The Animal and Plant Health Inspection Service's (APHIS') Animal Disease Traceability (ADT) framework was established to improve the ability to trace animals back from slaughter and forward from premises where the animals are officially identified, in addition to tracing animals' interstate movements. Knowing where diseased and exposed animals are, as well as where they have been and when, is indispensable to emergency response and ongoing disease control and eradication programs. The ability to trace animals accurately and rapidly does not prevent disease epidemics, but does allow Tribal, State, and Federal veterinarians to contain potentially devastating disease outbreaks before they can do substantial damage to the U.S. cattle and bison industries. A comprehensive animal disease traceability system is the best protection against a devastating disease outbreak.

Tracing of animals has multiple components, including identification of the animal, tracking its movements, discovering other exposed animals, and finding the associated records quickly enough to implement mitigations to the impact of the disease. Time to find records is critical for diseases, such as foot and mouth disease (FMD), that may transmit from animal to animal in as little as 24 to 48 hours. For other diseases that can have prolonged latency periods and may result in a significant number of exposed animals, such as bovine tuberculosis and brucellosis, accuracy of data collection and data retrieval is important. In either case, consequences of late or inaccurate records may result in large financial losses.

Foreign animal diseases such as FMD have been largely excluded from the United States; however, exclusion of every high impact disease through every pathway of introduction is likely an unachievable task. Costs of incursions vary, but even a small outbreak of FMD would have multi-billion dollar impacts on U.S. livestock producers' access to export markets with additional losses to production, reproduction, and animal population. Other diseases, such as bovine tuberculosis, move slowly but may infect many herds before detection. The financial consequences of this insidious and incurable disease, which can also affect other animals and people, as well as intangible impacts related to consequences or loss of a family farm, can be high.

Jurisdiction and responsibility for controlling diseases that can cause significant damage to the livestock industry is divided among State, Tribal, and U.S. Department of Agriculture (USDA) animal health officials. Interstate movement of cattle and bison falls under the responsibility of USDA, APHIS, while movements within the State and Tribal boundaries fall under their respective governments. There are approximately 100 million cattle and bison in the United States, and they are likely to make multiple movements through their lifetimes. Rapid and accurate recordkeeping for this volume of animals and movement is not achievable without electronic systems.

Eartags are an essential component for animal health officials to identify and track the movement of animals that are diseased or exposed to disease. Official eartags are approved by APHIS to identify certain classes of animals that move interstate or are part of Federal disease control and eradication programs. USDA records show that approximately 11 million official visually readable only, i.e., non-electronic identification (EID) eartags were used per year in fiscal years 2017 through 2021, which corresponds to 11 percent of the national population of cattle and bison.

Official identification tags may be placed on the animal by the animal owner but are more frequently placed at livestock markets or by veterinarians who create the movement documents required for the interstate travel of the animals. In either case, EID eartags offer a number of advantages over non-EID eartags. With non-EID eartags, the animal must be physically restrained to allow the eartag number to safely be read and transcribed. Often, the eartag must be cleaned before the number can accurately be read. Visual eartag numbers may be recorded on paper, or manually entered in a database. Errors can occur while reading, transcribing, or entering the eartag number into a database. Costs to the producers may include that of the tags as well as the time for restraining the animals and reading the numbers. Alternatively, for EID tags, the numbers may be read visually, similarly to the non-EID tags, or may be read without restraint as the animal goes past an electronic reader. Once the reader scans the tag, the electronically collected tag number can be rapidly and accurately transmitted from the reader to a connected electronic database. Since the eartag number does not need to be manually read, transcribed, or entered in a database, the risk of errors at these steps is eliminated. Electronic identification numbers are stored in electronic data systems, whereas visual identification numbers may be stored in electronic data systems after entry or filed as paper records. Disease investigations that involve tracing an animal with electronic records take only minutes to hours, while searching paper records for a visual eartag number can take days to weeks or longer. Shorter disease investigations minimize the impact on individual producers, herds, businesses, and communities.

Currently, the livestock industry uses APHIS-approved EID tags as well as other EID tags intended for production management. Official EID eartag numbers are read on the same radio frequency as other electronic eartags and are quality-tested to last the lifetime of an animal. Hence, they serve a dual purpose whether official identification is needed or when integrated into production systems.

APHIS has primary regulatory responsibility to control and eradicate communicable diseases of livestock and to prevent the introduction and dissemination of any pest or disease of livestock into the United States. The animal disease traceability regulations, which were set forth in a final rule  1 published on January 9, 2013 (78 FR 2040-2075, Docket No. APHIS-2009-0091), provide the requirements for identification and documentation for certain classes of cattle and bison to move interstate. These regulations establish minimum national official identification and documentation requirements for the traceability of livestock moving interstate. The species covered in the regulations include cattle and bison, sheep and goats, swine, horses and other equids, captive cervids ( e.g., deer and elk), and poultry.

Since the enactment of these regulations, APHIS has worked with stakeholders to enhance its traceability capacity within the ADT program. In January 2017, APHIS staff officers met with State officials and APHIS Veterinary Services field officers to gather input on what was working well in the traceability program and what gaps remained. A report of our findings was published in April 2017 ( https://www.aphis.usda.gov/traceability/downloads/adt-assessment.pdf ). Among other findings, the report discussed gaps in tracing animals due to the challenges of reading and recording numbers from non-EID eartags. A similar gap identified was the need for greater efficiency in collecting AINs or other official identification numbers of individual animals at slaughter and removing those identification numbers from future tracing efforts. Eliminating this gap was determined not to be feasible with visual-only eartags, but could be achieved at a future time with EID eartags.

On April 4, 2017, we published in the Federal Register (82 FR 16336, Docket No. APHIS-2017-0016) a notice  2 announcing a series of public meetings aimed at soliciting comment on the animal disease traceability program. A total of nine public meetings were hosted by APHIS between April and July of that year, and an additional meeting was hosted by the Kansas Department of Agriculture. As discussed in the April 2017 notice, the purpose of the meetings paralleled the prior discussion with State officials and APHIS field officers: To “hear from the public about the successes and challenges of the current ADT framework.” We specifically solicited attendance from cattle and bison industry members, as well as impacted States and Tribes.

The notice and meetings generated 462 written public comments. A working group formed in March of 2017 to plan and attend the public meetings was further tasked with listening to the discussions and preparing a final report summarizing input from the meetings and proposing directions to address gaps in the traceability system. The report was presented at the National Institute for Agriculture fall public forum in September of 2017 and published in April of 2018 ( https://www.aphis.usda.gov/publications/animal_health/adt-summary-program-review.pdf ).

During the remainder of 2017, 2018, and 2019, APHIS personnel frequently met with stakeholders to discuss questions and topics that arose during the 2017 outreach meetings. In addition to individual and industry organization meetings, APHIS officers met with State officials as well as industry stakeholders at national public forums including the United States Animal Health Association and the National Institute for Animal Agriculture forum.

During this period, cattle and bison organizations provided significant and ongoing input on the animal disease traceability program. Although not everyone agreed, many stakeholders commented that electronic records and electronic identification were of significant value and were needed to protect the industry from diseases with potential for high economic impacts.

Under the regulations, official identification devices or methods are determined by the APHIS Administrator. An official identification device or method is defined in 9 CFR 86.1 of the regulations as “[a] means approved by the Administrator of applying an official identification number to an animal of a specific species or associating an official identification number with an animal or group of animals of a specific species or otherwise officially identifying an animal or group of animals.”

One of the approved identification methods for cattle and bison covered by part 86 is an official eartag. An official eartag is defined in § 86.1 of the regulations as “[a]n identification tag approved by APHIS that bears an official identification number for individual animals. Beginning March 11, 2014, all official eartags manufactured must bear an official eartag shield. Beginning March 11, 2015, all official eartags applied to animals must bear an official eartag shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal.” The other methods of official identification of cattle and bison include “brands registered with a recognized brand inspection authority and accompanied by an official brand inspection certificate, when agreed to by the shipping and receiving State or Tribal animal health authorities; or tattoos and other identification methods acceptable to a breed association for registration purposes, accompanied by a breed registration certificate, when agreed to by the shipping and receiving State or Tribal animal health authorities; or Group/lot identification when a group/lot identification number (GIN) may be used.” (See 9 CFR 86.4(a)).

Historically, APHIS has used non-EID (metal) tags for animal identification in disease programs for many decades and has approved both non-EID and radio frequency identification (RFID) tags for use as official eartags in cattle and bison since 2008.

While APHIS focuses on interstate movements of livestock, States and Tribal Nations remain responsible for the traceability of livestock within their jurisdictions. APHIS partners with State veterinary officials each year to test the performance of States' animal disease traceability systems. (Tribes are free to request such test exercises on a voluntary basis and APHIS will report to the Tribes the results of any such exercise.) Results of these test exercises, which can be viewed on APHIS's traceability web page, 3 indicate that when State veterinary officials are provided an identification number from an animal that has been identified with an official identification eartag, whether non-EID ( e.g., metal or plastic) or electronic, and the number has been entered accurately into a data system, States can trace animals to any one of these four locations in less than 1 hour: The State where an animal was officially identified, the location in-State where an animal was officially identified, the State from which an animal was shipped out of, and the location in-State that an animal was shipped out-of-State from. However, lengthy times or failed traces in the test exercises resulted when numbers from non-EID tags were transcribed inaccurately, movement records were not readily available, or information was only retrievable from labor-intensive paper filing systems. Electronic tags and electronic record systems provide a significant advantage over non-EID tags by enabling rapid and accurate reading and recording of tag numbers and retrieval of traceability information.

In support of greater efficiency in traceability and in furtherance of the above-listed program goals, on July 6, 2020, we published in the Federal Register (85 FR 40184-40185, Docket No. APHIS-2020-0022) a notice  4 in which we announced our proposal to approve only RFID tags as the official eartag for use in interstate movement of cattle and bison that are covered under the regulations. Specifically, the notice proposed that:

• Beginning January 1, 2022, USDA would no longer approve vendors to use the official USDA shield in production of visual eartags or other eartags that do not have RFID components.

• On January 1, 2023, RFID tags would become the only identification devices approved as an official eartag for cattle and bison pursuant to § 86.4(a)(1)(i).

• For cattle and bison that have official USDA visual (metal) tags in place before January 1, 2023, APHIS would recognize the visual (metal) tag as an official identification device for the life of the animal.

The notice further clarified that we were proposing no changes to the regulations pertaining to, nor proposing to restrict the use of, other official identification methods authorized by those regulations (such as the use of tattoos and brands when accepted by State Officials in the sending and receiving states).

We solicited comments on the notice for 90 days ending on October 5, 2020. We received 935 comments by that date from industry groups, producers, veterinarians, State departments of agriculture, and individuals.

Many of the commenters representing industry organizations and State department of agriculture regulatory officials were supportive of the transition and agreed with APHIS that RFID allowed for greater efficiency than non-electronic means of identification and furthered the goals of the ADT program with regard to animal traceability. We also received many comments expressing opposition to the proposal, however.

Many of the commenters opposed to the proposal were concerned with the perceived costs imposed on producers and livestock markets of having to purchase electronic reading equipment and computer systems. We do not agree with the commenters regarding the magnitude of costs to the domestic cattle and bison industry. Many of these commenters were not aware that the official RFID tags are easily read visually and therefore could be used as they are currently using non-EID tags without the added expense of purchasing reading equipment. Also, large categories of cattle, such as feeder cattle or cull cattle going to slaughter, are not subject to the official identification requirements and would not require official eartags. We address the costs in greater detail in the regulatory impact analysis accompanying this proposed rule.

Other commenters expressed concern about the retention time on the animals of RFID eartags, claiming that non-EID eartags were superior in that regard. These commenters, however, did not differentiate between USDA-approved official tags that must meet quality standards for long-term retention and other RFID tags intended for unofficial uses. Prior to approval by APHIS, official RFID tag manufacturers are required to provide data that supports high long-term retention in cattle including laboratory testing, field trials, and/or sales data from approvals in other countries. Reports of tag retention failures of official tags are followed up and may result in removal of the company's approval for the tag. From the period between 2013 and 2022, only one company has had approval removed due to tag failure. Tags that are not USDA-approved for use as official eartags are often intended for feedlot cattle and do not require long-term retention. Livestock producers that place the short-term tags in cattle other than feeders can expect high loss of tags.

Other commenters who opposed the transition to RFID eartags questioned our legal authority under the Administrative Procedure Act (5 U.S.C. 500 et seq. ) to change the eartag requirements using a notice-based procedure rather than rulemaking. Some of these commenters suggested that implementing the proposed RFID requirement would effectively change the regulations in part 86, as well as the domestic animal disease-program regulations in other parts of the Code of Federal Regulations, none of which specify that RFID eartags are the only eartags that we recognize as official for interstate movement of cattle and bison. Some commenters expressed opposition to mandatory animal identification and government regulations in general.

Our proposal to implement the transition through a notice-based process was informed by our view that we did not need to amend the regulations. As noted above, we define, in § 86.1 and elsewhere in the regulations, an official eartag as “an identification tag approved by APHIS that bears an official identification number for individual animals.” The definition also states that the “design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator.” In our view at the time, that definition provided sufficient flexibility to enable us to require the use of RFID eartags when moving cattle and bison interstate.

After reviewing the comments on the July 2020 notice, however, we determined that withdrawing our recognition of visual-only (non-EID) eartags as official eartags for cattle and bison moving interstate would constitute a change in the application of our regulatory requirements of sufficient magnitude to merit rulemaking rather than the notice-based process we originally envisioned. We also determined that the goal of maximizing transparency and public participation would also best be served through rulemaking in this instance. Therefore, on March 23, 2021, we issued a stakeholder announcement indicating that we would not finalize the notice, and that we “would use the rulemaking process for further action related to the proposal.”  5 Should we propose another change of similar magnitude and scope to our requirements for official eartags for cattle and bison that move interstate at some future date, we would likewise use rulemaking for that proposal.

This proposed rule supersedes the July 2020 notice. In the notice's stead, we are proposing to amend the regulations to recognize as official eartags for cattle and bison that currently require them for interstate movement only those eartags that are readable both visually and electronically. To allow adequate time for producers to comply with the proposed requirements, the new proposed effective date would be a date 6 months (180 days) after the publication date in the Federal Register of a final rule following this proposed rule. As we stated in the notice, non-EID (metal) tags applied to cattle and bison before that date would continue to be recognized as official identification for the life of the animals. We believe that allowing 6 months (180 days) after publication of a final rule for implementation is appropriate for the following reasons: The primary change proposed is the use of EID eartags rather than non-EID tags for official use. Because all EID tags are readable visually, however, no modifications are necessary to facilities or equipment currently in use. We would also note that animals that would not be impacted by the transition to EID constitute about 89 percent of the national herd of approximately 100 million cattle and bison. Animals not impacted would include animals that do not cross State lines or those already tagged with official EID, as well as animals exempted under the rule such as beef cattle and bison under the age of 18 months and animals going to slaughter or through an APHIS-approved market and then to slaughter.

There are a few aspects of this proposed rule that differ from the July 2020 notice, however. In this proposed rule, as opposed to the July 2020 notice and the existing regulations in part 86, we refer to electronic identification (EID) tags rather than to RFID tags. Currently, the only official electronically readable identification tags are RFID tags; however, at some future time there may be other electronically readable technology. APHIS' goal is to rapidly and accurately collect the tag numbers and be able to adapt to technological developments, not to codify RFID technology as the only technology option for traceability.

We are also proposing several other changes to part 86 aimed at clarifying the regulations. These include revising the definition of dairy cattle and amending certain provisions pertaining to recordkeeping, and the disposition of slaughter cattle. The specific changes we are proposing are discussed in detail below.

The current definition of an approved tagging site is: “A premises, authorized by APHIS, State, or Tribal animal health officials, where livestock may be officially identified on behalf of their owner or the person in possession, care, or control of the animals when they are brought to the premises.” We would revise the definition of approved tagging site to read as follows: “A premises, authorized by APHIS, State, or Tribal animal health officials, where livestock without official identification may be transferred to have official identification applied on behalf of their owner or the person in possession, care, or control of the animals when they are brought to the premises.” This proposed definition, while very similar to the existing one, offers greater clarity regarding the nature of an approved tagging site, specifying that such sites are where official identification tags are physically applied to animals.

The current definition of dairy cattle is: “All cattle, regardless of age or sex or current use, that are of a breed(s) used to produce milk or other dairy products for human consumption, including, but not limited to, Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey, Milking Shorthorn, and Red and Whites.” We are proposing to revise the definition of dairy cattle to read as follows: “All cattle, regardless of age or sex, breed, or current use, that are born on a dairy farm or are of a breed(s) used to produce milk or other dairy products for human consumption, or cross bred calves of any breed that are born to dairy cattle including, but not limited to, Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey, Milking Shorthorn, and Red and Whites. This proposed definition differs from the existing one in that it includes not only certain breeds that are reared specifically to produce milk or other dairy products but also other cattle that are reared under the same management practices as purebred dairy cattle. Under part 86, dairy cattle have different requirements for official identification and movement documentation from beef cattle because of the increased risks that dairy animals have for contracting diseases early in life. Dairy farm management practices result in higher risk of disease transmission and include practices such as pooling colostrum from multiple cows for many calves, commingling calves at different locations during their lifetimes, and movement to many destinations. Because the increased disease risk is due to the management of the cattle rather than their genetic makeup as a dairy breed, it is necessary to change the definition accordingly. We welcome comments from the public on this issue.

