finally, the Commission seeks comment on how its ancillary service charges caps should be adjusted to better reflect the actual cost of providing particular ancillary services, in light of the data from the Third Mandatory Data Collection. In 2021, the Commission sought comment on proposals to reduce its ancillary service charge caps and whether it should adjust the caps based on the data from the Third Mandatory Data Collection. In response, PPI supports lowering the caps on third-party financial transaction fees, fees for single-call services, automated payment fees, and live-agent fees, following completion of the Third Mandatory Data Collection. Do the data from the Third Mandatory Data Collection support reductions of these fees? If so, to what levels? Commenters should provide their own analyses of the reported data in support of any proposed caps. NCIC argues that certain ancillary costs have increased. NCIC points to the fact that credit card processing fees have not decreased in the past six years, but certain compliance requirements such as Payment Card Industry Certification requires more rigorous network intrusion testing than what was required six years ago when the ancillary caps were first adopted. NCIC also posits that labor costs have increased by at least 20% in the past 6 years. Do commenters agree with these assertions? Do the data from the Third Mandatory Data Collection support a conclusion that ancillary services costs have increased? If so, how? To account for increasing costs, NCIC suggests that there should be a process for the Commission's ancillary fee caps to be adjusted to account for inflation and labor costs. Do commenters support this proposal? If so, what mechanism could the Commission adopt to implement such a proposal and how could that mechanism be incorporated into its rules?

72. The Commission seeks further comment on whether to allow inmate calling services providers to offer optional pilot programs that offer consumers the ability to purchase inmate calling services under alternative pricing structures, in addition to the traditional per-minute pricing model required by its rules. The Commission invites comment on whether, as several parties suggest, pilot programs offering alternative pricing structures, generally, would benefit incarcerated people and their families by lowering calling costs and increasing connectivity. The Commission also invites commenters to elaborate on the specific elements and attributes it should require of any pilot it might allow, and how it can ensure that providers structure such pilot offerings in a manner that does not harm consumers. In particular, the Commission seeks comment on how to ensure that any such pilot programs would not undermine its caps on interstate and international rates and ancillary services charges. In addition, the Commission seeks comment on whether it should permit any such pilot programs only subject to certain specified conditions.

73. Background. The Commission's rules prohibit inmate calling service providers from charging for calls on a per-call or per-connection basis and require the providers to price their interstate, international, and jurisdictionally indeterminate calling services at or below specific per-minute rate caps. For convenience, the Commission refers to 47 CFR 64.6030, 64.6080, 64.6090 as the pricing structure rules. Separately, the Commission's rules allow inmate calling service providers to charge consumers for any of five specified types of ancillary services charges, each subject to their own respective caps. This structure results in incarcerated persons and their families paying for their interstate and international phone calls on a per-minute basis. Outside of correctional facilities, however, most phone users no longer pay per-minute rates for the phone calls they place.

74. In document FCC 22-76, the Commission sought comment on alternative pricing structures that depart from traditional per-minute pricing. Among other questions, the Commission asked whether it should allow providers to offer different optional pricing structures subject to the Commission's prescribed rate caps and whether the Commission should adopt a process for waiving the per-minute rate requirement to allow for the development of alternative pricing structures. Shortly after the release of the 2021 ICS Order, Securus filed a petition asking the Commission to waive its pricing structure rules to allow Securus and other providers to offer alternative rate options. According to the Petition, Securus had offered pilot programs at certain facilities that gave consumers the option to purchase intrastate inmate calling services pursuant to subscription pricing plans. The correctional institution determined the maximum amount of time available for each call, and the maximum call duration typically varied between 15 and 30 minutes. For a flat fee, consumers who elected to participate could buy packages of 25 telephone calls per week or 100 calls per month. This flat rate consists of a base rate plus a charge for the recovery of site commissions if applicable. Securus also charged a $3.00 automated payment fee upon enrolling in or renewing a subscription plan. Securus explains that the effective price of these packages ranged from $0.02 to $0.07 per minute for consumers who used every available minute, lower than the rate caps applicable to interstate calls made from the same facilities. If consumers used less than half of their available calling minutes, Securus asserts that the effective per-minute price increased to a range of $0.03 to $0.13 per minute. Securus notes, however, that because many of the calls made using the subscription plans were to wireless phones whose exact physical location was difficult to determine, it had to treat potentially in-state but jurisdictionally indeterminate calls as interstate calls whose rates are limited to per-minute charges, jeopardizing the development and availability of flat-rate subscription plans for multiple calls. WCB sought comment on Securus's Petition. Although the Commission does not resolve Securus's Petition in document FCC 22-76, it does seek further comment on the benefits of the subscription calling pilot program as described therein, and on other pilot programs that providers may offer under the Commission's rules.

