Pursuant to Marketing Order No. 927, as amended (7 CFR part 927), hereinafter referred to as the “Order,” and the applicable provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” it is hereby directed that a referendum be conducted to ascertain whether continuance of the Order is favored by pear growers. The referendum shall be conducted from March 20 to March 31, 2023, among pear growers in the production area. Only current pear growers that were engaged in the production of pears during the period of July 1, 2021, through June 30, 2022, may participate in the continuance referendum.

USDA has determined that continuance referenda are an effective means for determining whether growers favor continuation of marketing order programs. USDA would consider termination of the Order if less than two-thirds of growers voting in the referendum, and growers of less than two-thirds of the volume represented in the referendum favor continuance. In evaluating the merits of continuance versus termination, USDA will not exclusively consider the results of the continuance referendum. USDA will also consider all other relevant information concerning the operation of the Order and the relative benefits and costs to growers, handlers, and consumers to determine whether continued operation of the Order would tend to effectuate the declared policy of the Act.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the ballot materials used in the referendum have been approved by the Office of Management and Budget (OMB) and have been assigned OMB No. 0581-0189, Fruit Crops. It has been estimated that it will take an average of 20 minutes for each of the approximately 1,500 Oregon and Washington pear growers to cast a ballot. Participation is voluntary. Ballots postmarked after March 31, 2023, will not be included in the vote tabulation.

Dale Novotny and Gary Olson of the Western Region Branch, Market Development Division, Specialty Crops Program, Agricultural Marketing Service, USDA, are hereby designated as the referendum agents of the Secretary of Agriculture to conduct this referendum. The procedure applicable to the referendum shall be the “Procedure for the Conduct of Referenda in Connection with Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the Agricultural Marketing Agreement Act of 1937, as Amended” (7 CFR part 900.400 et seq. ).

Ballots will be mailed to all eligible pear growers of record and may also be obtained from the referendum agents or their appointees.

On July 29, 2022, DOE published a notice of intent to establish a working group for CUACs and CUHPs, under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act, to negotiate recommended test procedures and energy conservations standards for CUAC and CUHP equipment. 87 FR 45703.

Once the working group reaches consensus on recommended test procedures and energy conservation standards, these recommendations are made to ASRAC, which may then use such consensus as the basis for making a recommendation to the Department. The Department, consistent with its legal obligations, may use such consensus as the basis of a rulemaking, which then is published in the Federal Register .

The working group for CUACs and CUHPs held public meetings on September 20-21, 2022, October 11-12, 2022, November 9-10, 2022, November 29-30, 2022, December 7-8, 2022, and December 14-15, 2022. As a result of these meetings, the working group successfully reached consensus on a proposed test procedure for CUAC and CUHP equipment. On March 7-8, 2023, and March 21-22, 2023, the working group held public meetings to begin negotiations in an attempt to reach consensus on amended energy conservation standards for CUACs and CUHPs. This notice announces additional public meetings to continue these negotiations.

DOE will host public meetings and webinars on the following dates:

• Wednesday, April 12th, 2023, from 10 a.m. to 5 p.m. at National Renewable Energy Laboratory, 901 D Street SW, Suite 930, Washington, DC 20024.

• Thursday, April 13th, 2023, from 9 a.m. to 3 p.m. at National Renewable Energy Laboratory, 901 D Street SW, Suite 930, Washington, DC 20024.

• Wednesday, April 26th, 2023, from 10 a.m. to 5 p.m. at National Renewable Energy Laboratory, 901 D Street SW, Suite 930, Washington, DC 20024.

• Thursday, April 27th, 2023, from 9 a.m. to 3 p.m. at National Renewable Energy Laboratory, 901 D Street SW, Suite 930, Washington, DC 20024.

If you plan to attend the public meetings, please notify the ASRAC staff at asrac@ee.doe.gov. In the email, please indicate your name, organization (if appropriate), citizenship, and contact information.

Please note that foreign nationals participating in the public meetings or webinars are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meetings or webinars, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: Regina.Washington@ee.doe.gov so that the necessary procedures can be completed.

Anyone attending the meetings will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

In addition, you can attend the public meetings via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: https://energy.gov/eere/buildings/appliance-standards-and-rulemaking-federal-advisory-committee. Participants are responsible for ensuring their systems are compatible with the webinar software.

Members of the public will be heard in the order in which they sign up for the Public Comment Period. Time allotted per speaker will depend on the number of individuals who wish to speak but will not exceed five minutes. Reasonable provisions will be made to include the scheduled oral statements on the agenda. A third-party neutral facilitator will make every effort to allow the presentations of views of all interested parties and to facilitate the orderly conduct of business.

Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the FOR FURTHER INFORMATION CONTACT section of this notice. The request and advance copy of statements must be received at least one week before the public meeting and may be emailed, hand-delivered, or sent by postal mail. DOE prefers to receive requests and advance copies via email. Please include a telephone number to enable DOE staff to make a follow-up contact, if needed.

ASRAC's Designated Federal Officer will preside at the public meetings and may also use a professional facilitator to aid discussion. The meetings will not be judicial or evidentiary-type public hearings, but DOE will conduct them in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. A transcript of each public meeting will be included on DOE's website: https://energy.gov/eere/buildings/appliance-standards-and-rulemaking-federal-advisory-committee. In addition, any person may buy a copy of each transcript from the transcribing reporter. Public comment and statements will be allowed prior to the close of each meeting.

The docket is available for review at: www.regulations.gov/docket/EERE-2022-BT-STD-0015, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

This document of the Department of Energy was signed on April 3, 2023, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Comments Invited

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-2023-0660; Project Identifier MCAI-2022-01561-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to 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 Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0241, dated December 7, 2022 (EASA AD 2022-0241) (also referred to as the MCAI), to correct an unsafe condition for certain RRD Trent 1000-AE3, Trent 1000-CE3, Trent 1000-D3, Trent 1000-G3, Trent 1000-H3, Trent 1000-J3, Trent 1000-K3, Trent 1000-L3, Trent 1000-M3, Trent 1000-N3, Trent 1000-P3, Trent 1000-Q3, and Trent 1000-R3 model turbofan engines. The MCAI states that occurrences have been reported of finding higher than expected levels of wear on the seal fins of certain HPT triple seals. The secondary air system is affected by the resulting increased turbine cooling air leakage, which changes the air flow around the IPT disk.

The Modulated Air System (MAS) was designed to optimize cooling air flow and intended to be active only during cruise conditions, but the design did not account for a high level of seal wear. Rolls-Royce issued Non-Modification Service Bulletin Trent 1000 75-AK642, Initial Issue, dated November 30, 2020, to provide instructions for MAS deactivation, and consequently, EASA published EASA AD 2021-0009, dated January 8, 2021, specifying deactivation of the MAS control valves. Despite this, a significantly worn HPT triple seal under flight conditions, while MAS was activated prior to the above action, could have reduced the safety of flight.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0660.

The FAA reviewed EASA AD 2022-0241, which specifies procedures for inspecting the HPT triple seal for excessive wear and, depending on the results of the inspection, replacing the HPT triple seal and the IPT disk.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of these same type designs.

This proposed AD would require accomplishing the actions specified in EASA AD 2022-0241 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2022-0241 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0241 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0241. Service information required by the EASA AD for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-0660 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 4 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

Comments Invited

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-2023-0664; Project Identifier MCAI-2022-01527-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to 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 Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0234, dated December 1, 2022 (EASA AD 2022-0234) (also referred to as the MCAI), to address an unsafe condition for all GEAC M601E-11AS, M601E-11S, M601FS, H75-100, H80-100 and H85-100 model turboprop engines. Model M601FS turboprop engines do not have an FAA type certificate, therefore this proposed AD does not include those engines in the applicability. The MCAI states that there have been reports of multiple needle bearing failures that affect propeller governors having P/Ns P-W11-1 and P-W11-2. Further investigation revealed that those failures were caused by self-generated debris from the needle bearing, which led to oil contamination. In response to the unsafe condition, the manufacturer developed a redesigned propeller governor to replace propeller governors having P/Ns P-W11-1 and P-W11-2.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0664.

The FAA reviewed EASA AD 2022-0234, which specifies procedures for the replacement of propeller governors having P/Ns P-W11-1 and P-W11-2 with a redesigned propeller governor.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would require accomplishing the actions specified in EASA AD 2022-0234, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2022-0234 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0234 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0234. Service information required by the EASA AD for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-0664 after the FAA final rule is published.

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

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

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

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

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

Table of Contents I. Background II. Invitation To Comment III. Administrative Actions I. Background

The PSRA, enacted on April 6, 2022, amended Title 39 of the United States Code and other relevant statutory provisions. Among other changes, section 203 of the PSRA added a note to 39 U.S.C. 3633, which requires that the Commission, no later than April 6, 2023, “initiate a review of the regulations issued pursuant to sections 3633(a) and 3652(a)(1) of title 39, United States Code, to determine whether revisions are appropriate to ensure that all direct and indirect costs attributable to competitive and market-dominant products are properly attributed to those products, including by considering the underlying methodologies in determining cost attribution and considering options to revise such methodologies.” PSRA section 203. Section 203 also specifies that, if, after notice and public comment, the Commission determines “that revisions are appropriate, the Commission shall make modifications or adopt alternative methodologies as necessary.” See id.

The Postal Service uses a two-tier costing system to categorize its accrued costs. The Postal Service first identifies all costs that can be reliably and causally linked to individual postal products or groups of products, using Commission-approved analytical principles, and attributes those costs to products or product groupings. All remaining costs are classified as institutional. This two-tier postal costing approach, which is deeply rooted in the Postal Service's historical treatment of costs, 1 has been adopted into Title 39 of the United States Code. 2 Specifically, Sections 3631(b) and 3622(c) of Title 39 of the United States Code expressly codify “reliably identified causal relationships” as the standard for cost attribution. A detailed description of the approach to postal cost attribution currently employed by the Postal Service and the Commission appears in Docket Nos. RM2017-1 and RM2022-2. 3

Since the enactment of the Postal Accountability and Enhancement Act (PAEA) and the Commission's subsequent promulgation of regulations, 4 the Postal Service has improved the information used as the basis for cost attribution by changing or upgrading numerous data systems and updating and improving special cost studies. As a result, the Commission has presided over numerous rulemakings that have affected cost attribution.

Cost attribution can be affected in major or minor ways through Commission proceedings that involve changes in “analytical principles.” Analytical principles refer to economic, mathematical, or statistical theories, precepts, or assumptions applied by the Postal Service in producing required periodic reports. See 39 CFR 3050.1(c). Analytical principles include, but are not limited to, costing methodologies and cost models that the Postal Service relies upon to generate cost-related data. The Commission has presided over many such proceedings to change accepted analytical principles since the PAEA was enacted.

The Commission invites interested persons to comment on regulations related to Postal Service cost attribution, as well as the analytical principles (including costing methodologies or cost models) underlying postal cost attribution. Comments should focus on whether revisions to any regulations or analytical principles are necessary “to ensure that all direct and indirect costs attributable to competitive and market-dominant products are properly attributed to those products . . . .” PSRA section 203. Commenters are reminded that the scope of this docket is focused on regulations and analytical principles pertaining to cost attribution.

Pursuant to section 203 of the PSRA, the Commission establishes Docket No. PI2023-2 in order to review regulations issued pursuant to 39 U.S.C. 3633(a) and 3652(a)(1) relevant to the issue of postal cost attribution, as well as analytical principles (including costing methodologies or cost models) relevant to postal cost attribution. The Commission intends to evaluate the comments received and use those suggestions to help carry out the responsibilities described in section 203 of the PSRA. Comments are due no later than June 14, 2023. Reply comments are due no later than July 14, 2023.

Comments and other material filed in this proceeding will be available for review on the Commission's website unless the information contained therein is subject to an application for non-public treatment. The Commission's rules on non-public materials (including access to documents filed under seal) appear in 39 CFR part 3011.

Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to represent the interests of the general public (Public Representative) in this proceeding.

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

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

Pursuant to CAA section 110(k)(1)(B) and 40 CFR part 51, appendix V, the EPA determined that the submittal for MDAQMD Rule 1160 met the completeness criteria on March 17, 2023.

On September 10, 2021 (86 FR 50643), we took final action on a limited approval and limited disapproval of an earlier version of Rule 1160. This limited approval final action approved this earlier version of Rule 1160 into the SIP, including those rule provisions identified as deficient. In response to our limited disapproval final action, the MDAQMD adopted revisions to the SIP-approved version on January 23, 2023 and CARB submitted them to us on March 3, 2023. In its submittal letter, CARB requested that, upon approval of the revised version of Rule 1160, the EPA remove the old version of this rule from the SIP. If we take final action to approve the January 23, 2023 version of Rule 1160, this version will replace the previously approved version of this rule in the SIP.

Emissions of NO X and VOCs contribute to the production of ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NO X and VOC emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as Moderate or above implement reasonably available control technology (RACT) for any source covered by a Control Techniques Guidelines (CTG) document and for any major source of VOCs or NO X . Rule 1160 regulates NO X emissions from major sources of NO X and has been submitted by CARB and the air district to implement RACT for these sources. The revised version of Rule 1160 was submitted to address the deficiencies identified in our September 10, 2021 limited disapproval final action of the previous version of Rule 1160, and to ensure that the air district implements RACT level controls for all major stationary sources of NO X .

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), and must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)).

Generally, SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of NO X and VOCs in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2) and 182(f)). The MDAQMD regulates an ozone nonattainment area classified as Severe-15 for the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) and the 2008 8-hour ozone NAAQS (40 CFR 81.305). Therefore, MDAQMD must implement RACT.

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

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

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

3. “Control of Volatile Organic Emissions from Solvent Metal Cleaning,” EPA-450/2-77-022, November 1977.

4. “NO X Emissions from Stationary Reciprocating Internal Combustion Engines,” EPA-453/R-93-032, July 1993.

5. “Stationary Spark-Ignited Internal Combustion Engines,” CARB, November 2001.

This rule meets CAA requirements and is consistent with relevant guidance regarding enforceability, RACT, and SIP revisions. The revised version of Rule 1160 removed the alternative compliance option that the EPA identified as deficient in our September 10, 2021 final action. As a result, covered engines in the District no longer have the option to generate an alternative compliance plan in place of complying with the limits in the rule. However, the rule does include a specialized provision that governs five units that previously complied with the rule via an alternative compliance plan. The rule requires five specific internal combustion engines located at the Pacific Gas & Electric Facility Hinkley Compressor Station in Hinkley, California to operate, in aggregate, no greater than 2,600 engine hours per calendar year. Once operations of these engines exceed this limit, the engines will be subject to the NO X emission limits of the rule. This represents less than 6% of the total capacity of these engines. Given the costs associated with retrofitting these low-use engines, which the facility needs to keep online for occasional peaking capacity, the EPA concludes that additional controls for these units are not reasonably available. The EPA's reasoning is explained in greater detail in the technical support document (TSD) located in the docket of this rulemaking.

The revised version of Rule 1160 also adds testing and compliance requirements for regulated internal combustion engines without emission control equipment. The lack of compliance requirements for such units was identified as a deficiency in the EPA's prior limited disapproval of Rule 1160. As described in greater detail in our TSD, the EPA concludes that these added compliance requirements cure the previously identified deficiency. The EPA's TSD has more information about this rule.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until May 8, 2023. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference MDAQMD Rule 1160, Internal Combustion Engines, amended on January 23, 2023 which regulates NO X and VOC emissions from internal combustion engines as discussed in section II of this preamble. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 23-7, adopted January 26, 2023, and released January 27, 2023. The full text of this document is available by downloading the text from the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-23-7A1.pdf .

This document may contain potential new or revised information collection requirements. Therefore, we seek comment on potential new or revised collections subject to the Paperwork Reduction Act of 1995. If the Commission adopts any new or revised final information collection requirements when the final rules are adopted, the Commission will publish a notice in the Federal Register inviting further comments from the public on the final information collection requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this document, as required by the PRA. Public and agency comments on the PRA proposed information collection requirements are due June 6, 2023. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. The Commission's rules do not currently require notification when access to the 988 Lifeline is compromised or the 988 Lifeline system experiences an outage. To improve the resiliency of the 988 Lifeline system and ensure the Commission, the Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA), the Veteran's Administration (VA), and the 988 Lifeline administrator have timely outage information so they can provide the public with alternative ways to access the 988 Lifeline, the document proposes to require providers that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls to report outages that potentially affect the 988 Lifeline to the Commission's Network Outage Reporting System (NORS). The Commission seeks comment on this proposal.

2. The Commission believes, as in the 911 context, that improving situational awareness of significant network outage issues affecting 988 Lifeline services would provide the Commission (as well as other Federal, state, Tribal, and territorial agencies with public safety responsibilities) with critical insight into the availability and reliability of a vital public health service. In the short term, the Commission expects that these reporting requirements would improve public safety by allowing the Commission and other agencies to assess the magnitude of major outages and, in the long term, to identify network reliability trends and determine whether the outages likely could have been prevented or mitigated had the service providers followed certain network reliability best practices.

3. The document seeks comment on how it should define the universe of providers that would be subject to this new requirement. The document proposes to define “covered 988 service providers” as those providers that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls. Are there additional entities that provide services or functionalities in the 988 call pathway that should be included in the definition of a covered 988 service provider?

4. The document proposes that 988 outage reports be filed with the Commission in NORS, consistent with current outage filing processes. In this regard, the Commission expect that the use of the NORS database will minimize costs to providers of implementation as providers already file outage reports in NORS, and we expect that the vast majority of outages that potentially affect 988 special facilities are already being reported in this system. The Commission also proposes that covered 988 service providers be required to notify the Commission in this regard when the provider experiences a service outage that results in a loss of the ability of the 988 Suicide & Crisis Lifeline to receive, process or forward calls for at least 30 minutes and seeks comment on this proposal.

5. In addition to the proposal that covered 988 service providers file outage notifications in NORS, the document seeks comment whether to require cable, satellite, wireless, wireline, and interconnected voice over internet protocol (VoIP) providers (collectively, originating service providers) to report outages that potentially affect the 988 Lifeline to the Commission's NORS. The Commission's existing rules that require the reporting of outages that potentially affect 911 include as outages triggering reporting obligations those that are associated with more general outages as well as those specific to the emergency number. The document seeks comment on whether to adopt a similar requirement for 988. If so, what outage threshold should be considered, e.g., outages impacting the toll free access number lasting at least 30 minutes in duration and potentially affecting at least 900,000 user minutes? Are there any special characteristics of 988 calls that would make it more effective or efficient for the Commission to adopt alternative outage reporting thresholds that do not resemble the reporting requirements for other communications outages. Do the differences between 911 call routing and 988 Lifeline call routing affect the policy issues around outage reporting by originating service providers?

6. The document seeks comment on whether outages affecting covered 988 texts should be reported, and if they should be reported what thresholds should apply and why? The document asks for specific comments addressing the costs associated with requiring reporting of outages to covered 988 text messages. A covered 988 text message means “a 988 text message in SMS format and any other format that the Wireline Competition Bureau has determined must be supported by covered text providers.” 47 CFR 52.201(c)(2). A covered text provider “includes all CMRS providers as well as all providers of interconnected text messaging services that enable consumers to send text messages to and receive text messages from all or substantially all text capable U.S. telephone numbers, including through the use of applications downloaded or otherwise installed on mobile phones.” 47 CFR 52.201(c)(3).

7. Is there information that is unique to 988 outages that we should require to be included in an outage report due to its value in understanding the cause or impacts of such an outage? Should the required deadlines for the filing of 988 outage reports be different from the deadlines for filing other types of outage reports? Should the reporting requirements be different for originating service providers that deliver calls to the 988 Lifeline in the first instance versus the covered 988 service provider that handles the call thereafter?

8. The document proposes to require covered 988 service providers to notify 988 special facilities about outages that potentially affect a 988 special facility. The document further proposes that this outage notification obligation mirror our existing 911 special facility notification requirements, as discussed below, and seeks comment on our proposal. Are there any differences between 911 and the 988 Lifeline that would warrant a different approach to 988 special facility notification?

9. Notification to 988 special facilities. The document proposes to designate SAMHSA, the VA, and the 988 Lifeline administrator as 988 special facilities that will receive notifications of outages that potentially affect a 988 special facility and seeks comment on this proposal. The Commission seeks comment on its belief that timely notice of a 988 Lifeline outage will assist SAMHSA, the VA, and the 988 Lifeline administrator to quickly inform the public of alternative ways of contacting the Lifeline while one type of communication is unavailable, such as texting or using the online chat function if calls are not getting through. The Commission does not propose to impose any obligations on SAMHSA or the VA.

10. The document proposes that reliance upon a third-party service provider to manage, route, or otherwise contribute to 988 call processing would not relieve covered 988 service providers of the obligation to provide notification to 988 special facilities under these proposed rules. This is consistent with the Commission's current treatment of 911 notification obligations. The document seeks comment on this approach.

11. In addition to the proposal to require notification by covered 988 service providers, the document seeks comment on whether to require cable, satellite, wireless, wireline, and interconnected VoIP providers to make similar notifications.

12. Notification to other entities. The document seeks comment on whether there are additional entities that should receive notice of an outage that potentially affects a 988 special facility. For example, should the local crisis centers to which 988 calls are routed be considered 988 special facilities that should receive 988 outage notifications.

13. The document seeks comment on whether covered 988 service providers should be required to notify originating service providers about 988 outages, enabling originating service providers to voluntarily notify their customers of the outage and alternative ways to obtain crisis assistance. Should originating service providers be required to provide notice to covered 988 service providers of 988 outages? If notice should be required to originating service providers and/or public safety answering points (PSAPs), should the content of the notice be the same or different than the notice 988 special facilities receive? The Commission encourages commenters to address the specific costs and benefits of providing notice to these entities.

14. Content of 988 notification. In the 911 context, the Commission determined that PSAPs should receive consistent, timely, and actionable notice of 911 service outages that potentially affect them in order to empower them to lessen the impacts of outages on the provision of emergency services by rerouting calls or communicating alternatives to the public. The Commission believe that it is similarly important that the information provided during a 988 outage is clear and actionable so that 988 special facilities can make swift judgments as to whether to inform the public about alternative means to contact mental health and suicide prevention services. As required for 911 outages, the document proposes that covered 988 service providers must provide the following material information in their 988 special facility outage notifications:

• An identifier unique to each outage;

• The name, telephone number, and email address at which the notifying service provider can be reached for follow-up;

• The name of the service provider(s) experiencing the outage;

• The date and time when the incident began (including a notation of the relevant time zone);

• The type of communications service(s) affected;

• The geographic area affected by the outage;

• A statement of the notifying service provider's expectations for how the outage potentially affects the 988 special facility ( e.g., dropped calls);

• The expected date and time of restoration, including a notation of the relevant time zone;

• The best-known cause of the outage; and

• A statement of whether the message is the notifying service provider's initial notification to the 988 special facility, an update to an initial notification, or a message intended to be the notifying service provider's final assessment of the outage.

The document seeks comment on this proposal. Are there differences between 911 and 988 that would warrant different content requirements for notifications? If we were to adopt rules for originating providers in addition to covered 988 service providers, should we require the same content requirements for notifications?

15. Means of notification. The document proposes to require covered 988 service providers to notify 988 special facilities of outages that potentially affect them by telephone and in writing by electronic means and by alternative means if mutually agreed upon in writing in advance by the 988 special facility and the service provider, which is the same manner of notification that originating service providers follow when notifying 911 special facilities of outages that potentially affect them. The Commission seeks comment on its belief that dual notification will provide the greatest assurance that a 988 special facility, regardless of its size or capability, will receive the outage notification.

16. The document seeks comment on whether there are differences between notifications to 911 special facilities and 988 special facilities that warrant a different form of notification. In addition to the proposal for covered 988 service providers, should the Commission apply similar requirements to originating cable, satellite, wireless, wireline, interconnected VoIP providers?

17. Maintain contact information. To better ensure that potentially affected 988 special facilities receive actionable notice about 988 outages, the document proposes to require that covered 988 service providers exercise special diligence to maintain accurate, up-to-date contact information for 988 special facilities, which includes the name and contact information of the person designated by each of these entities to receive notification of 988 outages. “Special diligence” is the diligence expected from a person practicing in a particular field of specialty under circumstances like those at issue. The Commission has imposed this higher level of care in circumstances where a failure to take sufficient care can lead to particularly serious public harms. In these circumstances, “special diligence” would require, for example, actively seeking to confirm the accuracy of contact information and not relying on the absence of a response. Once providers have a 988 special facility contact list in place, special diligence would require them to annually verify the accuracy of their contact list to maintain it up-to-date. The document seeks comment on this proposal. In considering whether the Commission should also designate local crisis centers to be 988 special facilities that are required to receive outage notifications, the document seeks comment on how providers can obtain contact information for these centers. Does SAMHSA or the 988 Lifeline administrator maintain an updated and accurate list of contacts at each of the counseling centers, and could these contacts also be designated to receive notice of 988 Lifeline outages Parties should address the costs that are involved with keeping an up to date contact list. The document seeks comment on whether we should extend this requirement to originating providers, in addition to our proposal for covered 988 service providers.

18. Timing of initial notification. The document proposes that covered 988 service providers be required to provide 988 outage notifications to potentially affected 988 special facilities as soon as possible, but no later than within 30 minutes of discovering that they have experienced, on any facilities that they own, operate, lease, or otherwise utilize, an outage that potentially affects a 988 special facility. The document seeks comment on whether this timeframe is appropriate for 988 outage notification and whether the reporting timeframe should be shortened or extended and if so, why.

19. Follow-up notification. The document proposes that covered 988 service providers communicate additional material information, which includes, among other information, the date and time when the incident began, the types of communications services affected, the geographic area affected by the outage, how the outage affects the 988 special facility, the expected date and time of restoration, and the best-known cause of the outage, to potentially affected 988 special facilities in notifications subsequent to the initial notification as soon as possible after that information becomes available, but no later than two hours after the initial contact. The document proposes that for outages lasting longer than two hours, covered 988 service providers would be required to continue to follow up with additional material information to 988 special facilities, SAMHSA, the VA, and 988 Lifeline administrator as soon as possible after discovery of the new material information, and continue providing additional material information until the outage is completely repaired and service is fully restored. The document seeks comment on this proposal. The document also seeks comment on whether we should extend this requirement to originating providers.

20. 988 Lifeline Resiliency and Reliability. The Commission's part 4 rules require covered 911 service providers to annually file 911 reliability certifications, which the Commission has found are necessary to ensure the 911 network remains resilient and robust as the use of the 911 network continues to expand. The Commission seeks comment on whether covered 988 service providers should similarly be required to file 988 reliability certifications to ensure the network supporting the 988 Lifeline remains resilient and robust. Are there other measures or requirements the Commission could adopt that would further improve the resiliency and reliability of the 988 Lifeline?

21. Legal Authority. As noted above, in 2020, similar to its prior action with respect to 911, Congress further amended Section 251 of the Communications Act of 1934 to specify 988 as the universal telephone number for the National Suicide Prevention Lifeline. The proposed reporting and notice rules are intended to ensure the 988 Lifeline remains operational in accordance with the policies identified by Congress in that 2020 legislation and that any outages are quickly identified and reported, with notice provided to parties who would notify the public of alternative means to access crisis counselors, all of which promotes the safety of life and property. The Commission seeks comment on its legal authority to require the 988 outage reporting and 988 special facility notice requirements proposed herein, including its rulemaking authority pursuant to titles II and III of the Communications Act and Section 104 of the Twenty-First Century Communications and Video Accessibility Act (CVAA), as well as its authority under section 4(i) of the Communications Act, as amended, to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions” which includes “the purpose of promoting safety of life and property. . . .”.

22. The Commission seek comment on the potential benefits and costs of the proposals addressed in this document. The 988 Lifeline directly benefits people in crisis and saves lives. When the 988 Lifeline is interrupted, people's lives are put into jeopardy. In November 2022, the 988 Lifeline answered 195,083 calls, which is an average of over 6,500 answered calls per day. The Commission believes our proposed outage reporting requirements would improve public safety by providing the Commission and other impacted entities with situational awareness of 988 outages, including the magnitude and causes of those outages, and allow for the identification of network reliability trends that can help identify best practices that could improve network reliability by helping to mitigate future outages. The proposed notice and contact information retention requirements are intended to ensure that when 988 calling is disrupted, parties responsible for the varying aspects of the 988 call pathway notify 988 special facilities, share critical information in a timely and standardized manner, and are motivated to hasten the timely restoration of 988 Lifeline services. The description below shows how even a very small increase in the speed of restoration of access to 988 Lifeline services could provide benefits that outweigh the costs of adopting the proposed requirements.

23. The benefits of reducing suicide via 988 are driven by suicides' staggering societal costs. In 2020, there were 45,979 deaths by suicide in the United States, which, as noted above, averages out to almost one death every 11 minutes. For every suicide death, there were 4 hospitalizations for suicide attempts, 8 suicide-related emergency department visits, and 27 self-reported suicide attempts. In addition to lives saved, time saving network outage protocols will also alleviate the devastating emotional toll wrought by suicide on victims' families, friends, and communities.