We are proposing some editorial and formatting changes to the definition of interstate certificate of veterinary inspection (ICVI). The existing definition contains requirements pertaining only to paper ICVIs, but electronic ICVIs are now commonly used and accepted across the United States for animal movement. Our proposed editorial changes would account for electronic ICVIs as well as paper ones. The proposed formatting changes would make the definition clearer and easier for users to understand. Substantively, however, the revised definition would not otherwise change the definition.

We are proposing to add to § 86.1 a definition of Official Animal Identification Device Standards (OAIDS). The proposed definition would state that the OAIDS is a document providing further information regarding official identification device recordkeeping requirements contained in the regulations. The definition would also indicate that when APHIS updates or modifies the standards, an announcement will be made to the public by means of a notice published in the Federal Register . The notice-based process would provide the regulatory flexibility needed to account for rapid advances in EID technology. The OAIDS replaces the old title for the document, the Animal Disease Traceability General Standards document. In our view, the new title more accurately reflects the content of the document, which focuses on official identification devices. There would also be some substantive changes to the document, as discussed below.

In broad terms, the proposed OAIDS, like the existing Standards document, would provide guidelines, technical standards, and specifications for tag manufacturers requesting APHIS approval of new official identification devices. The requirements contained in both documents reflect our recognition of the importance of quality in tag design, safety, and retention. We have determined, however, that some of our current requirements may be burdensome and inhibit manufacturers seeking APHIS approval of new official identification devices. Therefore, the proposed OAIDS would streamline the process for approval of new EID tags and reduce the burden for development of new tags. Specific changes would include the following:

• Accepting EID device testing equivalent to International Committee for Animal Recording (ICAR) testing and allowing APHIS to consider requests, on a case-by-case basis, for approval of alternative field trials or eartags with previously generated verifiable data if equivalency to the standards is demonstrated;

• Modifying the field trial requirements by reducing timelines for the three approval statuses (trial, preliminary, and conditional), reducing the number of required field trial locations, and reducing the number of cattle and bison required for field trials; and

• Reducing the timeframe before allowing unlimited sales of devices from a minimum of 24 months to a minimum of 12 months if devices meet the required performance standards.

In addition, the OAIDS would be updated to correspond with the changes in this proposed rule. These updates would include removing some language that no longer applies pertaining to National Uniform Eartagging Standards (NUES) metal tags, which are non-EID tags, and adding a new section on USDA backtags. There would be additional, nonsubstantive edits made to clarify wording and to format tables consistently.

We are proposing to revise the definition of official eartag to read as “An identification tag approved by APHIS that bears an official identification number for individual animals. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal.” This proposed definition is largely the same as the existing one, except for the removal of the following language: “Beginning March 11, 2014, all official eartags manufactured must bear an official eartag shield. Beginning March 11, 2015, all official eartags applied to animals must bear an official eartag shield.” Those dates are no longer relevant. There are still many eartags in use that were grandfathered in under the January 2013 final rule because they were applied to animals prior to then; however, all eartags that have been applied to cattle and bison since the implementation dates provided in the current regulations meet the above requirements. A list of currently approved eartags is available at https://www.aphis.usda.gov/traceability/downloads/ADT_device_ain.pdf.

The existing recordkeeping requirements in § 86.3 do not address such issues as record accuracy, quality, completeness, availability, and accessibility. In the case of a fast-moving disease, records that are not readily available to enable the tracing of diseased or exposed animals in adequate time to contain the outbreak provide little value. We are therefore proposing to revise § 86.3 to address these deficiencies. The proposed changes are discussed in detail below.

Current § 86.3(a) states that any State, Tribe, accredited veterinarian, or other person or entity who distributes official identification devices must maintain for 5 years a record of the names and addresses of anyone to whom the devices were distributed. To address the issues of availability and accessibility, we are proposing to add a requirement to that paragraph that official identification device distribution records must be entered by the person distributing the devices into the Tribal, State, or Federal databases designated by each government entity to meet their tag tracing requirements. States and Tribal governments and accredited veterinarians may also use APHIS' tag manager database at no cost. The revised paragraph would also include a statement indicating that OAIDS would contain more specific details on how to meet the requirements of § 86.3 and which parties would be responsible for meeting them.

The requirements contained in current paragraph (b), pertaining to record retention requirements for ICVIs or alternate documentation, would appear under paragraph (c) in this proposed rule. We are proposing to add a new paragraph (b), which would state that records of official identification devices applied by a federally accredited veterinarian to a client animal must be recorded in a readily accessible record system. This may be the veterinarian's medical records system or comparable means of record management. Alternately, the veterinarian may use APHIS' tag management database at no cost to record tag distributions. This proposed requirement would help to ensure that such records are available to APHIS when needed for traceback investigations.

Finally, we would add a new paragraph (d) to § 86.3 stating that records required under paragraphs (a) through (c) of the section would have to be maintained by the responsible person or entity and be of sufficient accuracy, quality, and completeness to demonstrate compliance with all conditions and requirements under part 86. The paragraph would further state that, during normal business hours, APHIS must be allowed access to all records, to include visual inspection and reproduction ( e.g., photocopying, digital reproduction). Because disease tracing may involve multiple movements of animals among many locations and persons, prolonged retrieval of tracing information can create significant delays in the containment of serious threats to the livestock industry. For this reason, the responsible person or entity must submit to APHIS all reports and notices containing the information specified within 48 hours of receipt. We welcome comments from the public on this proposed timeline.

We are proposing to revise § 86.4(a) introductory text by adding a sentence stating that additional information on official identification devices, methods, and the approval process can be found in the OAIDS.

We are proposing to revise § 86.4(a)(1)(i) to add the requirement, discussed above, that beginning 6 months (180 days) after the publication date of a final rule following this proposed rule, all official eartags sold for or applied to cattle and bison must be readable both visually and electronically. This requirement would enhance our traceback investigation capabilities because, as discussed in greater detail above, EID eartags and electronic recordkeeping allow for greater efficiency and accuracy than do non-EID eartags and paper records. EID tags enable producers or officials to capture accurately animal identification numbers almost instantly, without the need for animal restraint, and to transmit those numbers to a connected electronic database. The use of such tags, therefore, facilitates electronic recordkeeping, which, however, would not be required under this proposed rule.

The existing regulations in § 86.4(b)(1)(ii) allow cattle to move interstate to an approved livestock market and then to slaughter or directly to slaughter without official identification. Current § 86.4(b)(1)(ii)(C) stipulates that the cattle or bison must be identified if held for more than 3 days. The existing regulations are silent on identification requirements for slaughter cattle or bison that are not held at slaughter or held at slaughter for 3 or fewer days and then move to a new location. As noted earlier, difficulties in tracking animals leaving slaughter channels have been identified by State officials as a major gap in traceability, because cattle and bison may move to slaughter without official identification or ICVIs. If they leave the slaughter channel, they may become untraceable.

We are therefore proposing to add paragraph (b)(1)(ii)(D) to § 86.4. The paragraph would read as follows:

• Cattle and bison leaving a slaughter establishment may only be moved to another recognized slaughter establishment or approved feedlot and can only be sold/re-sold as slaughter cattle and must be accompanied by an owner-shipper statement in accordance with § 86.5(c)(1). Information listed on the owner-shipper statement must include the name and address of the slaughter establishment from which the animals left, the official identification numbers, as defined in § 86.1, correlated with the USDA backtag number (if available), the name of the destination slaughter establishment, or approved feedlot (as defined in 9 CFR 77.5) to which the animals are being shipped.

These proposed requirements clarify that the animals must stay within the intended terminal slaughter channels but may be moved to an additional slaughter plant or approved feedlot with appropriate documentation and identification.

Current § 86.4(b)(1)(iii) lists the following categories of cattle and bison as covered by the official identification requirements for interstate movement:

• All sexually intact cattle and bison 18 months of age or over;

• All female dairy cattle of any age and all dairy males born after March 11, 2013;

• Cattle and bison of any age used for rodeo or recreational events; and

• Cattle and bison of any age used for shows or exhibitions.

Because, as described earlier, we are proposing to amend the definition of dairy cattle to reflect the management practices of the premises on which the animals are raised, we would revise paragraph (b)(1)(iii)(B) so that the official identification requirements would apply to all dairy cattle, including offspring of dairy cattle, rather all females and all males born after March 11, 2013. There exists the possibility that as a result of these proposed changes, more animals may by subject to the official identification requirements for interstate movement than are currently. As we note in the economic analysis accompanying this proposed rule, we are seeking public comment on this issue.

Currently, paragraph (c)(3) of § 86.4 allows the application of either a non-EID or an RFID eartag with an animal identification number (AIN) having an 840 prefix to animals already tagged with National Uniform Eartagging System (NUES) tags and/or brucellosis vaccination eartags. We are proposing to revise that paragraph to state that a visually and electronically readable official eartag may be applied to animals currently identified with non-EID official eartags or vaccination tags. Our proposed revision would codify the EID eartag requirement and provide the regulatory flexibility to allow us to account for the development of new EID technologies. In order to allow for the possibility that different numbering systems may be developed and used in the future on EID eartags, the revised paragraph would not specify that the visually and electronically readable eartag would have to have an AIN with an 840 prefix and would not refer specifically to NUES eartags.

We are proposing to remove § 86.4(c)(4), which states that a brucellosis vaccination visual eartag with a NUES number may be applied in accordance with the regulations in 9 CFR part 78 to an animal that is already officially identified with one or more official eartags under this part. As a result of this rulemaking, the visual, i.e., non-EID, brucellosis NUES tag would no longer be allowed as official identification under part 86, which eliminates the need for the paragraph.

Throughout current § 86.4(e), there are references to RFID devices. For reasons discussed above, proposed § 86.4(e) would refer to EID devices instead.

Current § 86.5(c)(7)(ii) states that, with certain exceptions, the official identification numbers of cattle or bison moving interstate must be recorded on the ICVI or alternate documentation unless the cattle and bison that are sexually intact and under 18 months of age or are steers or spayed heifers. One of those exceptions covers sexually intact dairy cattle, i.e., recording of official identification numbers is required when such cattle are moved interstate. We are proposing to amend that paragraph by removing the qualifier “sexually intact.” This proposed change accords with the change we are proposing to the definition of dairy cattle, as discussed earlier, and our view of the risks associated with such cattle.

We are not proposing to make any other substantive changes to § 86.5, but we would reorganize the section such that the documentation requirements, which are listed by species, would be ordered in a manner consistent with other sections of part 86. We are also proposing to update the terminology in this section, as discussed under the heading Miscellaneous below.

In 9 CFR parts 71, 77, and 78, respectively, we are proposing to revise definitions of official eartag and interstate certificate of veterinary inspection (ICVI) to correspond with the changes to the definitions that we are proposing for part 86.

Sections 86.3, 86.4, and 86.5 contain numerous references to “equines.” To make our terminology consistent with current usage, we propose to substitute “equids” or “equine species,” as appropriate, in each of those instances.

This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides an initial regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov ).

We are proposing to amend the animal disease traceability regulations to recognize only eartags that are both visually and electronically readable as official eartags for use for interstate movement of cattle and bison that are covered under the regulations. We are also proposing to clarify certain record retention and record access requirements. These proposed changes would enhance the ability of State, Federal, and private veterinarians, and livestock producers to quickly respond to high-impact diseases currently existing in the United States, as well as foreign animal diseases that threaten the viability of the U.S. cattle and bison industries. The benefits of animal disease traceability include: Enhancing the ability of the United States to regionalize and compartmentalize animal health issues, minimizing the costs of disease outbreaks, and enabling the reestablishment of foreign and domestic market access with minimum delay following an animal disease event.

APHIS conducted a benefit-cost analysis to determine how the transition to electronic identification (EID) tags would affect the cattle and bison industries. Our analysis suggests that approximately 11 million cattle are currently tagged with official non-EID eartags per year. The proposed rule would not change the number of cattle tagged, but it would increase the costs associated with tagging. The estimated total average annual cost of purchasing approximately 11 million EID tags, instead of the non-EID tags, is approximately $26.1 million dollars per year, or $30.45 per cattle or bison operation.

RFID technology, a type of electronic identification, has been available in the livestock industry for many years. APHIS has evaluated the cost structure of different RFID technologies, commonly known as FDX and HDX. Both technologies work well and have similar qualities. This report describes the cost structure of these EID eartags. We provide 10 years of historic population levels for cattle and bison in order to provide the reader with a range of cost estimates based upon a fluctuating cattle and bison population.

EID technology is a vital component to efficient and accurate traceability of cattle and bison. It benefits stakeholders by significantly reducing the numbers of animals and response time involved in a disease investigation.

One of the most significant benefits of the proposed rule would be the enhanced ability of the United States to regionalize and compartmentalize animal disease outbreaks more quickly. Regionalization is the concept of separating subpopulations of animals in order to maintain a specific health status in one or more disease-free regions or zones. This risk-based process can help to mitigate the adverse economic effects of a disease outbreak. Traceability of animals is necessary to form these zones that facilitate reestablishment of foreign and domestic market access with minimum delay in the wake of an animal disease event. Having an EID system in place would, therefore, minimize not only the spread of disease but also the trade impacts an outbreak may have.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

APHIS has determined that this proposed rule, if finalized, may have substantial direct effects on one or more Tribes, and that affording Tribes an opportunity for consultation is therefore warranted. Accordingly, APHIS provided a webinar to Tribal nations on October 27, 2021, to notify Tribes of this rulemaking and solicit consultation. The Tribal leaders welcomed the presentation and requested a follow up webinar, which was presented June 23, 2022. APHIS met in person with representatives of the Indian Nation Conservation Alliance (INCA) in October 2022, to give additional updates. INCA is an alliance of Tribal conservation districts covering most of the western half of the United States. APHIS will work with the Office of Tribal Relations to ensure that additional outreach occurs in 202.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the reporting, recordkeeping, and third-party disclosure requirements described in this proposed rule are currently approved by the Office of Management and Budget (OMB) under OMB control number 0579-0327.

The trace/test exercises referenced on earlier in this document are conducted as part of APHIS' ADT cooperative agreements with State, territorial, and Tribal governments. The existing collection referenced above (0579-0327) covers the cooperative agreements, including associated recordkeeping. Under the cooperative agreements, State, territorial, and Tribal governments must, each quarter, report successful completion of the goals and objectives outlined in the agreements. This includes evaluating performance, acknowledge current tracing capabilities, and identifying traceability risks within the State, Tribe, or territory; governments must conduct test exercises to evaluate performance and identify risks. Governmental entities must also submit cooperative agreement “road maps” that outline at least four animal disease traceability performance measures. APHIS tracks governmental entity recordkeeping for cooperative agreement paperwork as part of 0579-0327.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483.

Accordingly, we propose to amend 9 CFR parts 71, 77, 78, and 86 as follows:

The revisions and addition read as follows:

The addition and revisions read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-0016; Project Identifier MCAI-2022-00416-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Stephanie Sunderbruch, Aerospace Engineer, Safety Risk Management Section, Systems Policy Branch, Policy & Innovation Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-4659; email Stephanie.L.Sunderbruch@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0053, dated March 23, 2022 (EASA AD 2022-0053), to correct an unsafe condition for Airbus Helicopters Model EC 120 B, EC 130 B4, and EC 130 T2 helicopters, all serial numbers. EASA advises an occurrence was reported of corrosion found on a landing gear assembly of a Model EC 130 helicopter. EASA further advises that other helicopter models are affected by the same unsafe condition due to design similarity. This condition, if not addressed, could result in the landing gear collapsing, damage to the helicopter, and injury to occupants.

Accordingly, EASA AD 2022-0053 requires, for helicopters with certain part-numbered landing gear assemblies installed, a one-time visual inspection of the external areas of the landing gear tubes for corrosion and cracks, and a borescope inspection of the internal sides of the landing gear tubes for corrosion (including, but not limited to, leafing and exfoliant corrosion) and cracks. EASA AD 2022-0053 also requires contacting Airbus Helicopters for approved corrective action if any crack, or leafing or exfoliant corrosion, is found or if the remaining thickness of affected part sub-assemblies do not meet specified acceptability criteria during any of the inspections. EASA AD 2022-0053 allows replacing the affected part sub-assembly in lieu of contacting Airbus Helicopters for approved corrective action. EASA AD 2022-0053 also requires reporting inspection results to Airbus Helicopters within 30 days after the inspection or within 30 days after the effective date of EASA AD 2022-0053, whichever occurs later.

Additionally, EASA AD 2022-0053 allows credit for certain inspections and corrective actions if those actions were done before the effective date of EASA AD 2022-0053, and allows an affected part or affected part sub-assembly to be installed on a helicopter if certain requirements of EASA AD 2022-0053 are met. EASA considers its AD an interim action and states that further AD action may follow.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. EC120-32A014 (EC120-32A014 Rev 1), for Model EC120B helicopters and Airbus Helicopters ASB No. EC130-32A013 (EC130-32A013 Rev 1), for Model EC130B4 and EC130T2 helicopters, both Revision 1, and both dated October 17, 2022. This service information includes Detail A Figure 3 (EC120-32A014 Rev 1) and Detail A Figure 4 (EC130-32A013 Rev 1), which identify the areas and zones to be inspected for cracks and corrosion (including, but not limited to leafing and exfoliant corrosion). This service information also includes Table 3, which identifies the minimum material thickness permitted after corrosion is removed. Additionally, this service information specifies procedures for visually inspecting the external areas and borescope inspecting the internal areas of the landing gear tubes, removing corrosion, measuring thickness, interpreting results of the measurements, and applying a chemical conversion coating and primer.