75. Although several commenters recognized the potential benefits of pilot programs, such as the ones Securus has offered, other commenters sought more information about the company's pilot programs and expressed concerns that incarcerated people and their families may not have received enough information to make informed decisions about whether the programs would meet their needs. Specifically, commenters ask that Securus be required to provide consumers with more complete disclosures regarding prices, fees, call metrics, and the terms and conditions relating to renewal and cancellation of its alternative calling plans. Commenters also urge the Commission to require any pilot program to adhere to certain pricing, disclosure, and other conditions to protect incarcerated persons and their families from abuse.

76. Potential Pilot Programs. The Commission seeks comment on whether it should amend its rules to permit providers—subject to certain conditions—to offer pilot programs for inmate calling services that use pricing structures other than per-minute rates. The Commission seeks comment on the types of alternative programs that would be most beneficial to incarcerated people and on the reasons why such programs would be superior to the current per-minute pricing structure. Would a flat-rate package, such as a single price for an allotment of minutes, offer the most benefits? The Commission encourages commenters to fully explain how any pricing model would operate, how it would benefit consumers, and how the Commission can ensure that it would not harm consumers. The Commission encourages commenters to describe potential pilot programs in detail, including both the pricing and other operational features of any program.

77. What would be the costs and benefits of various types of alternative pricing structures? Would certain alternative pricing structures offer incarcerated people and their families more predictable, reliable, or affordable calling rates than others? If so, which rate structures would be most advantageous to consumers and why? Which types of offerings would give providers greater certainty regarding their inmate calling services revenues or offer other benefits tied to predictability? What type of consumer outreach or education would be needed to ensure that consumers are able to choose the pricing structure that best meets their needs?

78. Potential Conditions. The Commission seeks comment on whether and how it could ensure that all pilot programs offer rates that, on a per-minute basis, are less than its current per-minute rate caps. What measures, if any, would be needed to protect consumers against unreasonably high interstate and international rates in connection with pilot programs? How should the Commission determine whether the rate offered under any proposed alternative pricing structure is, on a per-minute basis, less than its rate caps? Should the Commission take the total price of the pilot program offering and divide it by the total amount of minutes available under that program? How else might the Commission determine whether a specific alternative pricing structure results in higher effective rates for consumers than what they would pay under the applicable per-minute caps? Should the Commission provide for true-up procedures, under which providers would be required to refund any revenues exceeding those permitted under its rules? The Commission encourages commenters to be specific and to demonstrate how any given structure would be consistent with its caps. Should the Commission assume that each consumer will use every call and minute available under an alternative pricing program? Or should the Commission require that the consumer's actual usage be taken into account? If the Commission takes the latter approach, how should the Commission assess whether a pilot program's pricing is consistent with its caps? Should the Commission require that any alternative plan offer consumers a discount compared to what they would pay for the same usage under its existing per-minute rate caps? If so, what should the minimum discount be? Finally, how should the Commission treat plans that offer an unlimited number of minutes or have indefinite terms?

79. The Commission seeks further comment on whether all pilot programs should be optional, so that incarcerated people and their families always are able to choose to purchase interstate and international calling services at per-minute prices that do not exceed its rate caps. If so, how should the Commission implement this condition for different types of pilot programs? The Commission also seeks comment on whether there are specific policies it should adopt to protect consumers and on whether there are specific features or attributes that different pilot programs should include. Should the Commission require providers to offer a set minimum number of calls or minutes per month, or other time period? Should the Commission require providers to allow consumers to roll over any unused minutes into each successive subscription period? Are there other specific parameters the Commission should require? Should providers be required to provide credits or otherwise make consumers whole for any calls that are not completed or that are dropped? If a pilot program offers calling services on a periodic subscription basis, should consumers be able to opt out of automatic renewals of their subscriptions? Should providers be required to provide more than one opt-out method? Should consumers be permitted to cancel a subscription before the end of the subscription period? If so, should providers be required to offer refunds? If providers are required to offer refunds, how should they provide such refunds in the event of cancellation prior to the end of a subscription term?