24. Notifying SAMHSA, the VA, and the 988 Lifeline administrator of the disruption of access to 988 Lifeline services should allow these parties to manage the impact of outages on their operations, quickly notify the public of the 988 service outage, and promote alternative ways for people to access 988 Lifeline services while 988 Lifeline service is out, which may include notifying the public of alternative call numbers, or encouraging people to text to 988 or use the https://988lifeline.org/ link to chat with a crisis management counselor. This, in turn, should enhance the 988 Lifeline's ability to direct scarce resources toward mitigating outages rather than seeking out information to whether an outage is occurring, the scope of such an outage or its impact. The Commission can turn its attention to administering the 988 rules and the providers to fulfilling their service obligations. One of the benefits of implementing short dialing for calls to the Lifeline was to reduce the burdens on 911 and other emergency services arising from calls related to mental health and suicide. The Commission believes that the proposed rules will further reduce the burden on 911 and other emergency services by promoting 988 reliability so that 988 calls go through when callers need 988 service the most. The Commission seek comment on the benefits associated with the proposed rules and whether these requirements will help to preserve the public's continuity of access to the 988 special facilities that support them. Are there any other benefits to public health and safety that arise from our proposed rules that have not been described?

25. The document also seeks comment on the burdens associated with the proposed rules. To the extent that there are 988 outages that are not currently reported to the Commission, the Commission expects that those would be outages experienced by covered 988 service providers that are responsible for receiving, processing, or forwarding 988 calls. The Commission expect that these service providers are already submitting outage reports to the Commission related to other aspects of their operations, so initial compliance costs would be negligible. Assuming that one covered 988 service provider experiences a maximum of one reportable outage per month, the document estimates an annual compliance cost for that one covered 988 service provider of $1,000. As a consequence, the Commission expects the actual cost for implementation and compliance of the proposed outage reporting rules will be extremely low, and seeks comment on this analysis.

26. With regard to the proposed requirements to maintain updated contact information for 988 special facilities and to notify those facilities about outages that affect them, the Commission expects that the costs of compliance will also be relatively low when compared to the benefits to the public. The document estimates a one-time industry-wide cost of $56,000 to create an email survey to biannually solicit 988 special facility contact information. The Commission do not expect any costs arising from the creation or updating of outage notification templates, as the proposed 988 outage notification requirements share the same content and timing as the 911 outage notification requirements with which service providers already comply. The document estimates maximum annually recurring costs of $1,354,000, which consist of $1,326,000 for notifying 988 special facilities of outages that potentially affect them pursuant to the standards that we propose in this document and $28,000 for soliciting appropriate contact information for outage notification from 988 special facilities. The Commission expects that no costs will be incurred related to identifying the 988 special facilities that could potentially be affected by an outage, as the document has proposed that the same three special facilities (SAMHSA, the VA, and the 988 Lifeline administrator) be notified regardless of the geographic area affected by the outage.

27. The document seeks comment on this analysis. How many outages that potentially affect 988 special facilities are estimated to be occurring annually that would be subject to the notification requirements that we propose in this document, and what is the basis for that estimate? In the event that we were to designate local crisis centers as 988 special facilities, we seek comment on the costs related to the notification of those facilities. Are there steps that can be taken to minimize those costs, such as SAMHSA or the 988 Lifeline administrator agreeing to regularly share updated lists of designated contacts directly with service providers so the local crisis centers do not need to be contacted individually? To what extent have service providers already implemented a notification framework for 911 or other services that would reduce any costs associated with our proposal? The document seeks comment on the extent to which service providers have set up automated triggers for other forms of notifications, whether they may be able to leverage automatic triggers they may already have in place for PSAP notifications, and what costs would be involved.

28. The document seeks comment on additional benefits and costs as well as alternative quantifications of benefits and costs from the proposed rules. The Commission recognizes that it is difficult to quantify the value of continuity of access to 988 service, which includes its capacity to save lives and mitigate and prevent injuries. However, the Commission believe the considerable public safety value of the proposals adopted in this document as described above will exceed the limited costs of implementation, and seeks comment on our assessment. The Commission encourages commenters to quantify both specific costs and benefits that would result from adoption of the proposed notice and reporting requirements.

29. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, the document seeks comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority.

30. The document proposes to set a compliance date for these proposed rules at the later of (1) 30 days after the Commission issues a Public Notice announcing that the Office of Management and Budget (OMB) has completed review of any new information collection requirements associated with the adopted Report and Order; or (2) 90 days after the publication of final rules in the Federal Register . The Commission believe that the revisions proposed constitute only minor changes to existing procedures and it will take a modest amount of time for covered 988 service providers to adjust their processes to meet the proposed rules because the proposed requirements are closely aligned with the notice and reporting requirements for 911 network outages. The document seeks comment on this assessment. The document also seeks comment on whether allowing additional time for small- and medium-sized businesses to comply with the requirements we propose in this document would serve the public interest.

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

32. In this proceeding, the Commission takes steps to improve the reliability and resiliency of telecommunications networks nationwide and 988 Lifeline network specifically, so that the American public can continue to reach the 988 Suicide & Crisis Lifeline (988 Lifeline) without undue delay or disruption. The document seeks comment on 988 Lifeline outage reporting and notification requirements that are similar to the Commission's rules for reporting 911 outages that would be applicable to originating service providers and proposes outage reporting and notification requirements for a new category of “covered 988 service providers.” The new “covered 988 service providers” category would be defined as those providers that provide the 988 Lifeline with capabilities such as the ability to receive, process, or forward calls. Both the originating service providers and the covered 988 service providers would be required to file 988 outage reports with the Commission, in the Commission's Network Outage Reporting System (NORS).

33. The document seeks comment on whether cable, satellite, wireless, wireline, and interconnected VoIP providers should be required to notify 988 special facilities about outages that affect these facilities pursuant to notification obligations that mirror the Commission's existing 911 special facility notification requirements. The document seeks comment on the appropriate threshold to trigger reporting, including whether it should include outages potentially affecting at least 900,000 user-minutes and/or the outage lasts 30 minutes or more, or whether the absence of a call reroute should be a factor. For covered 988 service providers, the document proposes to require these providers notify the Commission of outages resulting in a loss of the ability of the 988 Suicide & Crisis Lifeline to receive, process, or forward calls for at least 30 minutes in duration. The document also proposes to designate SAMHSA, the VA, and the 988 Lifeline administrator as the 988 special facilities that must be notified of an outage that potentially affects a 988 facility.

34. Additionally, for covered 988 service providers the document proposes that the 988 outage notification to 988 special facilities include specific content requirements, the means by which notification must be made, the timing to file the initial and follow-up notice, and the filing of an annual verification that a provider's information for 988 special facilities is up to date. Further, in the document we set a proposed compliance deadline of the later of 30 days after the Commission issues a Public Notice announcing that OMB has completed review of any new information collection requirements associated with the final rules adopted in a Report and Order; or (2) 90 days after the publication of final rules in the Federal Register . We seek comment on all of the proposals we make in the document, and on the benefits and costs analyses we discuss for the proposals. We also seek comment on applying similar provisions to originating service providers as to notice parameters and implementation timeframes.

35. The Commission believes the significant public safety benefits which include the capacity to save lives, mitigate, and prevent injuries furthers the public interest and outweighs the implementation costs for service providers if the proposed rules are adopted. Since the 988 outage notification requirements proposed in the document are closely aligned with the existing notice and reporting requirements for 911 network outages, we also believe implementation by cable, satellite, wireless, wireline, interconnected VoIP, and covered 988 service providers will only require minor changes to existing processes and procedures.

36. The proposed action is authorized pursuant Sections 1, 4(i), 4(j), 4(n), 201(b), 214, 218, 251(e)(3), 251(e)(4), 301, 303(b), 303(g), 303(r), 307, 309(a), 332, and 403, of the Communications Act of 1934, as amended, and sections 3(b) and 6 of the Wireless Communications and Public Safety Act of 1999, as amended, 47 U.S.C. 151, 154(i), 154(j) 154(n), 201(b), 214, 218, 251(e)(3), 251(e)(4), 301, 303(b), 303(g), 303(r), 307, 309(a), 332, 403, 615, 615a-1, the National Suicide Hotline Improvement Act of 2018, Public Law 115-233, 132 Stat. 2424 (2018), and the National Suicide Hotline Designation Act of 2020, Public Law 116-271 (2020).

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

38. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

39. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

40. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

41. Cable and Other Subscription Programming. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA small business size standard for this industry classifies firms with annual receipts less than $41.5 million as small. Based on U.S. Census Bureau data for 2017, 378 firms operated in this industry during that year. Of that number, 149 firms operated with revenue of less than $25 million a year and 44 firms operated with revenue of $25 million or more. Based on this data, the Commission estimates that a majority of firms in this industry are small.

42. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standard for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Based on industry data, there are about 420 cable companies in the U.S. Of these, only seven have more than 400,000 subscribers. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Based on industry data, there are about 4,139 cable systems (headends) in the U.S. Of these, about 639 have more than 15,000 subscribers. Accordingly, the Commission estimates that the majority of cable companies and cable systems are small.

43. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” For purposes of the Telecom Act Standard, the Commission determined that a cable system operator that serves fewer than 677,000 subscribers, either directly or through affiliates, will meet the definition of a small cable operator based on the cable subscriber count established in a 2001 Public Notice. Based on industry data, only six cable system operators have more than 677,000 subscribers. Accordingly, the Commission estimates that the majority of cable system operators are small under this size standard. We note however, that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

44. Incumbent Local Exchange Carriers. Neither the Commission nor the SBA have developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 1,227 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 929 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

45. Local Exchange Carriers. (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

46. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

47. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $38.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, a little more than of these providers can be considered small entities.

48. Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms operated in this industry for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 811 providers that reported they were engaged in the provision of local or toll resale services. Of these providers, the Commission estimates that 784 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

49. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

50. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

51. Wireless Communications Services. Wireless Communications Services (WCS) can be used for a variety of fixed, mobile, radiolocation, and digital audio broadcasting satellite services. Wireless spectrum is made available and licensed for the provision of wireless communications services in several frequency bands subject to part 27 of the Commission's rules. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with an SBA small business size standard applicable to these services. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small. The Commission's small business size standards with respect to WCS involve eligibility for bidding credits and installment payments in the auction of licenses for the various frequency bands included in WCS. When bidding credits are adopted for the auction of licenses in WCS frequency bands, such credits may be available to several types of small businesses based average gross revenues (small, very small and entrepreneur) pursuant to the competitive bidding rules adopted in conjunction with the requirements for the auction and/or as identified in the designated entities section in part 27 of the Commission's rules for the specific WCS frequency bands.

52. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

53. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

54. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable industry with an SBA small business size standard is Wireless Telecommunications Carriers (except Satellite). The size standard for this industry under SBA rules is that a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 407 providers that reported they were engaged in the provision of cellular, personal communications services, and specialized mobile radio services. Of these providers, the Commission estimates that 333 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

55. Wireless Carriers and Service Providers. Wireless Telecommunications Carriers ( except Satellite) is the closest industry with a SBA small business size standard applicable to these service providers. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

56. The document proposes revisions to outage notification requirements that will impose new or additional reporting, recordkeeping, notice and other compliance requirements on small entities required to report outages affecting 988 Lifeline services. If the rules proposed in the document are adopted, covered 988 service providers would be required to report to the Commission and provide notice to 988 special facilities about outages that potentially affect 988 special facilities. These service providers would be required to: (1) report outages that potentially affect 988 special facilities using NORS, and following processes and procedures similar to the Commission's existing reporting for outages that potentially affect 911; (2) submit notifications, initial reports, and final reports to the Commission consistent with the timing and content requirements proposed in the document, when they experience an outage that potentially affects a 988 special facility; (3) provide notice of 988 outages that potentially affect a 988 special facility to the designated 988 special facilities, including SAMHSA, the VA, and the 988 Lifeline administrator; and (4) make an annual filing verifying that they are maintaining up-to-date contact information for 988 special facilities. The document seeks comment on similar obligations for cable, satellite, wireless, wireline, and interconnected VoIP providers.

57. The Commission is not currently in a position to determine whether, if adopted, the proposed rules in the document will require small entities to hire attorneys, engineers, consultants, or other professionals to comply. We note, however, that some originating service providers and covered 988 service providers are already subject to compliance with outage reporting obligations that would facilitate their ability to comply, and may reduce any compliance burdens associated with the proposed 988 outage reporting and notification requirements, if adopted. For example, some originating service providers and covered 988 service providers already must comply with the Commission's rules on network outage reporting and 911 outage reporting. In addition, many service providers are likely to already have documented procedures for notifying affected facilities of outages that potentially affect them, and for those that do not, Alliance for Telecommunications Industry Solutions (ATIS) Network Reliability Steering Committee (NRSC) Task Force documents can serve as a useful guide.

58. As discussed in the document, we anticipate that originating service providers are already required to report the vast majority of outages (if not virtually all outages) that prevent 988 calls from successfully completing to the Commission under our existing outage reporting requirements. Therefore we expected small entities who are subject to these requirements will only incur incremental costs to implement the proposed 988 outage reporting requirements. To the extent that there are 988 outages that are not currently reported to the Commission, we expect that those would be outages experienced by covered 988 service providers that are responsible for receiving, processing, or forwarding 988 calls. We expect that these service providers are already submitting outage reports to the Commission related to other aspects of their operations, and anticipate that these providers will likewise only incur incremental costs to comply with the proposed 988 requirements.

59. In the assessment of the potential costs for service providers to report 988 outages to the Commission discussed in the document, we assume that one covered 988 service provider experiences a maximum of one reportable outage per month. We estimate an annual compliance cost of $1,920 for a provider that experiences a reportable outage based on the estimate that a maximum of two hours total time would be necessary for an employee to prepare and submit all of the required reports to the Commission—15 minutes to complete each notification, a maximum of 45 minutes for each initial report, 60 minutes for each final report, and a labor cost of $80 per hour for one employee. Based on this assessment. We do not expect the actual cost for implementation and compliance with the proposed outage reporting rules for small entities to be significant, however we have requested comments on our estimates and assessment. With regard to the proposed requirements for providers to maintain updated contact information for 988 special facilities and to notify those facilities about 988 outages that potentially affect them, we expect the costs of compliance for providers will also be very low and should not be significant for small entities. More specifically, we estimate a one-time total cost of $50,000 for all providers to create an email survey to biannually solicit 988 special facility contact information. We further estimate maximum annually recurring costs of $1,283,000, for all providers, consisting of $1,258,000 for notifying 988 special facilities of outages pursuant to the standards that we propose in this document and $25,000 to maintain up to date 988 special facility contact information for outage notifications. No costs should be incurred related to identifying the 988 special facilities that could potentially be affected by an outage since we have proposed that the three designated special facilities (SAMHSA, the VA, and the 988 Lifeline administrator) be notified regardless of the geographic area affected by the outage.

60. Based on the above discussion, we do not believe that the costs associated with any of the proposal rule changes in the document will unduly burden small entities. However, we have sought comments from the parties in the proceeding and requested cost and benefit information which may help the Commission identify and evaluate relevant costs and other matters for small entities. We anticipate the proposed rule changes will enable 988 special facilities to accelerate the public's ability to reach the 988 Lifeline during an outage, thereby reducing the probability of lives being lost during such an outage. Moreover, the value of this result and the other public safety benefits generated by our 988 outage notification and reporting requirement proposals outweigh the estimated costs to providers, and therefore is in the public.

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

62. In the document, the Commission continues to facilitate the reliability of the 988 Lifeline network and meet its public safety obligations for oversight of the integrity of the 988 communications infrastructure by proposing measures to ensure that 988 special facilities can expect consistent and timely outage notifications whenever there is an outage that potentially affects 988 Lifeline service. While doing so, the Commission is mindful that small entities and other covered 988 service providers may incur costs should the proposals we make, and the alternatives upon which we seek comment in the document, be adopted.

63. The Commission has taken several steps that could reduce the economic impact for small entities. First, the elements for 988 outage reporting that we propose largely track the same standards applicable to 911 outage reporting. For example, the document proposes to use NORS for 988 outage reporting, which is already used for 911 outage reporting. The document also seeks comment on using the 911 outage duration and user minute thresholds to trigger the 988 outage reporting requirements. Therefore, to the extent small entities have or will implement the 911 outage reporting requirements already adopted by the Commission, compliance with 988 reporting requirements should not impose significant additional costs.

64. We considered whether there are any special characteristics of 988 calls that would make it more effective or efficient for the Commission to adopt alternative outage reporting requirements that do not resemble the reporting requirements for 911 or other communications outages; whether our proposed outage duration and user minute thresholds are appropriate, and whether there may be information that is unique to 988 outages that we should require to be included in an outage report due to its value in understanding the cause or impacts of such an outage, and determined that seeking comment from providers on these issues could provide more comprehensive insight on these issues. In comments, small entities can include any steps that we have not already proposed to prevent the costs of our proposals from being unduly burdensome for them. Small entities can also identify which proposed requirements are particularly difficult or costly for them, and how different, simplified, or consolidated requirements would address those difficulties, and propose any modifications or exemptions from the proposed requirements discussing the effect of any such modifications on public safety, and the reliability of 988 Lifeline operations. For the alternatives we discuss in the document, or that are subsequently filed in comments, we have requested that commenters address the costs and benefits. We have also sought comment on the costs and benefits of implementing and maintaining the 911 procedures for 988 outage notification and reporting.

65. To increase public awareness of 988 availability and to help protect the public's safety when 988 services are disrupted, we have proposed SAMHSA, the VA, and the 988 Lifeline administrator as the designated 988 special facilities to receive notification of outages. In the document however, we also seek comment on whether there are additional entities that should receive notice, whether covered 988 service providers should give notice to originating service providers when an outage occurs to notify their customers of 988 outages, and whether PSAPs should be notified so they can be prepared for call volume increases. We propose that notifications be made by telephone and in writing by electronic means, and also give providers the flexibility to provide notice by alternative means if mutually agreed upon in writing in advance by the 988 special facility and the provider, as we currently allow covered 911 service providers to do. We believe that this means of communication will not be a very resource intensive or costly method for small entities and other service providers to provide notice. We seek comment on this approach in the document and on requiring other methods of notification, which may identify additional opportunities to reduce costs for small entities and other providers.

66. Next, our actions specifically seeking comment on whether the public interest would be served by allowing additional time for small and medium-sized businesses to comply, could reduce the economic impact for small entities. In doing so, we have provided small entities the opportunity to address whether and how they would benefit from different reporting requirements or timetables that take into account their limited resources; simplification or consolidation of reporting requirements for small entities; or an exemption from any reporting requirements.

67. The Commission expects to consider more fully the economic impact on small entities following its review of any comments filed in response to the document, including any costs and benefits information we receive. The Commission's evaluation of the comments filed in this proceeding will shape the final alternatives we consider, the final conclusions we reach, and any final actions we ultimately take in this proceeding to minimize any significant economic impact that may occur on small entities.

68. None.

The Federal Communications Commission proposes to amend chapter I of title 47 of the Code of Federal Regulations as follows:

This is a summary of the Commission's Further Notice of Proposed Rulemaking ( FNPRM ), in CG Docket Nos. 02-278 and 21-402; FCC 23-21, adopted on March 16, 2023 and released on March 17, 2023. The full text of this document is available online at https://docs.fcc.gov/public/attachments/FCC-23-21A1.pdf.

This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

The Further Notice of Proposed Rulemaking ( FNPRM ) may contain proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on any information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how to further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. In this FNPRM, the Commission seeks comment on additional protections for consumers against illegal robotexts. The Commission first seeks comment on whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams. The Commission also seeks comment on text message authentication. In addition, the Commission proposes to extend the National Do-Not-Call (DNC) Registry protections to marketing text messages. Finally, the Commission seeks to ban the practice of obtaining a single consumer consent as justification for calls and texts from multiple, sometimes hundreds, of sellers and potential fraudsters.

2. First, the Commission proposes to require terminating mobile wireless providers to investigate and potentially block texts from a sender after they are on notice from the Commission that the sender is transmitting suspected illegal texts, similar to our requirement for gateway providers with respect to voice calls. Where texts are clearly illegal, and the Commission has put providers on notice of the illegal texts, mobile wireless providers should have no legitimate reason to transmit the texts. The Commission therefore seeks comment on extending this approach, which is in place for call blocking, to text blocking.

3. Specifically, the Commission's rules (in 47 CFR 64.1200(n)(5)) require the Commission's Enforcement Bureau to issue a Notification of Suspected Illegal Traffic that: (1) identifies with as much particularity as possible the suspected illegal traffic; (2) provides the basis for the Enforcement Bureau's reasonable belief that the identified traffic is unlawful; (3) cites the statutory or regulatory provisions the suspected illegal traffic appears to violate; and (4) directs the provider receiving the notice that it must comply with the requirements in section 64.1200(n)(5) of the Commission's rules by a specified date that gives the provider a minimum of 14 days to comply. Notified gateway voice providers must then promptly investigate the identified traffic and either block the identified traffic and substantially similar traffic on an ongoing basis or respond to the Commission that the provider has a reasonable basis for concluding that the identified calls are not illegal. If a provider fails to comply, the Commission established a process through which the Enforcement Bureau can require all providers immediately downstream from that gateway provider to block all traffic from that provider.

4. The Commission seeks comment on whether there are any differences between calling and texting that would suggest that this model would not work well for texting. The Commission seeks comment on the cost to providers of implementing such a requirement. The Commission also seeks comment on whether providers and the Commission's Enforcement Bureau can properly trace text messages to their originating provider to effectuate these rules. Are there additional requirements the Commission should adopt to ease any traceback efforts for text messaging? Because providers state that they already do a considerable amount of text blocking, the Commission does not expect the proposal to impose material additional costs. The Commission seeks comment on these questions specifically and this recommendation generally.

5. Second, the Commission seeks comment on the extent of number spoofing and if there are other solutions that are better targeted to address the problem of spoofed text messages. In the robocalling context, the Commission has found that a subset of small voice service providers are responsible for a large number of illegal robocalls. The Commission seeks comment on whether a similar dynamic at issue with robotexts. If so, how might the Commission target these specific providers? How might the Commission encourage industry members to collaborate and finalize technical solutions for authenticating text messages and mitigating illegal text messages? For example, should the Commission adopt a deadline for providers to develop a text message authentication solution or an alternative technical solution for addressing the problem of spoofed text messages? Commenters should address how the Commission can ensure non-discriminatory policies in adopting text authentication measures.

6. Third, the Commission proposes to clarify that the National Do-Not-Call Registry protections apply to text messages as well as voice calls and to codify this clarification in the Commission's rules. The National DNC Registry has been operational for almost two decades and currently protects over 246 million telephone numbers from telemarketing sales calls, or telephone solicitations. As such, it represents a critical component of the policy strategy against unwanted calls. Although the Commission has stated that text messages are calls for Telephone Consumer Protection Act (TCPA) purposes, it has not explicitly included text messages in the codified DNC rules that protect wireless phone subscribers by requiring prior express invitation or permission in writing for calls to wireless numbers on the National DNC Registry. The Commission's rules require that, before sending a marketing text to consumers, the texter must have the consumer's prior express invitation or permission, which must be evidenced by a signed, written agreement between the consumer and seller, which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.

7. The Commission seeks comment on whether codifying the DNC protections to marketing texts further protect consumers from unwanted marketing text messages. We note that the DNC protections do not depend on whether the caller uses an autodialer, unlike some provisions of the TCPA. The Commission seeks comment on whether the proposal would also represent an important codification of consumer protections. Are there downsides to the proposal?

8. Finally, the Commission proposes to ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent. In an illustration of the issue, Assurance IQ describes a website that purports to enable consumers to comparison shop for insurance. The website sought consumer consent for calls and texts from insurance companies and other various entities, including Assurance IQ's partner companies that were listed in a hyperlink on the web page ( i.e., they were not displayed on the website without clicking on the link) and the list of partner companies included both insurance companies and other entities that did not appear to be related to insurance. The telemarketer that obtains the consumer's contact information from the lead generator may believe that it has the consumer's prior express consent, but, commenters argue, the consumer has not consented to the particular caller or callers, which may be listed as partner companies in these arrangements.

9. The Commission seeks comment on amending the TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page. The Commission has not addressed this aspect of consent in the past. Would this proposal better protect consumers from receiving large numbers of calls and texts they do not wish to receive when they visit websites such as comparison shopping websites? Consumers may find comparison shopping websites helpful; how can we ensure that they can consent to obtain further information from the site without receiving numerous calls and texts from unrelated companies? Commenters should discuss whether the proposal would limit the value of comparison-shopping sites to consumers. Are there alternatives that would better protect consumers from the harms identified? The Commission also seeks comment on whether prior express consent to receive calls or texts must be made directly to one entity at a time. More broadly, the Commission seeks comment on the extent of the problem, the proposed rule, and whether the proposed rule will clarify consent and help to eliminate illegal text messages and calls. Are there different or additional limitations on multi-party consent the Commission should consider?

10. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies proposed in this FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM, provided on the first page of the FNPRM. The Commission will send a copy of the entire FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

11. Need for, and Objectives of, the Proposed Rules. The FNPRM seeks comment on several issues, specifically, (i) whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams; (ii) text message authentication; (iii) extending Do-Not-Call protections to marketing text messages; and (iv) banning the practice of obtaining a single consumer consent as justification for calls and texts from multiple sellers and potential fraudsters.

12. Legal Basis. This action, including publication of proposed rules, is authorized under sections 4(i), 4(j), 201(b), 227(e), 254, 257, 301, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 201(b), 227(e), 254, 257, 301, and 303.

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

14. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

15. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

16. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments-independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

17. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

18. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

19. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities . This FNPRM may include a change to the Commission's current information collection, reporting, recordkeeping, or compliance requirements.

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

21. The FNPRM seeks comment on (i) whether to require terminating mobile wireless providers to block text messages when notified by the Commission that they are likely scams; (ii) text message authentication; (iii) extending Do-Not-Call protections to marketing text messages; and (iv) banning the practice of obtaining a single consumer consent as justification for calls and texts from multiple sellers and potential fraudsters.

22. These proposals would probably not be burdensome for small entities. The proposal to require those seeking consent from consumers to a list of entities, to clearly and conspicuously display the list where consent is requested would, if adopted, prevent those lead generators or telemarketers from failing to advise the consumer of the list of entities; instead the list would be displayed where the consent is requested. This should not be burdensome to small entities, as it merely requires disclosing the list where consent is requested, instead of in a hyperlink, and should reduce unwanted text messages and calls to consumers. The proposal to include texts in the DNC rules should not have an impact on small entities. Wireline and wireless phones are already included and this would just clarify that not only calls to wireless phones on the DNC list are covered, but text messages, too. The Commission anticipates that these rules, if adopted, would also reduce unwanted calls and texts to small entities. The proposal to require service providers to block texts after notice from the Commission of suspected illegality, including fraud should not be burdensome for small entities. Mobile wireless providers are already diligent in blocking fraudulent calls and texts to their customers and this would assist them in those efforts.

23. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

For the reasons discussed in the preamble, the Federal Communications Commission proposed to amend 47 CFR part 64 as follows:

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ), in WC Docket Nos. 12-375 and 23-62; FCC 23-19, adopted on March 16, 2023 and released on March 17, 2023. The full text of this document is available on the following internet address: https://docs.fcc.gov/public/attachments/FCC-23-19A1.pdf.

1. Nearly twenty years have passed since Martha Wright-Reed and her fellow petitioners first sought Commission relief from the exorbitant telephone rates they had to pay to talk to their incarcerated family members. More than a decade has passed since the Commission began to respond to those petitioners' request and embarked on a process to pursue just and reasonable rates for telephone calls between incarcerated people and their loved ones. The Commission's ability to achieve that objective, however, was limited by statutory provisions, as explained by the United States Court of Appeals for the District of Columbia Circuit in Global Tel*Link v. FCC ( GTL v. FCC ). Recently, Congress, through the Martha Wright-Reed Act, addressed these limitations and significantly expanded the Commission's jurisdiction over incarcerated people's communications services. In response to the D.C. Circuit's decision, and recognizing the increasing role of advanced communications, including video, in connecting incarcerated people with their families and friends, Congress now expressly directs that the Commission “ensure just and reasonable charges for telephone and advanced communications services in correctional and detention facilities.”

2. In this item, the Commission builds on its efforts to date, bolstered by the new tools Congress has bestowed, and begins the process of implementing the Martha Wright-Reed Act to adopt just and reasonable rates and charges for incarcerated people's audio and video communications services. This item continues ongoing efforts to reform providers' rates, charges, and practices in connection with interstate and international inmate calling services. At the same time, this item initiates a new docket, WC Docket No. 23-62, to specifically address implementation of, and changes required by, the provisions of the Martha Wright-Reed Act. The Commission seeks comment on how it should interpret the Act's language to ensure that it implements the statute in a manner that fulfills Congress's intent. The Commission also seeks comment on how the Act affects the Commission's ability to ensure that such services and associated equipment are accessible to and usable by incarcerated people with disabilities.

3. On January 5, 2023, President Biden signed into law the Martha Wright-Reed Act. Martha Wright-Reed Act, Public Law 117-338, 136 Stat. 6156. The Act was the product of efforts by multiple individuals and committed stakeholders over a number of years to comprehensively address the persistent problem of unreasonably high rates and charges incarcerated people and their families pay for communications services. At its core, the Act removes the principal statutory limitations that have prevented the Commission from setting comprehensive and effective just and reasonable rates for incarcerated people's communications services.