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

This proposed AD would require, for helicopters with certain part-numbered landing gear assemblies installed, removing and cleaning certain parts and visually inspecting the external areas of the landing gear tubes for cracks and corrosion (including, but not limited to, leafing and exfoliant corrosion). If any crack, leafing corrosion, or exfoliant corrosion is detected, this proposed AD would require removing certain parts from service and replacing with airworthy parts. If any corrosion other than leafing or exfoliant corrosion is detected, this proposed AD would require removing the corrosion.

This proposed AD would also require borescope inspecting the internal side of the landing gear tubes for cracks and corrosion (including, but not limited to, leafing and exfoliant corrosion). If any crack, leafing corrosion, or exfoliant corrosion is detected, this proposed AD would require removing any affected part from service and replacing it with an airworthy part. If any corrosion other than leafing or exfoliant corrosion is detected, this proposed AD would require removing the corrosion.

If any corrosion other than leafing or exfoliant corrosion is detected during any of the inspections required by this proposed AD, this proposed AD would require removing all corrosion and measuring the remaining thickness of the landing gear tubes. This proposed AD would require interpreting the results of the measurements and if the remaining thickness does not meet the permitted criteria as specified, this proposed AD would require removing each affected sub-assembly from service and replacing it with an airworthy part. If the remaining thickness meets the permitted criteria as specified, this proposed AD would require applying a chemical conversion coating and a double layer of primer.

Additionally, this proposed AD would allow an affected part or affected part sub-assembly to be installed on a helicopter, if certain requirements of this proposed AD have been accomplished.

EASA AD 2022-0053 requires, for certain helicopters, the initial inspections to be completed within certain compliance times specified in Table 1 of EASA AD 2022-0053, whereas this proposed AD would require the initial inspections to be completed within 13 months after the effective date of this proposed AD. EASA AD 2022-0053 requires contacting Airbus Helicopters for repair instructions if any cracks, leafing corrosion, or exfoliant corrosion are found, or if the residual thickness of an affected part sub-assembly does not meet certain criteria, whereas this proposed AD would require removing the affected part or part sub-assembly from service instead. EASA AD 2022-0053 allows credit for certain inspections and corrective actions if these requirements were accomplished in accordance with previously issued service information, whereas this proposed AD would not allow credit for the inspections and corrective actions if previously issued service information was used. EASA AD 2022-0053 requires reporting the inspection results to Airbus Helicopters, whereas this proposed AD would not require reporting.

The FAA considers this proposed AD would be an interim action. Once final action has been identified, the FAA might consider further rulemaking.

The FAA estimates that this AD, if adopted as proposed, would affect 353 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Removing and cleaning parts, and visually inspecting the external surface of each landing gear tube for cracks and corrosion would take about 2 work-hours for an estimated cost of $170 per inspection, up to $680 per helicopter (4 landing gear tubes per helicopter), and up to $240,040 for the U.S. fleet.

Borescope inspecting the internal side of each landing gear tube for cracks and corrosion (including, but not limited to, leafing and exfoliant corrosion) would take about 1 work-hour for an estimated cost of $85 per inspection, up to $340 per helicopter (4 landing gear tubes per helicopter), and up to $120,020 for the U.S. fleet.

If required, applying a chemical conversion coating and a double layer of primer would take about 2 work-hours and parts would cost a minimal amount for an estimated cost of $170 per helicopter and up to $60,010 for the U.S. fleet.

If required, disassembling certain zones and removing corrosion would take about 1 work hour for an estimated cost of $85 per helicopter.

If required, measuring the thickness of the internal side of each landing gear tube and interpreting the results would take up to 1 work-hour for an estimated cost of $85 per helicopter.

If required, replacing a landing gear assembly would take about 2 work-hours and parts would cost up to $106,612 for an estimated cost of up to $106,782 per replacement.

If required, replacing a front crossbeam would take about 1 work-hour and parts would cost up to $9,081 for an estimated cost of up to $9,166 per replacement.

If required, replacing a rear crossbeam would take about 1 work-hour and parts would cost up to $11,639 for an estimated cost of up to $11,724 per replacement.

If required, replacing a right-hand or left-hand skid assembly would take about 1 work-hour and parts would cost up to $21,447 for an estimated cost of up to $21,532 per skid assembly replacement.

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

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

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

For the reasons discussed, I certify this proposed regulation:

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

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

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

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

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ) authorizes the Secretary of Commerce (Secretary) to designate and protect as national marine sanctuaries areas of the marine environment that are of special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or esthetic qualities. Day-to-day management of national marine sanctuaries has been delegated by the Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The primary objective of the NMSA is to protect the resources of the National Marine Sanctuary System.

NOAA proposes to designate the Lake Ontario National Marine Sanctuary (LONMS) in eastern Lake Ontario to recognize the national significance of the area's historical, archaeological, and cultural resources and to manage this special place as part of the National Marine Sanctuary System. To designate a national marine sanctuary, NOAA would set a boundary to delineate the borders of the sanctuary; run the site as a part of the national marine sanctuary system under the National Marine Sanctuaries Act; establish site-specific regulations to protect underwater cultural and historical resources; and implement a management plan that provides a comprehensive, long-term plan to manage the sanctuary and interpret the significance of the resources and surrounding area to the public. The proposed sanctuary boundary would encompass 1,302 nmi 2 (1,724 mi 2 ) of eastern Lake Ontario waters and would border Wayne, Cayuga, Oswego, and Jefferson counties. NOAA would co-manage LONMS with New York State.

Eastern Lake Ontario represents a diverse array of important events in our Nation's history including military conflicts, maritime innovation, and American expansion to the west. The eastern corridor is one of the most historically significant regions in the Great Lakes and the country. This area has been critical to maritime trade and transportation for centuries, beginning with the canoes and boats of early Indigenous peoples. Approximately 1,000 years ago, the distinct cultural groups living along the lake shoreline had unified as the Haudenosaunee Confederacy. Portions of the original homelands of the Onondaga Nation, Cayuga Nation, Seneca Nation, and Oneida Nation lie within the proposed boundaries of the sanctuary. During the colonial period, Lake Ontario was a strategic theater of conflict among European powers and the young American republic. Military actions occurred in the region during the French and Indian War, Revolutionary War, and the War of 1812. Later, this region was critical to the development of the American West and the Nation's industrial core. One of the more tangible and identifiable assets of this history were the vessels that plied Lake Ontario's waters. Carrying goods, people, and the community histories of the Great Lakes region, some of these vessels encountered treacherous conditions and sank. The cold, fresh water of the Great Lakes has preserved a number of these shipwrecks along with their historical and cultural context, making them a cornerstone for the protection, study, and interpretation offered by national marine sanctuaries.

LONMS would contain 43 known shipwrecks and one known submerged aircraft, including one shipwreck ( St. Peter ) listed on the National Register of Historic Places and another listed as a New York State Submerged Cultural Preserve and Dive Site ( David Mills). This area may also include approximately 20 additional potential shipwreck sites (shipwrecks which likely exist, but additional research is needed to verify and describe them); three aircraft; and several other underwater archaeological sites, such as remnants of piers, aids to navigation, and historic properties that may be of religious and cultural significance to Indigenous Nations and Tribes. At this time, NOAA is unaware of any foreign sovereign shipwrecks located within the proposed boundary.

The exceptional archaeological, historical, and recreational value of these assets spans centuries, as indicated by the commercial schooner Lady Washington that was built in 1797, and U.S. Coast Guard Cable Boat 56022, which was lost under tow in 1977. The sanctuary would also include early American commercial vessels, submerged battlefields from the Seven Years War and War of 1812 (at Oswego and Sackets Harbor, respectively), and stellar examples of innovative technologies in shipbuilding from the last two centuries.

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ) authorizes the Secretary of Commerce (Secretary) to designate new national marine sanctuaries to meet the purposes and policies of the NMSA, including:

• “to identify and designate as national marine sanctuaries areas of the marine environment which are of special national significance and to manage these areas as the National Marine Sanctuary System” (16 U.S.C. 1431(b)(1));

• “to provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities” (16 U.S.C. 1431(b)(2)); and

• “to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities” (16 U.S.C. 1431(b)(6)).

The nationally significant underwater cultural and historical resources within the proposed sanctuary require long-term protection and management to reduce threats that would adversely affect their historical, cultural, archaeological, recreational, and educational value. For example, many of the shipwrecks in the sanctuary, which have a high level of structural integrity as a result of the preservative properties of the cold, fresh water of Lake Ontario and the great depth at which several of them lie, are threatened by both natural processes and human activities. These threats include wind, waves, currents, storms, and ice; invasive species such as zebra and quagga mussels, which currently cover many shipwrecks; anchors and grappling hooks from dive boats; poorly attached mooring lines; artifact removal; artifacts being moved within a shipwreck site; and entanglement from remotely operated vehicle tethers and fishing gear.

Accordingly, NOAA is proposing to designate this area as a national marine sanctuary to: (1) manage and protect nationally significant underwater cultural and historical resources through a regulatory and nonregulatory framework; (2) document, further locate, and monitor these resources; (3) provide interpretation of their cultural, historical, and educational value to the public; (4) promote public stewardship and responsible use of these resources for their recreational value.

Establishing a national marine sanctuary in eastern Lake Ontario would: (a) allow NOAA to complement and supplement existing state and Federal efforts to protect underwater cultural and historical resources and actively manage, study, and interpret them for the public; (b) through outreach and communication, recognize and promote this area's nationally significant historical and cultural properties; (c) provide access to NOAA's extended network of scientific expertise and technological resources, enhance ongoing research, and provide an umbrella for the coordination of these activities; (d) create and build upon existing educational initiatives and provide programming and technology for students, teachers, and the general public across the country; (e) enhance and facilitate public stewardship of underwater cultural and historical resources; and (f) bolster broader lake conservation efforts and stimulate maritime heritage-related tourism in the many communities that have embraced their centuries-long relationship with Lake Ontario, the St. Lawrence River, the Great Lakes region, and the Nation.

On January 17, 2017, leaders of four New York counties (Oswego, Jefferson, Cayuga, and Wayne) and the City of Oswego, with support from the Governor of New York, submitted a nomination to NOAA through the Sanctuary Nomination Process (SNP) (79 FR 33851) asking NOAA to consider designating a national marine sanctuary in eastern Lake Ontario waters to protect, and increase awareness of, a nationally significant collection of submerged maritime heritage resources; build new partnerships for research and education; and promote tourism and economic development opportunities. NOAA completed its review of the nomination and, on March 21, 2017, added the area to the inventory of nominations eligible for designation. All nominations submitted to NOAA can be found at: http://www.nominate.noaa.gov/nominations. NOAA's decision to initiate a designation is based on a number of factors, including the need for resource protection, community and stakeholder support, and agency capacity. The Lake Ontario nomination encapsulates the essence of our maritime culture from the early years of our nation. The proposed Lake Ontario National Marine Sanctuary includes unique and significant submerged cultural resources within a corridor that is one of the most historically significant regions in the Great Lakes and the North American continent. NOAA chose to move forward with designating LONMS because it represented the goals of the National Marine Sanctuaries Act and met the needs of diversity of sites by capturing historical and cultural resources not represented elsewhere in the national marine sanctuary system. NOAA also considered the excellent condition of the resources located within the nominated area.

On April 17, 2019, NOAA began the sanctuary designation process for the proposed Lake Ontario National Marine Sanctuary by publishing of a notice of intent (84 FR 16004, April 17, 2019) to prepare a draft environmental impact statement (DEIS) and to initiate the public scoping process as required by the National Marine Sanctuaries Act (NMSA) and the National Environmental Policy Act (NEPA). The notice of intent also announced NOAA's intent to fulfill its responsibilities under the requirements of the National Historic Preservation Act (NHPA).

NOAA also established a Sanctuary Advisory Council in 2020 to bring members of the local community together to provide advice to NOAA, to serve as a liaison with the nominating community, and to assist in guiding NOAA through the designation process. The council consists of 15 members in the following seats: citizens-at-large, divers/dive clubs/shipwreck explorers, maritime history, education, tourism, economic development, recreational fishing, and shoreline property owners. In addition, representatives of the four counties, the city of Oswego, the U.S. Coast Guard, the Port of Oswego Authority, New York Sea Grant, and the state of New York are non-voting members.

In accordance with NEPA (42 U.S.C. 4321 et seq. ) and the NMSA (16 U.S.C. 1434), NOAA published a DEIS for the proposed national marine sanctuary designation on July 7, 2021 (86 FR 35757). The DEIS ( https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf ) described the purpose and need for the proposed action, identified a range of alternatives, evaluated the environmental consequences of the proposed designation of a national marine sanctuary, and provided an assessment of resources and uses in the area. NOAA included three alternatives in the DEIS: (1) a “no action” alternative where the area would not become a national marine sanctuary; (2) an alternative which would include 1,349 nm 2 (1,786 mi 2 ) in eastern Lake Ontario and the Thousand Islands region of the St. Lawrence River; and (3) an alternative that would include 1,302 nmi 2 (1,724 mi 2 ) in eastern Lake Ontario without the St. Lawrence River. The DEIS also described proposed regulatory concepts and a draft management plan to identify the tools employed by NOAA to manage the sanctuary, such as research and monitoring, education and outreach, tourism and economic development, sanctuary resource protection, and sanctuary operations. NOAA did not select a preferred alternative in the DEIS.

In the DEIS, NOAA evaluated the impacts of each alternative on underwater cultural resources, human uses and socioeconomic resources, physical resources, and biological resources. The various levels of impact used in the DEIS were: negligible, which means the impact on a resource can barely be detected (whether beneficial or adverse) and are therefore discountable; moderate, which means that minor impacts do not rise to the level of significance as defined in significant; and significant, which means that an impact results in an alteration in the state of a resource. Long-term or permanent impacts or impacts with a high intensity or frequency of alteration to a resource, whether beneficial or adverse, would be considered significant. Beneficial impacts are impacts that promote favorable conditions for the resource. Adverse impacts are impacts that are contrary to the goals, objectives, management policies, and practices of NOAA and the public interest or welfare, as well as those that are likely to be damaging, harmful, or unfavorable to one or more of the resources. NOAA's analysis under NEPA concluded that there would be no significant adverse impacts to biological and physical resources, cultural and historic resources, marine area use, recreation, or socioeconomics under any alternative. NOAA anticipates significant long-term beneficial impacts if the proposed action to designate a national marine sanctuary is implemented. For more information about these impacts and terminology definitions, please refer to the DEIS on pgs. 93 and 94.

During the public comment period on the DEIS, NOAA received 87 separate comments either through www.regulations.gov, by mail, or during virtual public meetings. 1 In general, comments were strongly supportive of sanctuary designation. Commenters cited several reasons for this support, including: long-term protection for nationally significant shipwrecks; increased accessibility to these wrecks; potential for national recognition of the area to support local tourism and economies; Federal resources to support research on shipwrecks; establishing a mooring program; and, potential educational opportunities for students to study cultural and biological resources in the lake. Local, state, and governments and organizations also expressed strong support of the proposed sanctuary, offering opportunities to partner for education, research, outreach, and other activities. New York state agencies expressed commitment to be key partners in co-management and implementation of the proposed national marine sanctuary. The Lake Ontario Sanctuary Advisory Council unanimously passed a resolution with comments on the DEIS, including a preference for including the Thousand Islands Region of the St. Lawrence River, as long as it would not adversely impact commercial shipping.

Several commenters were supportive of designating LONMS but expressed concern about potential safety issues and navigational challenges in the St. Lawrence Seaway shipping channel if designation led to an increase in the number of divers and other recreational users. Some commenters also noted that installing surface mooring buoys in navigation channels would create a navigation hazard for vessels and asked NOAA to consider excluding navigation structures and dredge disposal sites from the proposed sanctuary. Other commenters expressed concern that there is not enough public interest in local shipwrecks; the shipwrecks are already adequately protected by other laws; most of the wrecks have already been found by private explorers (and, thus, NOAA research was not needed); and that the level of economic development would not be high enough to justify the creation of a national marine sanctuary in the area.

NOAA received a few comments specific to the LONMS boundary proposals. The majority of these comments supported the larger boundary option that includes the Thousand Island region of the St. Lawrence River. A few commenters supported the boundary option that only includes eastern Lake Ontario.

NOAA will use the public comments it receives to shape the final management plan, final rule, and final EIS. NOAA will respond to all public comments on the DEIS, draft management plan, and proposed rulemaking in the final EIS and in the final rulemaking.

NOAA developed this proposed rulemaking and the sanctuary terms of designation based on input from public comments submitted on the DEIS, interagency coordination, and internal staff analysis and expertise.

The DEIS described possible regulatory concepts for the proposed sanctuary and invited the public to comment on them. Based on internal staff expertise and comments received on the DEIS, NOAA is now proposing specific regulatory text for the sanctuary, including boundary coordinates, definitions, prohibitions, and permitting procedures in this rulemaking. The proposed regulations are generally the same as the regulatory concepts, with some modifications and additions to improve clarity, update terminology, and to provide further detail on administrative processes, such as issuing permits.