80. Disclosures and Consumer Awareness. The Commission invites comment on what rules, if any, it should adopt to ensure that providers clearly, accurately, and conspicuously disclose the details of any alternative pricing plans, while at the same time clearly conveying to consumers the continued availability of per-minute calling plans. Since providers may implement different types of alternative pricing structures, it is critical that incarcerated people and their families understand their provider's alternative offerings and how they differ from per-minute usage. The Commission seeks comment on what information consumers would need about providers' pilot programs to help them make informed choices between a pilot program and traditional per-minute pricing. Should the Commission require providers to inform consumers how a pilot program's prices translate on a per-minute basis, to enable consumers to make an informed decision between the program and the traditional per-minute pricing model? If not based on an equivalent per-minute price, how should any price comparison be made? More generally, how should providers present the prices under alternative plans, and what specific elements should be itemized? What sort of terms and conditions would help consumers understand what a given plan entails? Various terms and conditions could include, but are not limited to: pilot program costs, ancillary service charges, automatic renewal terms, cancellation policies, and refund policies. Should the Commission adopt additional rules governing how providers should disclose to consumers the rates, terms, and conditions associated with any pilot program? If so, what specific information should providers be required to disclose? Should the Commission require a written or electronic disclosure, or otherwise specify the manner in which providers must make any required disclosures?

81. The Commission seeks comment on these potential conditions, and on any other conditions that might be necessary in order to preserve the protections for incarcerated people under its rules. Should the Commission require providers to inform it of their intent to offer a pilot program and the details of that program, or require other notification steps? Are there any other constraints or requirements the Commission should adopt? Conversely, are there other rules the Commission might need to waive in order for pilot programs using alternative pricing structures to be commercially viable?

82. Pilot Period. The Commission seeks comment on whether it should authorize pilot programs for a limited period, for example two years. Would such a time period provide sufficient time to allow incarcerated people and their families to adjust to the offerings and for the Commission to more fully evaluate the costs and benefits of any individual program? Would two years allow the market to adjust to any new offerings? Should the Commission adopt a longer or shorter period? Why or why not? Are there relevant performance metrics, such as rate of adoption or usage, that will be most affected by the duration it chooses? When should any period commence?

83. Program Continuance. The Commission invites comment on what factors it should consider in deciding whether to extend a pilot program beyond the initial permitted period to make that program permanent. What information should the Commission focus on in evaluating the efficacy of such programs? What, if any, information should the Commission require providers to submit regarding their pilot programs so that the Commission can make an informed judgement on extending the pilot programs or amending its rules to allow them to continue permanently?

84. Burden of Demonstrating Compliance with Existing Rate Caps. Finally, the Commission seeks comment on whether to require providers to bear the burden of demonstrating that any pilot programs comply with its inmate calling service rate and ancillary services fee caps. If the Commission does adopt such a requirement, what should the consequences be if the provider fails to meet that burden? Should the consumer then be entitled to a refund of the charges over and above those that would have been assessed on a per-minute basis? What would the appropriate period be for determining whether a pilot program has complied with the Commission's rate caps, and how can this burden be met for calling plans that are not dependent upon a given period (such as a fixed fee for a number of calls)? For example, should the Commission evaluate compliance with its rate and ancillary fee caps on a three-month basis to account for normal variations in calling patterns that on average would end up complying with the Commission's rate caps if calls had been billed on a per-minute basis over the three-month period? Should the Commission adopt a shorter or longer period and, if so, why? What other factors should the Commission consider regarding the burden of proof?

85. The Commission seeks comment on whether it should expand its definitions of “Jail” and “Prison” to ensure that they capture the full universe of confinement facilities with residents who access interstate or international communications services. Specifically, the Commission invites comment on whether it should include in those definitions civil commitment facilities, residential facilities, group facilities, and nursing facilities in which people with disabilities, substance abuse problems, or other conditions are routinely detained. The Commission asks that commenters address in detail whether residents of such facilities are able to access voice and other communications services through providers of their own choice, as opposed to being limited to the providers selected by third parties. The Commission seeks comment on its authority to apply its inmate calling services rules, including those addressing communication disabilities, to these facilities. Does that authority, if any, vary depending on whether a facility is a non-governmental, as opposed to governmental, facility? The Commission also seeks comment on the costs and benefits of applying its rules to these facilities and on any practical problems that such application might create. The Commission asks, in addition, whether it should tailor any of its non-definitional rules to address the specific circumstances of these facilities and, if so, how it can best ensure that their residents have access to interstate and international voice and other communications services at rates, and on terms and conditions, that are just and reasonable.

86. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed in document 22-76. Section 1 of the Act provides that the FCC regulates interstate and foreign commerce in communication by wire and radio so as to make such service available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex. The term “equity” is used here consistent with Executive Order 13985 as the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality. Specifically, the Commission seeks comment on how its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

87. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in document FCC 22-76. The Commission requests written public comments on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided in the Dates section of document 22-76. The Commission will send a copy of the document, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

88. In document FCC 22-76 the Commission seeks additional comment on whether to allow a simplified form of registration for using IP CTS in correctional facilities, similar to enterprise phone registration currently allowed for VRS. The Commission seeks comment on whether it should require inmate calling services providers to provide access to additional forms of TRS in jurisdictions with average daily populations of fewer than 50 incarcerated people. The Commission also proposes and seeks comment on requiring that charges for inmate calling services be disclosed in accessible formats.

89. The Commission also seeks additional evidence and comment from stakeholders to enable further reforms concerning providers' rates, charges, and practices. First, the Commission seeks comment on refining the rules adopted in document 22-76 concerning the treatment of balances in inactive accounts. Second, the Commission seeks comment on expanding the breadth and scope of existing consumer disclosure requirements. Third, the Commission addresses certain issues that arose from the providers' 2022 data collection responses. Specifically, the Commission seeks comment on how data collected by the Commission should be used to establish just and reasonable permanent caps on interstate and international rates and associated ancillary service charges consistent with the statute. The Commission seeks comment on whether to allow inmate calling services providers to offer pilot programs allowing consumers to purchase calling services under alternative pricing structures. Finally, the Commission seeks comment on revisions to its definitions of “Prison” and “Jail,” and on how the proposals in document 22-76 may promote or inhibit digital equity and inclusion.

90. The legal basis for any action that may be taken pursuant to document 22-76 is contained in sections 1, 2, 4(i)-(j), 201(b), 218, 220, 225, 255, 276, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 201(b), 218, 220, 225, 255, 276, and 403.

91. The types of entities affected are: wired telecommunications carriers; local exchange carriers; incumbent local exchange carriers; competitive local exchange carriers; interexchange carriers; local resellers; toll resellers; other toll carriers; payphone service providers; TRS providers; and other telecommunications.

92. Compliance with Requirements to Provide Access and Expanded Registration Requirements. The Commission seeks comment on whether to allow enterprise registration for IP CTS use, limited to the correctional context. If adopted, IP CTS providers would have an alternative registration method for incarcerated people with communication disabilities to access TRS. The Commission also seeks further comment on whether to modify the scope of inmate calling services providers' TRS obligations as determined in document 22-76. In particular, the Commission seeks comment on requiring those providers to provide access to additional forms of TRS (VRS, IP Relay, IP CTS, and CTS) when they serve facilities in a jurisdiction with average daily populations of fewer than 50 inmates. If adopted, inmate calling services providers that do not all already provide these additional forms of TRS to smaller facilities may have additional data to report as a part of the Commission's Annual Reporting and Certification Requirement to comply with requirements adopted in the Report and Order portion of document FCC 22-76. The Commission also proposes to require that charges for inmate calling services be disclosed in accessible formats. If adopted, inmate calling services providers that do not all already provide such information in accessible formats would need to do so.

93. Other Potential Requirements. The Commission seeks comment on refining the rules adopted in document 22-76 concerning the treatment of unused funds in accounts consumers use to pay for interstate and international inmate calling services and related ancillary services charges, as well as on amendments to those rules which aim at protecting inmate calling services account holders against unreasonable practices in related to those funds. The Commission also seeks comment on the appropriate permanent interstate and international rate and ancillary services fee caps given providers' responses to the Third Mandatory Data Collection, as well as on other amendments to its ancillary services rules.