4. Specifically, the Martha Wright-Reed Act modifies section 276 of the Communications Act to explicitly enable the Commission to require that rates for incarcerated people's communications services be just and reasonable, irrespective of the “calling device” used. It also expands the definition of payphone service in correctional institutions to encompass all advanced communications services (other than electronic messaging), including “any audio or video communications service used by inmates . . . regardless of technology used.” In addition, the new statute amends section 2(b) of the Communications Act to make clear that the Commission's jurisdiction extends to intrastate as well as interstate and international communications services used by incarcerated people. And, in direct response to the GTL v. FCC decision, the Act expressly allows the Commission to “use industry-wide average costs,” as well as the “average costs of service of a communications service provider” in setting just and reasonable rates. The Martha Wright-Reed Act also requires that the Commission “shall consider,” as part of its ratemaking, “costs associated with any safety and security measures necessary to provide” telephone service and advanced communications services. Finally, the statute directs the Commission to promulgate regulations necessary to implement the statutory provisions not earlier than 18 months and not later than 24 months after the date of its enactment.

5. In 2003, Martha Wright and her fellow petitioners, then-current and former incarcerated people and their relatives and legal counsel (collectively, the Wright Petitioners) filed petitions seeking a rulemaking to address “excessive” rates for incarcerated people's telephone services. The Wright Petitioners filed an alternative petition in 2007, in which they emphasized the urgent need for the Commission to act on “exorbitant” rates for calling services for incarcerated people. In 2012, the Commission commenced a rulemaking proceeding, releasing the 2012 ICS Notice, 78 FR 4369, January 22, 2013, seeking comment on the Wright Petitioners' petitions and on establishing rate caps for interstate calling services for incarcerated people. Unless specifically noted, references herein to “interstate” include both interstate and international communications services.

6. In the 2013 ICS Order, 78 FR 67956, November 13, 2013, that followed, the Commission adopted interim interstate rate caps and adopted the Commission's first mandatory data collection regarding inmate calling services (ICS), requiring all providers of those services to submit data on their underlying costs of service. It also adopted an annual reporting obligation requiring providers to provide specific information on their operations, including their rates and ancillary service charges.

7. In 2015 ICS Order, 80 FR 79135, December 18, 2015, in light of record evidence of continued “egregiously high” rates, the Commission adopted a comprehensive framework for regulating rates and charges for both interstate and intrastate calling services for incarcerated people, re-adopting the interim interstate rate caps, and extending them to intrastate calls. The Commission used industry-wide average costs based on data from the First Mandatory Data Collection, explaining that this approach would allow providers to “recover average costs at each and every tier.” The Commission readopted the interim interstate rate caps it had adopted in 2013 and extended them to intrastate calls, pending the effectiveness of the new rate caps. The Commission also adopted a Second Mandatory Data Collection to enable it to identify trends in the market and adopt further reforms.

8. As part of that framework, the Commission concluded that site commissions—payments made by inmate calling providers to correctional facilities or state authorities—were not costs reasonably related to the provision of inmate calling services and thus excluded those payments from the cost data used to set the rate caps. The Commission's rules define “Site Commissions” to mean “any form of monetary payment, in-kind payment, gift, exchange of services or goods, fee, technology allowance, or product that a Provider of Inmate Calling Services or affiliate of a Provider of Inmate Calling Services may pay, give, donate, or otherwise provide to an entity that operates a correctional institution, an entity with which the Provider of Inmate Calling Services enters into an agreement to provide Inmate Calling Services, a governmental agency that oversees a correctional facility, the city, county, or state where a facility is located, or an agent of any such facility.”

9. In 2016, the Commission continued its reform of the inmate calling services marketplace by, among other things, amending its rate caps to better allow inmate calling service providers to recover costs incurred as a result of providing such services, including certain correctional facility costs that the Commission found, based on the record then before it, were reasonably and directly related to the provision of inmate calling services.

10. Several parties appealed the Commission's 2015 ICS Order, as well as a subsequent Commission Order on Reconsideration. The D.C. Circuit addressed the appeal of the 2015 ICS Order in its 2017 decision in GTL v. FCC, holding that the Commission lacked statutory authority to regulate intrastate rates and vacating the intrastate rate caps adopted in the 2015 ICS Order. The Court also ruled that the Commission's use of industry-wide average costs to set its interstate rate caps “lack[ed] justification in the record and [was] not supported by reasoned decisionmaking” in the Order, and it vacated a reporting requirement related to video visitation services, finding the requirement was “too attenuated to the Commission's statutory authority.”

11. Finally, the Court concluded that the “Commission's categorical exclusion of site commissions from the calculus used to set [inmate calling services] rate caps defie[d] reasoned decision making because site commissions obviously are costs of doing business incurred by [inmate calling services] providers.” The Court directed the Commission to “assess on remand which portions of site commissions might be directly related to the provision of [inmate calling services] and therefore legitimate, and which are not.”

12. Subsequently, in its 2020 ICS Notice, 85 FR 67480, October 23, 2020, the Commission sought comment on, among other things: (1) its proposal to lower the interstate rate caps on an interim basis and cap international rates; (2) the steps necessary to address unreasonable rates; and (3) the methodology to be employed in setting permanent interstate and international rate caps. Subsequently, the Commission released the comprehensive 2021 ICS Order, 86 FR 40340, July 28, 2021, in which, among other actions, it reformed the treatment of site commissions, set new interim interstate rate caps for prisons and jails with average daily populations of 1,000 or more incarcerated people, and capped international calling rates for the first time.

13. In the 2021 ICS Order, the Commission also sought to improve the data it collected on calling services for incarcerated people as part of its efforts to set reasonable permanent rate caps. It delegated authority to the Wireline Competition Bureau (WCB) and the Office of Economics and Analytics (OEA) to establish a Third Mandatory Data Collection to collect uniform cost data to use in setting rate caps that more closely reflect inmate service providers' costs of providing service at correctional facilities. After seeking public comment, in January 2022, WCB and OEA released an Order adopting the data collection. Parties' responses to the Third Mandatory Data Collection were due June 30, 2022, and the Commission affirmatively incorporated those responses into the record in this proceeding.

14. Finally, in September 2022, while analyzing the data from the Third Mandatory Data Collection, the Commission issued the 2022 ICS Order, 87 FR 75496, December 9, 2022, which adopted requirements to improve access to communications services for incarcerated people with communication disabilities and targeted reforms to lessen the financial burden on incarcerated people and their loved ones when using calling services. The Commission also issued the 2022 ICS Notice, 87 FR 68416, November 15, 2022, seeking additional stakeholder input and evidence relating to additional reforms concerning incarcerated people with communication disabilities and providers' rates, charges, and practices in connection with interstate and international calling services. Among other things, the 2022 ICS Notice sought comment on how to use inmate calling services providers' responses to the Mandatory Data Collections to establish “reasonable, permanent caps on rates and ancillary service charges for interstate and international calling services for incarcerated people.”

15. The ability to communicate through affordable audio and video communications is essential to allowing incarcerated people to stay connected to their family and loved ones, clergy, counsel, and other critical support systems. Studies consistently show that incarcerated people who have regular contact with family members are more likely to succeed after release and have lower recidivism rates. The Commission interprets the Martha Wright-Reed Act as providing it with the authority it needs to ensure that the charges associated with communications services for incarcerated people are just and reasonable and do not create an unnecessary deterrent to their ability to stay connected with the world outside their correctional facilities. The Commission invites comment on this interpretation.

16. Historically, the Commission used the term “inmate calling services” or “ICS” when referencing payphone service in the incarceration context. The Commission will now use the term “incarcerated people's communications services” or “IPCS” instead of “inmate calling services” or “ICS” to refer to the broader range of communications services subject to the Commission's jurisdiction as a result of the Act. In connection with this change in terminology, the Commission is also changing references to “inmates” to “incarcerated people” at the request of public interest advocates. The Commission seeks comment on codifying this updated terminology.

17. As a threshold matter, the Commission interprets the Martha Wright-Reed Act, taken as a whole, as enhancing and supplementing its existing jurisdiction, and effectively addressing the constraints imposed by the D.C. Circuit's interpretation of the Commission's jurisdiction in GTL v. FCC, and seeks comment on this interpretation. Specifically, the Commission interprets the statute as expanding its existing jurisdiction over communications services for incarcerated people as specified in the technical amendments and implementation sections of the law. The Martha Wright-Reed Act does not contain language limiting the Commission's pre-existing authority over international services. As a result, the Commission's authority over international services remains intact and will now include all incarcerated people's international communications services covered by the statute. In the Commission's view, through this Act, Congress effectively granted the Commission broad, plenary authority over the rates and charges for “any [inmate] audio or video communications service.” The Commission proposes to read the Act, in the context of the GTL decision and its aftermath, as removing any limitations on the Commission's authority over incarcerated people's audio and video communications services and empowering the Commission to prohibit unreasonably high rates and charges for, and in connection with, all such services, including intrastate services. The Commission seeks comment on this interpretation. To the extent that parties have a more limited view of the Commission's authority or suggest that the Commission must make additional jurisdictional findings, the Commission asks that the parties describe in detail those limits and additional findings. The Commission further seeks comment on the ultimate goal of Congress in passing the Martha Wright-Reed Act, described in the legislative history as legislation that “will help reduce financial burdens that prevent [incarcerated] people from being able to communicate with loved ones and friends.”

18. The Commission encourages all parties to comment on the issues raised in the NPRM, and specifically invites previous participants in the proceeding to update their prior submissions to reflect changed circumstances stemming from the passage of the Martha Wright-Reed Act. The Commission thus seeks renewed comment on all the issues raised in its prior Notice of Proposed Rulemakings in light of the statutory amendments contained in the Martha Wright-Reed Act. The Commission emphasizes that unresolved issues previously raised in WC Docket No. 12-375 remain pending and are now incorporated in this dual-captioned proceeding to be addressed in forthcoming Commission orders considering the record developed in response to the NPRM to the extent applicable. As part of their responses, parties are welcome to update filings previously submitted regarding these pending matters in light of the enactment of the Martha Wright-Reed Act.

19. Purpose and Scope of Martha Wright-Reed Act Amendments. As part of the commission's effort to fulfill Congress's directives in the Martha Wright-Reed Act, the Commission seeks comment on the effect of the amendments Congress made to the authority granted to the Commission in section 276(b)(1)(A) of the Communications Act. Do commenters agree that, taken as a whole, these amendments fundamentally expand the scope of the Commission's authority pursuant to sections 2(b) and 276 and effectively moot the concerns the D.C. Circuit raised about the Commission's jurisdiction in GTL v. FCC ?

20. Prior to the enactment of the Martha Wright-Reed Act, section 276(b)(1)(A) focused on requiring that service providers be “fairly compensated” for “each and every” completed call. Congress has now eliminated the “each and every” call language and added a new dimension to section 276 of the Communications Act by requiring the Commission to “establish a compensation plan to ensure that . . . all rates and charges” for incarcerated people's communications services “are just and reasonable.” The Commission seeks comment on whether the amendments to section 276(b)(1)(A) change the central focus of the section from ensuring that payphone service providers are “fairly compensated” for voice calls with little, if any, “considerations of fairness to the consumer,” to a more balanced approach emphasizing consumers' (particularly incarcerated people's) and providers' right to just and reasonable rates and charges for each audio and video communications service now encompassed within the statutory definition of “payphone service.” How should the Commission balance these interests going forward? Does the addition of “just and reasonable” inform the meaning of “fair compensation?” If not, how should the Commission interpret Congress's apparent emphasis on affordability for consumers? Conversely, does the requirement that providers be “fairly compensated” for completed calls inform the meaning of “just and reasonable?” In this regard, the Commission seeks comment, generally, on the relationship between the requirement that providers be “fairly compensated” and the requirement that their rates and charges be “just and reasonable.”

21. Relatedly, the Commission seeks comment on Congress's intent in striking the “per call” and “each and every [call]” language from section 276(b)(1)(A), particularly the effect of these changes to the “fairly compensated” requirement in the context of communications services for incarcerated people under this new Act. As originally conceived, the “fairly compensated” requirement of section 276(b)(1)(A) was designed to fix the specific problem of uncompensated payphone calls at that time. But the situation is quite different in the context of communications services for incarcerated people. Providers generally receive compensation for the calls they carry through the per-minute rates charged to consumers of calling services for incarcerated people. No other entity receives compensation for calls other than through a contractual arrangement with the provider. It is therefore difficult to discern what the “fairly compensated” requirement adds to the “just and reasonable” requirement in the context of communications services for incarcerated people, especially given the historical backdrop underlying this provision. Prior to the enactment of the Martha Wright-Reed Act, the Commission reasoned that “fair compensation” in the context of audio calling services for incarcerated people “does not mean that each and every completed call must make the same contribution to a provider's indirect costs. Nor does it mean a provider is entitled to recover the total `cost' it claims it incurs in connection with each and every separate inmate calling services call.” Instead, the Commission found compensation to be fair “if the price for each service or group of services `recovers at least its incremental costs, and no one service . . . recovers more than its stand-alone cost.' ”

22. The Commission interprets the elimination of the “per call” and “each and every [call]” language from section 276 as a signal of Congress's intent to restrict the application of the “fairly compensated” requirement with respect to communications services for incarcerated people by no longer requiring the Commission to ensure that its compensation plan allows for “fair” compensation for “each and every” completed call. The Commission seeks comment on this interpretation. This interpretation appears to be consistent with Congress's decision to allow the Commission to set rates based on average costs. Do commenters agree that the Commission is no longer required to ensure that providers are “fairly compensated” for every call they carry or facilitate? Does elimination of the “per call” language give the Commission additional flexibility to consider rates or rate caps that apply to units others than minutes? What independent meaning does the “fairly compensated” requirement have for communications services for incarcerated people in light of the other provisions of the Martha Wright-Reed Act, including the newly-added requirement to ensure “just and reasonable” rates and charges? For example, does the “fairly compensated” requirement circumscribe the Commission's analysis of “just and reasonable” rates? Does it require the Commission to ensure that providers are able to recover their costs of providing incarcerated people's communications services, at least on average, even if not on a per-call basis? Does the fair compensation requirement affect the Commission's analysis of other issues related to incarcerated people's communications services, such as the payment of site commissions or the imposition of ancillary service charges? The Commission seeks comment on these questions.

23. Other Calling Devices. The Martha Wright-Reed Act extends the Commission's authority over communications services to include not just incarcerated people's audio and video communications using traditional payphones, but also their communications using “other calling device[s].” Given the absence of additional qualifying language in the new statute, the Commission proposes to interpret “other calling device[s]” broadly to encompass all devices that incarcerated people either use presently or may use in the future to communicate with individuals not confined within the incarcerated person's correctional institution. Under this proposed interpretation, “other calling device[s]” would encompass all wireline and wireless phones, computers, tablets, and other communications equipment capable of sending or receiving the audio or video communications described in section 276(d), regardless of transmission format.

24. That interpretation also would encompass all wireline and wireless equipment, whether audio, video, or both, that incarcerated people with disabilities presently use to communicate, through any payphone service, with the non-incarcerated, including but not limited to videophones, captioned telephones, and peripheral devices for accessibility, such as braille display readers, screen readers, and TTYs. Where a person with a disability must use a peripheral device to access an advanced communications service or device, that service or device is required to be compatible with such peripheral devices, unless that is not achievable. The Commission's interpretation would also encompass other potential devices, not yet in use, to the extent incarcerated people use them in the future to communicate with people not confined within the incarcerated person's correctional institution. The Commission seeks comment on this proposal. Are there any additional devices that should be included within “other calling device[s]”? Conversely, are there any devices that are excluded from the Commission's jurisdiction? If so, what is the statutory basis for concluding that Congress intended to exclude audio or video communications using those devices from the Commission's jurisdiction?

25. Just and Reasonable. The Commission next seeks comment on the Martha Wright-Reed Act's addition to section 276(b)(1)(A) requiring that the Commission “establish a compensation plan to ensure that . . . all rates and charges” for incarcerated people's communications services be “just and reasonable.” This language mirrors the “just and reasonable” language in section 201(b) of the Communications Act and other federal statutes, which has a long interpretive history.

26. The “traditional regulatory notion of the `just and reasonable' rate was aimed at navigating the straits between gouging utility customers and confiscating utility property.” Setting “just and reasonable” rates therefore “involves a balancing of the investor and the consumer interests.” Given the parallel between the “just and reasonable” language in section 276(b)(1)(A) and the same language in section 201(b) and other federal statutes, the Commission proposes to interpret “just and reasonable” in section 276(b)(1)(A) to have the same meaning given to that term in section 201(b) and relevant precedent interpreting that standard in the ratemaking context. The Commission seeks comment on this proposal. To the extent commenters disagree, how should the Commission understand the “just and reasonable” requirement in section 276(b)(1)(A) and how would the Commission distinguish between the “just and reasonable” requirement in section 276(b)(1)(A) and the “just and reasonable” requirement in section 201(b) if they are not the same?

27. The Commission also seeks comment on how the “just and reasonable” standard in section 276(b)(1)(A) relates to the issue of site commission payments. How should section 276(b)(1)(A)'s requirement that rates for communications services for incarcerated people be “just and reasonable” affect the Commission's treatment of site commission payments? In implementing the “just and reasonable” requirement in section 201(b), the Commission traditionally relies on the “used and useful” framework to separate costs and expenses that may be recovered through rates from those that may not.

28. Under the “used and useful” framework, the determination of “just and reasonable” rates focuses on affording the regulated entity an opportunity to “recover[] prudently incurred investments and expenses that are `used and useful' in the provision of the regulated service for which rates are being set.” That framework, which “is rooted in American legal theory and particularly in the constitutional limitations on the taking of private property for public use,” balances the “equitable principle that public utilities must be compensated for the use of their property in providing service to the public” with the “[e]qually central . . . equitable principle that the ratepayers may not fairly be forced to pay a return except on investment which can be shown directly to benefit them.” In applying these principles, “the Commission considers whether the investment or expense `promotes customer benefits, or is primarily for the benefit of the carrier.' ” Should the Commission apply the “used and useful” ratemaking concept as a limiting factor in considering the costs and expenses allowable in the rates for communications services for incarcerated people? Why or why not? If not, what principle or framework should the Commission use in evaluating “just and reasonable” rates and charges under section 276(b)(1)(A) and why would any such principle or framework be preferable to the well-established framework the Commission routinely uses when implementing identical language in section 201(b)?

29. The Commission invites comment on how it should apply the “used and useful” concept, or any alternative principle or framework commenters suggest, to providers' site commission payments. The Commission has previously sought broad comment on the ratemaking treatment of those payments, including on whether it is appropriate to permit providers to recover any portion of their site commission payments from end users through calling services rates and on whether it “should preempt state and local laws that impose these payments on interstate and international” inmate calling services. The Commission incorporates its prior questions on site commissions into the NPRM, and requests that commenters address each of them in relation to each incarcerated people's communications service now subject to the Commission's ratemaking authority. Should the Commission's ratemaking calculations include providers' site commission payments only to the extent, if any, that they compensate facilities for used and useful costs that the facilities themselves incur? Why or why not? And if the Commission takes that approach, how should it determine the facilities' used and useful costs? Should the Commission make generalized findings as to what used and useful costs facilities typically incur and allow each facility to show through the waiver process that its costs exceed the typical amount? Or should the Commission instead allow those costs only to the extent an individual facility establishes the extent to which it incurs used and useful costs?

30. Fairly Compensated. The Commission also invites comment on how the requirement that providers be “fairly compensated . . . for completed intrastate and interstate communications” should affect the Commission's ratemaking decisions, including its treatment of site commissions. What factors should the Commission consider in determining whether a provider is fairly compensated for completed communications? Does the “fairly compensated” requirement mean that the Commission must include all or part of providers' site commission payments in its ratemaking calculus irrespective of their utility in the completion of incarcerated people's communications? Why or why not? How should the answers to these questions affect the Commission's policies regarding site commissions and, in particular, the Commission's decision on whether it should preempt state and local laws that impose site commission payments on incarcerated people's communications services providers?

31. Rates and Charges. The Commission next seeks comment on what constitutes the “rates and charges” mentioned in the amendments to section 276(b)(1)(A). The Commission proposes to interpret “rates” to refer to the amounts paid by consumers of incarcerated people's communications services for calls or other audio or video communications covered by the statute or the Commission's rules. And the Commission proposes to interpret “charges” to refer to all other amounts assessed on consumers of incarcerated people's communications services in connection with those services. These would include ancillary service charges, authorized fees, mandatory taxes and fees, and any other charges a provider may seek to impose on consumers of communications services for incarcerated people. These interpretations are consistent with the Commission's rules, which currently carve out ancillary service charges, authorized fees, and mandatory taxes and fees as separate from rate caps. Do commenters agree with the Commission's proposed interpretations of these terms? If not, what alternative interpretations do commenters propose and what is the justification for these alternative interpretations?

32. Compensation Plan. The Commission also proposes finding that setting industry-wide rate caps or rate caps applying to groups of providers, grouped by categories such as facility size or other characteristics, as opposed to separate rates for individual providers, would be sufficient to “establish a compensation plan,” as required by the Act. The Commission notes that setting industry-wide rate caps for incarcerated people's communications services would be consistent with the Commission's previous rules regulating rates for these services. Do commenters agree that mandatory rate caps would constitute a “compensation plan” within the meaning of section 276(b)(1)(A)? Are there other rate regimes that the Commission should consider that are consistent with—or required by—section 276(b)(1)(A)? If so, what are they and how do they square with the statutory language and Congress's intent?

33. The Commission's current rate caps for inmate calling services limit the amount providers may charge any individual consumer for any particular call. Other forms of rate cap regulation allow providers to charge different amounts for particular services as long as the total charges (weighted by demand) for all services do not exceed an overall cap, or specify that the providers' total revenues must not exceed a specified revenue cap. The Commission seeks comment on whether a regime that constrains rates and ancillary service charges collectively across all service categories ( e.g., audio communications services and video communications services) and allows providers to set different rates and charges for the various different services ( e.g., lower rates and charges for audio communications services and higher rates and charges for video communications services or vice versa) would constitute a “compensation plan” sufficient to ensure just and reasonable rates and that providers are fairly compensated for completed communications, as required by the Act. Commenters should address how such a regime would protect individual consumers against unreasonably high rates. Would sub-caps on rates and charges for different services within each service category be needed and, if so, how should they be structured?

34. The Commission seeks comment on whether section 276(b)(1)(A)'s mandate that the Commission “establish a compensation plan to ensure that . . . all rates and charges” for incarcerated people's communications services be “just and reasonable” extends to ensuring that the providers' practices, classifications, and regulations for or in connection with those services are just and reasonable. Specifically, does Congress's reference to a “compensation plan” in section 276(b)(1)(A) allow—or require—that the Commission go beyond simply “determining just and reasonable rates,” as set forth in section 3(b) of the Martha Wright-Reed Act, and ensure that providers implement those rates justly and reasonably? The Commission asks for detailed comment on this area, including on the extent of its section 276(b)(1)(A) authority, if any, to address providers' practices, classifications, and regulations, as well as any limitations on that authority. What other authority, if any, does the Commission have to address the practices, classifications, and regulations for or in connection incarcerated people's communications services?

35. The Commission also asks how its authority to address unjust and unreasonable “practices, classifications, and regulations” under section 201(b) of the Communications Act should affect the Commission's treatment of practices, classifications, and regulations for or in connection with incarcerated people's communications services. The Commission has previously recognized that where it “has jurisdiction under section 201(b) . . . to regulate rates, charges, and practices of interstate communications services, the impossibility exception extends that authority to the intrastate portion of jurisdictionally mixed services `where it is impossible or impractical to separate the service's intrastate from interstate components' and state regulation of the intrastate component would interfere with valid federal rules applicable to the interstate component.” Given the provisions of the Martha Wright-Reed Act granting the Commission authority over intrastate communications services and advanced communications services generally in the incarceration context, the Commission asks whether it may similarly extend its section 201(b) authority to regulate practices, classifications, and regulations for or in connection with incarcerated people's intrastate communications services that were previously subject to state regulation and video services that were unregulated prior to the enactment of the Act. Can providers practicably separate incarcerated people's communications services into interstate and intrastate, or regulated and nonregulated, components?

36. Advanced Communications Services. Prior to the enactment of the Martha Wright-Reed Act, the Commission's authority under section 276 was limited to “payphone service,” a term then defined as “the provision of public or semi-public pay telephones, the provision of inmate telephone service in correctional institutions, and any ancillary services.” The new Act expands the Commission's authority over services in correctional institutions under section 276 to include “advanced communications services,” as defined in sections 3(1)(A), (B), (D), and new (E) of the Communications Act.

37. Those provisions of section 3(1), in turn, define “advanced communications services” as including (1) “interconnected VoIP service,” (2) “non-interconnected VoIP service,” (3) “interoperable video conferencing service,” and (4) “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used.” Apart from the restriction to communications with individuals “outside the correctional institution” in section 3(1)(E), and the exclusion of “electronic messaging service” from the revised definition of “payphone service,” the language in the new statute appears to confer on the Commission broad jurisdiction to develop a compensation plan for the categories of audio and video communications now included in the definition of “payphone services” and includes no other limitation except for a limitation to communications “by wire and radio” arising from sections 1 and 2(a) of the Communications Act. The Commission seeks comment on this unequivocal expansion of its statutory authority under section 276, including how each of the first three types of “advanced communications services” provides additional statutory authority under section 276 beyond what is added by new subsection 3(1)(E) and how each type applies to communications services for incarcerated people.

38. The Martha Wright-Reed Act extends the Commission's ratemaking authority to “interoperable video conferencing service” by including sub-paragraph 3(1)(D) of the Communications Act in the definition of “payphone service” in section 276(d) of that Act. The Communications Act defines “interoperable video conferencing service” as “a service that provides real-time video communications, including audio, to enable users to share information of the user's choosing.” The Commission has a pending proceeding seeking further comment on the kinds of other services that should be encompassed by the term “interoperable video conferencing services.” The Commission seeks comment on which video services used, or potentially used, by incarcerated people are included within this definition and whether any are excluded. Are video visitation services used by incarcerated people “interoperable video conferencing service[s]” under this statutory definition? How should the Commission interpret the phrases “real-time video communications” and “enable users to share information of the user's choosing” in the context of incarcerated people's communications services? Are there types of video communications services for incarcerated people that are not real-time? If so, what are they? Would it include real-time video that is based in applications or other technologies? Additionally, given the statutory phrase “any audio or video communications . . . regardless of technology used” in new section 3(1)(E), the Commission seeks comment on how to address non-traditional audio and video communications technologies or applications that could effectively enable providers of communications services to incarcerated people to circumvent the Commission's rate-making authority. Consistent with Congressional intent, the Commission will be vigilant in overseeing the provision of all forms of audio and video communications, and invite comment on the steps the Commission should take to ensure that its rules adequately address all forms of audio and video communications subject to its authority.

39. The Commission seeks comment on the proper scope of the limiting phrase “used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held” as used in new section 3(1)(E) of the Communications Act. The Commission notes that phrase appears only in section 3(1)(E) and there is no language within section 3(1)(E), or elsewhere in the Communications Act or the Martha Wright-Reed Act, extending this limitation to the other categories of advanced communications services identified in section 2(a)(2) of the Martha Wright-Reed Act. More specifically, the Commission interprets the use of the limiting phrase of new subsection 3(1)(E) as not applying to the other subsections of section 3(1) that are now referenced in section 276(d). In addition, this limiting phrase has no application to any other aspect of section (3)(1) outside the context of section 276. The Commission invites comment on the proper scope of the limitation included in section 3(1)(E).

40. The Commission proposes to interpret the phrase “any audio or video communications service” in subsection 3(1)(E) as encompassing every method that incarcerated people may presently, or in the future, use to communicate, by wire or radio, by voice, sign language, or other audio or visual media. The Commission seeks comment on this proposal. The Commission also seeks comment on how to interpret the phrase “used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used.” Does this phrase include all types of audio or video communications services—regardless of whether the communication is interstate, intrastate, or international—that an incarcerated person uses to communicate with a person not confined within the incarcerated person's correctional institution, regardless of that person's physical location at the time of the communication? In other words, if a calling service is typically used for communicating with family, friends, or loved ones, is that person's physical location at the time of the call determinative, so that, for example, the Commission's authority over an incarcerated person's calls to family members' cell phones might cease when the family members enter the incarcerated person's correctional institution as opposed to when they are at their homes?

41. The Commission seeks comment on the meaning of the phrase “outside the correctional institution where the inmate is held” with reference to the audio and video communications services covered by section 2(b)(3) of the Martha Wright-Reed Act. Does it refer to any physical location not subject to involuntary confinement restrictions? As discussed in the NPRM, a chief defining characteristic of correctional institutions is that they are places where people are involuntarily confined. Could physical locations “outside” the correctional institution include any location not used for confinement purposes, including rooms designated for communicating with, or visitation by, persons not subject to confinement, including family, friends, and members of the general public not subject to confinement? Similarly, could “individuals outside the correctional institution” refer to people who are neither confined in nor employed by the institution, even if they are temporarily located on the premises of the institution for purposes of communicating with incarcerated individuals through some form of audio or video communications service? The Commission invites comment on these potential interpretations. Are there additional types of communications encompassed within these statutory phrases? Conversely, are there other types of communications that fall outside those phrases? For example, should the Commission interpret the statutory language as excluding all audio and video communications between employees of the correctional institution and incarcerated people from the definition of “payphone service” as revised by the Act?