As mentioned, NOAA received comments supporting inclusion of the St. Lawrence River in the sanctuary's boundary, including from the LONMS Sanctuary Advisory Council. In addition, NOAA received comments from other Federal agencies in the region speculating that sanctuary designation could potentially lead to an increased number of divers and other recreational users in the St. Lawrence Seaway shipping channel, which they believed could present navigational challenges. After evaluating the comments received, NOAA is not including the St. Lawrence River segment within the proposed sanctuary boundary.

NOAA is proposing to amend 15 CFR part 922 by adding a new subpart (subpart U) that contains site-specific regulations for the proposed sanctuary. This subpart would include the proposed boundary, contain definitions of common terms used in the new subpart, provide a framework for co-management of the sanctuary, identify prohibited activities and exceptions, and establish procedures for certification of existing uses, permitting otherwise prohibited activities, and emergency regulation procedures.

As described above, the proposed sanctuary boundary would encompass 1,302 nmi 2 (1,724 mi 2 ) of eastern Lake Ontario waters. The sanctuary would border Wayne, Cayuga, Oswego, and Jefferson counties. For the Lake Ontario shoreline, NOAA would set the shoreline sanctuary boundary at the Low Water Datum (LWD). The LWD is determined by the U.S. Army Corps of Engineers and is the chart datum to which soundings are referenced for NOAA charts in the Great Lakes. The LWD is also well understood internationally because it is a fixed datum for each lake relative to the International Great Lakes Datum 1985. The state of New York uses the LWD as the line that delineates public land ownership. NOAA would set the northern boundary approximately along the U.S. and Canadian border in both Lake Ontario and the entrance to the St. Lawrence River. The western sanctuary boundary would be set approximately along the western border of Wayne County, and the eastern boundary would be a line from approximately the international border between the United States and Canada near Point Alexandria, ON to the shoreline at the low water datum in Cape Vincent, New York near the entrance to the Saint Lawrence River. The remainder of the eastern sanctuary boundary as well as the southern boundary would follow the shoreline around eastern Lake Ontario. The detailed legal sanctuary boundary description for the proposed sanctuary is included in section 922.220 and the coordinates are located in appendix A to subpart U of 922.

To ensure compatible use with commercial shipping and other activities, NOAA would exclude the ports and harbors of Oswego, Pultneyville, Little Sodus, Great Sodus, and Port Ontario from the proposed sanctuary boundary. NOAA would include Sackets Harbor in the sanctuary because of the possible presence of underwater cultural and historical resources there. As the proposed eastern boundary of the sanctuary ends at the intersection of Water St. in the Town of Cape Vincent, Cape Vincent marina is not included in the sanctuary. NOAA would exclude Federal navigation channel approaches to harbors, and Federal anchorage areas from the proposed sanctuary to avoid unintended effects on port operations that are critical to the local, regional, and national economies. NOAA would also exclude privately owned bottomlands from the sanctuary.

NOAA proposes to include a site-specific definition of “sanctuary resource” for LONMS, to include only the historical resources found in this area in accordance with the purpose of this designation. The definition does not include biological and ecological resources of the area. Creating this site-specific definition requires NOAA to modify the national definition of “sanctuary resource” in the national regulations at section 922.3 to add an additional sentence that defines the site-specific definition for the proposed sanctuary at section 922.221. This is similar to the approach taken for other national marine sanctuaries, such as Thunder Bay National Marine Sanctuary, that do not make use of the full national “sanctuary resource” definition. NOAA proposes to define “sanctuary resource” for the proposed sanctuary in Lake Ontario to mean all historical resources as defined at 15 CFR 922.3, which includes any pre-contact and historic sites, structures, districts, objects, and shipwreck sites within sanctuary boundaries.

NOAA proposes to further define “shipwreck site” to mean all archaeological and material remains associated with sunken watercraft or aircraft that are historical resources, including associated components, cargo, contents, artifacts, or debris fields that may be exposed or buried within the lake bed.

NOAA also proposes to define “tethered underwater mobile system” to mean remotely operated vehicles and other systems with onboard propulsion systems that utilize a tether connected to a station-holding ( e.g. by anchor, dynamic positioning, or manual vessel operation) surface support vessel.

To enhance opportunities and build on existing protections, NOAA and the State of New York would collaboratively manage the sanctuary. NOAA would establish the framework for co-management at section 922.222 and would develop a Memorandum of Agreement (MOA) with the State to establish further details of co-management. NOAA and the State may develop additional agreements as necessary that would provide details on the execution of sanctuary management, such as activities, programs, and permitting programs that can also be updated to adapt to changing conditions or threats to the sanctuary resources. Any proposed changes to sanctuary regulations or boundaries would be jointly coordinated with the state and subject to public review as mandated by the NMSA and other Federal statutes.

Additionally, NOAA recognizes that designation of a national marine sanctuary would lead to subsequent activities that may be subject to review under section 106 of the National Historic Preservation Act. Therefore, NOAA is pursuing execution of a Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA would provide a framework for consideration of future undertakings resulting from management of the sanctuary, if the sanctuary is designated. NOAA is developing this agreement in consultation with the New York State Historic Preservation Officer, the Advisory Council on Historic Preservation, federally-recognized Nations and Tribes, and other consulting parties.

NOAA is proposing to supplement and complement existing management of this area by proposing the following regulations in section 922.223 to protect sanctuary resources.

As a complement to existing protections under state laws and Federal laws, NOAA is proposing to prohibit moving, removing, recovering, altering, destroying, possessing or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a sanctuary resource. This prohibition aims to reduce the risk of direct harm to sanctuary resources. “Moving” and “altering” would include any changes to the position or state of sanctuary resources, as well as covering, uncovering, moving, or taking artifacts, even if the artifacts are not located on or near a shipwreck. This sanctuary prohibition would supplement section 233 of the New York State Education Law which makes it unlawful for any person to “investigate, excavate, remove, injure, appropriate or destroy any object of archaeological, historical, cultural, social, scientific or paleontological interest situated on, in or under lands owned by the state of New York without written permission of the commissioner of education.” NY Educ L § 233.4. This state regulation currently applies in U.S. waters of Lake Ontario and would continue to apply to resources in these waters if the sanctuary is designated.

This prohibition is intended to deter looting of sanctuary resources and to further the policy of in situ preservation of these resources. As noted, the listed activities would be prohibited both within and outside of the sanctuary. This prohibition is not intended to apply to artifacts or other sanctuary resources collected before the effective date of sanctuary designation.

NOAA proposes to prohibit the use of grappling hooks and anchoring devices into or on shipwreck sites, to protect fragile shipwrecks and aircraft within the sanctuary from damage. To help vessels avoid anchoring on known shipwrecks sites, NOAA intends to publish known shipwreck site coordinates on the LONMS website ( https://sanctuaries.noaa.gov/lake-ontario ). However, in accordance with section 304 of the National Historic Preservation Act, NOAA would withhold from public disclosure information about the location, character, or ownership of a historic property if NOAA, in consultation with the Secretary of the Interior, determined that disclosure may risk harm to the historic property. NOAA would also coordinate with the New York State Historic Preservation Officer in making such a determination. Shipwreck sites for which NOAA does not publish coordinates would still be sanctuary resources and the prohibition on anchoring and grappling would still apply. The proposed management plan includes surveying the sanctuary area to identify additional shipwreck sites. As appropriate, and in consideration of resource management conflicts, NOAA intends to update its website as new shipwreck sites are found by the sanctuary or other public or private groups and individuals. As NOAA seeks to promote public access while also ensuring sound resource protection, an initial focus of the sanctuary management plan would be the installation of mooring systems at sanctuary shipwreck sites. The moorings would provide a secure and convenient anchoring point for users, which would eliminate the need for grappling into a wreck. NOAA would also publish guidelines on best practices for anchoring near shipwreck sites to avoid injuring sanctuary resources. Designated Federal anchorage areas would be excluded from the sanctuary.

Tethered underwater mobile instruments, such as remotely operated vehicles (ROVs), are widely used in underwater survey and site exploration activities, as they enable access to underwater cultural resources at depths beyond recreational and technical diving limits. As tethered instrument use has continued to increase in the scientific, commercial, and recreational user communities, there is a heightened threat of damage to submerged cultural resources by these systems. Tethered systems present three distinct threats to shipwreck sites: intentional site disturbance, unintentional or incidental site disturbance, and site pollution. Intentional disturbance is characterized by the intentional recovery of artifacts from a wreck site, which may include minor alterations or large-scale recovery. Unintentional disturbance occurs when a tethered system makes contact with the wreck or the instrument tether gets entangled on protruding portions of a wreck, such as the mast. Under these circumstances, disentanglement or attempted disentanglement of snagged instruments can inadvertently displace or damage the wreck. The impact from such activities can result in severe damage to artifact assemblages and the structural integrity of a site. This risk is particularly concerning in the proposed sanctuary area, as a large number of wrecks have intact masts and high site integrity. Finally, if the instrument cannot be disentangled, cutting the tether line leads to pollution of the site with abandoned equipment.

Therefore, NOAA proposes to prohibit deploying a tethered underwater mobile system at shipwreck sites. The proposed provision would complement New York State's prohibition on damaging cultural resources by proactively deterring damage, disturbance, and pollution of these nationally significant sites from tethered systems. Because New York State does not proactively manage or protect shipwrecks in Lake Ontario, it also does not regulate the use of tethered systems at shipwreck sites, which, as described above, pose a threat to these resources. New York State's existing prohibition focuses on permitting for terrestrial resources, rather than underwater cultural resources. As a result, New York State has limited staff expertise regarding maritime archaeology that could inform whether an application for the permitted use of a tethered system is consistent with the preservation of these underwater cultural and historical resources.

The prohibition on operating tethered systems at shipwreck sites would not apply to any activity conducted in accordance with the scope, purpose, terms, and conditions of a permit issued by NOAA, including special use permits pursuant to section 310 of the NMSA. NOAA proposes to allow users to apply for a permit to operate tethered underwater mobile systems at shipwreck sites within the sanctuary. NOAA would review project proposals against the permit criteria outlined in part 922, subpart D and the proposed permit conditions specific to LONMS to ensure that operators would be adequately prepared to access sanctuary resources in a responsible manner.

Permits issued by New York State relative to the state prohibition are intended to serve the purposes of the New York State Museum by ensuring the appropriate acquisition of cultural and historical objects for the state museum's archiving purposes. Permits issued by NOAA would serve a distinct, yet complementary, purpose of ensuring the permitted activity is consistent and compatible with the purposes for which the sanctuary is designated. Furthermore, because NOAA's proposed prohibition makes it unlawful for any person to deploy a tethered underwater mobile system at a shipwreck site without a NOAA permit, NOAA could target and investigate the unauthorized use of such systems at shipwreck sites before harm occurs. By contrast, the existing New York prohibition is ambiguous in its application prior to direct injury to cultural resources, and this ambiguity would complicate and potentially compromise similar proactive enforcement measures relying, on this provision of New York state law. For more information about NOAA permits please see section 8 below.

NOAA does not intend for these regulations to apply to autonomous underwater vehicles or towed systems, such as side-scan sonar, magnetometers, survey trawls, or other survey instruments that are pulled behind a vessel via a tow cable. Towed systems are typically operated high above the lakebed in order to avoid snagging on objects, so they do not present the same level of entanglement threat to shipwrecks as tethered underwater mobile instruments.

NOAA proposes a regulation to prohibit interfering with sanctuary enforcement activities. This regulation will assist in NOAA's enforcement of the sanctuary regulations and strengthen sanctuary management.

The proposed prohibitions for the sanctuary would not apply to any activity necessary to respond to emergencies that threaten lives, property, or the environment, or activities that are necessary for law enforcement purposes.

As part of the designation, NOAA would have the authority to issue emergency regulations in LONMS. Emergency regulations are used in limited cases and under specific conditions when there is an imminent risk to sanctuary resources and a temporary prohibition would prevent the destruction or loss of those resources. An emergency regulation would not take effect without the approval of the Governor of New York or her/his designee or designated agency. NOAA would only issue emergency regulations that address an imminent risk for a fixed amount of time with a maximum of 6 months that can be extended one time for no more than 6 months. NOAA must go through a full rulemaking process to consider making an emergency regulation a permanent regulation, which would include a public comment period.

NOAA would add the proposed sanctuary to a list of sanctuaries that have site-specific regulations related to emergency regulations at 922.44, as well as including detailed site-specific emergency regulations to the regulations at section 922.224.

The exercise of treaty rights, reserved rights, or similar rights for federally-recognized Tribes and Nations, including the Six Nations of the Haudenosaunee Confederacy, and their citizens is not modified, altered, or in any way affected by the regulations proposed by NOAA in this rulemaking. The Director shall consult with the governing body of each Tribe or Nation protected by the 1794 Treaty of Canandaigua regarding any matter which might affect the ability of their citizens to participate in activities protected by this treaty in the Sanctuary. Please see section III.E “Executive Order 13175” of this document for information about how NOAA has engaged with Tribes and Nations through the sanctuary designation process to date.

NOAA would have the authority to issue permits to allow certain activities that would otherwise violate the prohibitions in the proposed sanctuary's regulations. 2 Similar to other national marine sanctuaries, NOAA is proposing to consider these general permits for the purposes of education, research, or management. In order for an activity to be considered for a general permit, it must also further the goals of the national marine sanctuary and meet regulatory permit review criteria. The Director may subject a general permit to specific terms and conditions as they deem appropriate. For example, a research institution may request to conduct limited archaeological testing at a shipwreck site that involves taking a sample for the purpose of dating the site. This activity would violate the prohibition on damaging or altering a sanctuary resource and would therefore require the issuance of a general permit to allow the activity for the purposes of education, research, or management. NOAA would evaluate the request and would consider the inclusion of permit terms and conditions to ensure the activities are conducted by qualified professionals and to proper archaeological standards, as well as to further ensure that the activity is meeting the appropriate purpose of education, research, or management of the resource.

To address the above additions to the NOAA general permit authority for the proposed sanctuary in Lake Ontario, NOAA would amend the regulatory text in the program-wide regulations in part 922, subpart D, to add references to subpart U, as appropriate.

Pre-existing activities conducted pursuant to a valid lease, permit, license, or right of subsistence use or of access might be occurring within the LONMS area on the date of sanctuary designation that would otherwise be prohibited by sanctuary regulations. Therefore, NOAA would add a new section, 922.226, to the LONMS regulations that would describe the process by which it would be able to certify a valid lease, permit, license, or right of subsistence use or of access within the proposed sanctuary boundaries. In compliance with the NMSA, the regulations at section 922.226 would state that certification is the process by which permitted activities existing prior to the designation of the sanctuary that violate sanctuary prohibitions may be allowed to continue. NOAA may, however, further regulate the exercise of those permitted activities consistent with the goals of the sanctuary through applying additional terms and conditions of the certification. Requests for certifying permitted existing uses would have to be received by NOAA within 90 days of the effective date of the designation.

NOAA would have the authority to consider allowing an activity otherwise prohibited by section 922.223 if such activity is specifically authorized by any valid Federal, state, or local lease, permit, license, approval, or other authorization issued after the effective date of sanctuary designation. NOAA would also have the authority to add terms and conditions to authorizations to ensure that activities conducted within the sanctuary are carried out in a manner that is consistent with the purposes for which the Sanctuary was designated. As such, NOAA proposes to amend the regulatory text at section 922.36 to add reference to subpart U.

NOAA has the authority under the NMSA to issue special use permits (SUPs) at national marine sanctuaries, as established by section 310 of the NMSA. SUPs can be used to authorize specific activities in a sanctuary if such authorization is necessary to establish conditions of access to, and use of, any sanctuary resource or to promote public use and understanding of a sanctuary resource. The NMSA requires SUPs to contain four specific conditions (16 U.S.C. 1441(c)): (1) activities must be compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources; (2) activities carried out under the permit must be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources; (3) permittees are required to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the permit and to agree to hold the United States harmless against such claims; and (4) SUPs shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by the Secretary. As is the case with general permits, NOAA can place additional conditions on SUPs specific to the activity being permitted. The activities that qualify for a SUP are set forth in the Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept. 7, 2017)). Categories of SUPs may be changed or added to through public notice and comment.

NOAA proposes to create a new SUP category for “the operation of tethered underwater mobile systems at shipwreck sites in Lake Ontario National Marine Sanctuary” to apply when the proposed activity does not qualify for a general permit or authorization, as described above. 3 NOAA determined that after appropriate environmental review and application of terms and conditions, operating tethered underwater mobile systems at shipwreck sites can occur without injuring sanctuary resources. NOAA will coordinate with the New York State Historic Preservation Officer to consider terms and conditions that prevent harm to sanctuary resources. Such terms and conditions will generally address potential impacts such as tether management and entanglement mitigation, as well as avoidance of site pollution. While the NMSA allows NOAA to assess and collect fees for the conduct of any activity under an SUP, it also allows NOAA to waive or reduce fees for activities that do not derive profit from the access or use of sanctuary resources. NOAA proposes to waive the associated fee for issuing an SUP for operating tethered underwater mobile systems at shipwreck sites within LONMS when non-commercial operators do not derive profits from their use of the sanctuary or when the operators further the sanctuary's objectives ( e.g. educating the public about the sanctuary or contributing to the sanctuary's research goals).

The general regulations in part 922, subpart A, for general information and part 922, subpart E, for regulations of general applicability would also have to be amended so that the regulations are accurate and up-to-date. The modified sections to conform to adding a new sanctuary are:

Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA) requires that the terms of designation include the geographic area included within the sanctuary; the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and the types of activities that will be subject to regulation by the Secretary of Commerce to protect these characteristics. Section 304(a)(4) also specifies that the terms of designation may be modified only by the same procedures by which the original designation was made. Thus, the terms of designation serve as a constitution for the Sanctuary.