94. The Commission seeks comment on how amending its current consumer disclosure rules could improve and expand the current rules and reach more inmate calling services consumers. The potential changes include mandating that all inmate calling services providers to make the same required disclosures of information available to all consumers, regardless of whether they receive an actual bill from a provider. The Commission invites comment on whether to allow inmate calling services providers to supplement traditional per-minute pricing and develop optional pilot programs that offer consumers the ability to purchase inmate calling services under alternative pricing structures. The Commission invites comment on whether it should authorize such programs subject to certain specified conditions, including conditions protecting against unreasonably high charges for interstate and international calling services. The Commission seeks comment on whether it should expand its definitions of “Jail” and “Prison” to ensure that they capture any confinement facilities with residents who may access interstate and international communications services, and on how its proposals may promote or inhibit digital equity and inclusion.

95. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities. The Commission will consider all of these factors when it receives substantive comment from the public and potentially affected small entities. In particular, the Commission will consider the economic impact on small entities, as identified in comments filed in response to Document FCC 22-76 and the IRFA, in reaching its final conclusions and promulgating rules in this proceeding.

96. The Commission seeks comment on allowing enterprise registration for IP CTS so that incarcerated people with communication disabilities can access TRS. If adopted, this alternative form of registration could reduce the burden on IP CTS providers by allowing providers to register the relay service at a facility that maintains a list of users. The Commission also seeks further comment on requiring inmate calling services providers to provide access to all forms of TRS in a jurisdiction with an average daily population of fewer than 50 incarcerated people. The request for comment includes asking for cost data to assist the Commission with its analysis of the issue. The cost data will help the Commission ensure it is achieving its statutory obligation of ensuring TRS are available to extent possible, while appropriately considering the burden on affected entities.

97. The comments that stakeholders submit in response to the Commission's requests for comment on refining its rules on the treatment of funds in inactive inmate calling services accounts, the appropriate permanent interstate and international rate and ancillary services fee caps, and other potential amendments to its ancillary services rules, will supplement comments previously filed in this proceeding. Collectively, these comments will help the Commission meet its statutory obligation to ensure that providers' rates, terms, and practices for interstate and international inmate calling services are reasonable. Small entities can provide input in these areas addressing whether, among other considerations, the Commission should adjust its rules to address any particular financial or implementation challenges faced by small entities.

98. Similarly, the Commission's requests for comment regarding possible amendments to its consumer disclosure rules, regarding potential pilot programs for inmate calling services that use pricing structures other than per-minute rates, regarding possible amendments to its definitions of “Jail” and “Prison,” and regarding digital equity and inclusion will provide an opportunity for small entities, as well as other stakeholders, to voice any concerns they may have. The Commission will consider any comments small entities file regarding these matters as part of its efforts to ensure that consumers of calling services for incarcerated people have the information they need to make informed purchasing decisions. In particular, it will consider whether any concerns small entities raise regarding possible changes to the consumer disclose rules and the potential pilot programs as part of its overall evaluation of these areas.

99. The Commission will consider the economic impact on small entities, as identified in comments filed in response to document FCC 22-76 and the IRFA, in reaching its final conclusions and promulgating rules in this proceeding.

100. None.

101. Initial Paperwork Reduction Act of 1995 Analysis. The Sixth Notice of Proposed Rulemaking may contain modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). If the Commission adopts any modified information collection requirements, the Commission will publish another document in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

In support of its channel substitution request, the Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on channel 10 and that its channel sharing partner, WMFP(TV), Foxborough, Massachusetts, which is also owned by RNN, has similarly received complaints and would benefit from the proposed channel change. While an analysis using the Commission's TVStudy software indicates that WWDP's proposed channel substitution is predicted to create areas where viewers may lose service, all viewers in the loss area will continue to be served by at least five other full power television stations and no viewers will lose service from one of the four major television networks.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-376; RM-11934; DA 22-1132, adopted October 27, 2022, and released October 27, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

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

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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

On April 27, 2016, in accordance with section 32710 of the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat. 405, 815), FMCSA published in the Federal Register , an ANPRM titled “State Inspection Programs for Passenger-Carrier Vehicles” (Docket No. FMCSA-2014-0470, 81 FR 24769). The ANPRM announced that FMCSA was considering a requirement that States establish a program for annual inspections of passenger-carrying CMVs. FMCSA requested information from all interested parties that would enable the Agency to assess the risks associated with improperly maintained or improperly inspected passenger-carrying CMVs. The ANPRM also sought public comments concerning the effectiveness of the current FMCSA annual inspection standards, and data on the potential costs and benefits of a Federal requirement for each State to implement a mandatory inspection program. FMCSA inquired about how the Agency might incentivize States to adopt such programs.