42. Under certain of the interpretations suggested above, the Commission's newly expanded authority under section 276(b)(1)(A) could extend to onsite video visitation services ( i.e., services in which video communication between persons located within the same building or site substitute for traditional in-person visitation), either because: (1) they are interoperable video conferencing services within the meaning of section 3(1)(D) or because (2) they are video services within the meaning of section 3(1)(E). In the latter case, incarcerated people would use onsite video visitation services to communicate with persons not confined in or employed by a correctional institution—and with whom the incarcerated person is only allowed to communicate via an audio or video communications service and only when they are at a location where the incarcerated person is unable to be. The Commission seeks comment on whether these interpretations of the Martha Wright-Reed Act are consistent with the language of the statute and would further the purposes of the Act. The Commission notes that on-site video visitation services are typically operated by providers of inmate calling services as currently defined in the Commission's rules, and the same services and equipment may be used by an incarcerated person regardless of whether the “visitor” is on-site, at home, or at another remote location.

43. The Commission also seeks comment on whether the phrase “regardless of technology used” in section 3(1)(E) of the Communications Act encompasses the technology used for video visitation, now and in the future. The record shows that some institutions are restricting or prohibiting in-person visits in favor of video visitation and a visitor may lack sufficient broadband service or equipment to enable video visitation from their home or elsewhere. To the extent a service provider charges for video visitation at the facility, should those charges be subject to the Commission's ratemaking authority?

44. In light of these concerns, the Commission seeks comment on interpreting the Act broadly to achieve its stated goal of ensuring “just and reasonable charges for telephone and advanced communications services in correctional and detention facilities.” Further, the Commission seeks comment on whether a broad interpretation will advance the goal of section 716 of the Communications Act to ensure that services and equipment used for advanced communications services are accessible to and usable by people with disabilities. The Commission invites comment on whether a broad interpretation would be a correct reading of section 2(b)(3) of the Martha Wright-Reed Act. Are there other onsite audio and video services that the Commission should consider within its authority under this interpretation of the statutory language? Finally, if the Commission interprets video communications services as including onsite video visitation, the Commission seeks comment on how it can ensure that all forms of onsite video visitation services within the scope of its authority that are used to communicate with non-incarcerated people are subject to the rules the Commission adopts to implement the Act. Are there instances where correctional institutions impose charges on video visitation or predicate its use on charges for other related or unrelated services?

45. The Commission's Authority Over Intrastate Services. The Martha Wright-Reed Act amends section 2(b) of the Communications Act, which generally acts as a limitation on the Commission's jurisdiction over intrastate communications, as well as a rule for interpreting other provisions of the Communications Act. Section 2(b) enumerates certain statutory provisions that are not subject to the generally applicable limitation on the Commission's jurisdiction. When Congress enacted the Martha Wright-Reed Act, it added section 276 of the Communications Act to section 2(b)'s list of exceptions to the general limitation on the Commission's authority over intrastate communications. This change, when coupled with the broad language in the amended section 276, suggests that Congress intended to grant the Commission authority over all intrastate communications services between incarcerated people and non-incarcerated people with whom they wish to communicate. Do commenters agree?

46. The Commission proposes finding that, in combination, the amendments to section 276 and the addition of section 276 to the exceptions contained in section 2(b) of the Communications Act grant the Commission plenary authority over intrastate communications services provided to incarcerated people. Specifically, the Commission's authority to adopt rules for intrastate incarcerated people's communications service is further supported by section 276(b)(1)'s directive that the Commission adopt regulations to implement, among other things, section 276(b)(1)(A), along with the broad authority in provisions such as section 201(b) of the Communications Act, which authorizes the Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.”

47. In addition, the Commission proposes finding that its expanded jurisdiction over intrastate communications extends to any communications service now covered by section 276, including the “advanced communications services” added to the definition of “payphone service.” The revised definition of advanced communications services includes “any audio or video communications service used by inmates . . . regardless of technology used,” which was added to the definition of “payphone service” for purposes of section 276 of the Communications Act. The Commission seeks comment on these proposed findings and on whether the inclusion of section 276 in the section 2(b) exemption list now provides the Commission with definitive authority to regulate all audio and video communications services covered by section 276.

48. The Commission's Approach to Ratemaking. Section 3(a) of the Martha Wright-Reed Act directs the Commission to “promulgate any regulations necessary to implement” that Act, including its mandate that “all rates and charges” for completed payphone communications be “just and reasonable.” Below, the Commission seeks comment on how it can best discharge this statutory mandate.

49. The Commission's prior efforts to ensure just and reasonable rates for inmate calling services focused on capping, on an industry-wide basis, the rates and ancillary services charges providers could assess for, or in connection with, voice calls, based on providers' costs. The Commission seeks comment on whether it should follow this approach with regard to all communications services provided to incarcerated people. Should the Commission instead set separate caps on rates and charges for different types of providers or, alternatively, for each individual provider? The Commission asks that commenters address the relative benefits and burdens of each approach, including the potential impact on consumers, providers, and Commission resources.

50. The Commission also seeks comment on whether it should set separate rate and ancillary services rate caps for audio and video services. Do the costs of providing audio and video services vary significantly? Do the costs of ancillary services depend on whether these services are ancillary to audio or video services? Would separate caps for different services benefit incarcerated people and their families, and other consumers? Would providers incur additional costs if separate rate caps were implemented, and if so, how would these costs compare to any benefits consumers might receive from separate caps? Is there a risk that separate caps for different services could be exploited in a way that would harm consumers? What burdens, if any, would separate rates and charges impose on providers? Would it be difficult for providers to separate their costs in a meaningful way for different services for purposes of submitting the data the Commission would need to set separate rate caps? Are there any voice and video services that are, or could be, combined such that it would be burdensome to assess separate rates and charges for them? If so, what are they? Should the Commission allow voice and video services to be offered as bundles? If so, should the Commission require that all rates, charges, and terms and conditions of service be included in the same contract, and the rates and charges for each type of service and bundle be separately listed so as to be easily identifiable?

51. In the event the Commission decides to set separate caps for audio and video services, should the Commission subdivide either category into different types of services for ratemaking purposes? If so, what should those subcategories be? What types of audio and video services do providers offer? Do providers offer different audio and video services as part of a package? Do different types of audio and video services make different demands on provider resources and, if so, how should the Commission reflect those differences in its ratemaking? If the Commission were to set separate caps for different services, how would the Commission decide what caps to apply to any new covered services providers may introduce in the future?

52. Assuming that the Martha Wright-Reed Act expands the Commission's existing jurisdiction over ratemaking to include all communications services for incarcerated people, including intrastate services, the Commission must ensure that intrastate rates are also just and reasonable. In the past, the Commission did not distinguish between costs for interstate and intrastate voice services in setting rate caps for interstate inmate calling services. Rather it adopted a total industry cost approach, explaining that: “Our calculations use total industry costs, both interstate and intrastate, because the available data do not suggest that there are any differences between the costs of providing interstate and intrastate inmate calling services. Nor do such data suggest a method for separating reported costs between the intrastate and interstate jurisdictions that might capture such differences, if any. Finally, providers do not assert any such differences.”

53. The Commission followed this total cost approach in the 2021 ICS Order, as detailed in the Appendices to that Order. The Commission proposes to take a similar approach in implementing the Martha Wright-Reed Act and to continue to treat costs for interstate voice services and intrastate voice services as having identical per-unit costs. Do commenters agree with this approach? If not, they should address in detail how costs differ between interstate and intrastate voice services and how to measure these differences. Commenters should also address whether such differences are substantial enough to warrant different rate caps based on the jurisdiction of a voice call, taking into account the burden associated with such a separation. In the time since the 2020 ICS Notice, have providers developed ways to separate intrastate voice costs from interstate voice costs? What burdens would be associated with such a separation process?

54. The Commission also seeks comment on whether it should take a total cost approach to video services and assume that the average costs for intrastate video communications services are identical to the average costs for interstate video communications. If parties disagree with that assumption, they should explain how costs differ based on the jurisdictional nature of video communications. Can the jurisdictional nature of video communications services even be determined or are such services inherently interstate? Parties should also address whether such differences are substantial enough to warrant different rate caps for interstate and intrastate video communications services. Is there a way for providers to separate the costs associated with interstate video services in a meaningful way from the costs associated with intrastate video services? What burdens would be associated with such a separation?

55. The Commission invites comment on the types of pricing plans it should allow for the audio and video communications services subject to its section 276 ratemaking authority. The Commission's rules currently prohibit providers from charging incarcerated people or their loved ones for calls on a per-call or per-connection basis and require providers to price their interstate, international, and jurisdictionally indeterminate calling services at or below specific per-minute rate caps. This structure results in incarcerated persons and their families paying for their interstate and international phone calls on a per-minute basis. In the 2022 ICS Notice, the Commission sought comment on whether it should authorize pilot programs under which providers of incarcerated people's calling services could offer alternative pricing structures for voice calls, including structures under which an incarcerated person would receive a specified—or unlimited—number of monthly minutes of use for a predetermined monthly charge. Do commenters agree that nothing in the Act precludes the Commission from adopting alternative pricing structures for audio or video communications, should the record support this action?

56. The Commission seeks comment on whether it should require a specific pricing structure for incarcerated people's video communications services. If so, what should that structure be? Should the Commission require that providers offer such video communications services at per-minute rates? If not, what alternative structure do commenters support, and what would the benefits and burdens be of any alternative structure? How can the Commission best ensure that the rates for video communications services are just and reasonable? The Commission seeks broad comment on the pricing structures under which providers presently offer video services to incarcerated people and whether those structures can harm consumers or lead to unreasonably high rates. What would be the benefits or burdens of allowing providers to continue to use their current pricing structures for video communications services, either under pilot programs or on a permanent basis? Should the Commission allow providers to use these alternative structures for audio services? If so, what conditions should the Commission impose on providers to ensure just and reasonable rates for both incarcerated people's audio and video communications services?

57. The Commission's Use of Data in Ratemaking. Section 3(b)(1) of the Martha Wright-Reed Act specifies that the Commission “may use industry-wide average costs of telephone service and advanced communications services” in promulgating implementing regulations and determining just and reasonable rates. That section also specifies that the Commission may use “the average costs of service of a communications service provider” for such purposes. In the Commission's view, these authorizations, when read in conjunction with the elimination of the requirement that providers be “fairly compensated for each and every” completed call, respond directly to the D.C. Circuit's holding that, in the 2015 ICS Order, the Commission had improperly used industry-wide average costs in setting interstate rate caps. The Commission invites comment on its view that the language of the new statutory provisions allows, but does not require, the Commission to rely on average costs—either on an industry-wide, or provider-specific basis—to set rate caps for all forms of incarcerated people's communications services.

58. The Commission also seeks comment on the meaning of “industry-wide,” as used in section 3(b)(1) of the Act. Should the Commission interpret “industry-wide” as referring exclusively to entities that provide “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used”? Or should the Commission read “industry-wide” as referring collectively to all providers of “telephone service and advanced communications services?” Alternatively, should the Commission interpret “industry-wide” to refer only to some subset of providers of incarcerated people's communications services? Similarly, does the phrase “average costs of service of a communications service provider” refer to all communications service providers? Or only to providers of incarcerated people's communications service or even an individual provider of communications services for incarcerated people? The Commission asks that parties explain the basis for their preferred interpretation of these statutory phrases.

59. The Commission seeks comment on the best approach to using industry-wide average costs to determine just and reasonable rates for both traditional telephone service and advanced communications services provided to incarcerated people. Are there any circumstances under which setting rates based on industry-wide average costs would result in unreasonably high or unreasonably low rates for any particular group of providers or consumers? If so, does the statutory language permit the Commission to divide the relevant industry into groups based on their average costs per unit of service or specific cost-related characteristics, such as whether the provider serves facilities primarily located in rural or urban areas; and, if so, which specific cost-related characteristics should the Commission consider? If the Commission takes that step, what additional steps should it take to discharge its obligation, under section 3(b)(2) of the Martha Wright-Reed Act, to “consider . . . differences in the [average costs of telephone service and advanced communications services] by small, medium, or large facilities”?

60. The Commission also seeks comment on how it might use “the average costs of service of a communications service provider” to set just and reasonable rates. Would this statutory language allow the Commission to use the average costs of an efficient ( i.e., least cost) provider holding quality and provided services constant, or a group of efficient providers, to set industry-wide rates or to set rates for a subset of the industry? Does any commenter view the statutory language as allowing—or even requiring—the Commission to set rates for each provider based on that provider's average costs of service? Assuming the Commission has the flexibility to adopt rate caps on an industry-wide or individual-provider basis, which approach would best allow it to ensure that rates and charges are just and reasonable? Additionally, the Commission seeks comment on whether using average costs of service to set rates for smaller subsets of the industry would raise any confidentiality concerns and whether those concerns might be outweighed by the public interest benefits of using average costs.

61. Necessary Safety and Security Costs. The Commission seeks comment on the directive in section 3(b)(2) of the Martha Wright-Reed Act that the Commission “shall consider costs associated with any safety and security measures necessary to provide” telephone service and advanced communications services to incarcerated people. The Commission seeks comment on what “shall consider” means. How much discretion, if any, does that phrase give the Commission in evaluating safety and security costs? Is the Commission required to treat all safety and security costs identified by providers or facilities as costs recoverable through rates for communications services for incarcerated people? Could the Commission “consider” such costs, but ultimately decide to exclude all of them from its rate calculations as unnecessary? Is there a middle ground whereby the Commission could consider safety and security costs and decide to include some of those costs, but exclude others, from its rate calculations? To what extent does the Commission's duty to consider “costs” depend on the strength or credibility of the record documenting such costs?

62. The Commission seeks comment on several aspects of the phrase “necessary safety and security measures.” How is the Commission to understand the word “necessary” here? How does a standard of “necessary” compare to the “used and useful” standard the Commission traditionally uses in analyzing whether rates are just and reasonable rates under section 201(b)? The Commission has, in the past, interpreted “necessary” as having essentially the same meaning as “used and useful.” But the D.C. Circuit has previously found that interpretation overly broad, explaining that “necessary” “must be construed in a fashion that is consistent with the ordinary and fair meaning of the word, i.e., so as to limit `necessary' to that which is required to achieve a desired goal.” The Commission later revised its interpretation of “necessary” in line with a D.C. Circuit opinion. For example, the Commission concluded that equipment is “necessary” for purposes of interconnection or access to unbundled network elements under section 251(c)(6) if “an inability to deploy equipment would, as a practical, economic, or operational matter, preclude the requesting carrier from obtaining interconnection or access to unbundled network elements.” The D.C. Circuit also observed that “courts have frequently interpreted the word `necessary' to mean less than absolutely essential, and have explicitly found that a measure may be `necessary' even though acceptable alternatives have not been exhausted.” How should the Commission implement the D.C. Circuit's guidance in this context? What is the “ordinary and fair meaning” of the word “necessary” as used in section 3(b)(2) of the Martha Wright-Reed Act?” Should the Commission interpret “necessary” in that section to mean something less than absolutely essential or indispensable? Is it something more than “used and useful”? What interpretation do commenters suggest, and why?

63. The Commission seeks detailed, specific comment on which safety and security measures are “necessary” to the provision of telephone and advanced communications services for incarcerated people and why those measures are “necessary.” The Commission has previously sought comment on similar issues regarding telephone service for incarcerated people. Are any safety and security measures “necessary” to the provision of those services? Or are such measures core features of the correctional environment, rather than features needed to adapt communications services to that environment?

64. Some commenters assert that safety and security measures can cover a wide range of tasks, including, but not limited to, enrolling incarcerated people into voice biometrics systems, call monitoring, responding to alerts, blocking and unblocking numbers, and analyzing call recordings. The Commission seeks comment not only on what constitute safety and security measures, but also which of those measures, if any, are “necessary” within the meaning of the statutory language. Commenters should identify and describe any safety and security measures they consider “necessary” to the provision of any form of communications services for incarcerated people and to explain in detail why they deem each identified service to be “necessary.” Conversely, the Commission invites comment on why specific safety and security measures, or even broad categories of such measures, are not “necessary” to the provision of communications services for incarcerated people. The Commission also seeks comment on whether the Commission should interpret the Martha Wright-Reed Act's use of the term “safety and security” as having the same or different meaning as the term “security and surveillance” previously used in this proceeding.

65. In addition, the Commission invites comment on the extent to which resources ( e.g., labor, tangible and intangible assets, and materials) of the provider—as opposed to the resources of carceral facilities or authorities—are used to provide any “necessary” safety and security measures. To the extent more data are required from providers regarding safety and security measures, WCB and OEA should seek to obtain those data in the forthcoming supplemental data collection. The Commission also invites comment on how the Commission can determine the “costs associated with” any necessary safety and security measures to the extent resources of the facilities are used to provide these measures. The Commission asks for detailed comment on what steps, if any, the Commission should take to determine those costs and on how it should proceed if it is unable to determine those costs. The Commission also seeks comment on how it should address any information it has regarding those costs in setting just and reasonable rates for communications services for incarcerated people. For example, if the Commission determines that a particular safety or security measure is necessary to provide a covered service, would it be appropriate to include the underlying costs in rates and let the provider and facility determine how to appropriately share those costs?

66. Finally, the Commission invites detailed comment on the relationship, if any, between safety and security measures and site commission payments. For example, to what extent do monetary site commission payments compensate correctional institutions for costs they bear in connection with “necessary” safety and security services they incur, if any, using their own resources? Do providers offer safety and security products and services at discounted rates or at no cost to correctional institutions? If so, what are these products and services? Do correctional facilities instruct providers to furnish safety and security products and services on their behalf? If so, what products and services do correctional facilities typically ask providers to furnish? Do providers introduce new security and surveillance services during the contract negotiation process or at some point during the duration of a contract? If so, why do they do so and what effect do such services have on end-user rates? To the extent commenters argue that safety and security measures are embedded in site commission payments, to what extent, if any, do these payments serve to reimburse correctional facilities for costs they incur to ensure that the provision of communications services for incarcerated people does not pose any associated safety or security risk? If so, what information do correctional facilities have documenting those costs? Do correctional facilities ever provide data regarding their safety and security costs during the contract negotiation process? The Commission invites comment on these and any other matters that would assist it in understanding the relationship between safety and security measures and site commission payments.

67. Size and Type of Correctional Institution. The Martha Wright-Reed Act directs that the Commission “shall consider . . . differences in the [average costs of telephone service and advanced communications services] by small, medium, or large facilities.” The Commission seeks comment on certain questions raised by this language.

68. The Commission first seeks comment on the Martha Wright-Reed Act's use of differing terms to refer to incarceration facilities, apparently interchangeably, including “correctional institutions,” “correctional facilities,” “detention facilities,” and “facilities.” The Commission proposes to interpret each of these statutory terms as generically and interchangeably referencing places where people are involuntarily confined. The Commission seeks comment on this proposal. The Commission also seeks comment on the meaning of the terms “detention facility” and “detention facilities,” as used in the Martha Wright-Reed Act. The statute neither defines these terms nor provides direction on how the Commission should interpret them. Neither do the Commission's rules. Should the Commission interpret the term “detention facilities” as having the same meaning as the Commission's existing definition of “correctional institution” or “correctional facility?” Does “detention facility” have a meaning different from jails and prisons? Are there compelling reasons to make any definitional distinctions between correctional institutions and detention facilities?

69. The Commission also seeks comment on whether the terms currently defined in its rules—“correctional facility or correctional institution”—could be used as generic terms to encompass the different terms used in the Martha Wright-Reed Act. The Commission proposes to continue to interpret these terms as applying to all portions of a correctional institution, collectively, to avoid the risk of any particular institution being divided into multiple entities of differing sizes in an effort to take advantage of whatever size-based rate tiers the Commission may adopt as part of its rate structure for incarcerated people's communications services. The Commission invites comment on this proposal.

70. The Commission's current rules define “Correctional Facility or Correctional Institution” as “a jail or a prison” and then separately define “Jail” and “Prison.” The Commission proposes to continue to interpret the term “Correctional Institution” to include all the facilities encompassed within the current definitions of “Prison” and “Jail.” The Commission seeks comment on this proposal, as well as on whether the Commission should expand those definitions to include other types of facilities. By way of example, the Commission has previously sought comment on including “civil commitment facilities, residential facilities, group facilities, and nursing facilities in which people with disabilities, substance abuse problems, or other conditions are routinely detained” as part of the definition of “Correctional Facility.” Should the Commission include those, or any other additional facilities, in its definitions of “Jail,” “Prison,” or “Correctional Facility”?

71. The Martha Wright-Reed Act states that the Commission “shall consider . . . differences in the costs . . . by small, medium or large facilities or other characteristics,” as part of its rate-setting process. The Commission seeks comment on how to interpret “small, medium, or large facilities.” What size categories should the Commission adopt to implement this language? What size thresholds should apply to each category? What metrics should the Commission use to define size categories, and what data should the Commission consider in setting size thresholds? The Commission also seeks comment on whether the directive to consider size differences is only relevant if the Commission uses cost-averaging in setting rates for incarcerated people's communications services, as addressed in section 3(b)(1) of the Act. In other words, if the Commission were to base its rates on something other than industry-wide average costs, would it still be obligated to consider potential cost differences associated with serving different-sized facilities?

72. The Commission's current rate structure distinguishes among different types and sizes of correctional institutions, establishing separate rate caps for prisons and jails, as well as separate rate tiers for different-sized jails. This seems consistent with the Martha Wright-Reed Act's reference to “small, medium, or large facilities,” but the Commission seeks comment on whether the Act allows or requires any change in the Commission's current approach to analyzing providers' costs based on the type and size of correctional institution being served. Does the Martha Wright-Reed Act require the Commission to implement more or fewer rate tiers based on type or size? The Commission invites parties to provide information in support of any claims they may make in regard to the differences or similarities in the costs associated with serving different types or sizes of facilities. Could the Commission set the same rates for small, medium, and large facilities after considering cost differences, if any?

73. To the extent the Commission continues to use multiple rate tiers for different-sized correctional institutions, the Commission seeks comment on its continued use of average daily population as the primary metric for measuring the size of correctional institutions. The Commission incorporates and renews prior calls for comments on how average daily population should factor into the rate caps, if at all. Should the Commission adjust the current distinction between jails with average daily populations below 1,000, and jails with average daily populations at or above 1,000 based on the Act's use of the terms “small, medium, or large”? Should the Commission adopt other size thresholds to account for differing cost characteristics of different-sized correctional institutions? Are there compelling reasons to adopt a different metric for determining size other than average daily population?

74. The Martha Wright-Reed Act also directs the Commission to consider “other characteristics” besides size-based distinctions in setting rates for incarcerated people's communications services. The Commission seeks comment on what other characteristics it should consider in setting rates, including correctional institution type (whether it is a prison, jail, or other kind of institution), geographic location (whether it is in an urban, as opposed to a rural, area), and the technology used (whether it is wireline as opposed to wireless, internet protocol-based as opposed to circuit-switched, or is connected to the public switched telephone network (PSTN) as opposed to transmitted only via the internet). How do these characteristics affect costs? Should the Commission use “other characteristics” in tandem with the size of a facility when setting new rate caps? If so, how do these characteristics impact costs? How much weight should be given to the impact of other characteristics on the underlying costs? Is the primary driver of costs for some types of calls the number of calls, minutes, bits, phones, tablets, incarcerated people, network capacity, some combination of these, or something else? How does this vary with the nature of the call, for example, whether it is connected to the PSTN or is an app-to-app call, or whether it is a video or audio call regardless of the mode of transmission? Can the Commission disregard the size of the facility if some “other characteristic” provides more compelling cost-related differences?

75. Effect of the Act on Other Laws. Section 4 of the Martha Wright-Reed Act states that: “[n]othing in this Act shall be construed to modify or affect any Federal, State or local law to require telephone service or advanced communications services at a State or local prison, jail, or detention facility or prohibit the implementation of any safety and security measures related to such services at such facilities.” The Commission seeks comment on the meaning and purpose of this provision. As an initial matter, the Commission proposes finding that the phrase “this Act,” as used in section 4, refers specifically to the Martha Wright-Reed Act, as opposed to the Communications Act. This seems to be the most logical reading of that reference, and the Commission seeks comment on this proposed finding.

76. The Commission next invites comment on the meaning of the language in the first clause of section 4 of the new Act providing that “[n]othing in this Act shall be construed to modify or affect any Federal, State or local law to require telephone service or advanced communications services at a State or local prison, jail, or detention facility.” The Commission seeks comment on how it should interpret this language as a general matter. Does the language of this clause simply mean that the Martha Wright-Reed Act does not create any new obligation for state or local facilities to provide any form of incarcerated people's calling services? Does the language carry any different or additional meanings? Should the Commission interpret “to require” in this context as referring to all Federal, State, and local laws that affirmatively mandate the provision of telephone service or advanced communications services? Are there other possible meanings of the phrase in this provision? The Commission observes that the statute uses the phrase “to require,” as opposed to “to provide,” or “to offer.” What is the significance of the choice of the word “require” in section 4? The Commission invites comment about any of the other language in this clause and about the interplay between this language and any of the proposals contained in the NPRM.

77. The Commission also seeks comment on how it should interpret the second clause of section 4, which specifies that nothing in the Act shall “prohibit the implementation of any safety and security measures related to such services at such facilities.” Does the language of this clause simply mean that the just and reasonable ratemaking focus of the Martha Wright-Reed Act is not intended to interfere with any correctional official's decision on whether to implement any type of safety or security measure that the official desires in conjunction with audio or video communications services? Why or why not? How broadly should the Commission interpret the phrase “safety and security measures” in this section? Should the Commission rely on prior definitions of safety and security measures in these types of facilities? The Commission also seeks comment on how it should construe the word “related.” What does it mean when safety and security measures are “related” to telephone service or advanced communications services?

78. The Commission notes that the Martha Wright-Reed Act also references “safety and security measures” in section 3(b)(2), which requires the Commission to consider the costs associated with “necessary” safety and security measures in determining just and reasonable rates. How do commenters propose that the Commission reconcile the language of this clause with the Commission's duty under the Act to ensure that rates are “just and reasonable”? The provision in section 3(b)(2) requires that the Commission consider certain costs when determining just and reasonable rates, whereas the reference in section 4 ensures that correctional officials retain the ability to implement “related” safety and security measures. Thus, under section 4, correctional officials remain free to implement any safety and security measures related to inmate telephone service or advanced communications services. The Commission seeks comment on this analysis.

79. Consistent with the above analysis, the Commission seeks comment on what relationship, if any, section 4 may have with the Commission's consideration of “necessary” safety and security costs in its ratemaking calculus under section 3. The Commission has recognized that, in some circumstances, correctional officials may have used monetary site commission payments to implement safety and security measures that, for ratemaking purposes, are not necessary for the provision of incarcerated people's communications services. Contracts between correctional officials and incarcerated people's communications services providers also may require, as in-kind site commission payments, that the providers implement safety and security measures unrelated to the provision of communications services. Do commenters agree that the Commission's decision to exclude the costs of such “unnecessary” measures from its ratemaking calculus will not proscribe correctional facilities' prerogatives to implement them as contemplated by section 4? If not, why not? Are there other considerations the Commission should take into account with respect to the “safety and security measures” clause in section 4?

80. Finally, the Commission seeks comment on the relationship of section 4 to section 276(c) of the Communications Act, as amended, which remains unchanged by the Martha Wright-Reed Act. Section 276(c) provides that, “[t]o the extent that any State requirements are inconsistent with the Commission's regulations, the Commission's regulations on such matters shall preempt such State requirements.” In practice, the Commission has relied on the “impossibility exception” to preempt intrastate rates and charges where it is impossible or impracticable to separate the intrastate components of a service from interstate components regulated by the Commission's rules. The impossibility exception applied to such “jurisdictionally mixed” rates and charges when the Commission adopted rate caps pursuant to its authority under section 201(b) of the Act. Since the Commission proposes to interpret the Martha Wright-Reed Act to provide it clear authority to establish a compensation plan ensuring “just and reasonable” rates and charges and fair compensation for providers for both interstate and intrastate services under section 276 of the Communications Act, the Commission proposes to find that state regulations that exceed the rates or rate caps the Commission adopt pursuant to the Martha Wright-Reed Act shall be preempted under section 276(c).

81. The Commission also seeks comment on the proper exercise of its preemption authority as it relates to state laws that mandate lower rates and charges for incarcerated people's communications services or that mandate that such services be offered free to consumers. In light of the Commission's proposal to find that it has plenary authority over intrastate communications services provided to incarcerated people, the Commission invites comment on what steps, if any, the Commission should consider following a state mandate where a provider is able to claim, and clearly substantiate its claim, that an unreasonably low rate leads to unfair compensation to providers. Additionally, to be clear, the Commission proposes to find that section 4 is no bar to its preemption authority with respect to establishing the rates and charges for audio and video communications in correctional facilities and prohibiting state or local requirements that would require higher rates or charges. The Commission seeks comment on these proposed findings. Further, the Commission proposes to find that nothing in section 4 affects its prior preemption policies under the impossibility exception, and the Commission seeks comment on this proposed finding. To the extent a party contends there is such an effect, the Commission asks for detailed comment on how it should take that effect into account in our regulation of incarcerated people's communication services. Finally, the Commission seeks comment broadly on the scope of its preemption authority in light of the Martha Wright-Reed Act, including in particular, its authority over site commissions.