NOAA is proposing to establish terms of designation that describe the geographic area, resources, and activities as described in details above. NOAA would add the terms of designation language as appendix B to the regulations at 15 CFR part 922, subpart U.

NOAA requests general comments on this proposed rule and in particular, comments on the proposed Special Use Permit category for operating tethered underwater mobile systems at shipwreck sites; the proposed terms of designation; the cost estimates in the Regulatory Flexibility Analysis (section III.F “Regulatory Flexibility Act”); and potential names for the sanctuary.

A comprehensive summary of all public comments on the DEIS and proposed rule, along with responses to comments, will be included in the final environmental impact statement (FEIS). NOAA will publish the FEIS following public review and comment on this proposed rule.

NOAA has determined that the designation of the Lake Ontario National Marine Sanctuary will not have a negative impact on the national marine sanctuary system and that sufficient resources exist to effectively implement sanctuary management plans and to update site characterizations. The finding for NMSA section 304(f) is published on the ONMS website for the Lake Ontario designation at https://sanctuaries.noaa.gov/lake-ontario.

As described in section I of this rulemaking, NOAA prepared a DEIS to evaluate the impacts of this proposed action, which considered three alternatives for the proposed designation of a national marine sanctuary in eastern Lake Ontario and the Thousand Islands region of the St. Lawrence River. NOAA is now issuing proposed regulations for the sanctuary as the next phase of this designation process. This proposed rule includes some modifications to components of the proposed action presented in the DEIS (see section I.C.3. “Development of Proposed Regulations and Terms of Designation” of this document for further detail). NOAA evaluated the sufficiency of the DEIS for this proposed rule using the Council on Environmental Quality regulations criteria for supplementation, as well as guidance in the NOAA NEPA Companion Manual. NOAA has determined that a supplemental NEPA analysis is not required at this time for the reasons outlined below.

In evaluating the first criteria for preparing a supplemental EIS, NOAA finds that the changes to the proposed action reflected in this proposed rule are not substantial changes relevant to environmental concerns. NOAA expects that the technical changes made to clarify terminology and the addition of regulations outlining the administrative procedures for sanctuary management would not change the intent or requirements of the proposed regulatory concepts in the DEIS. With respect to sanctuary boundaries, NOAA is proposing the same sanctuary boundary as described in Alternative 2 in the DEIS with one technical change of including, rather than excluding, dredge disposal areas from the sanctuary. Any impacts of these minor changes and this proposed sanctuary boundary would be within the range of potential effects described in the DEIS.

In evaluating the second criteria for preparing a supplemental EIS, NOAA finds new information available since publication of the DEIS, such as comments related to diver safety, commercial shipping interactions, and climate or wetland impacts, does not reflect significant new circumstances or information that is relevant to environmental concerns. In addition, NOAA does not expect that this new information would result in any change in the type or significance of potential impacts of the proposed action from those analyzed in the DEIS.

NEPA regulations and NOAA guidance recommend that agencies consider whether the purposes of NEPA would be furthered by preparing a supplemental NEPA analysis, and if the public has sufficient opportunity to meaningfully consider the action based on the alternatives that were presented in the DEIS. In this designation process, NOAA separated the DEIS and rulemaking processes to allow increased opportunity for public and agency input to inform the development of the proposed rule. Based on the extensive opportunities for input during this designation process and the minimal changes in the proposed action and its potential impacts, NOAA does not believe that the purposes of NEPA would be furthered by the preparation of a supplemental EIS at this time.

After reviewing this proposed rulemaking, comments received on the DEIS, and changes made to certain components of the proposed action, NOAA determined that supplemental analysis is not required for this proposed rule because the DEIS presented the public with a comprehensive analysis of the spectrum of environmental impacts among several alternative scenarios from which this proposed rule was developed. Any changes reflected in the proposed action are insubstantial in that they do not differ from the impacts already analyzed in the DEIS and will not have any synergistic or cumulative impacts not already analyzed in the DEIS. If the proposed action is further revised in response to comments on the proposed rule, NOAA would reexamine the sufficiency of the existing NEPA documents and the need for any supplemental analysis.

OMB has determined this rule is significant as that term is defined under Executive Order 12866. NOAA anticipates the associated costs with this proposed rule will be de minimis, as explained more fully in the Regulatory Flexibility Analysis in section F “Regulatory Flexibility Act” below.

NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132 because NOAA supplements and complements state and local laws under the NMSA rather than supersedes or conflicts with them.

Under Executive Order 13175 of November 6, 2000, Federal departments and agencies are charged with engaging in regular and meaningful consultation and collaboration with officials of federally-recognized Nations and Tribes on the development of Federal policies that have implications for Indigenous peoples and are responsible for strengthening the government-to-government relationship between the United States and Indian Nations and Tribes. NOAA has concluded that this regulatory action does have Tribal implications under Executive Order 13175.

NOAA invited the following federally recognized Nations and Tribes to engage in government-to-government consultation on the proposed sanctuary designation: Cayuga Nation, Oneida Nation, Onondaga Nation, Seneca Nation, Saint Regis Mohawk Tribe, Tonawanda Seneca Nation, and Tuscarora Nation. NOAA sent initial letters inviting the seven Nations and Tribes to participate in government-to-government consultation prior to publication of the Notice of Intent (December 14, 2018). NOAA later sent notice of the draft Environmental Impact Statement publication to the same Nations and Tribes (July 8, 2021). The Onondaga Nation elected to engage in government-to-consultation with NOAA, and the initial government-to-government consultation meeting with the Onondaga Nation was held on July 30, 2020. To date, the Seneca Nation has chosen to informally engage with NOAA throughout the designation process instead of participating in formal government-to-government consultation. The seven federally recognized Nations and Tribes have the opportunity at any point to participate in the designation process, including a request to initiate formal government-to-government consultation with NOAA. NOAA has also invited the seven federally recognized Nations and Tribes to participate in the development of a Programmatic Agreement to fulfill NOAA's obligations under section 106 of the National Historic Preservation Act. NOAA will continue to engage, and as appropriate consult, with Nations and Tribes throughout the sanctuary designation process.

Upon designation, NOAA will offer consultation to federally recognized Nations and Tribes on sanctuary action that may have Tribal implications as described in E.O. 13175, including those actions that might affect the ability of Nation or Tribal citizens to participate in activities protected by the 1794 Treaty of Canandaigua.

The Regulatory Flexibility Act (RFA), as amended and codified at 5 U.S.C. 601 et seq., requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) 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.

This analysis evaluates the potential effects of the proposed rulemaking on small businesses. There are three primary industries considered in this section as small businesses: commercial fishing, recreational for-hire fishing, and dive/snorkeling for-hire operations. Small entities are defined by the Small Business Administration (SBA). The definitions of relevant small businesses presented here are sourced from the most recent size standards published by the SBA in 2019. Size standards are based upon the average annual receipts (all revenue) or the average employment of a firm. The commercial size standards are $22.0 million for finfish fishing (NAICS code—114111), $6.0 million for shellfish fishing (NAICS code—114112), and $8.0 million for other marine fishing (NAICS code—114119). For-hire recreational fishing operations and dive/snorkeling for-hire operations (NAICS code—713990) have size standards of $8.0 million. 4 According to these limits, each of the businesses potentially affected by this proposed rule would most likely be small businesses. However, as further discussed below, these regulations will not have a significant economic impact on the affected small entities, and the Chief Counsel for Regulation for the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have significant economic impacts on a substantial number of small entities. Thus, NOAA is not required to prepare and has not prepared an initial regulatory flexibility analysis. The following analysis supports NOAA's decision to certify that there will not be a significant economic impact on a substantial number of entities.

The data presented here are from the New York Department of Environmental Conservation (NYSDEC). Commercial fishing activity in the New York waters off Lake Ontario is limited to the embayments and nearshore open waters of the eastern basin. In 2018 and 2019, gillnets were the only gears actively employed. Since 2014, there were only two active commercial fishers in eastern Lake Ontario. The proposed rule does not directly limit the number of fishermen or catch. From 2004 through 2013, there were three active fishers (with the exception of 2010, which had two active fishers). From 2015 to 2019, the average number of pounds of fish landed was 54,971, with yellow perch comprising 97.9% of total average annual landings in the New York waters of Eastern Lake Ontario. In 2018, the value of yellow perch landings (38,987 pounds) was $71,134, and in 2019 the value of the yellow perch landings (54,533 pounds) was $132,143 in the New York waters of Eastern Lake Ontario. 5 Although data is not available on the fishers' total catch (outside of eastern Lake Ontario), it is assumed that both of these fishers are small businesses.

The proposed regulatory action would not establish any new reporting or record-keeping requirements.

No duplicative, overlapping, or conflicting Federal rules have been identified.

The proposed regulations do not regulate fishing but do prohibit damage to sanctuary resources. A similar provision prohibiting injury to cultural resources is already in existing state law, and therefore, the proposed regulations are not expected to have an effect on businesses.

In 2018 and 2019, there were two active fishing licenses within eastern Lake Ontario. Although it is assumed that both fishers are small businesses, it is also assumed that the fishers actively avoid using their gillnets on or close to shipwrecks to avoid entangling or damaging their gear and to comply with existing state law. Therefore, the proposed rule will not affect a substantial number of small businesses.

The outcome of “significant economic impact” can be ascertained by examining profitability. Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

As mentioned above, it is assumed that fishers in the sanctuary are complying with the existing state law and that they actively avoid known shipwrecks when using gear that could become entangled or damaged by shipwrecks. Therefore, a significant reduction in profits for a substantial number of small entities is not expected to result from the proposed regulatory action.

This proposed regulatory action, if implemented, is not expected to significantly reduce profits for a substantial number of small entities directly regulated by this action. As a result, the issue of significant alternatives is not relevant.

For hire-recreational fishing includes both charter and party boats. Charter boats, generally, are fishing vessels that are hired by a single person to take up to six anglers on a fishing trip. The charge is on a per-trip basis. Party or head boats usually operate on a schedule and may provide several trips in a single day, taking many different fishing parties at a time. The charge is on a per-person basis. Head boats are usually larger and able to accommodate more anglers than a party boat.

Sixty charters operate in Lake Ontario. 6 Nine charters are identified as fishing inshore, twenty-one as fishing nearshore, twelve as river fishing, and forty-four as lake fishing. (The numbers sum to more than sixty since charters may service multiple areas). NOAA does not have data on how many of these charters visit the proposed sanctuary waters. In the absence of cost and earnings data and based upon communications with SAC members, all of the for-hire fishing businesses are believed to be small entities. Therefore, it is assumed that this proposed rule would affect a substantial number of small entities.

The proposed regulatory action would not establish any new reporting or record-keeping requirements.

No duplicative, overlapping, or conflicting Federal rules have been identified.

The proposed regulations do not regulate fishing but do prohibit the damage of sanctuary resources. A similar provision prohibiting injury to cultural resources is already in existing state law, and therefore, the proposed regulations are not expected to have an effect on businesses.

To further reduce the likelihood of damage to sanctuary resources, NOAA is proposing to prohibit grappling or anchoring on shipwreck sites. As an initial focus of the sanctuary management plan, NOAA is proposing to implement a mooring program that would provide continued access to these shipwrecks to recreational operations and would reduce the likelihood of damage to the sites., It is not expected that the level of access and use of these shipwrecks would be altered by the regulations. Consequently, the proposed rule will not affect a substantial number of small businesses.

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

It is assumed that for-hire operations in the sanctuary are already in compliance with the existing state law and that the level of access and use of these shipwrecks would not be altered by the regulations. The mooring program may actually increase access by providing safe and secure locations to enjoy sanctuary resources. As a result, a significant reduction in profits for a substantial number of small entities is not expected as a result of the proposed regulatory action.

This proposed regulatory action, if implemented, is not expected to reduce the profits of any small businesses directly regulated by this action. As a result, the issue of significant alternatives is not relevant.

This section considers the number of small businesses operating within the non-consumptive recreation industry and the potential effects on those businesses. Small businesses considered within this industry include dive and snorkeling for-hire operations, rental equipment operations, wildlife viewing operations, and other businesses that either utilize or whose customers utilize sanctuary resources.

Eighteen dive shops are located within feasible traveling distance to eastern Lake Ontario. 7 All of these non-consumptive businesses are believed to be small entities.

The proposed regulatory action would not establish any new reporting or record-keeping requirements.

No duplicative, overlapping, or conflicting Federal rules have been identified.

Since all these non-consumptive businesses are believed to be small entities, it is assumed that this proposed rule would affect a substantial number of small entities.

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

Estimates of revenues, costs, and profitability of scuba diving and snorkeling for-hire businesses are not available. The proposed regulations are designed to conserve and sustain resources to ensure protection and conservation of shipwrecks without restricting access to the sites. As part of the proposed action, NOAA would set up a mooring program in the sanctuary to provide moorings at popular wreck sites for the public to use to secure their vessels when accessing the wrecks. Moorings eliminate the need for anchoring directly into a shipwreck site, which decreases the likelihood of damage from grappling or anchoring; provide secure and convenient anchoring points for scuba diving and snorkeling for-hire businesses; and facilitate public access and safer diving by providing a sturdy means of descent and ascent for divers. NOAA plans to engage the Sanctuary Advisory Councils and dive charters to determine how many buoys are needed and where to install them. Therefore, this proposed action will support small businesses by providing continued access to these dive and snorkeling sites. Given the information above, a significant reduction in profits for a substantial number of small entities is not expected to result from the proposed regulatory action.

This proposed regulatory action, if implemented, is not expected to reduce the profits of any small businesses directly regulated by this proposed rule. As a result, the issue of significant alternatives is not relevant.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

NOAA has a valid Office of Management and Budget (OMB) control number (0648-0141) for the collection of public information related to the processing of permits across the National Marine Sanctuary System. NOAA's proposal to create a national marine sanctuary in Lake Ontario would likely result in a minimal increase in the number of requests for general permits, special use permits, certifications, and authorizations because this action proposes to add those approval types for this proposed sanctuary. A large increase in the number of permit requests would require a change to the reporting burden certified for OMB control number 0648-0141. While not expected, if such permit requests do increase, a revision to this control number for the processing of permits would be requested.

In the most recent Information Collection Request revision and approval for national marine sanctuary permits (dated November 30, 2021), NOAA reported approximately 424 national marine sanctuary permitting actions each year, including applications for all types of permits, requests for permit amendments, and the conduct of administrative appeals. Of this amount, LONMS is expected to add 4 to 5 permit requests per year. The public reporting burden for national marine sanctuaries general permits is estimated to average three responses with an average of 1.5 hours per response, to include application submission, a cruise or flight log (or some other form of activity report), and a final summary report after the activity is complete.

Please send any comments regarding the burden estimate for this data collection requirement or any other aspect of this data collection, including suggestions for reducing the burden, to NOAA (see ADDRESSES above) and to OMB by email to OIRA_submission@omb.eop.gov or fax to (202) 395-7285. Before an agency submits a collection of information to OMB for approval, the agency shall provide 60-day notice in the Federal Register , and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comments to:

• Evaluate whether the proposed collection of information is necessary for the proper

• performance of the functions of the agency, including whether the information will have practical utility;

• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhance the quality, utility, and clarity of the information to be collected; and

• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Section 106 of the National Historic Preservation Act (NHPA, 54 U.S.C. 306108) requires Federal agencies to consider the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation (ACHP) an opportunity to comment. “Historic property” means any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and material remains that are related to and located within such properties, including properties of traditional religious and cultural importance to an Indigenous nation or Tribe or Native Hawaiian organization. The regulations implementing section 106 of the NHPA (36 CFR 800) guide Federal agencies in meeting this responsibility through a process to identify historic properties potentially affected by the undertaking, assess its effects, and seek ways to avoid, minimize, or mitigate any adverse effects on historic properties, all of which occur in consultation with interested parties.

NOAA has determined that although designation of a national marine sanctuary and related rulemaking for sanctuary-specific regulations meet the definition of an undertaking as defined at 800.16(y), these activities are not of the type that have the potential to cause effects on historic properties, and therefore NOAA has no further obligations under section 106, per 800.3(a)(1). NOAA, however, recognizes that designation of a national marine sanctuary will lead to subsequent activities that may constitute undertakings subject to section 106 review under the NHPA and therefore NOAA is pursuing execution of a Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA will provide a framework and process for consideration of future undertakings resulting from management of the sanctuary, associated field operations, and other activities, if the sanctuary were designated. NOAA will develop this agreement in consultation with the New York State Historic Preservation Officer (SHPO), the ACHP, and other consulting parties.

The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within United States waters, as defined in the SMCA, and other vessels owned or operated by a government on military noncommercial service when it sank. Thousands of U.S. sunken military craft lie in waters around the world, many accessible to looters, treasure hunters, and others who may cause damage to them. These craft, and their associated contents, represent a collection of non-renewable and significant historical resources that often serve as war graves, carry unexploded ordnance, and contain oil and other hazardous materials. By protecting sunken military craft, the SMCA helps reduce the potential for irreversible harm to these nationally important historical and cultural resources.

The proposed Lake Ontario National Marine Sanctuary may include sunken military craft that have yet to be discovered, such as U.S. military training aircraft believed to have been lost in the area. Sunken military craft fall under the jurisdiction of a number of Federal agencies such as the U.S. Navy and the U.S. Coast Guard. NOAA would coordinate with the U.S. Navy and any other applicable Federal agency regarding activities directed at sunken military craft discovered within the sanctuary.

Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1456) requires Federal agencies to consult with a state's coastal program on potential federal regulations having an effect on state waters. Because the proposed sanctuary in Lake Ontario would lie in New York State waters, NOAA intends to submit a copy of this proposed rule and supporting documents to the State of New York's Coastal Management Program for evaluation of Federal consistency under the CZMA. NOAA will publish the final rule and designation only after completion of the Federal consistency process under the CZMA.

Executive Order 12898 directs that the programs of Federal agencies identify and avoid disproportionately high and adverse effects on human health and the environment of minority or low-income populations. The designation of national marine sanctuaries by NOAA helps to ensure the enhancement of environmental quality for all populations in the United States. The alternatives described in this document would not result in disproportionate negative impacts on any minority or low-income population. In addition, many of the potential impacts from designating the proposed sanctuary would result in long-term or permanent beneficial impacts by protecting underwater cultural resources, which may have a positive impact on communities by providing employment and educational opportunities, and potentially result in improved ecosystem services.

For the reasons set forth above, NOAA is amending part 922, title 15 of the Code of Federal Regulations as follows:

The BLBA, 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors for total disability or death due to pneumoconiosis, commonly known as black lung disease. 30 U.S.C. 901(a); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 5 (1976). The Act places the primary responsibility for paying benefits on coal mine operators. 30 U.S.C. 932(b). When a coal miner is determined to be eligible for benefits, the operator responsible for paying benefits (the responsible operator) is generally the one that most recently employed the miner for a period of at least one year and is financially capable of paying benefits. 20 CFR 725.495(a)(1). If a responsible operator cannot be determined, is unable to pay, or defaults on its obligation to pay, the responsibility for paying benefits falls to the Black Lung Disability Trust Fund, which is financed by an excise tax on coal mined for domestic use and, as necessary, borrowing from the U.S. Treasury's general fund. 30 U.S.C. 932(j), 934(b); 26 U.S.C. 4121, 9501.

Because coal mine operators are principally responsible for paying benefits, the Act requires every operator to secure the payment of benefits for which it may be found liable. 30 U.S.C. 932(b). Each operator must secure the payment of benefits either by purchasing commercial insurance or by qualifying as a self-insurer “in accordance with regulations prescribed by the Secretary.” 30 U.S.C. 933(a); see also 20 CFR 726.1.

The current regulations—Part 726 Subpart B—establish the standards for a coal mine operator to qualify as a self-insurer. They provide that, to qualify as a self-insurer, an operator must meet certain minimum requirements, including “obtain[ing] security . . . in a form approved by [OWCP] and . . . in an amount to be determined by [OWCP].” 20 CFR 726.101(b)(4). The regulations identify four forms of security that OWCP may allow an operator to provide: (1) Indemnity bonds; (2) deposits of negotiable securities; (3) letters of credit; or (4) trust funds under Section 501(c)(21) of the Internal Revenue Code. 20 CFR 726.104(b). The regulations further provide that “[OWCP] shall require the amount of security which it deems necessary and sufficient to secure the performance by the applicant of all obligations imposed upon him as an operator by the Act.” 20 CFR 726.105. The regulations also set forth a non-exhaustive list of factors that OWCP will consider in setting the amount of security an operator must provide, including the operator's net worth, the existence of a guarantee by a parent corporation, and the operator's existing liability for benefits. Id.

The Department historically has not required self-insured operators to post security with a face value that would cover all of the operator's expected black lung liability. See 62 FR 3338, 3370 (Jan. 22, 1997). Instead, the Department has relied in part on a company's size as evidence of its ability to make future benefits payments. Id. Depending on the operator's assets, the Department usually required security sufficient to cover from three to fifteen years of the operator's payments on claims currently in award status, rather than the operator's total liability for current and future claims. Id. Under this model, most large operators therefore posted fewer years of payment relative to smaller operators.

A number of bankruptcies in the mining industry revealed weaknesses in that process and demonstrated that a more substantial security amount would be required to adequately protect the Trust Fund. Specifically, beginning in 2014, three large self-insured operators filed for bankruptcy. Because these operators had insufficient securities to cover the full amount of expected benefits, an estimated $865 million in liabilities will ultimately transfer to the Trust Fund. See U.S. Government Accountability Office, Federal Black Lung Benefits Program: Improved Oversight of Coal Mine Operator Insurance is Needed, at 13 (Feb. 2020), available at https://www.gao.gov/products/gao-20-21.

In response, OWCP developed revised guidelines and procedures for authorizing coal mine operators to self-insure, which it began to implement in 2019. These guidelines were intended to standardize the process by which applicants provide financial and actuarial information to OWCP. OWCP required each company to calculate and report its projected black lung liabilities through actuarial reports using a set of standardized assumptions, including discount rate, claim cost trends, and the probability of awards. OWCP also developed a set of financial metrics and a methodology to assess each operator's solvency, profitability, and risk of default. This assessment would determine the proportion of the operator's projected liabilities it would be required to post as security. Operators determined to be at less risk of not meeting their obligations would be required to provide smaller amounts of security, while operators at higher risk would be required to provide larger amounts of security. These guidelines were summarized in a December 2020 bulletin, s ee BLBA Bulletin No. 21-01 (Dec. 7, 2020). 1

Although the revised guidelines allowed OWCP to better identify and account for self-insured operators that presented significant bankruptcy risk, they proved problematic in several respects. The financial metrics were not able to consistently predict which operators were at risk of experiencing financial difficulties. The process contemplated by the guidelines also imposed significant burdens on OWCP in continuously monitoring the financial health of individual operators on a quarterly basis. In addition, although the guidelines were shared with the public in various ways while they were being developed, stakeholders raised procedural concerns about how the guidelines were developed.

Based on its experience administering the self-insurance program over the years and in response to stakeholder concerns, the Department now proposes to revise Subpart B and seeks comments on its proposal. The proposed rule would codify the practice of basing a self-insured operator's security requirement on an actuarial assessment of its total present and future black lung liability. The Department proposes to eliminate the financial scoring process. Instead, the Department proposes to require all self-insured operators to post security equal to 120 percent of their projected black lung liabilities, which ensures adequate coverage regardless of an operator's financial health. 2 The Department has determined that 120 percent is an appropriate level of security because, among other things, it protects the Trust Fund in the event an operator's actual liabilities exceed its projected liabilities. The proposed rule would also remove the requirement that an operator's average current assets over the preceding three years must exceed its current liabilities, which would not be necessary to protect the Trust Fund under the proposed security scheme. The proposed rule would also prospectively remove Section 501(c)(21) trust funds, which have proven to be less reliable, as an acceptable form of security. Furthermore, the proposed rule will clarify the process for operators to apply for authorization to self-insure, how long the authorization remains effective, the conditions under which OWCP will deny or revoke authorization to self-insure, and the process for operators to appeal OWCP's determinations.

The Department believes that the proposed rule will better protect the Trust Fund when a self-insured operator becomes insolvent. Moreover, by eliminating the need to continuously monitor each individual operator's financial situation, the proposed rule will lessen the administrative burden on OWCP to gather, review, and analyze operators' financial information, and lessen the burden on operators to collect and provide such information. The procedural changes will also provide greater clarity and certainty with respect to OWCP's and operators' respective obligations in the self-insurance authorization process. Based on all of these considerations, the Department has preliminarily determined the benefits of the proposed rule ( e.g., the increased safeguards for the Trust Fund and taxpayers, the decreased administrative burden, etc.) would outweigh the purchase price of any additional surety bonds or other securities for operators who choose to self-insure.

The Department invites comments on the proposed rule from all interested parties. The Department is particularly interested in comments addressing the impact of the proposed rulemaking on coal mine operators currently participating in the self-insurance program and any resulting impact on their ability to continue participating in the program.

Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration and enforcement of the Act.

The Department is proposing several general revisions to advance the goals set forth in Executive Order 13563, 76 FR 3821 (Jan. 21, 2011), on Improving Regulation and Regulatory Review. The Order states that regulations must be “accessible, consistent, written in plain language, and easy to understand.” Id.; see also E.O. 12866, 58 FR 51735 (Sept. 30, 1993) (agencies must draft “regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.”). Accordingly, the Department proposes numerous technical and stylistic changes to Subpart B to improve clarity, consistency, and readability.

The Department proposes to remove the imprecise term “shall” throughout the sections that it is amending, and to substitute “must,” “must not,” “will,” or other situation-appropriate terms. No alteration in meaning either results from or is intended by these changes.

Consistent with the goal of making this regulation easier to understand, the Department proposes several additional technical changes. For instance, the Department proposes to replace references to “the Office” with “OWCP” because that acronym is more commonly used by stakeholders. As explained in current § 725.101(a)(21), “Office” and “OWCP” both mean “the Office of Workers' Compensation Programs, United States Department of Labor.” Thus, no alteration in meaning either results from or is intended by this change.

The current regulations frequently refer to applications “for authority to become a self-insurer” or “for authorization to self-insure.” Where appropriate, OWCP proposes to amend such references to include applications “to renew authorization to self-insure” or similar language. This change is intended to clarify, where necessary, whether and when the requirements of this Subpart B apply to renewal applications.

The technical and stylistic changes designated here are not included in the section-by-section explanation. All proposed substantive revisions to existing rules and all proposed new rules are discussed below.

OWCP proposes substantially revising § 726.101 to update the minimum requirements an operator must meet to qualify for authorization to self-insure and remove the provisions requiring OWCP to continuously monitor each applicant's financial situation.

Paragraph (a) is retained in its entirety.

Current paragraph (b) establishes the minimum requirements that an operator must meet to qualify for authorization to self-insure. At present, paragraphs (b)(1), (b)(3), and (b)(5) respectively provide that an operator must have been in the business of coal mining for at least three consecutive years prior to applying, the operator's average current assets over the prior three years must exceed its current liabilities by a specified amount, and the operator must have five or more employee-miners. Paragraphs (b)(2) and (b)(4) respectively provide that an operator must demonstrate the administrative capacity to fully service claims and that an operator must obtain security in a form approved by OWCP and in an amount determined by OWCP.

OWCP proposes to remove paragraphs (b)(1), (b)(3), and (b)(5). Because OWCP elsewhere proposes to require all self-insurers to post security equal to 120 percent of their projected black lung liabilities, the requirements of paragraphs (b)(1), (b)(3), and (b)(5) would no longer be necessary. OWCP has preliminarily determined that a 120 percent security level for all companies would better protect the Trust Fund in the event of an operator's default than percentages that vary based on a company's continuously-changing financial status. OWCP has likewise preliminarily determined that an actuarial assessment of liability for current and future claims is a better gauge of the dollar amounts the Trust Fund may be required to pay out, than consideration only of an operator's current claims. This change would also reduce the administrative burdens for both OWCP and self-insured operators.

Given the foregoing changes, OWCP proposes to renumber current paragraph (b)(2) as paragraph (b)(1), and paragraph (b)(4) as paragraph (b)(2).

Current paragraph (c) provides that no operator who is unable to meet the requirements of this section should apply for authorization to self-insure and that OWCP will not approve an application for self-insurance “until such time as the amount prescribed by [OWCP] has been secured in accordance with this subpart.” OWCP proposes to revise paragraph (c) by removing the language prohibiting nonqualifying operators from applying. That requirement will serve no purpose and have no practical consequences in the revised regulation. OWCP also proposes to revise paragraph (c) by clarifying that no application will be approved until OWCP receives security in the amount and in the form determined by OWCP. Revised paragraph (c) will also specify that, if an applicant is seeking authorization to self-insure for the first time, the applicant is not authorized to self-insure while its application is under review. The purpose of this change is to clarify the circumstances under which OWCP will approve a qualifying operator's application to self-insure.

OWCP also proposes to add a new paragraph (d), which will provide that no operator whose application for authorization to self-insure or to renew authorization to self-insure is denied may reapply until 12 months after a final decision denying such application. The purpose of this addition is to prevent non-qualifying operators from filing serial applications for authorization to self-insure. In turn, this addition would reduce the administrative burden on OWCP to review renewed applications. Moreover, if an operator disagrees with the amount of security OWCP has determined is appropriate, the operator can simply use the appeal process set forth in § 726.116 rather than filing a new application. Barring operators from reapplying within 12 months after a denial prevents operators from pursuing new applications while an appeal on the denied application is pending.

OWCP proposes to amend paragraph (a) to require operators to file applications for authorization to self-insure (or to renew authorization to self-insure) electronically in a manner prescribed by OWCP, and to remove existing requirements that apply only to paper filings ( e.g., affixing a corporate seal). This change is intended to streamline the application process and reduce the administrative burden of processing physical mail and documents.

OWCP proposes to substantially revise paragraph (b) to change and update the information that must be submitted with an application for authorization to self-insure or to renew authorization to self-insure.

Current paragraphs (b)(1), (b)(2), (b)(3), and (b)(5) require an operator to submit several pieces of information, including a statement of the employer's payroll, a statement of the average number of employees engaged in coal mine employment within the preceding three years, a list of mines covered by any particular self-insurance agreement and a statement demonstrating the applicant's administrative capacity to service claims. OWCP requires operators to provide much of this information in the requisite application forms, namely, forms CM-2017 and CM-2017b, which are available on OWCP's website at https://www.dol.gov/agencies/owcp/dcmwc/regs/compliance/blforms. Accordingly, OWCP proposes to retain current paragraphs (b)(1), (b)(2), (b)(3), and (b)(5), but renumber them after adding two more paragraphs.

OWCP proposes to add a new paragraph (b)(1) that will require an application to include any application forms required by OWCP. As noted above, those forms currently include CM-2017 and CM-2017b.

OWCP also proposes to add a new paragraph (b)(2) to require an applicant to include with its application an actuarial report using OWCP-mandated actuarial assumptions. Proposed paragraph (b)(2) would also provide that an operator must submit a new actuarial report every three years and allow an operator to submit an additional actuarial report using alternative assumptions.

With the additions of proposed paragraphs (b)(1) and (b)(2), current paragraphs (b)(1), (b)(2), (b)(3), and (b)(5) are respectively renumbered as (b)(3), (b)(4), (b)(5), and (b)(6).

Current paragraph (b)(4) requires an applicant to submit its gross and net assets and liabilities for the preceding three years. Because OWCP elsewhere proposes to eliminate the minimum requirement pertaining to an operator's assets and liabilities, it likewise proposes to remove current paragraph (b)(4).

Current paragraph (b)(6), which allows OWCP to request additional information or evidence from an applicant at OWCP's discretion, is retained and renumbered as paragraph (b)(7). OWCP proposes to make stylistic changes to new paragraph (b)(7) by removing unnecessary language. No alteration in meaning either results from or is intended by this change.

Paragraph (c), which specifies which entities may apply for authorization to self-insure, is retained in its entirety, but revised to clarify that the paragraph also applies to applications to renew authorization to self-insure.

Current § 726.103 is retained in its entirety.

OWCP proposes deleting and replacing paragraph (a) to clarify what action OWCP must take with respect to an application and the timeframe within which OWCP will take such action. New paragraph (a) provides that OWCP will issue a written determination, either denying the application or determining the amount of security, within 30 days after determining that an application is complete. New paragraph (a) also allows OWCP to extend the 30-day deadline if it determines that additional evidence is needed or that the applicant's evidence is not in compliance with OWCP's requirements.

OWCP proposes removing current paragraph (b)(4), which allows a self-insurer to give security by funding a trust pursuant to section 501(c)(21) of the Internal Revenue Code. Few self-insured operators use 501(c)(21) trusts as security and most of those operators use them in combination with other forms of security. Also, OWCP has determined that section 501(c)(21) trusts are a less reliable form of security and more burdensome for OWCP to monitor because, unlike other forms of security which generally guarantee a fixed dollar amount, the amounts kept in the trusts can fluctuate and significantly decrease as self-insurers use such trusts to pay claims and the costs of administration. The remaining provisions of paragraph (b) are retained.

OWCP proposes to add a new paragraph (c). New paragraph (c) provides that if the applicant is receiving authorization to self-insure for the first time, OWCP will notify the applicant that its authorization to self-insure is contingent upon submitting the required security and completed agreement and undertaking, and that the applicant's authorization will be effective for 12 months from the date such security and completed agreement and undertaking are received by OWCP. The purpose of this amendment is to clarify when a new applicant's authorization to self-insure becomes effective. Additionally, as explained in more detail below, under new § 726.111, OWCP will also notify the applicant of the date on which its authorization is effective, the date on which such authorization will expire, and the date by which the applicant must apply to renew that authorization if it intends to continue self-insuring its liabilities.

OWCP proposes to add a new paragraph (d) for procedures when OWCP renews the applicant's authorization to self-insure. Under proposed paragraph (d)(1), if there are no changes in the required security amount, OWCP would notify the applicant that the applicant's authorization to self-insure is effective for 12 months from the date a completed agreement and undertaking is received. Under proposed paragraph (d)(2), if changes are required to the existing security amount, OWCP would notify the applicant that the applicant's authorization to self-insure is not effective until the applicant has submitted the required security and a completed agreement and undertaking. In the latter event, the applicant's authorization to self-insure will be effective for 12 months from the date such updated security and completed agreement and undertaking are received by OWCP. The purpose of this amendment is to clarify when a renewal applicant's reauthorization to self-insure becomes effective.