The comment period closed on June 27, 2016, and 22 comments were received, with a plurality (10 of 22) of commenters expressing general opposition to the mandatory State inspection requirement discussed in the ANPRM. After reviewing all the public comments, FMCSA determined there was not enough data and information available to support moving forward with a rulemaking action. As a result, on May 1, 2017, the Agency withdrew the ANPRM. 1 (82 FR 20311)

On November 15, 2021, the IIJA was enacted, Public Law 117-58, 135 Stat. 429 (H.R. 3684, Nov. 15, 2021). Section 23008(a) directed the Agency, within 1 year after the date of enactment, to solicit additional comments on the ANPRM to determine if data and information exist to support moving forward with a rulemaking. The Agency published the request for additional comments on May 10, 2022. (87 FR 29781) The comment period closed on June 9, 2022.

The Agency received 21 public comments, with 9 commenters expressing general opposition to the mandatory State inspection requirement discussed in the 2016 ANPRM. Four commenters supported the establishment of such a requirement and the remaining commenters neither wholly supported nor opposed a possible requirement. Many commenters indicated that the existing standards for annual inspections prescribed in the Federal Motor Carrier Safety Regulations, or their own programs, were sufficient. Commenters also indicated that current standards are effective at mitigating risk when properly enforced. Several commenters made their support contingent on factors such as uniformity in inspection standards, standardization of inspector training, a self-inspection option, and required reciprocity, whereby States would be required to recognize inspections conducted outside their States.

Many commenters, including State agencies in Arizona, Kentucky, Minnesota, Montana, New York, Virginia, and Wisconsin, addressed questions aimed at measuring the effectiveness of inspection programs. However, none of these commenters was able to determine whether the establishment of an inspection program reduced the number of safety violations detected.

Several commenters suggested that FMCSA incentivize States to establish mandatory inspection programs by providing Federal funding. The American Association of Motor Vehicle Administrators, the Commercial Vehicle Safety Alliance, and the Kentucky Transportation Cabinet noted that a mandate would be a strain on States' resources, particularly considering the ongoing financial challenges associated with the coronavirus disease 2019 pandemic.

After considering all the comments, FMCSA has concluded that the rationale for withdrawal of the 2016 ANPRM remains sound. The Agency is not aware of any new data or information that supports the development of a notice of proposed rulemaking to require the States to establish mandatory annual inspection programs for passenger-carrying vehicles. FMCSA therefore confirms withdrawal of the 2016 ANPRM referenced above. The concerns and recommendations of all the commenters will be considered if any new proposed regulations regarding annual inspections of passenger-carrying CMVs are developed.

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) jointly manage the Atlantic Bluefish Fishery Management Plan (FMP). The FMP requires the specification of annual regulatory limits for up to three years at a time, including: an acceptable biological catch (ABC), commercial and recreational annual catch limits (ACL), commercial and recreational annual catch targets (ACT), a commercial quota, a recreational harvest limit (RHL), and other management measures. This action proposes adjusted bluefish specifications for the 2023 fishing year, based on Council and Commission recommendations.

The bluefish fishery is operating under multi-year specifications for fishing years 2022 and 2023 (87 FR 5739; February 2, 2022), which were based on a 2021 assessment update and Amendment 7 to the Bluefish FMP (86 FR 66977; November 24, 2021). Upon review of a 2022 data update and recent catch information, the Council's Scientific and Statistical Committee (SSC) and the Council's Bluefish Monitoring Committee agreed that no changes are necessary to the previously projected ABC, subsequent ACLs and ACTs, or any limits in the commercial sector. Prior to two adjustments described below, these 2023 specifications would have resulted in a 21-percent increase to the projected commercial quota and a 59-percent increase to the projected RHL. However, the 2022 data update indicated that the initial projection of recreational discards (4.19 million lb, 1,901 mt) did not fully account for expected discards, so the Monitoring Committee recommended an adjustment to the recreational total allowable landings (TAL) to account for higher than expected discards (6.64 million lb, 3,012 mt). There was also a 5.59 million-lb (2,536-mt) overage of the fishery ACL caused by recreational catch in 2021. Because the bluefish fishery is overfished, the accountability measure (AM) required by the FMP at 50 CFR 648.163(d)(1) is a pound-for-pound payback of the overage against the soonest possible year's recreational ACT as a single-year adjustment. The 2021 overage would be applied to the 2023 specifications in this action. No changes were recommended to recreational management measures because the adjusted RHL remains slightly higher than the current RHL in 2022, and there was no compelling reason found to change existing measures.