82. Necessary Rule Changes. The Martha Wright-Reed Act specifies that the Commission “shall promulgate any regulations necessary to implement this Act and the amendments made by this Act” not earlier than 18 months and not later than 24 months after the date of enactment. As discussed above, the Commission interprets the statutory amendments to sections 2, 3, and 276 of the Communications Act as providing the Commission plenary authority over all audio or video communications services (other than electronic messaging), by wire or radio, between incarcerated people and individuals not subject to involuntary confinement. As part of the Act, the Commission must ensure that all payphone providers are fairly compensated and that all rates and charges are just and reasonable. In addition, some entities that are not subject to the Commission's current inmate calling services rules are now “payphone service providers” within the meaning of section 276(b)(1) of the Communications Act and thus will be subject to our new rules implementing these statutory mandates. The Commission seeks comment on what specific rule changes or new rules are necessary to effectuate the Martha Wright-Reed Act. Any comments proposing new or amended rules should include, as part of the commenter's submission, a draft rule or markup of an existing rule to be incorporated into Subpart FF of Part 64 of the Commission's rules. The Commission notes that while the Act precludes the Commission's implementing rules from becoming effective earlier than July 2024, the statutory amendments became effective upon enactment on January 5, 2023 and are effective today. Pending the effective date of any new rules the Commission adopts, any entity that is an inmate calling services provider within the meaning of the Commission's existing rules must comply fully with those rules.

83. The Act allows or requires that the Commission make certain types of data analyses in promulgating implementing regulations. The Commission proposes to interpret the Act as allowing it to perform any and all acts and issue any orders, including orders requiring the submission of data and other information from audio and video communications service providers now covered by the Act, conducive to the discharge of these and its other implementation responsibilities under the Martha Wright-Reed Act. The Commission invites comment on this proposal.

84. Accessibility Rule Changes Necessitated by the Expanded Definition of Advanced Communications Services. The Commission also seeks comment on the extent to which the Martha Wright-Reed Act expands its ability to ensure that any audio and video communications services used by incarcerated people are accessible to and usable by people with disabilities. With the addition of this new category of services to the definition of “advanced communications services,” some of these services, as well as some equipment used for such services, regardless of technology used, may be newly subject to accessibility requirements under section 716 of the Communications Act. Section 716, added to the Communications Act by the Twenty-First Century Communications and Video Accessibility Act of 2010, requires providers of advanced communications services and manufacturers of equipment used with such services to ensure that such services and equipment are accessible to and usable by people with disabilities, unless doing so is not achievable. If accessibility is not achievable either by building it into the service or equipment or by using third party accessibility solutions, then a manufacturer or service provider must ensure that its equipment or service is compatible with existing peripheral devices or specialized customer premises equipment, unless not achievable. Each provider of advanced communications services has a duty not to install network features, functions, or capabilities that impede accessibility or usability. In 2011, the Commission adopted Part 14 of its rules, which implements these statutory provisions, requiring service providers and equipment manufacturers of all types of advanced communications services and equipment to meet specific obligations, performance objectives, recordkeeping, and reporting requirements.

85. The Commission seeks comment generally on what changes to Part 14 of its rules are needed to implement the amended definition of “advanced communications services.” The Commission specifically proposes to amend the Part 14 definition of “advanced communications services” to incorporate the amended statutory definition, and seeks comment on this proposal. Is there any reason the Commission should not adopt the statutory definition verbatim? Are there specific terms in the new category of advanced communications services, apart from those raised above, that the Commission should separately define in section 14.10 of its rules, and if so, how should they be defined?

86. The Commission also seeks comment on whether any changes are needed to other provisions of Part 14 to reflect the inclusion of these services and equipment. For example, are there specific performance objectives or recordkeeping requirements that should be added or modified to ensure that providers of covered communications services and manufacturers of associated equipment used by incarcerated people are in full compliance with their accessibility obligations?

87. Payphones Other Than in the Incarceration Context. Although the Martha Wright-Reed Act specifically addresses payphones in the incarceration context, certain amendments to section 276 of the Communications Act apply to payphones more generally, including both those used by incarcerated people and those used by the public, in the case of more traditional payphones. In 1999, the Commission determined that traditional ( i.e., non-inmate calling services) payphones do not require pricing regulation because that portion of the payphone market was sufficiently competitive. In addition, advancements in mobile and wireless technology have made traditional payphones virtually obsolete. For payphone service outside of the incarceration context, the Commission proposes to find that no new regulations are “necessary” to implement the Martha Wright-Reed Act and its amendments to the Communications Act pursuant to section 3(a) of the Act. Accordingly, the Commission proposes relying on its existing rules governing traditional payphone service to ensure that all payphone providers outside of the incarceration context are fairly compensated and that their rates and charges are just and reasonable, consistent with section 276(b)(1)(a), as amended. The Commission seeks comment on the proposal to find new payphone service rules unnecessary and to continue relying on its existing rules to satisfy any of the new statutory requirements that apply outside the incarceration context.

88. Effect on Small Entities. The Commission recognizes that its actions in this proceeding may affect several groups of small entities. For example, payphone service providers that provide only limited communications services to incarcerated people, or that provide communications services to incarcerated people via technologies not previously covered by section 276, will be subject to new regulatory requirements. In addition, the Commission's implementation of the Martha Wright-Reed Act may subject entities currently subject to its inmate calling services rules to new regulatory obligations. The Commission therefore seeks comment on how it should take into account the impact on small businesses and, in particular, any disproportionate impact or unique burdens that small businesses may face, in effectuating the mandates set forth in the Martha Wright-Reed Act and the Communications Act. Parties should also address any alternative proposals that would minimize the burdens on small businesses.

89. Other Reforms Related to Incarcerated People's Communications Services. In addition to seeking comment on actions the Commission should take to implement the Martha Wright-Reed Act, the Commission proposes revisions to its rules to reflect updated language used to refer to calls made by incarcerated people. The Commission's rules currently use “inmate calling services” or “ICS” to refer to “a service that allows Inmates to make calls to individuals outside the Correctional Facility where the Inmate is being held, regardless of the technology used to deliver the service.” With the Martha Wright-Reed Act's expansion of the Commission's authority beyond calling services to include all audio and video communications services used by incarcerated people, the Commission uses today and will use going forward the term “incarcerated people's communications services” or “IPCS” to refer to these broader service offerings. In connection with this change in terminology, the Commission has also changed references to “inmates” to “incarcerated people” at the request of public interest advocates. To reflect this evolution in terminology, the Commission proposes codifying these changes in its existing rules and in any new rules the Commission adopts pursuant to this proceeding. The Commission seeks comment on this proposal.

90. Finally, the Commission invites parties to comment on any other matters that may be relevant to its implementation of the Martha Wright-Reed Act to adopt just and reasonable rates and charges for incarcerated people's audio and video communications services.

91. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, the Commission seeks comment on how its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

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

93. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible impact of the rule and policy changes contained in the Notice of Proposed Rulemaking.

94. Initial Paperwork Reduction Act of 1995 Analysis. The Notice of Proposed Rulemaking may contain new or modified information collection(s) subject to the PRA. If the Commission adopts any new or modified information collection requirements, they will be submitted to the OMB for review under section 3507(d) of the PRA. OMB, the general public, and other federal agencies are invited to comment on the new or modified information collection requirements contained in these proceedings. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

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

96. In the NPRM, the Commission seeks comment on implementing the Martha Wright-Reed Just and Reasonable Communications Act of 2022 (Martha Wright-Reed Act or Act), enacted by Congress to ensure just and reasonable rates for telephone and advanced communications services in correctional and detention facilities. The Act was passed in an effort to remedy decades of exorbitant rates for telecommunications services paid by family members, clergy, counsel and other critical support systems.

97. The Commission seeks comment on the purpose and scope of the amendments made to its authority and how the Act expands its authority over incarcerated people's communications services, including over advanced communications services, intrastate services, and “any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used.” The Commission also seeks comment on the Act's directions regarding how it should consider implementing the Act, including when it is to adopt rules, the use of data to set just and reasonable rates, the costs of facility safety and security measures, and the size of correctional facilities. Lastly, the Commission also seeks comment on how the Act affects its ability to ensure that incarcerated people's communications services and associated equipment promote digital equity and are accessible to and usable by incarcerated people with disabilities.

98. The proposed action is authorized pursuant to sections 1, 2, 4(i)-(j), 5(c), 201(b), 218, 220, 225, 255, 276, 403, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 155(c), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the Martha Wright-Reed Just and Reasonable Communications Act of 2022, Public Law 117-338, 136 Stat 6156 (2022).

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

100. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

101. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

102. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county or municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

103. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including Voice over internet Protocol (VoIP) services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

104. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

105. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

106. Competitive Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include several types of competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 3,956 providers that reported they were competitive local exchange service providers. Of these providers, the Commission estimates that 3,808 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

107. Interexchange Carriers (IXCs). Neither the Commission nor the SBA have developed a small business size standard specifically for Interexchange Carriers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 151 providers that reported they were engaged in the provision of interexchange services. Of these providers, the Commission estimates that 131 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of providers in this industry can be considered small entities.

108. Local Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Local Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 293 providers that reported they were engaged in the provision of local resale services. Of these providers, the Commission estimates that 289 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

109. Toll Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Toll Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. MVNOs are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 518 providers that reported they were engaged in the provision of toll services. Of these providers, the Commission estimates that 495 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

110. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. Wired Telecommunications Carriers is the closest industry with a SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 115 providers that reported they were engaged in the provision of other toll services. Of these providers, the Commission estimates that 113 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

111. Payphone Service Providers (PSPs). Neither the Commission nor the SBA have developed a small business size standard specifically for payphone service providers, a group that includes incarcerated people's communications services providers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 58 providers that reported they were engaged in the provision of payphone services. Of these providers, the Commission estimates that 57 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

112. Telecommunications Relay Service (TRS) Providers. Telecommunications relay services enable individuals who are deaf, hard of hearing, deaf-blind, or who have a speech disability to communicate by telephone in a manner that is functionally equivalent to using voice communication services. Internet-based TRS ( iTRS ) connects an individual with a hearing or a speech disability to a TRS communications assistant using an internet Protocol-enabled device via the internet, rather than the public switched telephone network. Video Relay Service (VRS) one form of iTRS, enables people with hearing or speech disabilities who use sign language to communicate with voice telephone users over a broadband connection using a video communication device. Internet Protocol Captioned Telephone Service (IP CTS) another form of iTRS, permits a person with hearing loss to have a telephone conversation while reading captions of what the other party is saying on an internet-connected device. Providers must be certified by the Commission to provide VRS and IP CTS and to receive compensation from the TRS Fund for TRS provided in accordance with applicable rules.

113. Neither the Commission nor the SBA have developed a small business size standard specifically for TRS Providers. All Other Telecommunications is the closest industry with a SBA small business size standard. Internet Service Providers (ISPs) and Voice over internet Protocol (VoIP) services, via client-supplied telecommunications connections are included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on Commission data there are ten certified iTRS providers. The Commission however does not compile financial information for these providers. Nevertheless, based on available information, the Commission estimates that most providers in this industry are small entities.

114. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or VoIP services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

115. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. In the NPRM, the Commission seeks comment on further reforms to the regulations governing incarcerated people's communications services, which could potentially affect potential reporting and compliance requirements for small entities and for providers of incarcerated people's communications services of all sizes. For example, the NPRM seeks comment on whether to continue using a “total industry cost” approach in setting rate caps, which would result in the same per-unit rate caps for interstate and intrastate voice services. Were the Commission to follow this approach in implementing the Act's “just and reasonable rates” requirement—resulting in a unitary rate cap for any providers of incarcerated people's interstate and intrastate communications services—it would potentially reduce the compliance burden on smaller providers.

116. The Commission's implementation of the Martha Wright-Reed Act may require entities, including small entities and incarcerated people's communications services providers of all sizes, currently subject to the Commission's inmate calling services rules to be subject to modified or new reporting or other compliance obligations. This may also be the case for providers newly subject to the Commission's expanded regulatory authority, such as providers offering only intrastate or certain advanced communications. In addition, the Commission recognizes that its actions in this proceeding may affect the reporting, recordkeeping, and other compliance requirements for several groups of small entities. In assessing the cost of compliance for small entities and for providers of incarcerated people's communications services of all sizes, at this time, the Commission is not in a position to determine whether the proposed rules in the NPRM will impose any significant costs for compliance in general, or whether they will require small entities to hire attorneys, engineers, consultants, or other professionals to comply. It is also undetermined at this time if any new software, or modifications to existing software, will be necessary for small entities and for providers of incarcerated people's communications services of all sizes to effectively comply with the proposed rules.

117. Within 18-24 months following enactment, the Commission is required by the Martha Wright-Reed Act to adopt rules to ensure that the rates and fees for incarcerated people's communications services are just and reasonable. This may include new ratemaking methodologies, such as the use of industry-wide average costs of telephonic service and advanced communications data; new services, such as any audio or video communications service used to communicate with persons outside of the facility, regardless of technology used; and new entities, such as providers that are newly subject to our authority. In the NPRM, the Commission seeks comment on the collection and use of existing and additional data in determining just and reasonable rates and charges for incarcerated people's communications services, as well as on the implementation of its newly expanded jurisdictional authority. If rules are adopted pursuant to these proposals, they would apply to incarcerated people's communications services providers of all sizes, including small providers.

118. The Commission seeks comment on updating and restructuring its current (third) mandatory data collection. First, to the extent that the Commission updates and restructures its most recent data collection, providers of incarcerated people's communications services of all sizes, including small providers, would need to maintain and report their cost data in accordance with the Commission's rules. Similarly, if the Commission imposes data collection requirements, or other new rules specific to implementation of the Martha Wright-Reed Act, the data collection requirements and other rules will be applicable to incarcerated people's communications services providers of all sizes. The Commission also seeks comment on how it should proceed if a particular provider or providers do not provide reliable and accurate information in response to the updated data collection. Any procedures it may adopt would impact reporting requirements for all relevant entities, including small entities. Additionally, the Commission seeks comment how to proceed if information submitted by providers does not allow it to determine with precision the costs attributable to any particular service or function, or groups of services or functions. Any steps the Commission would take to ensure the accuracy or precision of providers' data submissions could also potentially affect reporting requirements for all relevant entities, including small entities and providers of incarcerated people's communications services of all sizes.

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

120. In the NPRM, the Commission seeks to fulfill Congress's intent via the implementation of the Martha Wright-Reed Act, including its directive that the Commission ensure just and reasonable rates and charges for incarcerated people's audio and video communications services. While doing so, the Commission is mindful of the potential impact on small businesses and, in particular, any disproportionate impact or unique burdens that small businesses may face in complying with any rules the Commission may adopt. Below the Commission discusses several steps it has taken that could reduce the economic impact for small entities.

121. Allowing additional time for small and medium-sized businesses to comply with the proposed rules, including the timeframe for compliance, could reduce the economic impact for small entities. The Commission considered and seeks comment on whether such an approach would serve the public interest. In doing so, the Commission has provided small entities the opportunity to offer alternatives not already considered, giving small entities ample time to minimize whatever potential burdens they may face.

122. The Commission also seeks comment on the Martha Wright-Reed Act's directive to consider the size of incarceration facilities in setting just and reasonable rates and charges for services. The Commission seeks comment on whether the “industry-wide” average cost language in the Martha Wright-Reed Act refers only to some subset of providers of incarcerated people's communications services or all such providers. In doing so, the Commission seeks information that will help to determine the appropriate approach to ensuring just and reasonable rates as required by the Act. The Commission would also benefit by using the information obtained from comments to inform its evaluation of its regulatory options, including those that may potentially be less burdensome for smaller providers.

123. The Martha Wright-Reed Act states that the Commission “shall consider . . . differences in the costs . . . by small, medium or large facilities or other characteristics,” as part of its rate-setting process. The Commission seeks comment on how to interpret “small, medium, or large facilities.” The Commission considered and seeks comment on whether it is obligated to consider potential cost differences associated with serving different-sized facilities if it sets rates based on something other than industry-wide average costs. This information will assist the Commission in considering alternatives such as whether it should implement more or fewer rate tiers based on the type or size of facility, and whether the Commission should set the same rates for small, medium, and large facilities after considering cost differences, if any.

124. Considering the economic impact on small entities through comments filed in response to the NPRM and this IRFA, as part of its efforts to implement the Martha Wright-Reed Act and promulgate rules in these proceedings, could allow the Commission to potentially obtain cost-benefit analyses and other input that would enable it to identify reasonable alternatives that may not be readily apparent, and offer alternatives not already considered that could minimize the economic impact on small entities.

125. None.

126. It is ordered, pursuant to sections 1, 2, 4(i)-(j), 5(c), 201(b), 218, 220, 225, 255, 276, 403, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 155(c), 201(b), 218, 220, 225, 255, 276, 403, and 617, and the Martha Wright-Reed Just and Reasonable Communications Act of 2022, Public Law 117-338, 136 Stat 6156 (2022), the Notice of Proposed Rulemaking is hereby adopted.

127. It is further ordered, pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the Notice of Proposed Rulemaking on or before 30 days after publication of a summary of the Notice of Proposed Rulemaking in the Federal Register and reply comments on or before 60 days after publication of a summary of the Notice of Proposed Rulemaking in the Federal Register .

I. Background

DoD, GSA, and NASA are proposing to amend the FAR to implement changes related to data rights that are necessary to comply with the Small Business Administration's SBIR and STTR Policy Directive (PD) published in the Federal Register on April 2, 2019 (84 FR 12794). In addition, this rule implements competition requirements unique to Phase II and III awards under the SBIR/STTR Programs.

Prior to the April 2019 revision, the PD, FAR, and Defense Federal Acquisition Regulation Supplement (DFARS) each had different terminology and data rights allocations for SBIR/STTR data. The inconsistencies may have led to confusion and placed an unnecessary burden on small businesses because they had to operate under three different interpretations of the same programs. The revisions to the PD were intended to create uniformity and clarity regarding the Government's rights in SBIR/STTR data. To achieve this objective, the FAR must be updated to adopt the terminology, definitions, and data rights allocations described in the most recent update of the SBIR/STTR PD.

The proposed rule reflects SBA's updated SBIR/STTR PD terminology, revisions to the data rights afforded to the Government and the extension of the SBIR/STTR data rights protection period from a minimum of 4 years to 20 years. The rule also clarifies direction for contracting officers pertaining to document retention and competition requirements. A summary of the proposed changes follows:

The definitions for “computer database” and “computer software” are revised in FAR part 2 to harmonize terminology that applies to the SBIR/STTR programs with terminology used in the rest of the FAR and DFARS. These definitions reflect those used in SBA's SBIR/STTR PD to the greatest extent possible. In some instances, similar language has been used to convey the intent of the PD for contracting officers. As a conforming change to the revised definition for “computer software,” a separate definition for “computer program” is added to FAR part 2.

Due to the expansion of the SBIR/STTR data rights protection period from a minimum of 4 years after acceptance of all items under the contract to 20 years after the date of award, a new records retention category is proposed at FAR 4.805(c)(9) for contracts involving SBIR/STTR data rights. The proposed addition would require SBIR/STTR contracts that contain the revised FAR clause 52.227-20, Rights in Data-SBIR/STTR Programs, to be retained for 20 years after award rather than 6 years after final payment, to coincide with the new protection period.

The proposed rule adds text at FAR 6.302-5, Authorized or required by statute, to clarify that contracting officers may award sole-source actions under Phase III of the SBIR/STTR programs without further justification based upon the statutory authority in the Small Business Act (15 U.S.C. 638(r)(4)). Guidance is also provided for instances when Phase II sole-source actions may be awarded without justification (15 U.S.C. 638(ff) and the SBA PD).

Changes were made to the definitions of “data” and “unlimited rights” at FAR 27.401 to reflect the SBIR/STTR PD definitions. The definition of “unlimited rights” was revised to no longer specify data that can be performed or displayed publicly. The revision does not remove the Government's ability to perform publicly or display publicly; the revision is made to cover the Government's right to perform and display both in public settings and non-public settings.

A new section is created in subpart 27.4 to cover the SBIR and STTR programs. It would give basic information on the program. It would also provide instructions to contracting officers that are specific to contracts awarded under the SBIR/STTR programs. The instructions relate to the procedures of negotiating a different protection period than the new minimum period of 20 years after award as well as the requirements associated with further release or disclosure of SBIR/STTR data outside the Government. As a result of the creation of this new section, the current section of 27.409 is proposed to be renumbered as 27.410.

The SBIR/STTR PD made several revisions to the SBIR/STTR program which are reflected in the prescription at newly-designated FAR 27.410(h).

The definitions at FAR clauses 52.227-14, Rights in Data-General; 52.227-17, Rights in Data-Special Works; and 52.227-20, Rights in Data-SBIR/STTR Programs, are revised to reflect the updated 2.101 and 27.401 definitions—see Section II. A and D of this preamble.

FAR clause 52.227-20, Rights in Data-SBIR/STTR Programs, is revised in the title to become “Rights in Data—Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs”, and to add definitions for “Government purpose,” “Government purpose rights,” “Operations, maintenance, installation, or training purposes (OMIT) data,” “SBIR/STTR computer software rights,” “SBIR/STTR protection period,” “SBIR/STTR technical data,” and “SBIR/STTR technical data rights.” These definitions reflect those used in SBA's SBIR/STTR PD to the greatest extent possible. In some instances, different language has been used to harmonize terminology that applies to the SBIR/STTR programs with terminology used in the rest of the FAR and DFARS. Also, in some instances additional or different language is used in the definition to provide further clarity to contracting officers and contractors. Regardless of whether the definitions proposed for the FAR are the same or different from the definitions in the PD, the intent is for the FAR definitions to be consistent with the SBIR/STTR PD.

The terms “SBIR data” and “SBIR rights” in FAR clause 52.227-20 have been updated as “SBIR/STTR data” and “SBIR/STTR data rights”, and to reflect both SBIR/STTR programs. The definitions of the two terms have been updated to be consistent with the SBIR and STTR PD. The definition of “technical data” is not being revised in the FAR since the FAR definition is statutory (41 U.S.C. 116). SBA has confirmed that the “technical data” definition in the SBIR and STTR PD was not intended to differ from the statutory definition. Language is also added at 52.227-20(b) to clarify that the SBIR/STTR data rights provided in the clause are to be interpreted consistent with the SBIR and STTR PD. However, if there is inconsistency between the FAR clause and the SBIR and STTR PD, the clause governs; this is standard protocol in the FAR. If there are substantive changes to the PD in the future, DoD, GSA, and NASA will pursue rulemaking to update the FAR accordingly.

The Rights Notice in FAR clause 52.227-20(d) is revised to reflect the fact that the clause now covers both SBIR/STTR programs and to reflect the increase in the protection period from 4 years after acceptance of all items under the contract to 20 years after the date of award. As a logistical matter that will promote compliance with the protection period, the Notice is revised to require inclusion of the contract award date. The Notice is also revised to reflect the new terminology and definitions added to the clause.

Consistent with the SBIR/STTR PD, FAR clause 52.227-20 is also revised to authorize contractors and contracting officers to negotiate a different protection period, after award of the contract. The clause at paragraph (d)(2) will require contractors, in such a scenario, to update their Rights Notice to reflect the negotiated protection period.

Conforming changes are proposed for all the clauses and provisions prescribed in FAR subpart 27.4, due to the renumbering of the section containing the prescriptions from 27.409 to 27.410.

This rule amends the clauses at FAR 52.227-14, Rights in Data—General, 52.227-17, Rights in Data—Special Works, and 52.227-20, Rights in Data—SBIR/STTR Programs, but this rule does not change the applicability of these existing clauses included in contracts valued at or below the SAT, or for commercial products (including COTS items) and commercial services.

This rule is expected to impact the contractors awarded contracts under the SBIR/STTR programs and subject to FAR clause 52.227-20, which addresses data rights.

Contractors awarded contracts under the SBIR/STTR programs will benefit from having a single FAR clause that will uniformly govern awards under both programs, provide for a longer protection period, and use consistent terminology across the programs and other contract awards outside the programs that are subject to the FAR or DFARS.

The FAR does not currently contain a clause applicable to contracts awarded under the STTR program. SBA has combined the SBIR and STTR policy directives into a single document, which makes it easier for this proposed rule to update the FAR SBIR clause to cover both programs. Currently in the FAR, the period of time during which the Government is obligated to protect a contractor's SBIR/STTR data against unauthorized use and disclosure, i.e., protection period, is four years. Consistent with the SBIR/STTR PD, this proposed rule seeks to increase the protection period to 20 years. The longer protection period incentivizes the Government to make subsequent awards, under phases II and III, to the small business that developed the technology under a phase I award. Therefore, small businesses are incentivized to participate in the SBIR/STTR programs in the first place. An added benefit of the 20-year protection period is that it covers the timeframe necessary for many technologies to be commercialized and mirrors the length of the patent protection period. In addition, this rule is expected to reduce confusion and burden on small businesses by adopting the updates to the SBIR/STTR PD, which in turn created uniformity and clarity regarding contractors' and the Government's rights in SBIR/STTR data.

This rule is also expected to benefit contractors that participate under the SBIR/STTR programs by clarifying for contracting officers the authority to make sole-source awards under phases II and III under the programs. Clarifying the authority should drive greater use of the programs by the Government and perhaps greater participation by small businesses.

On the Government side, the rule is expected to reduce burden on contracting officers by clarifying that further justification is not necessary when using the sole-source authority provided under the SBIR/STTR programs. This is also expected to reduce the burden and confusion on contracting officers because the protection period will have a clear start and end date. Previously, the start date was four years from the date of acceptance of all deliverables. The triggers for the protection period were not always clear. This proposed rule changes the start date of the protection period to the date of award, which is something that is clearly noted on the contract itself. Therefore there is no reason for confusion. The proposed rule also provides explicit direction on the records retention period for contracts subject to the FAR clause. This will benefit the Government by ensuring contract files are retained long enough for the Government to comply with the data rights requirements, enforce its data rights, and defend itself in the event of litigation.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because small business contractors under the SBIR/STTR Programs represent less than one percent of all small businesses that are looking for Federal contract opportunities. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-010), in correspondence.

This rule affects the information collection requirements in the clause at FAR 52.227-20, currently approved under OMB Control Number 9000-0090, Rights in Data and Copyrights, in accordance with the Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is negligible. The existing information collection already accounts for the reporting associated with the requirement to affix a notice to SBIR/STTR data delivered under the contract. The notice already requires the contractor to fill in the contract and subcontract number; this rule proposes the notice to also include a fill-in for the contract award date. The burden associated with the additional fill-in is considered de minimis.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 4, 6, 27, and 52 as set forth below:

The addition and revisions read as follows:

The revisions and addition read as follows:

The revisions read as follows:

The revisions and additions read as follows:

Background

On September 8, 2021, we received a petition from the Animal Welfare Institute, the Center for Biological Diversity, and VIVA Vaquita to list the Atlantic humpback dolphin ( Sousa teuszii ) as a threatened or endangered species under the ESA. The petition asserted that the Atlantic humpback dolphin is threatened by four of the ESA section 4(a)(1) factors: (1) the present destruction or modification of its habitat; (2) overutilization for commercial purposes; (3) inadequacy of existing regulatory mechanisms; and (4) manmade factors affecting its continued existence.

On December 2, 2021, we published a 90-day finding for the Atlantic humpback dolphin with our determination that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted (86 FR 68452). We also announced the initiation of a status review of the species, as required by section 4(b)(3)(A) of the ESA, and requested information to inform the agency's decision on whether this species warrants listing as endangered or threatened under the ESA. We received information from the public in response to the 90-day finding and incorporated the information into both the draft status review report (Austin 2023) and this proposed rule.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq. ). To make this determination, we first consider whether a group of organisms constitutes a “species,” which is defined in section 3 of the ESA to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; together, the Services) adopted a policy describing what constitutes a distinct population segment (DPS) of a taxonomic species (“DPS Policy,” 61 FR 4722). The joint DPS Policy identifies two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the taxon to which it belongs; and (2) the significance of the population segment to the remainder of the taxon to which it belongs.

Section 3 of the ESA defines an endangered species as any species which is in danger of extinction throughout all or a significant portion of its range and a threatened species as one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(6), 16 U.S.C. 1532(20)). Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or not presently but within the foreseeable future (threatened).

Under section 4(a)(1) of the ESA, we must determine whether any species is endangered or threatened as a result of any one or a combination of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts, if any, being made by any state or foreign nation (or subdivision thereof) to protect the species (16 U.S.C. 1533(b)(1)(A)).

To determine whether the Atlantic humpback dolphin warrants listing under the ESA, we completed a draft status review report, which summarizes information on the species' taxonomy, distribution, abundance, life history, ecology, and biology; identifies threats or stressors affecting the status of the species; and assesses the species' current and future extinction risk. We appointed a biologist in the Office of Protected Resources Endangered Species Conservation Division to compile and complete a scientific review of the best available information on the Atlantic humpback dolphin, including information received in response to our request for information (86 FR 68452, December 2, 2021). Next, we conducted an Extinction Risk Analysis (ERA) to assess the threats affecting the Atlantic humpback dolphin, as well as demographic risk factors (abundance, productivity, spatial distribution, and diversity), using the information in the scientific review. The draft status review report presents our professional judgment of the extinction risk facing the Atlantic humpback dolphin but makes no recommendation as to the listing status of the species. The draft status review report (Austin 2023) is available electronically (see ADDRESSES ). Information from the draft status review report is summarized below in the Biological Review section, and the results of the ERA from the draft status review report are discussed below.