Current paragraph (c) is retained but renumbered as paragraph (e). OWCP proposes to amend this paragraph to provide that any applicant who cannot meet the security requirements imposed by OWCP should proceed to obtain a commercial policy or contract of insurance and submit proof of such coverage within 30 days after OWCP issues its decision. Current paragraph (c) also sets forth the process by which an applicant may appeal OWCP's determination on an application. Because OWCP elsewhere proposes to set forth new procedures for an applicant to appeal OWCP's determinations (see § 726.116), that language is now redundant. Accordingly, OWCP proposes to revise paragraph (c) to clarify that an applicant may appeal such determinations in the manner set forth in new § 726.116. For the same reasons, OWCP proposes to delete current paragraph (d), which describes what action OWCP will take with respect to such an appeal.

Current § 726.105 requires OWCP to set the amount of security each applicant is required to post by determining the amount “necessary and sufficient to secure the performance by the applicant of all obligations imposed upon him as an operator by the Act.” The current regulation provides that OWCP will consider various factors including, but not limited to, the operator's net worth, the existence of a guarantee by a parent corporation, and the operator's existing liability for benefits.

OWCP proposes to delete current § 726.105 and replace it with a new § 726.105. Proposed § 726.105 would provide that any operator approved to self-insure must submit security equal to 120 percent of its actuarial estimated liabilities (all present and future liabilities) as determined by OWCP based on the actuarial report or reports submitted by the applicant (or on file with OWCP), other information submitted with the operator's application, or any other materials or information that OWCP deems relevant. This means the applicant would have to purchase an instrument that would pay out up to 120% of the projected liability, not that the applicant would have to actually spend that amount on collateral. OWCP estimates that premiums on surety bonds will cost anywhere from 2 percent to 12 percent of the security amount, and we welcome comments on this estimation.

This change would better protect the Trust Fund in the event that a self-insured operator becomes insolvent or enters bankruptcy. This change will also better protect the Trust Fund in the event an insolvent operator's actual liabilities turn out to be greater than its projected liabilities. Generally, OWCP will continue to determine an operator's projected liabilities based on the operator's actuarial report and supporting information, including the information submitted with an operator's annual renewal application. Because those reports attempt to project future liabilities, however, they are inherently imperfect and open to potential error. This approach is also consistent with the practices of some state workers' compensation programs that set a security deposit amount based on accrued or projected liabilities. See, e.g., 8 Alaska Admin. Code section 46.040 (setting security deposit amount at $600,000 or 125% of the total accrued workers' compensation liability, whichever is greater); Ariz. Code section 23-961(a)(2) and Ariz. Admin. Code section 20-5-206(D) (setting guaranty bond amount at fixed dollar amount or 125% of the total outstanding accrued liability); La. Rev. Stat. section 23:1168(a)(4); La. Admin. Code tit. 40, Pt. I, section 1725 (requiring amount of securities or surety bond to be at least $100,000, or at least 110% of the average workers' compensation losses incurred over the most recent three year period, or at least 110% of the total amount of unpaid workers' compensation reserves at the time of application, whichever is greatest); Minn. Stat. section 79A.04, subd. 2 (setting 110 percent security deposit for self-insurance); N.C. Code section 97-185(a1), (b2) (requiring security deposit of at least 100% of the individual self-insurer's total undiscounted outstanding claims liability per the most recent report from a qualified actuary, but not less than $500,000 or such greater amount or such greater amount as the Commissioner prescribes based on, but not limited to, the financial condition of the individual self-insurer and the risk retained by the individual self-insurer); Tenn. Comp. R. & Regs. 0780-01-83-.05(2) (setting 125 percent security deposit); Tx. Labor 407.064(d) (requiring security deposit of the greater of $300,000 or 125% of applicant's incurred liabilities for compensation). Additionally, by adopting this change, OWCP would no longer have to continuously monitor or collect information about each operator's financial situation. Furthermore, as explained in greater detail below, the Department has determined that the anticipated benefits of this change outweigh the costs.

Current § 726.106 is retained in its entirety. OWCP proposes to make stylistic changes to § 726.106. No alteration in meaning either results from or is intended by these changes. In addition to these stylistic changes, OWCP proposes to revise paragraph (a) to clarify that an operator may not provide any form of security other than those provided for in § 726.104(b). This change merely clarifies existing requirements.

OWCP proposes to substantially revise § 726.107 to clarify and update the treatment of negotiable securities.

New paragraph (a) retains the requirements that deposits of securities provided for by the regulations in this part must be made with any Federal Reserve bank or any branch of a Federal Reserve bank designated by OWCP, or the Treasurer of the United States. New paragraph (a) also adds a requirement that any such deposit must be held in the name of the Department of Labor.

New paragraph (b) provides that, if a self-insurer defaults on its obligations under the Act, OWCP has the power, in its discretion, to (1) collect the interest on such securities as it may become due; (2) sell any or all of the securities; and (3) apply the collected interest or proceeds from the sale of securities to the payment of any benefits for which the self-insurer may be liable. This paragraph largely restates existing requirements.

New paragraph (c) provides that, if a self-insurer with deposits of securities has neither defaulted nor appealed from a determination made by OWCP under § 726.104, OWCP will allow the self-insurer to collect interest on the security deposit. This change will replace existing provisions of current § 726.106, which provide that OWCP may authorize a self-insurer to collect interest on the securities deposited by a self-insurer when OWCP deems it unnecessary to resort to such securities for the payment of benefits.

In light of these changes, OWCP also proposes to retitle § 726.107 to read: “How Negotiable Securities Are Handled.”

OWCP proposes to substantially revise current § 726.108, to clarify the circumstances under which a self-insurer may make withdrawals of any form of security.

New paragraph (a) provides that no withdrawal of any form of security (indemnity bonds, negotiable securities, and/or letters of credit) may be made except upon express written authorization by OWCP.

New paragraph (b) provides that, if a self-insurer wishes to withdraw securities, it must submit a written request, which must include (1) an updated actuarial report using OWCP-mandated actuarial assumptions to support why the existing security levels are no longer applicable; or (2) replacement securities in the amount and form approved by OWCP.

These changes are intended to protect the Trust Fund by preventing a self-insured operator from taking actions with respect to its security deposit that could hinder OWCP's ability to use those securities to pay benefits. Furthermore, because new § 726.108 applies to all forms of security, not only negotiable securities, OWCP proposes to retitle § 726.108 to read: “Withdrawal of Securities.”

OWCP proposes to delete and replace current § 726.109. New § 726.109 provides that OWCP may, at its discretion, increase the amount of security a self-insurer is required to post whenever OWCP determines that the amount of security on deposit is insufficient to secure the payment of benefits and medical expenses under the Act. OWCP might make such a determination, for example, if it learns that the data on which an operator's liability estimate were based have significantly changed or an operator acquires new mines or employees.

New § 726.109 no longer allows OWCP to reduce an operator's required security amount between self-insurance renewal authorizations. OWCP believes it is not necessary to allow for a reduction in an operator's security amount in between renewals, which would occur every 12 months, because that process would simply allow an operator to relitigate OWCP's original determination, even after an operator has exhausted the appeal process. Disallowing operators from requesting decreases in their security amounts would thus preserve OWCP's limited resources to review and process self-insurance applications. Furthermore, if an operator believes that its projected liabilities have decreased due to a change in circumstances, the operator will have an opportunity to request a lower security amount during the annual renewal process.

Furthermore, reducing an operator's security amount could only increase the risk that an operator's liabilities could transfer to the Trust Fund. This change thus better protects the Trust Fund, consistent with Congress's intent that the coal operators who exposed coal miners to coal dust be responsible for paying black lung benefits, not taxpayers. If an operator disagrees with OWCP's determination to increase its security amount, it would be free to appeal that determination using the appeals process set forth in § 726.116.

In light of these changes, OWCP proposes to retitle § 726.109 to read: “Increase in the Amount of Security.”

OWCP proposes to amend § 726.110 to update the requirements for filing of an agreement and undertaking.

Current paragraphs (a) and (b) are retained. Current paragraph (a)(3) provides that, in an agreement and undertaking, the applicant must agree to provide security in a form approved by OWCP and in an amount established by OWCP “as elected in the application.” OWCP proposes to delete “as elected in the application” to make clear that OWCP, not the applicant, has the final say as to which form or forms of security a particular operator may or must post.

Paragraph (c) is new. It provides that any operator authorized to self-insure must notify OWCP of any changes to its business structure, including the purchase or sale of any coal mining operations, that could affect the operator's liability for benefits under the Act. It further provides that the operator must provide such notification to OWCP within 30 days of such change, but clarifies that an operator's liability following such a change remains governed by Subpart G of these regulations, 20 CFR 725.490-725.497. The purpose of this change is to ensure that operators promptly notify OWCP of changes that could require or justify an increase in the operator's security amount.

Paragraph (d) is also new. It provides that OWCP may, at its discretion, request any information from a self-insured operator that may affect the operator's liability for benefits under the Act. The purpose of this change is likewise to ensure that OWCP can request information that could require or justify an increase in the operator's security amount.

Current § 726.111 is retained in its entirety. OWCP proposes to make stylistic changes to § 726.111. No alteration in meaning either results from or is intended by these changes. In addition to these stylistic changes, OWCP proposes to add a new sentence, providing that OWCP will also notify the applicant of the date on which its authorization is effective, the date on which such authorization will expire, and the date by which the applicant must apply to renew that authorization if it intends to continue self-insuring its liabilities. The purpose of this addition is to ensure that the appropriate dates and deadlines are clear and clearly communicated to the applicant.

Current § 726.112 is retained in its entirety. OWCP proposes to make stylistic changes to § 726.112. No alteration in meaning either results from or is intended by these changes.

Current § 726.113 is retained in its entirety. OWCP proposes to make stylistic changes to § 726.113. No alteration in meaning either results from or is intended by these changes.

OWCP proposes to delete and replace current § 726.114 to substantially revise the timeframe for authorizations and reauthorizations.

New paragraph (a) provides that no initial or renewed authorization to self-insure may be granted for a period in excess of 12 months unless OWCP determines that extenuating circumstances justify a longer period. This change thus shortens the existing maximum allowable authorization period from 18 months to 12 months. 3 The purpose of this change is to require self-insured operators to provide information to OWCP more frequently, thereby ensuring that the security amounts set by OWCP are based on up-to-date information. For instance, operators will be required to submit data concerning their existing claims and employee figures each year, which could alert OWCP to potential changes in an operator's projected liabilities. This process will also allow OWCP to better track other potentially relevant information, including a self-insured operator's subsidiaries, corporate officers, mines, and the like. Requiring renewal applications on an annual basis also makes sense insofar as most operators operate on twelve-month fiscal calendars. This approach would also give outside stakeholders confidence that OWCP is adequately enforcing compliance with these regulations and ensuring that self-insured operators post sufficient security.

New paragraph (b) provides that each operator authorized to self-insure must apply for reauthorization 90 days prior to the 12-month authorization expiration date. This change will ensure that OWCP has the opportunity to act on an operator's application for reauthorization to self-insure before the operator's existing authorization expires.

In light of these changes, OWCP proposes to retitle § 726.114 to read: “Authorization and Reauthorization Timeframes.”

OWCP proposes to restructure and make stylistic changes to current § 726.115 for clarity. No alteration in meaning either results from or is intended by these changes. In addition, OWCP proposes one substantive change. Current § 726.115 provides that the failure or insolvency of the surety on an operator's indemnity bond can provide good cause for OWCP to withdraw the operator's authorization to self-insure. OWCP proposes to revise § 726.115 to clarify that the same result will obtain if any other financial institution holding any form of security provided by an operator fails or becomes insolvent. OWCP believes this change simply recognizes that there is no valid reason to treat the failure of a surety any differently than the failure of any other financial institution holding security on behalf of an operator. OWCP also proposes to change “communication of the Office” to “request made by OWCP” for clarity.

Section 726.116 is new. It establishes and clarifies the process for an operator to appeal a self-insurance determination made by OWCP.

Paragraph (a) sets forth the process to file an appeal. It provides that any applicant who wishes to appeal a determination made by OWCP must submit a request for review to the Division of Coal Mine Workers' Compensation (DCMWC) within 30 days after such determination. It also provides that the 30-day deadline to appeal may not be extended. This method is consistent with general appellate practices and 30 days provides operators with sufficient time to determine whether to appeal a determination.

Paragraph (b) sets forth the process for submitting briefs and evidence. It provides that, within 30 days of submitting a request for review, the applicant must submit any evidence and/or briefing on which the applicant intends to rely. It also provides that DCMWC may, at its discretion, extend this deadline upon a showing of good cause by the applicant.

Paragraph (c) sets forth the process for requesting an informal conference on an appeal. Paragraph (c)(1) provides that an applicant may request an informal conference and that such requests must be made when the applicant submits briefing in support of its request for review. Paragraph (c)(2) provides that, if an applicant requests a conference, DCMWC will hold a conference between DCMWC, the Office of the Solicitor, and the applicant's representatives. Paragraph (c)(3) provides that, if the applicant does not request a conference, DCMWC may either decide the appeal on the record or schedule a conference on its own initiative. Paragraph (c)(4) provides that the conference will be limited to the issues identified in the applicant's written materials. Again, this method is consistent with general appellate practices and provides an applicant with an adequate opportunity to be heard on its appeal.

Paragraph (d) sets forth DCMWC's obligations in the review process. It provides that DCMWC will review the previous determination in light of the evidence and arguments submitted and issue a supplemental decision.

Paragraph (e) sets forth the process for further appeals. Paragraph (e)(1) provides that any applicant aggrieved by a supplemental determination made by DCMWC may request further review by the Director of OWCP within 30 days of such supplemental determination. Paragraph (e)(2) provides that the Director of OWCP will review the supplemental determination and evidence of record only and that the applicant may not submit new evidence or arguments to the Director of OWCP. Paragraph (e)(3) provides that the Director of OWCP will issue a final agency decision within 30 days of receipt of an appeal. This requirement will ensure that there is a final agency action that is reviewable in the Federal courts as provided in the Administrative Procedure Act, 5 U.S.C. 701 et seq. See also 5 U.S.C. 704.

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR part 1320, require that the Department consider the impact of paperwork and other information collection burdens imposed on the public. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the Office of Management and Budget (OMB) under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person may generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.

Although the proposed rules contain information collections within the meaning of the PRA ( see proposed § 726.102), these collections are not new. They are currently approved for use in the black lung program by OMB under Control Number 1240-0057 (CM-2017 Application or Renewal of Self-Insurance Authority; and CM-2017b Report of Claims Information for Self-Insured Operators). Aside from the removal of the collection associated with form CM-2017a, the requirements for completion of the forms and the information collected on the forms will not change if this rule is adopted in final. Since that is the only change being made to the collections, the overall burdens imposed by the information collections will be reduced if this proposal is adopted.

The information collection package for this proposal has been submitted to OMB for review under 44 U.S.C. 3504, paragraph (c) of the Paperwork Reduction Act of 1995, as amended. Comments may be sent by the methods listed in the ADDRESSES section of this preamble.

OWCP is particularly interested in comments that address the following:

• Whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;

• The accuracy of OWCP's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

• Methods to enhance the quality, utility, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

OMB Control Number: 1240-0057.

Affected Public: Business or other for-profit.

Number of Respondents: 61.

Frequency: Annually.

Number of Responses: 122.

Annual Burden Hours: 244.

Annual Respondent or Recordkeeper Cost: $34,000.

OWCP Form(s): OWCP Forms CM-2017 (Application or Renewal of Self-Insurance Authority), CM-2017b (Report of Claims Information for Self-Insured Operators).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of the available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).

Under Executive Order 12866, the Office of Information and Regulatory Affairs of OMB determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It also instructs agencies to review “rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them.”

The Department has considered the proposed rule with these principles in mind and has determined that the anticipated benefits of this regulation outweigh the costs. The discussion below sets out the rule's anticipated economic impact, including factors favoring adoption of the proposal. The Office of Information and Regulatory Affairs of OMB has determined that the Department's rulemaking is not an “economically significant regulatory action” under Section 3(f)(1) of Executive Order 12866.

The proposed rule will have an economic impact on coal mine operators that currently participate in the self-insurance program, as well as any new applicants. The proposed rule nevertheless would be necessary to better protect the Trust Fund, reduce the administrative burdens on OWCP and operators, and bring clarity to the self-insurance process.

As explained in the preamble, prior security requirements have proven inadequate to protect the Trust Fund when a self-insured operator becomes insolvent. From 2014 to 2016, three self-insured coal operators entered bankruptcy with combined collateral of $27.4 million; the resulting transfer of black lung liabilities to the Trust Fund was eventually estimated to be $865 million. See U.S. Government Accountability Office, Federal Black Lung Benefits Program: Improved Oversight of Coal Mine Operator Insurance is Needed, at 13 (Feb. 2020), available at https://www.gao.gov/products/gao-20-21. Had this proposed rule been in effect at the time, the three operators would have had far more in collateral, producing dollar-for-dollar savings for the Trust Fund. Of note, the amount of the coal operators' future black lung liability was originally estimated in 2019 to be around $313 million to $325 million. This was revised to $865 million in 2020 due to a variety of factors, including increases in black lung benefit award rates and higher medical treatment costs. Because the amount of a coal operator's future black lung liability is inherently unpredictable to some degree and can increase over time, requiring collateral at 120% better protects the Trust Fund than a lower percentage.