The Council and the Commission's Bluefish Management Board (Board) approved bluefish catch specifications for fishing year 2023 at a joint meeting in August 2022, as recommended by the SSC and Monitoring Committee. The Council and Board did not recommend changes to any regulations in place for bluefish. Therefore, all other commercial and recreational management measures would remain unchanged for the 2023 fishing year.

This action proposes the Council's recommendations for 2023 bluefish catch specifications, which are consistent with the recommendations of the SSC and Monitoring Committee (Table 1). Although ACLs in both the commercial and recreational sectors would still increase by 21 percent as projected, the proposed RHL is adjusted and would only increase 1.6 percent from 2022, rather than 59 percent as originally projected.

The coastwide commercial quota is allocated to coastal states from Maine to Florida based on percent shares specified in the FMP. These proposed state allocations for 2023 (Table 2) are unchanged from what was previously projected, as this action makes no changes to the commercial sector or the final coastwide commercial quota. In addition, no states exceeded their allocated quota in 2021, or are projected to do so in 2022; therefore, no AMs for the commercial fishery are required for the 2023 fishing year based on the data available at this time.

No changes were recommended to recreational management measures as a part of these specifications. Therefore, all management measures, including the recreational daily bag limit of three fish per person for private anglers and five fish per person for for-hire (charter/party) vessels, would remain unchanged for 2023.

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

This action is exempt from review under E.O. 12866 because it contains no implementing regulations.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.

The Councils conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with a SIR. There are no proposed regulatory changes in this bluefish action, so none are considered in the evaluation. The proposed action would implement the previously projected 2023 bluefish specifications, with an adjusted RHL to account for a recreational overage in 2021 and updated recreational discard data. Compared to the 2022 specifications, the coastwide commercial quota would increase 21 percent to 4.29 million lb (1,945 mt), and the RHL would increase 1.6 percent to 14.11 million lb (6,400 mt).

This proposed action would affect entities that hold federal for-hire (party/charter) recreational fishing permits for bluefish. Vessels may hold multiple fishing permits and some entities own multiple vessels and/or permits. According to the Northeast Fisheries Science Center commercial ownership database, 384 for-hire affiliate firms generated revenues from recreational fishing for various species during the 2019-2021 period (the most recent and complete data available). All of those business affiliates are categorized as small businesses, but it is not possible to derive the proportion of overall revenues for these for-hire firms resulting from fishing activities for an individual species such as bluefish. Nevertheless, given the popularity of bluefish as a recreational species in the Mid-Atlantic and New England, it is likely that revenues generated from bluefish may be somewhat important for many of these firms at certain times of the year. Although this action wouldn't affect the commercial sector beyond what was considered in the prior specifications action (providing an increase in fishing opportunity), 526 commercial fishing affiliate firms landed bluefish during this data period, with 521 of those commercial entities categorized as small businesses, and 5 categorized as large businesses. Analyses indicate that bluefish revenues contributed approximately 0.46 percent of the total gross receipts for these small entities.

The proposed specifications are expected to provide similar fishing opportunities in the recreational sector when compared to the previous year, as the RHL is increasing by less than two percent, and because the management measures (bag limit, season, etc.) would remain unchanged. As noted in the prior specifications action, entities issued a commercial bluefish permit may experience a slight positive impact related to potentially higher landings throughout the course of the entire year. However, because state allocations are changing in accordance with Amendment 7, there may be different amounts of quota available regionally compared to past years. Often fishing behavior and short-term landings are based on market conditions, which are not expected to substantially change as a result of these specifications. As such, this proposed action is not expected to have an impact on the way the fishery operates or the revenue of small entities.

Overall, analyses indicate that the proposed specifications will not substantially change fishing effort, the risk of overfishing, prices/revenues, or fishery behavior. Therefore, the Council concluded, and NMFS agrees, that this action would not have a significant adverse impact on a substantial number of small businesses. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This action would not establish any new reporting or record-keeping requirements.

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