The draft status review report was subject to independent peer review pursuant to the Office of Management and Budget Final Information Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The draft status review report was peer reviewed by four independent scientists selected from the academic and scientific community with expertise in cetacean biology, conservation, and management, and specific knowledge of Atlantic humpback dolphins. The peer reviewers were asked to evaluate the adequacy, appropriateness, and application of data used in the draft status review report, as well as the findings made in the “Extinction Risk Analysis” section of the report. All peer reviewer comments were addressed prior to finalizing the draft status review report.

We subsequently reviewed the status review report, its cited references, and peer review comments, and conclude the status review report, upon which this proposed rule is based, provides the best available scientific and commercial information on the Atlantic humpback dolphin. Much of the information discussed below on the species' biology, distribution, abundance, threats, and extinction risk is attributable to the status review report. We have applied the statutory provisions of the ESA, including evaluation of the factors set forth in section 4(a)(1)(A)-(E), our regulations regarding listing determinations, 1 and relevant policies identified herein in making the listing determination. In the sections below, we provide information from the report regarding threats to and the status of the Atlantic humpback dolphin.

The Atlantic humpback dolphin, S. teuszii, belongs to the family Delphinidae in the order Artiodactyla, and is one of four currently recognized species of humpback dolphins in the genus Sousa: S. plumbea (Indian Ocean humpback dolphin), S. chinensis (Indo-Pacific humpback dolphin), and S. sahulensis (Australian humpback dolphin) (Jefferson and Van Waerebeek 2004; Mendez et al. 2013; Jefferson and Rosenbaum 2014). Available data indicate that there is genetic and morphological differentiation between S. teuszii and other species of humpback dolphins (Mendez et al. 2013). Additionally, a comprehensive study of Sousa cranial morphometrics conducted by Jefferson and Van Waerebeek (2004), found that S. teuszii have significantly shorter rostra, wider skulls, and lower tooth counts when compared with 222 Southeast African, Arabian/Persian Gulf, and Indian Sousa specimens (Jefferson and Van Waerebeek 2004; Jefferson and Rosenbaum 2014; Austin 2023).

The Atlantic humpback dolphin does not share mitochondrial DNA (mtDNA) haplotypes with other species in the genus Sousa. A phylogenetic assessment of combined nuclear and mtDNA datasets indicates that S. teuszii is most closely related to the Indian Ocean humpback dolphin ( S. plumbea ) from Southeast Africa (Mendez et al. 2013). The most plausible mechanism for their isolation is the Benguela upwelling system, an area dominated by cold upwelling that is located within the ~2,000 kilometer (km) distribution gap between S. teuszii and S. plumbea (Jefferson and Van Waerebeek 2004; Mendez et al. 2013; Collins 2015). The complete mitochondrial genome of S. teuszii was recently mapped by McGowen et al. (2020), and was found to be 98.1 percent similar to its closest relative with a sequenced mitogenome, the Indo-Pacific humpback dolphin ( S. chinensis ).

The Atlantic humpback dolphin holotype (a skull) was discovered in 1892 in “Bucht des Kameruner Kriegsshiffhafens,” (“Bay of Warships” or “Man O'War Bay”), in Cameroon by the German agronomist Eduard Tëusz (Collins et al. 2017). The holotype was sent to Germany, where it was examined and first described by the German zoologist Dr. Willy Kükenthal, who based his description primarily on differences in the skull compared to other humpback dolphins known at the time (Kükenthal 1891; Collins 2015). The species was originally placed in the genus Sotalia; the genus named Sousa came into general use in the 1960s (Kükenthal 1891; Van Waerebeek et al. 2004; Collins 2015).

In terms of distinctive physical characteristics, the Atlantic humpback dolphin is characterized by a prominent dorsal hump, ranging from about 26-32 percent of body length, giving the species its common name (Jefferson and Rosenbaum 2014; Austin 2023). A small dorsal fin with a rounded tip is situated at the top of the hump (Jefferson and Rosenbaum 2014; Austin 2023). The species has a well-defined long and slender beak; the lower jaw is paler gray in coloration than the upper jaw (Austin 2023). Individuals are generally uniform dark gray in color with a lighter ventral surface and broad flippers, with a straight trailing edge and rounded tips (Jefferson and Rosenbaum 2014; Austin 2023). Some larger adults are known to have a white margin to the dorsal hump and fin, apparently caused by scarring, and there may be some white or dark oval flecking on the tail stock (Austin 2023). Atlantic humpback dolphins reach maximum body lengths of approximately 2.8 meters (m) (Austin 2023). While sexual dimorphism has not been studied in detail (largely due to small sample sizes of specimens), it is suspected that adult males are larger, heavier, and have a more pronounced dorsal hump, than females. The hump and dorsal fin of some larger adults may be bordered by white pigmentation (Jefferson and Van Waerebeek 2004; Jefferson and Rosenbaum 2014).

The Atlantic humpback dolphin is considered an obligate shallow water dolphin that is endemic to the tropical and subtropical eastern Atlantic nearshore waters (<30 m) of the west coast of Africa, ranging discontinuously for approximately 7,000 km from Dakhla Bay (Rio de Oro) in Western Sahara (23°52′ N, 15°47′ W) to Tômbwa (Namibe Province) in Angola (15°46′ S, 11°46′ E) (International Whaling Commission 2011; Collins 2015; Weir and Collins 2015; International Whaling Commission 2017; International Whaling Commission 2020b; Austin 2023).

This species is the only member of the genus that occurs outside of the Indo-Pacific region (Mendez et al. 2013; Jefferson and Rosenbaum 2014; Collins 2015). Although each of the 19 countries between (and including) Western Sahara and Angola are presumed to be part of the species' natural range, the current distribution is uncertain due to incomplete research coverage, including an absence of survey effort in many areas. Currently, there are confirmed records of occurrence (confirmed via sightings, strandings, and bycatch data) in the following 13 countries: Western Sahara, Mauritania, Senegal, The Gambia, Guinea-Bissau, Guinea, Togo, Benin, Nigeria, Cameroon, Gabon, Republic of the Congo, and Angola (Ayissi et al. 2014; Weir and Collins 2015; Van Waerebeek et al. 2017; CCAHD 2020; Bamy et al. 2021, Austin 2023). The six countries with no confirmed records (Sierra Leone, Liberia, Côte d'Ivoire, Ghana, mainland Equatorial Guinea, and the Democratic Republic of the Congo) have received little or no systematic cetacean or coastal research (Collins 2015; Collins et al. 2017, Austin 2023). It remains uncertain whether the absence or scarcity of records in many countries is due to lack of observation effort and reporting, scarcity of the species, or a discontinuous distribution (caused by suboptimal habitat and/or local extirpation) (Weir et al. 2021, Austin 2023). Additionally, the species is not known to occur around any of the larger offshore islands of the Gulf of Guinea, including Sao Tome and Principe or Bioko (Fernando Póo) and Annabon (Pagalu) (Van Waerebeek et al. 2004).

Eleven putative “management stocks” ( i.e., subpopulations) of S. teuszii were identified by Van Waerebeek et al. (2004) based on localities or countries where the species has been recorded and evidence of gaps in the species' range (Van Waerebeek et al. 2004; Austin 2023). These management stocks are meant to serve practical management purposes amongst range countries until intraspecific genetic variation data become available (Van Waerebeek et al. 2017). However, Van Waerebeek et al. (2017) proposed that the currently recognized management stocks of Canal do Gêba-Bijagós Archipelago (Guinea-Bissau) and South Guinea be combined into a single “Guineas” stock due to multiple records reported from the Tristao Islands and the Río Nuñez Estuary (Weir 2015) in northern Guinea.

Throughout its range, the Atlantic humpback dolphin predominantly occurs shoreward of the 20 m depth isobaths, and often in the shallowest (≤5 m depth) part of that range, in nearshore waters (average sea surface temperatures ranging from 15.8° to 31.8° Celsius), and in a diverse array of dynamic habitats strongly influenced by tidal patterns ( e.g., sandbanks, deltas, estuaries, and mangrove systems) (Collins 2015; Weir and Collins 2015; Taylor et al. 2020). In this context, “nearshore” is defined as areas in which the sea floor is affected by wave motion, resulting in dynamic, tide-influenced, habitats (Weir 2015; Weir and Collins 2015). Documented habitats include: large estuarine systems (including mangrove channels, upstream waters with tidal influence, and the estuary-influenced waters further offshore); exposed marine coasts (often within, or just beyond, the surf zone); coastal archipelagos; tidal mud-flats, sandbanks and seagrass expanses; and large, sheltered enclosed shallow bays (Van Waerebeek et al. 2004; Collins 2015; Weir and Collins 2015; Austin 2023).

Even though recorded sightings are typically coastal, the species may also occur up to at least 13 km from shore when suitable shallow habitat is present (Van Waerebeek et al. 2004; Weir and Collins 2015). It has been recorded some distance upriver but there is no evidence that it travels beyond the influence of marine waters, and is not known to enter the coastal lagoons that are a prevalent feature of equatorial Atlantic African coasts (Maigret 1980a; Van Waerebeek et al. 2004; Weir and Collins 2015).

Areas of known occurrence of S. teuszii may reflect availability of suitable shallow habitat for the species. The Dakhla Bay, Banc d'Arguin, and Saloum-Niumi stocks are separated from each other by distances exceeding 350 km, and few observations have been recorded between them despite fieldwork over several decades (Collins 2015). This suggests that these stocks may currently be reproductively isolated from each other and from more southern stocks, and that the distribution of S. teuszii may be naturally discontinuous in some areas, with highest densities in optimal habitats and reduced occurrence on intervening coasts (Van Waerebeek et al. 2004; Collins 2015; Van Waerebeek et al. 2017). However, Collins (2015) notes that gaps in the species' range may be a relatively recent phenomenon, due to increased human pressures in once pristine regions (Van Waerebeek and Perrin 2007; Weir et al. 2011). Available data demonstrate that even where dedicated cetacean surveys are conducted, sightings in most areas of known occurrence can be low, and a general absence of records from gap areas may indicate occurrence in extremely low densities rather than absence. For instance, in southern Gabon, where S. teuszii occurs in the surf zone on open coastlines, boat-based survey work demonstrates that sightings rates can be very low, even with dedicated effort (Collins 2015; Austin 2023).

Atlantic humpback dolphin migrations and movements are poorly understood largely because the necessary work ( e.g., comparison of identification catalogues, genetic sampling and tagging) has not been conducted (Collins et al. 2017). Because Atlantic humpback dolphins feed primarily on coastal, estuarine, and reef-associated fishes, localized movements have been linked to feeding opportunities facilitated by tides (Busnel 1973; Collins 2015; Collins et al. 2017). Movements on larger scales have never been documented, but have been inferred using local accounts and sightings from fishers, suggesting movement north of the Banc d'Arguin (Maigret 1980a) and sightings between Nouamghar and Nouakchott (Mauritania) may indicate occasional movements south (Robineau and Vely 1998). More recent observations of S. teuszii groups passing between Barra and Buniada Points, indicate routine movement between Senegal and Gambia (Collins 2015). Additionally, swim speeds of 1-7 km/hour (hr) (mean of 4 km/hr) were recorded during travel along a linear coastline in Angola, indicating that Atlantic humpback dolphins might be capable of undertaking considerable spatial movements with the potential for relatively large home ranges (Weir 2009). Records suggest transboundary movements between some range countries, such as between Saloum-Niumi (Senegal-The Gambia) and Bijagos (Guinea-Bissau) (Van Waerebeek et al. 2004; Collins 2015; Weir 2016; Collins et al. 2017). Sightings in the Rio Nuñez region suggest this connectivity extends into Guinea (Weir and Collins 2015). Additionally, beach-based observations indicate routine movements of S. teuszii across the Gabon/Republic of the Congo border within the Mayumba-Conkouati transboundary protected area; however, it remains unclear if these individuals range farther afield (Collins 2015).

Information on the Atlantic humpback dolphin's diet and feeding ecology is limited, as few stomach samples have been examined and direct observations of feeding are rare (Van Waerebeek et al. 2004; Collins 2015). Additionally, there have not been any targeted studies of its diet or interactions with prey species. However, based on stomach contents of bycaught S. teuszii specimens and direct observations of feeding, it is thought that S. teuszii diet consists predominantly of coastal, estuarine, and reef-associated fish (Cadenat and Paraiso 1957; Cadenat 1959; Van Waerebeek et al. 2004; Weir 2009; Austin 2023).

There are few accounts of observed Atlantic humpback dolphin predation. In Mauritania, a single Atlantic humpback dolphin was observed twice among bottlenose dolphin pods ( Tursiops truncatus ) fishing for mullet ( Mugil cephalus and Liza aurata ) (Busnel 1973; Collins et al. 2017). Additionally, S. teuszii have been observed chasing mullet in channels between the Tidra and Nair islets (Banc d'Arguin) (Duguy 1976) and feeding on the South African mullet ( Liza richardsonii ) and Atlantic bonito ( Sarda sarda ) off the coast of the Flamingos area of Angola (Weir 2009).

Foraging has been linked to rising (flood) tides (Van Waerebeek et al. 2004; Weir 2009). In the Saloum Delta, tides were thought to provide access to inner reaches of mangrove channels and mangrove edges (Maigret 1980a; Collins 2015). Daily movements of individual Atlantic humpback dolphins into channels inshore were coupled with flood tides in Banc d'Arguin (Maigret 1980a), and (Duguy 1976) reported S. teuszii at the Banc d'Arguin chasing mullet in the channels between the Tidra and Nair islets. In other areas, feeding activity also coincides with observations of larger group sizes ( e.g., 20-40 individuals) (Maigret 1980a; Collins et al. 2004; Van Waerebeek et al. 2004).

Atlantic humpback dolphins observed off the coast of the Flamingos area of Angola have been observed spending approximately half of the daylight hours engaged in travel and foraging activities and were observed foraging preferentially around rocks and reefs, as well as at the mouths of rivers, including the typically dry Flamingo River (Weir 2009). Off the coast of Guinea, limited observations suggest that S. teuszii individuals observed in the shallow waters west of the Île de Taïdi spent relatively more time foraging than those individuals in deeper waters of the outer Río Nuñez estuary (Weir 2015).

Data and information regarding life history and reproductive parameters are almost nonexistent for this species. An estimated generation length of 18.4 years is given for the Atlantic humpback dolphin by Taylor et al. (2007), although Moore (2015) provided a figure closer to 25 years for the Indo-Pacific humpback dolphin ( S. chinensis ) and Indian Ocean humpback dolphin ( S. plumbea ) (Collins 2015; Collins et al. 2017). Available data for other species in the genus can be used to infer that S. teuszii likely has a low reproductive rate and low intrinsic potential for population increase (Taylor et al. 2007; Jefferson and Rosenbaum 2014; Moore 2015).

In the Saloum Delta (Senegal), births are thought to occur in March and April, based upon observations of juveniles (Maigret 1980b; Van Waerebeek et al. 2004; Collins 2015). This pattern was also suggested for Guinea Bissau (Collins 2015). No neonates have been examined, but lengths at birth may be similar to the 100 cm cited for S. plumbea from South Africa (Van Waerebeek et al. 2004). The species is suspected to be sexually dimorphic (males larger at maturity and with a more prominent dorsal hump (Austin 2023)), but the sample size of carcasses used to formally assess this trait (~20 individuals) is too small to assess this statistically (Jefferson and Rosenbaum 2014). The data required to estimate other S. teuszii vital rates remain unavailable.

Atlantic humpback dolphins have a surfacing behavior that usually comprises calm rolls, during which the beak is often lifted above the water and the body is arched, accentuating its characteristic hump. Overall, the species is naturally unobtrusive, preferring to maintain a distance from boats and engines; however, individuals have been observed occasionally leaping, breaching, spyhopping and tail-slapping (Weir 2015; Austin 2023). Traveling and foraging are the dominant behaviors reported during targeted focal follows of Atlantic humpback dolphins (Weir 2009; Weir 2015; Weir 2016).

Atlantic humpback dolphins typically travel in small groups; 65 percent of reviewed sightings comprised 10 or fewer animals, although larger groups of up to 45 individuals have been reported (Weir and Collins 2015). Mixed-species associations between Atlantic humpback dolphins and bottlenose dolphins ( Tursiops truncatus ) have been observed in Western Sahara, Mauritania, Senegal, Guinea-Bissau, Gabon, the Republic of the Congo, and Angola (Weir 2009; Weir 2011; Leeney et al. 2016).

No analyses of Atlantic humpback dolphin population structure have been conducted. Thus, the only information currently available comes from known distribution records and evidence of range gaps, which was the approach initially used by Van Waerebeek et al. (2004) to identify Atlantic humpback dolphin management stocks (see Range, Distribution, and Habitat Use and Austin 2023). Additionally, while the complete mitochondrial genome of S. teuszii has been mapped by McGowen et al. (2020), genetic data have been collected for only a few individuals (Mendez et al. 2013; Austin 2023). As a result, estimates of genetic diversity across and within populations are currently not available for this species.

Atlantic humpback dolphin abundance data are limited and robust abundance estimates are lacking for most putative stocks. However, the available information for the eleven recognized management stocks suggests stocks range from the tens to low hundreds of individuals (Collins 2015; Collins et al. 2017; Austin 2023).

Atlantic humpback dolphin populations at the northern (Dakhla Bay, Western Sahara) and southern (Namibe, Angola) extremes of the range appear to be very small (Weir 2009; Collins 2015; Austin 2023). Observations by Beaubrun (1990) described this stock as “miniscule”, and additional sightings in the same area between January 20 and February 14, 1996, by Notarbartolo di Sciara et al. (1998) reported only 4 sightings with a mean group size of 6.9 individuals. Furthermore, Van Waerebeek et al. (2004) noted that the Dakhla Bay stock is likely limited to a few tens of individuals.

The Banc d'Arguin and Saloum-Niumu stocks have been estimated repeatedly at ~100 animals since the mid-1970s (Maigret 1980a; Van Waerebeek et al. 2003; Van Waerebeek et al. 2004). Incidental sightings from the southern Banc d'Arguin suggest that the species is sighted relatively frequently (Collins 2015). However, this stock has never been considered large by those who have completed assessments (Maigret 1980a, b; Robineau and Vely 1998). For the Saloum-Niumi stock, encounter rates and group sizes recorded during surveys since 1997 indicate a small population “unlikely [to] exceed low hundreds, and may be less” (Van Waerebeek et al. 2000; Van Waerebeek et al. 2004; Austin 2023). However, between October and November 2015, a systematic survey conducted by Weir (2016) in the Saloum Delta of Senegal produced a minimum population size estimate of 103 animals, which is the highest population estimation recorded for S. teuszii within the species' range (Austin 2023).

Data and sightings records for the Canal do Gêba-Bijagós Archipelago stock within Guinea-Bissau suggest the continued occurrence of a population of S. teuszii into at least the late 1990s (Spaans 1990; Jefferson et al. 1997; Van Waerebeek et al. 2000; Van Waerebeek et al. 2004). A more recent review of sightings records indicates that S. teuszii is still relatively widely distributed in the Canal do Gêba-Bijagós Archipelago stock within Guinea-Bissau (Leeney et al. 2016), but sightings appear to be declining in regularity (Collins 2015). Within the Guinea stock, six S. teuszii sightings were recorded by Weir (2015) during 817.6 kms of boat-based survey effort in the Río Nuñez Estuary. Photo-identification resulting from this survey resulted in a minimum population estimate of 47 individuals (Weir 2015; Austin 2023).

Recently, observations of S. teuszii in Togolese waters were recorded for the first time by Van Waerebeek et al. (2017), providing evidence confirming Togo as a newly documented range country. Van Waerebeek et al. (2017) described five sightings recorded from shore in Togo between 2008 and 2015. However, small group sizes suggest that the species is not very abundant in Togolese waters (Van Waerebeek et al. 2017; Austin 2023).

In Benin, a single small group (n=4) of Atlantic humpback dolphins was sighted and photographed west of Cotonou, Benin, making it the first S. teuszii record for the Benin stock (Zwart and Weir 2014; Austin 2023). Additionally, Collins (2015) noted that 27 individuals were also observed in Beninese waters. In Nigeria, two dolphins killed in artisanal gillnets off Brass Island in 2011 and 2012 were the first authenticated records of S. teuszii for this range country. Recently, however, five additional S. teuszii sightings have been documented between 2017 and 2021 off the coast of western Nigeria near Lagos (Austin 2023).

Surveys of the Cameroon Estuary stock between May and June 2011, yielded a single S. teuszii sighting on May 17, 2011, despite extensive beach and boat-based survey effort (Ayissi et al. 2014). Additionally, in May 2011, a recorded encounter rate of 0.386 sightings per 100 km (or 3.86 individuals per 100 km) suggests that abundance there may be very low (Ayissi et al. 2014; Austin 2023). Boat-based surveys, conducted in Gabon within the Gabon Estuary stock, between 2003 and 2006 yielded five sightings (Collins et al. 2010; Collins 2015). Boat surveys conducted off the coast of Gamba region of Gabon between 2013 and 2015, documented S. teuszii in Gabonese waters during the survey's first year in 2013 (Minton et al. 2017; Austin 2023). However, sightings rates during shore-based work in 2012 in the Republic of the Congo within the Congo stock were much higher (though not directly comparable), and suggest that the coasts of southern Gabon and a limited area in the adjacent Republic of the Congo may harbor a total population in the low hundreds (Collins 2013; Collins 2015; Austin 2023). While most of the Angolan coast is unsurveyed, intensive survey effort in 2008 along a 35 km stretch of coastline off Angola found a small group of 10 resident individuals in the Flamingos area (Weir 2009; Austin 2023).

It is important to note that, while photo-identification work has yielded minimum estimates of the number of Atlantic humpback dolphins in a number of the study areas discussed above ( i.e., Saloum Delta region of Senegal, Río Nuñez Estuary of Guinea, and the Flamingos area of Angola), each of these studies had limited temporal and spatial extents, and (with the possible exception of the Angola study conducted by Weir (2009)) are unlikely to have photographed all S. teuszii individuals using those areas. Additionally, while encounter rates are available for a number of other studies noted above, they are not directly comparable due to differing sampling methodologies ( e.g., platforms, extent of study area, and seasons).

Overall, the best available scientific and commercial information indicates that the Atlantic humpback dolphin has a small total population size (Austin 2023). Comprehensive reviews conducted by Collins (2015) and Collins et al. (2017) conclude that the species probably includes fewer than 3,000 individuals (Collins 2015; Collins et al. 2017; Austin 2023). If it is assumed that 50 percent of these are mature individuals, then the number of mature individuals in the total population would be no more than 1,500 (Taylor et al. 2007; Collins et al. 2017; Brownell et al. 2019; Austin 2023).

Apart from the systematic surveys in Angola, Republic of the Congo, Gabon, Cameroon, Senegal, and Guinea, no quantitative assessments of population abundance exist in other range countries, thus precluding any quantitative assessments of trend for this species across its range. However, based on available evidence, and a review of published estimates of abundance in each range country, the best available data and information indicates that most S. teuszii stocks are small and that some stocks ( i.e., Canal do Gêba-Bijagós Archipelago stock) may be experiencing population declines (Collins 2015; Collins et al. 2017; Austin 2023). Limited research effort for each putative S. teuszii management stock has either identified significant mortality or yielded strong evidence to infer it (Van Waerebeek et al. 2004; Collins 2015; Collins et al. 2017). According to Van Waerebeek et al. (2003), Van Waerebeek et al. (2004), Weir (2009), Collins (2015), Weir (2015), Collins et al. (2017), and Van Waerebeek et al. (2017), artisanal fishing bycatch and directed takes are the principal causes of these declines, although habitat loss is also likely a contributing factor as well (Collins 2015; Collins et al. 2017; Austin 2023).

In evaluating the level of risk faced by a species and determining whether the species is threatened or endangered, we must consider all relevant data and base our conclusions on the best scientific and commercial data available. In evaluating and interpreting the best scientific and commercial data available, we also apply professional judgment in evaluating the level of risk faced by a species in determining whether the species is threatened or endangered. We evaluate both the viability of the species based on its demographic characteristics (abundance, growth rate/productivity, spatial distribution/connectivity, and genetic diversity; see McElhany et al. (2000)), and the threats to the species as specified in ESA section 4(a)(1)(A)-(E) (summarized in a separate Threats Assessment section below).

For purposes of assessing the extinction risk for the Atlantic humpback dolphin, we reviewed the best available information on the species and evaluated the overall risk of extinction facing the Atlantic humpback dolphin, now and in the foreseeable future. The term “foreseeable future” was discussed qualitatively in the status review report (Austin 2023) and defined as the period of time over which we can reasonably determine that both the specific threats facing the species and the species' response to those threats are likely. We note however, that the term foreseeable future is not limited to a period that a species' status can be quantitatively modeled or predicted within predetermined limits of statistical confidence. The foreseeable future also need not be identified as a specific period of time and may vary depending on the particular threat. See generally 50 CFR 424.11(d).

In considering an appropriate foreseeable future for this extinction risk analysis, we took into account the best available information regarding both the life history of the Atlantic humpback dolphin and threats to the species. Due to uncertainty regarding the species' life history parameters, we do not define a quantitative time frame for the foreseeable future in the risk assessment sections below. Thus, foreseeable future is stated qualitatively, in terms of the projected trend of each threat.

In our status review, data and information about demographic risks to the Atlantic humpback dolphin were considered according to four categories—abundance, growth rate/productivity, spatial structure/connectivity, and genetic diversity. Each of these demographic threat categories was then rated according to the following qualitative scale:

Unknown: The current level of information is either unavailable or unknown for this particular factor, such that the contribution of this factor to the species' risk of extinction cannot be determined.

Low risk: It is unlikely that the particular factor directly contributes or will contribute significantly to the species' risk of extinction.

Moderate risk: It is likely that the particular factor directly contributes or will contribute significantly to the species' risk of extinction.

High risk: It is highly likely that the particular factor directly contributes or will contribute significantly to the species' risk of extinction.

In the sections below, we present information from Austin (2023) to summarize the demographic risks facing the Atlantic humpback dolphin.

There are no historical abundance estimates for the Atlantic humpback dolphin. While historical and robust range-wide abundance estimates are lacking, and there are no robust estimates available for most of the recognized management stocks, the available information suggests stocks range from the tens to low hundreds of individuals (Austin 2023). Most stocks for which data are available are extremely small and several appear to be isolated and at risk of local extirpation ( e.g., Dakhla Bay, Banc d'Arguin, and Angola) (Van Waerebeek et al. 2003; Van Waerebeek et al. 2004; Weir 2009; Weir et al. 2011; Collins 2015; Van Waerebeek et al. 2017; Austin 2023). Considering the relatively small numbers observed, and taking into account the many areas of the species' range where there has been little or no assessment, available published estimates suggest that the species' total abundance consists of no more than 3,000 individuals (Collins 2015; Collins et al. 2017), and indicate that the number of mature individuals is likely less than 1,500 (following Taylor et al. 2007). Additionally, declines in abundance have been observed or are suspected, and continued declines are expected due to the ongoing and projected expansion of identified threats throughout the species' range (Austin 2023). Bycatch in fisheries, which is considered the main cause of these declines, has not ceased and may be increasing as new fishing areas are targeted and fishery pressures increase, thus placing additional pressure on already low and declining Atlantic humpback dolphin stocks.

With fewer than 3,000 individuals likely remaining and available information indicating that the species consists of small, fragmented stocks (with some stocks numbering in the tens of individuals), coupled by observed or suspected declines throughout the species' range, single mortality events could impact some of the smaller stocks' continued viability. Furthermore, the species' low abundance and fragmented and narrow distribution greatly increases the impact of anthropogenic perturbations ( e.g., coastal development and anthropogenic underwater noise) on the species as a whole, and decreases the species' resilience to environmental change ( e.g., climate change) (Davidson et al. 2012; Collins 2015; Weir et al. 2021; Austin 2023). Overall, the available information indicates that the Atlantic humpback dolphin's low abundance poses a high risk (Austin 2023).

Although information on Atlantic humpback dolphin reproduction is almost completely absent, some data regarding reproductive parameters for other species in the genus, ( e.g., S. chinensis and S. plumbea ), are available. For example, S. chinensis has an annual estimated birth rate of 0.053 ± 0.025, with an annual recruitment rate of 0.028 ± 0.024, and a calf rate of survival to the age of 1 year of 0.600 ± 0.392, with females experiencing a long inter-birth interval (4.27 ± 1.06 y) (Zeng et al. 2021). S. plumbea has a reported ovulation rate of 0.2 with a 5-year calving interval (Plon et al. 2015). This can be used to infer that S. teuszii likely has a low reproductive rate as well. S. teuszii' s likely low reproductive rate coupled with a population growth rate ( r ) of 0.00, calculated by Taylor et al. (2007), indicates a low intrinsic potential for population increase (Taylor et al. 2007; Jefferson and Rosenbaum 2014; Collins 2015; Moore 2015). However, it should be noted that the calculation by Taylor et al. (2007) was based on several reproductive parameters that are lacking for this species. Thus, this calculation may not be indicative of the actual population growth rate for this species (due to data deficiencies) (Austin 2023). Nevertheless, taking into consideration the information available for closely related species, a long estimated generation length of about 18 years (Taylor et al. 2007), as well as ongoing and projected increases of identified range-wide threats, this species is likely experiencing a low population growth rate.