Moreover, the existing financial scoring process has proven overly cumbersome and costly to OWCP in terms of time and resources. The proposed rule would eliminate the financial scoring process and require all self-insured operators to post security equal to 120 percent of their projected black lung liabilities. By requiring sufficient security based simply on projected liabilities, the financial scoring process is no longer needed, removing the burden on the agency to attempt to assess risk by collecting and analyzing the information in the form CM-2017a. The proposed rule would also remove certain minimum requirements that would become unnecessary, including the requirement that an operator's average current assets over the preceding three years exceed its current liabilities.

This analysis provides the Department's estimate of the economic impact of the proposed rule, both on the economy as a whole and on individual operators. The Department invites comments on this analysis from all interested parties. The Department is particularly interested in comments addressing the Department's evaluation of the impact of the proposed rule on operators that currently participate in the self-insurance program.

To determine the proposed rule's general economic impact, the Department calculated how the rulemaking would affect several stakeholder groups, including: (i) OWCP, (ii) taxpayers, (iii) commercially insured operators, and (iv) self-insured operators.

The proposed rule change does not impose additional demands on OWCP resources and in fact will result in a reduction in administration costs. 4 It eliminates the need for OWCP to repeatedly perform annual financial health assessments on each self-insured operator. This produces a short-term savings in the administrative costs to perform the analysis, including both costs associated with OWCP time and contractors hired to assist OWCP in this analysis. The proposed rule would require OWCP to review actuarial liability estimates every three years and monitor authorized self-insureds for compliance with eligibility requirements, but these are not new costs because OWCP is already performing those functions under the current guidelines. The savings in administrative expenses is estimated to be, at a minimum, equivalent to the annual cost of one full-time financial analyst.

The proposed rule provides taxpayers with both short- and long-term benefits. In the short term, taxpayers will benefit from lower administration expenses, because savings can be used elsewhere in the government without requiring additional tax revenues. In the long term, the proposed rule reduces taxpayers' financial exposure by reducing the risk that the Trust Fund—which has borrowed from the U.S. Treasury's general fund nearly every year since 1979 to make needed expenditures—will need to assume liabilities of self-insured operators that become insolvent. The proposed rule would require security deposits that are 120 percent of the actuarial liability, instead of only partial security deposits as is currently the case for most self-insured operators. Under the current guidelines, the Trust Fund remains partially exposed to the risk of coal operator bankruptcies for operators considered at low or medium risk of failing to meet their obligations; under the current guidelines, these operators must provide security for 70 percent and 85 percent respectively of their black lung liabilities. Even operators considered high risk under the current guidelines, and therefore required to provide security for 100 percent of their black lung liabilities, present some risk that their projected liabilities will prove too low. Moreover, due to the pending appeals discussed above, a number of operators have securities on deposit with OWCP that are substantially less than those required under the existing guidelines.

Requiring a 120 percent liability security deposit transfers the risk of insufficient securities to commercial security bond underwriters and banks that specialize in financial risk assessments and are better equipped than OWCP to assess the financial stability of coal mine operators (and who are compensated for assuming that risk via operators' purchase of surety bonds or other forms of security). The proposed rule would require self-insured operators to post additional security in the aggregate, which would cover the claims for which they are responsible if they were to default on their claim payments (based on the operators' current estimates of their actuarial liabilities). This means the burden for self-insured operators' liabilities would remain with them instead of transferring to the Trust Fund and, indirectly, to taxpayers.

The proposed rule will not impose additional costs on operators that secure their BLBA liabilities through commercial insurance. The proposed rule affects only the eligibility criteria, security requirements, and other procedures for operators that secure their liabilities by qualifying to self-insure. At most, commercially insured operators might choose to reassess whether, in light of these changes, commercial insurance remains the most cost-effective option for securing their liabilities or, instead, whether to switch to self-insurance. The cost of any such assessment would be de minimis.

The proposed rule could increase costs for current operators that are self-insured. In 2019, OWCP identified a total of 20 operators that were, or recently had been, actively mining coal and participating in the self-insurance program. Four of these operators have since gone bankrupt and are not included in this impact analysis. Of the remaining 16 self-insured operators, seven have commercial insurance for their current operations, but self-insure their legacy liabilities. Nine secure both their current and legacy liabilities through self-insurance.

The proposed rule would apply to the 16 operators noted above. Table 1 lists the 16 operators' actuarially estimated liabilities, securities currently on deposit, the present security requirement under current guidelines, and future security requirements under the proposed rule.

The Captain of the Port Sector Ohio Valley (COTP) proposes to update the current list of recurring special local regulations found in Table 1 of title 33 of the Code of Federal Regulations (CFR) section 100.801 for events occurring within the Sector Ohio Valley area of responsibility within the Coast Guard's Eighth District.

This proposed rule would update the list of annually recurring special local regulations under 33 CFR 100.801, Table 1, for annual special local regulations in the Sector Ohio Valley's Area of Responsibility (AOR). The Coast Guard will address all comments through response via the rulemaking process, including additional revisions to this regulatory section. Additionally, the public would be informed of these recurring events through local means and planned by the local communities. The current list of annual and recurring special local regulations occurring in Sector Ohio Valley's AOR is published in 33 CFR 100.801, Table 1 titled “Ohio Valley Annual and Reoccurring Marine Events.” The most recent list was published on February 3, 2022 (87 FR 6026).

The Coast Guard's authority for establishing a special local regulation is contained in 46 U.S.C. 70041(a). The Coast Guard proposes to amend and update the special local regulations in 33 CFR 100.801, Table 1, to include the most up to date list of recurring special local regulations for events held on or around the navigable waters within Sector Ohio Valley's AOR. These events would include marine parades, boat races, swim events, and other marine related events. The current list under 33 CFR 100.801, Table 1, requires amendment to provide new information on existing special local regulations, add new special local regulations expected to recur annually or biannually, and to remove special local regulations that no longer occur. Issuing individual regulations for each new special local regulation, amendment, or removal of an existing special local regulation creates unnecessary administrative costs and burdens. This single proposed rulemaking will considerably reduce administrative overhead and provide the public with notice through publication in the Federal Register of recurring special local regulations in the AOR.

Part 100 of 33 CFR contains regulations describing regattas and marine parades conducted on U.S. navigable waters in order to ensure the safety of life in the regulated areas. Section 100.801 provides the regulations applicable to events taking place in the Eighth Coast Guard District and also provides a table listing each event and special local regulations. This section requires amendment from time to time to properly reflect the recurring special local regulations. This proposed rule would update § 100.801, Table 1 titled “Ohio Valley Annual and Reoccurring Marine Events.”

This proposed rule would add 8 new recurring special local regulations to Table 1 of § 100.801 for Sector Ohio Valley, as follows:

These new recurring special local regulations would be reflected in the table in the general date order in which they will occur, and the current recurring special local regulations would be reordered, as shown in the proposed regulatory text below.

Additionally, this proposed rule would amend 11 recurring special local regulations in Table 1 of § 100.801 for Sector Ohio Valley, as follows:

Lastly, this proposed rule would remove 4 recurring special local regulations in Table 1 of § 100.801 for Sector Ohio Valley as follows:

The effect of this proposed rule would be to restrict general navigation during these events. Vessels intending to transit the designated waterways during effective periods of the special local regulations would only be allowed to transit the area when the COTP or designated representative, has deemed it would be safe to do so or at the completion of the event.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

The Coast Guard expects the economic impact of this proposed rule to be minimal, therefore a full regulatory evaluation is unnecessary. This proposed rule would establish special local regulations limiting access to certain areas described in 33 CFR 100.801, Table 1. The effect of this proposed rulemaking would not be significant because these special local regulations are limited in scope and duration. Additionally, the public would be given advance notification through local forms of notice, the Federal Register , and/or Notices of Enforcement. Thus, the public would be able to plan their operations and activities around enforcement times of the special local regulations. Broadcast Notices to Mariners, Local Notices to Mariners, and Safety Marine Information Broadcasts would also inform the community of these special local regulations. Vessel traffic would be permitted to request permission from the COTP or a designated representative to enter the restricted areas.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for reasons stated in section IV.A. above, this proposed rule would not have a significant economic impact on any owner or operator because they are limited in scope and will be in effect for short periods of time.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. of the Instruction because it involves establishment of special local regulations related to marine event permits for marine parades, regattas, and other marine events. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0927 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

In the December 5, 2022, issue of the Federal Register (87 FR 74348), the Corps published a proposed rule to establish three permanent danger zones in the waters of Carr Creek and Whitehall Bay in the vicinity of the Naval Support Activity Annapolis, Annapolis, Maryland. The establishment of the proposed danger zone in Carr Creek is necessary to enable safe operation of the United States Naval Academy firing range and to reflect the routine and periodic usage of the firing range for training Sailors, Midshipmen, and law enforcement personnel. The establishment of the two proposed danger zones in Whitehall Bay is necessary to enable the safe operation of the United States Naval Academy firing range and to reflect irregular and infrequent usage of the range for training Sailors, Midshipmen, and law enforcement personnel. The firing range faces Carr Creek and, during times of operation, may present a danger to vessels located in the proposed danger zones. According to the installation, the firing range is normally in operation for live firing approximately 4 to 6 times per year.

The Corps has received numerous requests for an extension of the comment period for the proposed rule. Because the original comment period ended on January 4, 2023, we are reopening the comment period for 45 days. Comments must be received by March 6, 2023.

We are proposing to revise the simplified (Type A) procedures for assessment of natural resource damages resulting from releases of hazardous substances. The Department of the Interior has previously developed two types of natural resource damage assessment regulations: Standard procedures for simplified assessments requiring minimal field observations (Type A Rule); and site-specific procedures for detailed assessments in individual cases (Type B Rule).

The Type B Rule was last revised in 2008 to emphasize natural resource restoration over economic damages, resolve a timing inconsistency, and respond to two previous Court decisions addressing the regulations: State of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989); and Kennecott Utah Copper Corp. v. U.S. Department of the Interior, 88 F.3rd 1191 (D.C. Cir. 1996).

The Type A Rule was last revised in November 1997. It provides two distinct formulas for modeling damages for natural resource injuries caused by hazardous substance releases to coastal and marine environments and Great Lakes environments, respectively. In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA) 42 U.S.C. 9601 et seq., damages calculated in accordance with Type A or Type B procedures are entitled to a “rebuttable presumption” of correctness in any administrative or judicial proceeding. The rebuttable presumption for the Type A procedure under the current version of the rule is limited to damages of $100,000 or less.

Since its promulgation, the Type A Rule has rarely been utilized to resolve CERCLA Natural Resource Damage Assessment and Restoration (NRDAR) claims. This may be partly due to the Type A Rule's restrictive scope—to two specific aquatic environments when relatively low-impact, single substance spills occur. Additionally, the model equation for each Type A environment is the functional part of the rule itself—with no provisions to reflect evolving toxicology, ecology, technology, or other scientific understanding without a formal amendment to the Type A Rule each time a parameter is modified. The result is an inefficient and inflexible rule that is not currently useful as a means to resolve NRDAR claims and promote natural resource restoration. For these reasons, the Department is now seeking to modernize the Type A process and develop a more flexible and enduring rule than what is provided by the two existing static models.

The Department is proposing to re-formulate the Type A Rule as a procedural structure for negotiated settlements by utilizing tools tailored to incidents of smaller scale and scope. We believe that this aligns better with the original statutory purpose of providing a streamlined and simplified assessment process as a companion to the more complex Type B Rule—to reduce transaction costs and expedite restoration in a broader range of less complex and contentious cases. Our objective is to essentially formalize beneficial practices that have evolved since the 1997 promulgation of the Type A Rule. Specifically, Trustees have utilized well-established methodologies such as habitat equivalency analysis (HEA), resource equivalency analysis (REA), and other relatively simple models to assess natural resource injury in smaller incidents that do not necessarily warrant the more prescriptive Type B procedures.

Pursuing a case under the new Type A would be initiated by the Trustees involved in the case. The new Type A Rule would be intended for use when the potentially responsible parties (PRPs) and all trustees with jurisdiction over the injured natural resources agree that the simplified procedures of the rule provide an appropriate means of assessing and resolving the claim. An assessment of damages performed cooperatively in this manner would be entitled to a rebuttable presumption of correctness when undergoing administrative or judicial review.

However, rather than limiting the rule's applicability to a narrow range of cases and a pre-determined, static model, the Department of the Interior (Department) proposes to consider ways to expand the rule's scope through a structured process that will utilize a range of methods that have become widely used and accepted since the original rule was formulated, including existing habitat and resource equivalency analyses, and benefits transfers from similar cases. These methodologies are referenced in the current version of the CERCLA NRDAR rule ( See 43 CFR 11.83) and have proven adaptable and functional enough to support negotiated resolution of a wide range of NRDAR claims that have withstood public and judicial scrutiny over the past two decades. We are seeking additional public input on what specific methodologies or procedures could be utilized under a revised Type A Rule.

In recognition of the evidentiary constraints of models when compared to more robust site-specific observation and information, the current Type A Rule limits the amount of damages that could be eligible for the Type A rebuttable presumption to $100,000 or less. We recognize that $100,000—un-adjusted for more than 25 years of inflation from 1997—likely represents an extremely narrow range of present day NRDAR claims. More importantly, it would be challenging for NRDAR trustees and PRPs to engage in even a streamlined cooperative process that is cost-effective in the context of $100,000 in total damages. Accordingly, we are seeking public input on the appropriate amount of damages eligible for a rebuttable presumption when utilizing a new Type A process.

We are also seeking public input on potential non-monetary limitations for using the Type A Rule—including whether the Type A Rule can be utilized at a site with multiple PRPs, and whether PRPs voluntarily participating in a Type A process need to agree to pay the reasonable cost of that process. Additionally, we are seeking public input on whether the revised Type A should include reasonable assessment costs within the cap applicable for the Type A Rule, and whether there should be a time limit—accompanied by a tolling agreement—to how long a Type A process could take. Finally, we are seeking public input as to whether the Type A claim should continue to be eligible to be combined with a Type B assessment or with other Type A processes at the same site—which could result in applying the Type A Rule to only certain discrete natural resource categories at a site.

The Department anticipates that NRDAR claims resolved through the revised Type A Rule will be subject to a 30-day public notice and review process before finalization. As part of this public notice and review, NRDAR trustees would make available the application of the model they relied on (including the data inputs) and any relevant supporting information. As with the current rule, Trustees would consider, and when appropriate, respond to any public comments. Any changes to the voluntary agreement as a result of public comment would also be approved by the settling PRPs in order to finally resolve the claim.

Consistent with CERCLA section 111(i) (42 U.S.C. 9611(i)), Trustees would continue to expend damages recovered under the Type A Rule pursuant to a Restoration Plan. Trustees would also continue to have the ability to select appropriate restoration projects without being restricted to selecting the general restoration methods used by the Type A equivalency model they employ to calculate their NRDAR claim. Trustees would maintain the discretion to spend recovered sums on other actions to restore, replace, or acquire the equivalent of injured resources or services.

This advance notice of proposed rulemaking seeks comments on the questions posed above to re-formulate the Type A Rule, including: (1) which assessment methodologies would be appropriate for use in simplified assessments under a revised Type A rule, (2) the amount of damages eligible for a rebuttable presumption when utilizing a new Type A process, (3) whether to include reasonable costs of assessment within the total cap for application of the Type A Rule, (4) whether PRPs voluntarily participating in a Type A process need to agree to pay the reasonable cost of that process, (5) whether the Type A Rule is appropriate for a site with multiple PRPs, and (6) how long a Type A process could last. The Department would also appreciate comments that address interest in using revised Type A procedures, along with suggestions that improve the efficiency and cost effectiveness of the NRDAR Type A process.

The Department is not obligated to consider comments that we receive after the close of the comment period for this ANPRM, or comments that are delivered to an address other than those listed in this notice. After the comment period for this ANPRM closes, the Department will review all comment submissions. Upon consideration, the Department may publish a notice of proposed rulemaking.

We are particularly interested in receiving comments and suggestions about the topics identified in the Description of Information Requested section. Written comments that are specific, explain the rationale for the comment or suggestion, address the issues outlined in this notice, and where possible, refer to specific statutes, existing regulations, case law, or NRDAR practices are most useful.

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

On December 23, 2022, NMFS published a proposed rulemaking in response to Revolution Wind's request that NMFS authorize the taking, by Level A harassment and Level B harassment, of marine mammals incidental to the Revolution Wind Offshore Wind Farm Project, located offshore of Rhode Island in and around lease area OCS-A-0486. When published, the proposed rule (87 FR 79072; December 23, 2022) allowed for a 30-day public comment period, ending on January 23, 2023. On December 23, 2022, we received a request from the Natural Resource Defense Council (NRDC) for a 15-day extension of the public comment period. NMFS considered the request and the permitting timelines for this project and, in this case, is extending the comment period on the proposed rule for an additional 15 days to provide further opportunity for public comment. This extension provides a total of 45 days for public input on the proposed rule.

All comments and information submitted previously regarding the proposed rule for Revolution Wind will be fully considered during the development of the final rule and LOA, if determined to be promulgated and issued, and do not need to be resubmitted.

Interested persons may submit information, suggestions, and comments concerning the proposed rulemaking for the Revolution Wind Offshore Wind Farm Project (see ADDRESSES ). NMFS will consider all information, suggestions, and comments from both the initial and extended public comment periods during the development of final regulations governing the incidental taking of marine mammals by Revolution Wind, if appropriate.