Because Atlantic humpback dolphins are thought to consist of small, fragmented stocks, any mortality over and above natural rates is likely to lead to appreciable declines in abundance (Pimm et al. 1988). Moore (2015) estimated that, given an inferred generation time of 25 years (as estimated for S. chinensis and S. plumbea ), an average annual adult mortality rate of approximately 4 percent across the species' range would lead to a 50 percent decline over 75 years ( i.e., three generations) (Collins 2015; Collins et al. 2017). The International Union for Conservation of Nature's (IUCN) assessment for this species uses Moore's estimate and further notes that a slightly higher adult mortality rate of 5.3 percent per year (equal to one or two additional deaths per year per 100 mature individuals) would lead to an 80 percent decline over 75 years ( i.e., three generations) (Moore 2015; Collins et al. 2017). Data for some areas ( e.g., The Republic of the Congo) indicate that human-caused mortality (particularly via bycatch) is high, and when those data are considered alongside the scale of other anthropogenic pressures ( e.g., coastal development), a population decline of 50 percent over three generations is highly likely (Moore 2015; Collins et al. 2017; Austin 2023). While the actual rate of decline is unknown, the available abundance and bycatch data (see Population Abundance and Trends and Overutilization for Commercial, Recreational, Scientific, or Educational Purposes ) suggest the species is declining throughout its range, and there is no information to suggest such a trend would likely reverse. Additionally, given the available information and likely low population growth rate (see Growth Rate and Productivity ), it is likely that the low population growth rate poses a moderate risk to the species (Austin 2023).

The Atlantic humpback dolphin has a restricted range and fragmented distribution, being a shallow water dolphin endemic to (sub)tropical nearshore waters along the Atlantic coast of Africa, ranging discontinuously for approximately 7,000 km from Western Sahara in the north to Angola in the south (Collins 2015; Weir and Collins 2015; Collins et al. 2017). Within that range, the species' habitat preferences appear to limit it to habitats shoreward of the 20 m depth isobaths (Weir and Collins 2015; Weir et al. 2021), and thus they are often in the immediate vicinity of the coast. Use of nearshore habitat increases the species' vulnerability to incidental capture ( i.e., bycatch) in non-selective fishing gears and to habitat-related threats from human activities ( i.e., coastal development). Additionally, the species' fragmented distribution makes stocks more vulnerable to local extirpation.

Direct data on connectivity among Atlantic humpback dolphin stocks are sparse. Although the mitogenome of S. teuszii (n = 1) has been sequenced, genetic data to assess population structure and connectivity are not available. Thus, the genetic connectivity across and within stocks cannot be directly assessed. However, work investigating the genetic substructure for the Indian Ocean humpback dolphin, S. plumbea (the species that is geographically and morphologically most similar to S. teuszii ), indicated appreciable genetic divergence between populations in neighboring regions, and finer scale comparisons have found less diversity among neighboring populations and low overall mtDNA diversity (Mendez et al. 2011; Lampert et al. 2021). This suggests that similar structuring is possible within S. teuszii (Collins 2015; Austin 2023).

Research suggests that individuals occur in a series of localized communities with little interchange identified between them (Maigret 1980a; Van Waerebeek et al. 2003; Van Waerebeek et al. 2004; Weir 2009; Collins 2015; Weir 2016; Collins et al. 2017; Austin 2023). Movements on larger scales are rarely documented, but have been inferred (Collins 2015; Austin 2023). While records suggest transboundary movements between some range countries, such as between Saloum-Niumi (Senegal-The Gambia), Bijagos (Guinea-Bissau), and across the Gabon/Congo border, it remains unclear if these individuals range farther afield (Van Waerebeek et al. 2004; Collins 2015; Weir 2016; Collins et al. 2017). The threat of habitat loss due to coastal development projects ( i.e., port development), is widespread and increasing, and frequently overlaps with the species' preferred habitat (Collins 2015; Austin 2023). Habitat loss due to ongoing and expanding coastal development projects could also cause additional fragmentation of stocks, thus increasing the risk of extirpation of stocks in the near future.

Overall, based on the Atlantic humpback dolphin's restricted range and fragmented distribution, coupled with evidence for the species' tendency for localized residency, connectivity of S. teuszii is likely limited. Limited exchange between stocks would reduce the recovery potential for resident stocks that have experienced severe declines. Thus, given the available information, we conclude that this demographic factor poses a moderate risk to the species. However, additional research on this topic is needed for the Atlantic humpback dolphin to further elucidate this species' population structure and genetic diversity (Austin 2023).

As discussed in Austin 2023 and in the above section (see Spatial Structure and Connectivity ), data do not exist to address the genetic diversity of the Atlantic humpback dolphin. Additionally, most of the genetic data that have been collected to date for this species were generated to investigate the overall phylogenetic relationships within the Sousa genus, and no study has examined S. teuszii population structure or genetic diversity (CCAHD 2020; Austin 2023). Thus, it is unclear how much genetic diversity exists within the species as a whole, whether it occurs as genetically-distinct populations (with limited inter-population breeding, due to geographic isolation), or if any connectivity in gene flow exists between those populations (either at present, or in the past) (CCAHD 2020; Weir et al. 2021). Consequently, without any genetic analyses to determine diversity or effective population size for S. teuszii, it is unknown at this time whether this demographic factor is a threat contributing to the species' risk of extinction (Austin 2023).

As described above, section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We evaluated whether and the extent to which each of the foregoing factors contributes to the overall extinction risk of the Atlantic humpback dolphin. In short, we found that the best scientific and commercial data available indicate that overutilization of the species ( e.g., fisheries bycatch) and the present or threatened destruction, modification, or curtailment of the species' habitat or range ( e.g., coastal development) contribute significantly to the species' risk of extinction. We also determined that the inadequacy of existing regulatory mechanisms to address these threats is also contributing significantly to the Atlantic humpback dolphin's extinction risk. We determined that the other factors, including disease and predation, and other natural or manmade factors affecting the species' continued existence, are not contributing significantly to the species' risk of extinction now or in the foreseeable future. See Austin (2023) for additional discussion of all ESA section 4(a)(1) threat categories. Additional information regarding each of these threats is summarized below according to the factors specified in section 4(a)(1) of the ESA.

We assessed three potential threats that fall under the factor category, present or threatened destruction, modification, or curtailment of its habitat or range. These threats include coastal development, contaminants and pollutants, and climate change. Among these threats, coastal development was the only threat which poses a high risk (Austin 2023). We discuss this threat in detail below. We also considered the potential effects of contaminants and pollutants on the Atlantic humpback dolphin's habitat as well as potential habitat-related impacts stemming from climate change, such as food availability. However, due to the paucity of data, the degree to which these threats contribute to the Atlantic humpback dolphin's extinction risk, now or in the foreseeable future, is unknown (Austin 2023). Additional information on the other threats ( i.e., contaminants and pollutants and climate change) can be found in the draft status review report (Austin 2023).

As previously discussed in the Range, Distribution, and Habitat Use section of this proposed rule, the Atlantic humpback dolphin is considered an obligate coastal and shallow water nearshore species preferring dynamic habitats strongly influenced by tidal patterns (International Whaling Commission 2011; 2017; Taylor et al. 2020; Austin 2023). Additionally, the species has a restricted geographic range, being endemic to the tropical and subtropical nearshore waters along the Atlantic African coast from Western Sahara in the north to the southern region of Angola (Van Waerebeek et al. 2004; Collins 2015; Weir and Collins 2015). Within that range, the species' habitat preferences restrict it to a relatively narrow ecological niche (Austin 2023). Thus, the nearshore habitat requirements increase the vulnerability of Atlantic humpback dolphins to a range of human activities and anthropogenic disturbances (Collins et al. 2017).

The destruction, deterioration, or fragmentation of the nearshore habitats relied upon by Atlantic humpback dolphins is likely to be a range-wide issue (Li 2020; Weir et al. 2021). A variety of anthropogenic activities may adversely impact the capacity of nearshore habitats to support the dolphins, including direct habitat loss to coastal development projects ( e.g., construction and expansion of ports, liquefied natural gas plants, and mining), damage to benthic environments from trawling and dredging, alterations to water flow and quality from upstream activities such as deforestation and damming, reduction of available prey due to destruction of mangroves, and marine pollution originating from terrestrial, atmospheric, and shipping sources (International Whaling Commission 2011, 2017; PWC 2018; International Whaling Commission 2020a, b; Li 2020; Weir et al. 2021). The latter potentially includes runoff of agricultural contaminants, discarding of mining aggregates and other industrial wastes, oil spills, and lack of adequate waste disposal for sewage (introducing bacterial, fungal, and viral pathogens into the Atlantic humpback dolphins' habitat).

As noted above, habitat loss can result from a variety of coastal development activities within the Atlantic humpback dolphin's range. Increasing coastal development is a potential concern within the eastern tropical Atlantic (ETA), a biogeographic realm that extends from Mauritania to southern Angola, overlapping with much of this species' range (Weir and Pierce 2013). Approximately 40 percent of the human population inhabiting the ETA region is concentrated in coastal areas (Ukwe 2003; Ukwe and Ibe 2010). For example, 42 percent of Ghana's population lives within 100 km off the coast, while 20 percent of Nigeria's population lives in large coastal cities (Ukwe and Ibe 2010; Weir and Pierce 2013). The human population of most ETA countries is expanding by 2-3 percent annually (Weir and Pierce 2013), and populations in coastal areas are set to double within 20-25 years (Ukwe and Ibe 2010). Additionally, the coastal zone is the site of all ports and most airports along the Atlantic coast of Africa, as well as factories for processing food and raw materials ( e.g., petroleum and metals), industrial production of fertilizer, pesticides, pharmaceuticals, paper and plastic, and the agriculture, mining, forestry, and tourism industries (Weir and Pierce 2013).

A number of Atlantic humpback dolphin range countries are also major oil producers, specifically, Angola, Equatorial Guinea, Gabon, Cameroon, Nigeria, and the Republic of the Congo (Ukwe and Ibe 2010; Minton et al. 2017; PWC 2018). Additionally, smaller oil fields exist in several other countries such as Senegal, Côte d'Ivoire, Ghana, and São Tomé and Príncipe (Weir and Pierce 2013). Thus habitat loss as a result of coastal construction (due to development of platforms, ports, pipelines, liquefied natural gas plants) and degradation ( e.g., due to discharges, accidental oil spills, gas flaring, seismic exploration and explosives used during installation and decommissioning, and high-amplitude sound associated with shipping) can all negatively impact S. teuszii habitat. Impacts on marine environments are already evident in some areas. For example, in the Niger Delta, the Nigerian National Petroleum Corporation (NNPC) indicates that approximately 300 oil spills occurred annually from 1975 to 1995 causing pollution in the marine environment and fish mortality (Osuagwu and Olaifa 2018). It has been suggested by Van Waerebeek et al. (2004) that S. teuszii most likely inhabited the Niger Delta before large-scale oil exploration and extraction altered the coastal environment (International Whaling Commission 2011). Oil-producing companies from Guinea-Bissau to Angola are estimated to discharge 710 tons of oil annually into the coastal and marine environment; a further 2,100 tons originates from oil spills (Ukwe and Ibe 2010). Impacts on small cetaceans, including the Atlantic humpback dolphin, potentially include ingestion of contaminated prey, irritation of skin and eyes, inhalation of toxic fumes causing lung congestion, neurological damage and liver disorders, and displacement from habitat essential to the species (Geraci 1990; Reeves et al. 2003; Takeshita et al. 2017).

Port developments and other urban construction projects are particularly widespread throughout the Atlantic humpback dolphin's range (Austin 2023), and preferred sites for such developments and projects frequently overlap with S. teuszii habitat (Collins 2015). With economic growth of sub-Saharan Africa increasing from 2.6 percent in 2017 to 3.9 percent in 2022 (PWC 2018; IMF 2022), port developments have increased over the years with the potential for continued expansion. At least three ports that have recently undergone or are undergoing expansion are close to the locations of recent sightings of Atlantic humpback dolphins (Rogers 2017). These include Badagry (Nigeria) which is close to the location of recent sightings of S. teuszii near Lagos (CCAHD unpublished data), Kamsar Port (Guinea) within the Río Nuñez Estuary (Weir 2015), and the deep-sea port of Kribi (Cameroon) (Van Waerebeek et al. 2017). The scale of some ports suggests that they present effective physical barriers and thus have potential for disrupting Atlantic humpback dolphin longshore movements (Austin 2023). Indirect or “non-lethal” disturbances are likely during port construction, and may become more permanent if maintenance ( e.g. dredging) and urban development occurs at port sites (Jefferson et al. 2009; Collins 2015).

Habitat loss resulting from mangrove destruction and altered river sediment loads have also been documented in Guinea-Bissau and Senegal. For example, mangrove habitat loss ( i.e. 29 percent in one protected area) occurred in Guinea-Bissau due to agricultural practices and firewood collection (Vasconcelos et al. 2002; Weir and Pierce 2013). Additionally, the completion of the Diama dam on the Senegal River in 1985 resulted in topographical and hydrological changes to the Senegal Delta, with associated ecological changes ( e.g. in zooplankton communities) (Champalbert et al. 2007). These activities may directly and indirectly (via changes in prey) affect Atlantic humpback dolphins, which regularly inhabit estuarine areas (Collins 2015).

Overall, widespread coastal development results in extensive damage to benthic environments and alterations to water flow and quality, all of which degrade or eliminate the already restricted nearshore habitat of the Atlantic humpback dolphin. Oil and gas development and extraction activities occur in the central and southern portions of the species' range, resulting in an increase in port facilities and other coastal development projects (Collins 2015; Collins et al. 2017). Additionally, habitat fragmentation resulting from these activities, has serious implications for a species already restricted to narrow geographic and ecological niches consisting of small, fragmented stocks. Coastal development activities have increased over the past decade, with little indication that these activities will decline or cease in the foreseeable future. Additionally, port developments are widespread throughout the species' range and preferred port sites often overlap with the habitats of these coastal dolphins (Austin 2023). It has also been noted in the Niger Delta that populations of S. teuszii may have been displaced due to altered coastal environments from large scale oil exploration and extraction activities, suggesting a link between coastal oil and gas activities and the species' decline in this area (International Whaling Commission 2011; Austin 2023). Thus, the impacts of coastal development activities on the Atlantic humpback dolphin will likely continue and may intensify in the foreseeable future. Because of the possible species' displacement in the Niger Delta coupled by habitat fragmentation resulting from coastal development activities (which has serious implications for a species already restricted to narrow geographic and ecological niches), the destruction, modification, and curtailment of habitat in the form of coastal development contribute to a high risk of extinction (Austin 2023), and this risk will be exacerbated in the foreseeable future.

We assessed four potential threats that may contribute to the overutilization of the species: fisheries bycatch, use and trade, depletion of prey resources, and ecotourism. Of these four threats, the primary threat facing the Atlantic humpback dolphin is fisheries bycatch, specifically in artisanal gillnets. This type of overutilization is considered widespread throughout the species' range, and is considered to be causing population declines. Thus, fisheries bycatch was determined to pose a high risk (Austin 2023). The use of stranded or bycaught Atlantic humpback dolphins for human consumption or fishing bait, which has been documented throughout the species' range (Clapham and Van Waerebeek 2007; Weir and Pierce 2013; Collins 2015), was also determined to pose a high risk (Austin 2023). Depletion of prey resources resulting from intensive and unsustainable commercial and artisanal exploitation of fish stocks is another factor contributing to declining Atlantic humpback dolphin stocks (Van Waerebeek et al. 2004; Weir 2011), and was determined to pose a moderate risk. We discuss these three threats in detail below. While ecotourism is increasing in some countries within the species' range, and the activities associated with ecotourism may affect the Atlantic humpback dolphin and its habitat, it is currently unknown if ecotourism is a threat that contributes to the Atlantic humpback dolphin's extinction risk, now or in the foreseeable future (Austin 2023).

The best scientific and commercial data indicate that the primary threat facing the Atlantic humpback dolphin is bycatch in artisanal gillnets. Bycatch in artisanal gillnets is considered widespread throughout the species' range and has been documented in Mauritania, Senegal, Guinea, Guinea-Bissau, Nigeria, Cameroon, and the Republic of the Congo (Campredon and Cuq 2001; Van Waerebeek et al. 2004; Collins 2015; Collins et al. 2017; Brownell et al. 2019; Jefferson 2019; Weir et al. 2021).

A study by Weir and Pierce (2013) summarizing historical accounts of bycaught and hunted cetaceans in the ETA, noted that the Atlantic humpback dolphin was one of four most frequently documented bycaught species within the ETA (the other three species being the harbor porpoise, common dolphin, and bottlenose dolphin). Specifically, Atlantic humpback dolphins were noted to be particularly vulnerable to bycatch in artisanal gillnets: out of 16 reported bycatch events for this species, 13 animals died in artisanal gillnets in Mauritania, Senegal, and the Republic of the Congo, one died in a fish trap in Guinea-Bissau, and two were taken in unspecified fishing gear (possibly also gillnets) in Senegal and Guinea (Weir and Pierce 2013; International Whaling Commission 2020a; Austin 2023). Weir et al. (2011) notes that gillnet density is high in parts of the Atlantic humpback dolphin's range ( e.g. in Angola). Furthermore, Leeney et al. (2015) reports that there are at least 4,700 artisanal fishers in The Gambia, 59,500 in Senegal, and 4,141 in Guinea-Bissau, and potentially a lot more in other countries along the Atlantic Coast of Africa within the species' range. However, Notarbartolo di Sciara (1998) notes that the species has also been “fatally entangled in octopus line”, and observations of foraging individuals taken near the stern wake of trawlers indicate potential for bycatch in other fisheries.

Work in Conkouati-Douli National Park (Republic of the Congo) provides some indication of the potential scale of S. teuszii bycatch and substantial bycatch risk for the species (Collins 2015). An intensive monitoring, enforcement, and cooperative (incentivized) reporting program identified 19 dolphins that were caught as bycatch over 5 years across all artisanal landing sites (n = 14) along a 60-km stretch of protected beach (Collins 2015). Out of the 19 dolphins caught as bycatch, 10 were identified as S. teuszii, and the testimony of fishers showed that all were caught in gillnets less than 1 km from shore (Collins 2015; Collins et al. 2017). More recently, CCAHD partners in Renatura, Congo documented two adult S. teuszii caught in fishing gear in May, 2021 in the village of Bellelo just south of Conkouati-Douli National Park, Congo (CCAHD).

In northern Guinea, bycatch (mostly gillnet entanglements) of Atlantic humpback dolphins has also occurred in small-scale local fisheries surrounding the Marine Protected Area of the Tristao Islands until at least 2017 (Bamy et al. 2010; Van Waerebeek et al. 2017; Bamy et al. 2021) with documented S. teuszii specimens bycaught in low frequency in 2002 (n=1) and in slightly higher frequency from 2011-2012 (n=5) (Van Waerebeek et al. 2017; Austin 2023).

In Cameroon, a capture of an Atlantic humpback dolphin was reported (supported by photographs), landed by small-scale fishers at Campo in southern Cameroon on an unspecified date in 2012 (Ayissi et al. 2014). Additionally, Van Waerebeek et al. (2017) reported an adult specimen landed at Londji fish landing site (near Kribi) that became accidentally entangled in an artisanal gillnet in Douala-Edea Fauna Reserve on March 22, 2014 (Austin 2023). In the neighboring country of Nigeria, there have been reports of Atlantic humpback dolphins killed in artisanal gillnets off Brass Island (Van Waerebeek et al. 2017; Austin 2023). Both individuals were killed for human consumption. Even though mortality figures have also been reported for other areas, including Banc d'Arguin and the Saloum Delta (Campredon and Cuq 2001), these mortality figures are based on single studies, and there are no formal ongoing monitoring programs for cetacean bycatch in these aforementioned areas or anywhere else in the species' range (Van Waerebeek et al. 2004; Collins 2015; Collins et al. 2017). Thus, the reported bycatch figures are likely to be underestimates of the true level of mortality.

There is some evidence that beach seines may also contribute to dolphin mortality. The first S. teuszii specimen records for Togo were two incidentally bycaught individuals found killed in a beach seine at Agbodrafo along Togo's eastern coast (Van Waerebeek et al. 2017; Austin 2023). Additionally, in December 2021, eight S. teuszii individuals were trapped in a beach seine near Port Gentil, Gabon, and subsequently were released through the collaborative efforts of local fishers, National Parks Agency staff, and a local non-government organization (NGO) (CCAHD; Austin 2023).

Although there is no evidence of any organized, directed fisheries for S. teuszii, there is a concern that bycatch can develop into what is known as “directed entanglement” or “non-target-deliberate acquisition”, where fishers may intentionally try to catch Atlantic humpback dolphins in gillnets originally intended for other species (especially if there is a market for such catches) (Clapham and Van Waerebeek 2007; Collins 2015). While the scale of this practice is unknown, the use of cetaceans for human consumption has been documented in 15 (71 percent) of the 21 countries bordering the ETA (Weir and Pierce 2013). These countries provide a potential market for cetacean products (Van Waerebeek et al. 2004; Clapham and Van Waerebeek 2007; Collins 2015; Leeney et al. 2015; Brownell et al. 2019; Jefferson 2019; Ingram D.J. et al. 2022). Throughout the ETA, declining fisheries resources and rising human populations have accelerated the displacement of a number of communities from their traditional food sources, resulting in new forms of aquatic meat consumption, as well as the rise of illegal local and international trade to generate revenue (Balinga and Dyc 2018). Consequently, this aquatic harvest is impacting large aquatic mammal, reptile, and avian fauna in the region, including S. teuszii (Balinga and Dyc 2018; Ingram D.J. et al. 2022). Furthermore, some of the main factors contributing to declines in fish biomass are inadequate policies and institutional frameworks and inadequate enforcement of existing laws and regulations to address illegal, unreported, and unregulated (IUU) fishing, bycatch, and harvesting activities throughout much of the species' range countries (Balinga and Dyc 2018; Weir et al. 2021). The sale of dolphin meat (from various species) for either human consumption or bait has been documented or suspected from a number of S. teuszii range countries. Evidence for use of S. teuszii for bait, consumption, and sale has been reported from Ghana, Mauritania, Senegal, Guinea, Guinea-Bissau, Nigeria, Cameroon, and the Republic of the Congo (Cadenat 1956; Van Waerebeek et al. 2004; Collins 2015; Van Waerebeek et al. 2015; Collins et al. 2017; Van Waerebeek et al. 2017; International Whaling Commission 2020a; Weir et al. 2021). Furthermore, the use of Atlantic humpback dolphins as bait in some of the aforementioned countries has been documented in longline fisheries targeting sharks (Van Waerebeek et al. 2017). Stranded or bycaught Atlantic humpback dolphin carcasses are routinely utilized by local communities for fishing bait, primarily targeting sharks (Van Waerebeek et al. 2017; Weir et al. 2021). Individual dolphin carcasses are those from either stranded individuals found dead on the shore (primarily having been bycaught in beach seines), or individuals that are found dead after being bycaught in artisanal gillnets offshore and then subsequently brought to shore for use (Weir and Pierce 2013; CCAHD 2020; Weir et al. 2021).

Weir and Pierce (2013) documented instances of human consumption of cetaceans, including the Atlantic humpback dolphin, in 15 of the 21 countries bordering the ETA (Mauritania to Angola). In The Gambia, an unidentified dolphin (either bottlenose or Atlantic humpback) found alive in a fishing net in 1996 was killed and butchered (Weir and Pierce 2013). Off the coast of Fadiouth, Senegal, the meat of an Atlantic humpback dolphin caught (capture method unknown) in June 1997 was sold and the remains dumped (Van Waerebeek et al. 2000; Van Waerebeek et al. 2004). In Guinea, an Atlantic humpback dolphin was found for sale at the Dixinn fish landing site on March 13, 2002 (Bamy et al. 2010). Additionally, Van Waerebeek et al. (2017) noted that when locals in Guinea, Nigeria, Cameroon, and Togo were queried, they typically admitted that dolphins were butchered and fully utilized (and many of these instances involve the incidental use of stranded or bycaught dolphins) (Collins 2015; Collins et al. 2017; Weir et al. 2021).

In the Republic of the Congo, there have been 30 cases of small cetacean carcasses being used for human consumption (30 of 34 bycatches, or 88.2 percent of cases), most of which were identified as Atlantic humpback dolphins (n=18) and bottlenose dolphins (n=7) (Collins 2015; Collins et al. 2017). In the Tristao Islands region of northern Guinea, Bamy et al. (2021) noted the use of cetaceans for human consumption is synchronous with and thought to be related to declining fish stocks.

In The Gambia, Senegal, and Guinea-Bissau, a survey conducted by Leeney et al. (2015) between 2007 and 2012, reported that at least a quarter of respondents in each country stated they had accidentally caught a dolphin at least once, and greater proportions of interviewees stated that other fishers sometimes caught dolphins. Furthermore, while bycaught animals in The Gambia, Senegal, and Guinea-Bissau were usually distributed within the community as food, Leeney et al. (2015) found that the meat and oil of dolphins were also used to treat various illnesses. Overall, this survey's results suggested that although dolphin meat was not a major source of income for communities in Guinea-Bissau, The Gambia, and the Saloum Delta, it did provide a supplementary source of food.

Clapham and Van Waerebeek (2007) noted that market surveys conducted in ETA coastal nations indicated that the sale and consumption of cetacean products is common. Additionally, these sales contribute to the economic viability of gillnet fisheries in Ghana, which includes the killing of live entangled animals, and using dolphin meat as bait (Van Waerebeek et al. 2004; Clapham and Van Waerebeek 2007; Collins 2015). However, it is important to note that captures may be concealed because of legal prohibitions, and, therefore, acquiring reliable data from surveys remains a challenge in some areas (Van Waerebeek et al. 2004; Collins 2015; Collins et al. 2017).

The depletion of prey resulting from intensive and unsustainable commercial and artisanal exploitation of fish stocks is also considered a potential contributing factor to declining Atlantic humpback dolphin populations (Van Waerebeek et al. 2004; Weir 2011). As noted in the Diet and Feeding section of this proposed rule, knowledge of the species' diet is limited. However, some fish consumed by Atlantic humpback dolphins ( e.g. mullet, Mugil spp.) are also targeted by coastal fisheries (Cadenat 1956; Maigret 1980b; Weir 2016). Additionally, within Atlantic humpback dolphin range countries, there is a high level of reliance on artisanal fishing for the protein intake and livelihoods of impoverished coastal communities (Weir et al. 2021). Senegal, Mauritania, Liberia, Ghana, and Sierra Leone are among the countries most affected by IUU fishing (Balinga and Dyc 2018), and the presence of S. teuszii has been documented in Senegal and Mauritania. Generally, IUU fishing is widespread throughout the species range (Brashares et al. 2004), including within protected marine areas such as Conkouati-Douli National Park in the Republic of the Congo (Collins 2015). Fish biomass in nearshore and offshore waters off the Gulf of Guinea has declined by at least 50 percent since 1977 due to unsustainable fishing by foreign and domestic fleets (Brashares et al. 2004). In the Eastern Central Atlantic, 68 percent of the main fisheries are considered to be either at full capacity or in decline (Weir and Pierce 2013). Overall, fish biomass in the northwest region of Africa declined by a factor of 13 between 1960 and 2001 (Christensen et al. 2004). Consequently, declines in fish biomass may affect Atlantic humpback dolphin populations by increasing artisanal fishing effort and pressure, leading not only to increased bycatch risk but also potentially reduced prey availability for the species (Collins 2015; Collins et al. 2017).

Overall, as noted in the Range, Distribution, and Habitat Use section of this proposed rule, the habitat preferences of the Atlantic humpback dolphin increases its susceptibility and exposure to inshore artisanal and commercial fisheries and associated gears, such as artisanal gillnets, beach seines, and octopus line (Austin 2023). As discussed in depth in the draft status review report (Austin 2023), bycatch in fisheries has not ceased and may intensify in the foreseeable future as new fishing areas are targeted and fishing pressure increases. The use of stranded or bycaught Atlantic humpback dolphins for human consumption or fishing bait has also been documented throughout the species' range (Clapham and Van Waerebeek 2007; Weir and Pierce 2013; Collins 2015; Van Waerebeek et al. 2017; Ingram D.J. et al. 2022). While there is some indication of secondary ( i.e. non-targeted) use of dolphin bycatch, it is evident that the species has been, and is directly and increasingly being targeted for food in many areas across its range (Weir and Pierce 2013; Collins 2015; Leeney et al. 2015). In addition, effective bycatch monitoring and mitigation has not been documented in most S. teuszii range countries (Austin 2023; see Inadequacy of Existing Regulatory Mechanisms ), and the lack of effective monitoring and enforcement to protect the species from targeted hunting throughout much of the species' range places additional pressure on already small, likely fragmented, and declining Atlantic humpback dolphin stocks (Doumbouya et al. 2017; CMS 2022; Minton et al. 2022). Furthermore, the depletion of prey resulting from intensive and unsustainable commercial and artisanal exploitation of fish stocks (Van Waerebeek et al. 2004; Weir 2011) is likely to increase in the foreseeable future, as some fish predated by Atlantic humpback dolphins are also targets of coastal fisheries. Resource competition between dolphin and human communities will continue for the foreseeable future due to a high reliance on artisanal fishing for the protein intake and livelihoods of impoverished coastal communities within the range countries (Weir et al. 2021). Thus, we determined that overutilization of the species in the form of fisheries bycatch and human use contributes to a high risk of extinction, and depletion of prey resources contributes to a moderate risk of extinction (Austin 2023). These risks will be exacerbated in the foreseeable future (Austin 2023).

We assessed existing regulatory mechanisms to determine whether they may be inadequate to address threats to the Atlantic humpback dolphin from bycatch in commercial and artisanal fisheries as well as coastal development. We determined that inadequacy of existing regulatory mechanisms, particularly due to lack of enforcement, resources, implementation, and/or effectiveness within each range country, contributes to a high risk of extinction (Austin 2023). Below is a description and evaluation of current and relevant international, regional, and domestic regulatory mechanisms that currently apply to the Atlantic humpback dolphin. More detailed information on these regulatory mechanisms can be found in the draft status review report (Austin 2023).

A majority of Atlantic humpback dolphin range countries are members or signatories to a diverse array of international conventions and agreements. The Convention on the Conservation of Migratory Species of Wild Animals (CMS or Bonn Convention) is an environmental treaty of the United Nations that aims to conserve migratory species, their habitats, and their migration routes. CMS establishes obligations for each state joining the convention, promotes collaboration among range states, and provides the legal foundation for coordinating international conservation measures throughout a migratory range. Early recognition of the vulnerability of the Sousa species was indicated by their inclusion on the CMS Appendix II in 1991 (Weir et al. 2021) and on Appendix I in 2009, thereby obligating parties to work regionally to promote their conservation. Parties include all countries that are in the Atlantic humpback dolphin's range except for Sierra Leone and Western Sahara (Austin 2023). The CMS defines Appendix I species as those “that have been assessed as being in danger of extinction throughout all or a significant portion of their range.” The listing under Appendix I is the highest level of protection under CMS and is for species threatened with extinction. The listing obligates the parties to strive towards protecting these animals (including the Atlantic humpback dolphin), conserving and restoring their habitats, mitigating obstacles to migration, and controlling other factors that might endanger them. However, while 17 out of the 19 range countries of S. teuszii are parties to CMS, conservation of the Atlantic humpback dolphin is often not a high priority for governments of range countries, despite the efforts of the CMS's National Focal Points to promote the issue. Additionally, relevant government agencies in many range countries currently lack the resources to monitor and enforce CMS provisions (Doumbouya et al. 2017; CMS 2022; Minton et al. 2022).

The CMS has been closely involved with efforts to conserve the Atlantic humpback dolphin since the early 1990s and has funded two West African Cetacean Research and Conservation Programme (WAFCET) projects during the late 1990s to collect information on this (and other) species, and to stimulate regional involvement in conservation efforts (Van Waerebeek et al. 2000; Van Waerebeek et al. 2003; Van Waerebeek et al. 2004; Weir et al. 2021). A series of CMS meetings was held on West African cetaceans and culminated in the signing of a Memorandum of Understanding (MoU) Concerning the Conservation of the Manatee and Small Cetaceans of Western Africa and Macaronesia in 2008 (CMS 2008). This MoU came into effect on October 3, 2008, and will remain open for signature indefinitely. It aims to achieve and maintain a favorable conservation status for manatees and small cetaceans of West Africa and Macaronesia (including the Atlantic humpback dolphin) and their habitats to help safeguard the associated values of these species for the people of the region. Thus far, 17 West African and Macaronesian range states and 6 collaborating organizations have signed the MoU. This includes 12 of the countries within the Atlantic humpback dolphin's range (Austin 2023), thereby obligating the signatories to conserve manatees and small cetaceans in West Africa (including the Atlantic humpback dolphin). In 2017, a CMS Concerted Action was adopted specifically for the Atlantic humpback dolphin; the CMS Concerted Action required a meeting of delegates from countries within the species range and the formulation of an action plan covering the years 2018-2023 (Austin 2023). However, progress on its implementation was substantially delayed, and another CMS Concerted Action was adopted in 2020 to revise the action plan's timeline to 2021-2025 (Weir et al. 2021). As such, very little progress has been made in applied conservation of the Atlantic humpback dolphin across its range. Additionally, as part of the work on the Atlantic humpback dolphin action plan required by the 2020 Concerted Action, a formal review of the legal status and protections for the species in each range country is also underway (CMS 2022). Based on currently available information, it seems that the species is legally protected under general categories such as “marine mammals,” “aquatic animals,” or “Family Delphinidae” in most range countries, but species-specific protections are lacking (CMS 2022; Austin 2023). However, many range countries lack resources to effectively monitor and mitigate bycatch, design and implement other research and conservation measures, or enforce laws relating to retention and use of bycaught individuals (CMS 2022; Minton et al. 2022; Austin 2023).

In 2002, the International Whaling Commission's (IWC) Small Cetacean Sub-Committee identified the Atlantic humpback dolphin as a priority for research, spurring a genus-wide review, and in 2010, it identified a range of specific research and conservation objectives for the Atlantic humpback dolphin (IWC 2011). In 2015, the Small Cetaceans Sub-Committee identified the Atlantic humpback dolphin as one of the cetacean species with high priority for designation of task teams for the potential development of Conservation Management Plans (Genov et al. 2015). These objectives incorporated expert scientific opinion and considered earlier conservation agreements and strategies, including the Memorandum of Understanding for the Conservation of Small Cetaceans of Western African and Macaronesia (Van Waerebeek and Perrin 2007; CMS 2008; Weir et al. 2021). Additionally, the IWC's Bycatch Mitigation Initiative (BMI) is focused on raising awareness of the issue of cetacean bycatch and available approaches and solutions for assessing, monitoring, and reducing bycatch (Austin 2023). Specifically, the IWC's BMI is focused on bycatch in gillnets, particularly in small-scale fishing fleets, which include the fleets of Atlantic humpback dolphin range countries (CCAHD 2020). While a number of S. teuszii range countries are IWC member nations and thus are party to the conservation initiatives set forth under the IWC, effective bycatch mitigation and monitoring programs have not been documented in most S. teuszii range countries. Additionally, the objectives set forth under the IWC's BMI are either at the planning or pilot project stage, and full implementation of this initiative (and subsequent results) has not been completed within S. teuszii range countries (CCAHD 2020; Austin 2023).

The Convention on Wetlands, signed in Ramsar, Iran, in 1971, is an intergovernmental treaty, which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. As of October 2021, there are 172 parties, which includes 18 out of 19 range countries of S. teuszii and 2,347 designated sites (Austin 2023). One of these is the Saloum Delta, Senegal, which is listed as a Wetland of International Importance under the Convention on Wetlands, and is known to host possibly the largest known population of S. teuszii. While the Convention on Wetlands provides indirect benefits to the species by providing protection of key habitat areas along the west coast of Africa, the level of protection varies at each site (Collins 2013; Weir and Pierce 2013; Taylor et al. 2020).

The Abidjan Convention covers the marine environment, coastal zones, and related inland waters from Mauritania to Namibia, which covers much of the Atlantic humpback dolphin's range. The Abidjan Convention is an agreement for the protection and management of the marine and coastal areas that highlights sources of pollution, including pollution from ships, dumping, land-based sources, exploration and exploitation of the sea-bed, and pollution from or through the atmosphere. The Abidjan Convention also identifies where co-operative environmental management efforts are needed. These areas of concern include coastal erosion, especially protected areas, combating pollution in cases of emergency, and environmental impact assessment. Additionally, the Abidjan Convention promotes scientific and technological collaboration (including exchanges of information and expertise) as a means of identifying and managing environmental issues. The action plan and the Abidjan Convention were adopted by the participating governments in March, 1981; the Abidjan Convention entered into force on August 5th, 1984 (Austin 2023). The contracting parties that have ratified the Abidjan Convention are: Benin, Cameroon, Republic of the Congo, Côte d'Ivoire, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mauritania, Nigeria, Senegal, Sierra Leone, South Africa and Togo, which includes 15 out of the 19 range countries of S. teuszii (Austin 2023). The remaining 4 range countries including Angola, Democratic Republic of the Congo, and Equatorial Guinea are located in the Abidjan Convention area but have not yet ratified the convention; and Western Sahara is not a signatory of the Abidjan Convention (Austin 2023). While the Abidjan Convention provides a framework within which broad conservation and environmental protection objectives may be pursued collaboratively among African countries on a regional scale, it does not specifically address Atlantic humpback dolphin conservation. Furthermore, relevant government agencies in many range countries lack the resources to effectively implement conservation measures resulting from the Abidjan Convention (Doumbouya et al. 2017; CMS 2022; Minton et al. 2022).

In 1998, the environmental ministers of Côte d'Ivoire, Ghana, Togo, Benin, Nigeria, and Cameroon signed the Accra Declaration to strengthen regional capacity to prevent and correct pollution in the Gulf of Guinea Large Marine Ecosystem (GOG-LME) and prevent and correct degradation of critical habitats. The ministers identified the living resources and management problems in the area. The countries decided to undertake a detailed survey of industries, defined regional effluent standards, instituted community based mangrove restoration activities, and created a campaign for the reduction, recovery, recycling, and re-use of industrial wastes (Austin 2023). In 2006, the Guinea Current LME Project expanded the project scope to 10 neighboring countries (Guinea-Bissau, Guinea, Sierra Leone, Liberia, Sao Tome and Principe, Equatorial Guinea, Gabon, Republic of the Congo, Democratic Republic of the Congo, and Angola) (Austin 2023). The Guinea Current LME Project includes 15 out of the 19 countries within the Atlantic humpback dolphin's range and is a regional effort to assess, monitor, and restore the ecosystem and enhance its sustainability, with the aim of conserving and preventing the degradation of the nearshore habitats along portions of the Atlantic Coast of Africa. However, government agencies in many range countries lack the resources to effectively implement conservation measures resulting from this declaration (Doumbouya et al. 2017; CMS 2022; Minton et al. 2022).

The Revised African Convention on the Conservation of Nature and Natural Resources (Revised African Convention) was adopted by the Assembly of the African Union on July 11, 2003 in Maputo, Mozambique and entered into force on July 23rd, 2016 (Austin 2023). The Revised African Convention is the result of a thorough revision of the original Algiers Convention (adopted in 1968) (Austin 2023). The Revised African Convention is a comprehensive regional treaty on environment and natural resources conservation, and the first to deal with an array of sustainable development matters, including quantitative and qualitative management of natural resources such as soil and land, air and water, and biological resources (Austin 2023). The contracting parties that are signatories to the Revised African Convention are: Angola, Mauritania, Senegal, Guinea-Bissau, Nigeria, Equatorial Guinea, Democratic Republic of the Congo, The Gambia, Guinea, Togo, Benin, Gabon, Republic of the Congo, Sierra Leone, Liberia, Côte d'Ivoire, and Ghana; this includes 17 out of the 19 range countries of S. teuszii (Austin 2023). As of February, 2022, 7 of these range countries (Angola, The Gambia, Benin, Republic of the Congo, Liberia, Côte d'Ivoire, and Ghana) have officially ratified the Revised African Convention (Austin 2023). While the Revised African Convention provides a framework within which broad conservation and sustainable development objectives may be pursued to provide environmental regulation at the regional level, it does not specifically address Atlantic humpback dolphin conservation. Furthermore, financing the Revised African Convention has been a challenge and is crucial to implementation of its provisions as well as management of compliance of its parties. The provisions of the 2003 Revised African Convention emphasize the need for its member states to mobilize financial resources individually or jointly from bilateral or multilateral funding sources (Erinosho 2013). While the financial provisions of the 2003 Revised African Convention are an improvement over the 1968 African Convention (which was silent on issues of funding), the funding provisions are largely generic (Erinosho 2013). The successful implementation of the Revised African Convention is dependent on its procedures for implementation and compliance which are only made possible with adequate financial backing from its parties. This remains a challenge for a number of African countries that are signatories to the Revised African Convention, as resources to fully implement the treaty are currently lacking (Erinosho 2013).

Information on the existence of domestic laws or regulations of range countries that specifically apply to the Atlantic humpback dolphin is limited. However, two countries within the species' range, Senegal and Gabon, have laws and measures in place that are intended to reduce cetacean bycatch (CMS 2022; Austin 2023).

In Senegal, monofilament nets are officially banned in coastal waters (Belhabib et al. 2014). However, this prohibition is not well enforced and gillnets are still widely used in Senegalese waters in nearshore areas (Belhabib et al. 2014; Thiao et al. 2017). This is largely because Senegal has neither the resources nor the capacity to enforce fishing regulations (Diedhiou and Yang 2018).

In Gabon, there is a ban for setting gillnets in estuaries under Law No. 042/2018 of July 5, 2019, in the Penal Code in the Gabonese Republic and under the Gabonese Decree 0579/PR/MPE of November 30, 2015 (CMS 2022; Austin 2023). However, this law and decree are not well enforced (Austin 2023). Additionally, although a local agreement on beach seine practices is intended to reduce bycatch in Gabon, limited progress is being made regarding bycatch mitigation (Austin 2023).

While a majority of Atlantic humpback dolphin range countries are members or signatories to a diverse array of international and regional conventions and agreements that would require them to take concrete measures to protect the Atlantic humpback dolphin and mitigate threats (Austin 2023), such as protections afforded to CMS Appendix I species, few such countries have adopted specific protections for the species, and effective bycatch mitigation has not been documented in most S. teuszii range countries (CMS 2022; Austin 2023). This is a serious concern, given that bycatch is considered linked to the species' population decline and poses an immediate range-wide threat (Brashares et al. 2004; Van Waerebeek and Perrin 2007; Ayissi et al. 2014; Belhabib et al. 2014; Collins 2015; Collins et al. 2017). Additionally, domestic, regional, and international regulatory mechanisms that currently exist are not adequately enforced or do not address the species' primary threats. Furthermore, government agencies in many range countries lack the resources to effectively monitor and mitigate threats and design and implement research and conservation measures specific to the Atlantic humpback dolphin (Doumbouya et al. 2017; CMS 2022; Austin 2023). Thus, we determined that inadequacy of existing regulatory mechanisms to address the risks posed by bycatch and coastal development, due to lack of enforcement, resources, implementation, and/or effectiveness within each range country, contributes to a high risk of extinction (Austin 2023).

Under this category, we assessed the potential threat posed by anthropogenic underwater noise on the Atlantic humpback dolphin. We determined that anthropogenic underwater noise poses a moderate risk (Austin 2023). We discuss this threat in detail below.

Knowledge about this species indicates that sound is important to Atlantic humpback dolphin functioning and survival. Small odontocete cetaceans, which have a similar hearing range as that of the Atlantic humpback dolphin, rely upon a highly developed acoustic sensory system and rely on echolocation to navigate, feed, and communicate with conspecifics in the marine environment (Weilgart 2017; Stevens et al. 2021). It is also widely recognized that anthropogenic sound sources and the resulting anthropogenic underwater noise can have potential impacts on cetaceans' welfare including stress/physiological effects (such as hearing loss, tissue damage, and respiration rates) as well as behavioral impacts (such as shifts in migration, reduced group cohesion, reduced foraging, changing dive patterns, masking of communication sounds, displacement from important habitats, and even cognition when the added noise exceeds the threshold levels of the species) (Wartzok and Ketten 1999; Whittaker and Young 2018; Erbe et al. 2019; Stevens et al. 2021). Additionally, anthropogenic underwater noise has been shown to elicit a variety of stress responses from other cetacean species, such as the bottlenose dolphin and beluga whale (Ketten 1995; Gordon and Moscrop 1996; Richardson and Wursig 1997; Nowacek et al. 2007; Whittaker and Young 2018).

Underwater noise from coastal development activities such as drilling, pile-driving, explosions, and dredging are likely to affect many of the coastal habitats relied upon by Atlantic humpback dolphins (Weir et al. 2021). Additionally, engine noise and sonar from different vessel types ( e.g. pirogues, dredgers, trawlers and tankers) may reach sufficient amplitude and duration such that the health and/or behavior of coastal marine mammals in the area (including Atlantic humpback dolphins) are negatively affected (Whittaker 2018; Erbe et al. 2019; Weir et al. 2021). Additionally, there is a possible link between anthropogenic underwater noise and higher likelihood in occurrence of strandings of cetaceans (Ketten 1995; Gordon and Moscrop 1996; Richardson and Wursig 1997; Nowacek et al. 2007; Whittaker and Young 2018). Hydrocarbon exploration using high-amplitude impulsive sounds may also affect Atlantic humpback dolphins, as has been noted in other cetaceans (Cerchio et al. 2014; Weir et al. 2021).

Small odontocete cetaceans use clicks and whistles to communicate with other individuals, and are strongly dependent on echolocation for navigation, foraging, and predator avoidance (Reeves et al. 2003; Stevens et al. 2021). Although studies in this species have been scarce, there are acoustic recordings of the species made in Namibe province, Angola (Weir 2010). The whistles of the Atlantic humpback dolphin were found to be comparable to S. chinensis, and are composed of generally low frequencies with a 92 percent occurrence of harmonics (Weir 2010). Given the increasing development activities within the dolphin's habitat along the west coast of Africa, particularly related to coastal construction activities (especially port construction and expansion) and the oil and gas industry ( e.g. development of platforms, ports, pipelines, liquefied natural gas plants), anthropogenic underwater noise levels are likely to increase. Thus, potentially negative effects from noise to the Atlantic humpback dolphin are likely to increase in the future as well.

Overall, anthropogenic underwater noise is a serious concern for the Atlantic humpback dolphin, because (like other odontocete species) it is strongly dependent on sound for critical life functions, such as maintaining social bonds, communicating, navigating, finding food, and avoiding predators (Reeves et al. 2003; Stevens et al. 2021). While there are no studies analyzing the impacts of anthropogenic underwater noise on Atlantic humpback dolphins, anthropogenic underwater noise has been found to disrupt the behavior and affect the functioning and survival of other dolphin species (Ketten 1995; Gordon and Moscrop 1996; Richardson and Wursig 1997; Nowacek et al. 2007; Weilgart 2017; Whittaker and Young 2018; Erbe et al. 2019). This threat is likely to increase in the foreseeable future due to the projected increase of activities within the Atlantic humpback dolphin's habitat that contribute to underwater noise, such as port construction, vessel traffic, and other coastal development. Thus, we determined that anthropogenic underwater noise contributes a moderate risk of extinction (Austin 2023).

We identified several threats that are likely affect the continued survival of the Atlantic humpback dolphin, including destruction, modification, and curtailment of its habitat ( e.g., coastal development projects), overutilization of the species via fisheries bycatch (particularly in artisanal gillnets), depletion of prey resources, human use, anthropogenic underwater noise, and the inadequacy of existing regulatory mechanisms (the lack of enforcement, resources, and implementation, and the lack of effectiveness of such mechanisms to address the other identified threats). Of these threats, overutilization of the species in the form of fisheries bycatch and human use, as well as destruction, modification, and curtailment of habitat resulting from coastal development, and the inadequacy of existing regulatory mechanisms to address the threat of overutilization and threats to the species' habitat, all contribute significantly to the Atlantic humpback dolphin's risk of extinction. These threats are immediate and range-wide, and their intensity is likely to increase in the future throughout the species' range. Few countries within the species' range have specific protections for the Atlantic humpback dolphin, and effective bycatch mitigation has not been documented in most range countries.

Analysis of demographic factors identified several characteristics that elevate the population's vulnerability to these threats. For example, observed or suspected population declines of already small, likely fragmented stocks throughout the species' range drastically elevates the impact of single mortality events. In addition, continued declines are highly likely given the projected increase of identified threats that affect most of the species' known range ( e.g., coastal development and fisheries bycatch). Furthermore, the species' restricted geographic range along the Atlantic coast of Africa and reliance on nearshore habitat make it highly vulnerable to human activities. The limited, available evidence also suggests that there is limited connectivity between stocks within the species' range, which would reduce the recovery potential for resident stocks that have experienced severe declines ( i.e. Dakhla Bay). Finally, it is likely that the Atlantic humpback dolphin exhibits a naturally low reproductive rate and thus a low intrinsic potential for population increase. Given the immediacy and prevalence of threats range-wide, and demographic characteristics increasing the species' vulnerability, we conclude that the Atlantic humpback dolphin currently faces an overall high risk of extinction throughout its range.

Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into account those efforts, if any, being made by any State or foreign nation to protect the species. In addition to the regulatory measures discussed in the Inadequacy of Existing Regulatory Mechanisms section of this proposed rule, we considered whether such protective efforts, as summarized below, alter the extinction risk for the Atlantic humpback dolphin.

Early recognition of the vulnerability of the Sousa species was indicated by their inclusion on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)  2 in 1979, as a species threatened with extinction for which trade is permitted only in exceptional circumstances (Austin 2023). Additionally, CMS has been closely involved with efforts to conserve Atlantic humpback dolphins since the 1990s. The species was also listed on CMS Appendix II in 1991 and on Appendix I in 2007, thus obligating parties to work regionally to promote Atlantic humpback dolphin conservation (which includes 17 out of 19 countries within the species range) (Austin 2023). The CMS funded two WAFCET projects during the late 1990s to collect information on this species and stimulate regional involvement in conservation efforts (Weir et al. 2021). This culminated in the signing of a Memorandum of Understanding Concerning the Conservation of the Manatee and Small Cetaceans of Western Africa and Macaronesia in 2008 (Weir et al. 2021). In 2017, a CMS Concerted Action was adopted specifically for the Atlantic humpback dolphin and required a meeting of delegates from countries within the species range and the formulation of an action plan for 2018-2023. However, progress on its implementation was substantially delayed, and a Concerted Action was adopted in 2020 to change the action plan's timeline to 2021-2025 (Weir et al. 2021).

The IUCN's Cetacean Specialist Group (IUCN-CSG) has also expressed concern regarding the status of the Atlantic humpback dolphin, highlighting the species as a priority for research (Reeves et al. 2003; Taylor et al. 2020). The IUCN's Red List of Threatened Species (the “Red List”) global conservation assessments carried out for this species by the IUCN-CSG reveal a steady deterioration in status over time, from early assessments that underlined the paucity of information (1994: Insufficiently Known; 1996: Data Deficient), to those reflecting growing concern about potential decline (2008 and 2012: Vulnerable), and culminating in the most recent assessment which classified this species into the Red List category of “Critically Endangered” in 2017 (Collins et al. 2017; Weir et al. 2021).

The Atlantic humpback dolphin's concerning conservation status has been discussed and described in several reviews over the past two decades (Reeves et al. 2003; Van Waerebeek et al. 2004; Weir et al. 2011; Collins 2015; Collins et al. 2017). However, very little progress has been made in applied conservation of the Atlantic humpback dolphin. Recognition of this lack of progress led to a meeting in December 2019 at the World Marine Mammal Conference in Barcelona, Spain, to discuss how research and conservation efforts for the species could be reinvigorated (Weir et al. 2021). Outputs from this meeting evolved into the formation of a new organization, the Consortium for the Conservation of the Atlantic Humpback Dolphin (CCAHD), in 2020. The CCAHD brings together national partner organizations and individuals from countries within the species range, and a number of international conservation management bodies and species experts, to work collaboratively towards the long-term sustainability of Atlantic humpback dolphin populations and their habitats (Weir et al. 2021). The CCAHD aims to work alongside the CMS to optimize the implementation of the draft Concerted Action plan for the Atlantic humpback dolphin. It also works alongside the IWC's bycatch and stranding initiatives following IWC meetings that identified the Atlantic humpback dolphin as a priority for research, and worked with the IUCN-CSG, which highlighted the species as a priority in their “Integrated Conservation Planning for Cetaceans” initiative (Weir et al. 2021).

On August 15, 2016, NMFS published the final rule on fish and fish product import provisions of the Marine Mammal Protection Act (MMPA import rule) (81 FR 54389), which establishes criteria and a formal process for evaluating foreign fisheries and their frequency of incidental mortality and serious injury to marine mammals. Specifically, the MMPA import rule requires that the Unites States ban imports of commercial fish or fish products caught in commercial fisheries resulting in the incidental killing or serious injury (bycatch) of marine mammals in excess of U.S. standards. The rule also establishes criteria for evaluating a harvesting nation's regulatory program for reducing marine mammal bycatch. A number of Atlantic humpback dolphin range countries are included on the List of Foreign Fisheries as having fisheries that export to the United States, with particular fisheries that are associated with marine mammal bycatch (CMS 2022; Austin 2023). The Atlantic humpback dolphin is listed as a possible bycatch species for some of these fisheries in relation to their overlap with the dolphin's habitat (CMS 2022; Austin 2023). Thus, the MMPA import rule may help to provide external motivation for Atlantic humpback dolphin range countries with fisheries exports to the United States to invest more in the accurate assessment of marine mammal populations in their waters and the possible impacts of fisheries on these populations, including the Atlantic humpback dolphin (CMS 2022; Austin 2023).

Significant conservation concerns for the Atlantic humpback dolphin have been raised for decades, and since 2020 international and regional collaboration to increase awareness and promote conservation efforts has intensified. However, there is no indication that these conservation efforts are ameliorating threats, particularly the threats of fisheries bycatch and coastal development, such that the extinction risk of the species is reduced. Therefore, we conclude that these conservation efforts do not alter the extinction risk for the Atlantic humpback dolphin. We are not aware of any other conservation measures for this species, and we are soliciting additional information on any relevant conservation efforts through the public comment process on this proposed rule (see Public Comments Solicited on Listing below).

Section 4(b)(1) of the ESA requires that we make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including the petition, public comments submitted on the 90-day finding (86 FR 68452; December 2, 2021), the draft status review report (Austin 2023), and other published and unpublished information, and we have consulted with species experts and individuals familiar with the Atlantic humpback dolphin. We considered each of the section 4(a)(1) factors to determine whether it contributed significantly to the extinction risk of the species on its own. We also considered the combination of those factors to determine whether they collectively contributed significantly to the extinction risk of the species. Therefore, our determination set forth below is based on a synthesis and integration of the foregoing information, factors and considerations, and their effects on the status of the species throughout its range.

We conclude that the Atlantic humpback dolphin is presently in danger of extinction throughout its range. We summarize the factors supporting this conclusion as follows: (1) the best available information indicates that the species has a low abundance, with fewer than 3,000 dolphins likely remaining, with observed or suspected population declines increasing the risk of local extirpation for extremely small stocks ( e.g. Dakhla Bay and Angola) in the near future; (2) continued declines in abundance are expected given the ongoing and projected increase of identified range-wide threats (specifically fisheries bycatch and coastal development), suggesting that the species will continue to decline in the absence of interventions; (3) the Atlantic humpback dolphin has a fragmented distribution with limited connectivity between stocks; (4) the Atlantic humpback dolphin has a restricted geographic range, being endemic to the tropical and subtropical waters along the Atlantic African coast where ongoing habitat destruction (including coastal development) contributes to a high risk of extinction; (5) the species' preference for nearshore habitat increases its vulnerability to incidental capture ( i.e. fisheries bycatch) which also contributes to a high risk of extinction; and (6) existing regulatory mechanisms are inadequate for addressing the most important threats of fisheries bycatch and coastal development.

As a result of the foregoing findings, which are based on the best scientific and commercial data available, we conclude that the Atlantic humpback dolphin is presently in danger of extinction throughout its range. Accordingly, the Atlantic humpback dolphin meets the definition of an endangered species, and thus we are proposing to list it as an endangered species.

Conservation measures provided for species listed as endangered or threatened under the ESA include the development and implementation of recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); a requirement that Federal agencies consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of designated critical habitat (16 U.S.C. 1536); and, for endangered species, prohibitions on the import and export of any endangered species; the sale and offering for sale of such species in interstate or foreign commerce; the delivery, receipt, carriage, shipment, or transport of such species in interstate or foreign commerce and in the course of a commercial activity; and the “take” of such species within the United States, within the U.S. territorial sea, or on the high seas (16 U.S.C. 1538). Recognition of the species' imperiled status through listing may also promote conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.

Section 7(a)(4) (16 U.S.C. 1536(a)(4)) of the ESA and NMFS/USFWS regulations (50 CFR 402.10) require Federal agencies to confer with NMFS on actions likely to jeopardize the continued existence of species proposed for listing, or that are likely to result in the destruction or adverse modification of proposed critical habitat of those species. If a proposed species is ultimately listed, under section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and the NMFS/USFWS regulations (50 CFR part 402), Federal agencies must consult on any action they authorize, fund, or carry out if those actions may affect the listed species or its critical habitat to ensure that such actions are not likely to jeopardize the continued existence of the species or result in adverse modification or destruction of critical habitat should it be designated. It is unlikely that the listing of this species under the ESA will increase the number of section 7 consultations, because this species occurs outside of the United States and is unlikely to be affected by Federal actions.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat cannot be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)). The Atlantic humpback dolphin is endemic to coastal Atlantic waters of western Africa and does not occur within areas under U.S. jurisdiction, which are in different biogeographic regions and well outside the natural range of this species. Therefore, we do not intend to propose any critical habitat designations for this species.

To ensure that the final action resulting from this proposed rule will be accurate and based on the best available data, we solicit comments from the public, other governmental agencies, the scientific community, industry, environmental groups, and any other interested parties on the draft status review report and this proposed rule. See DATES and ADDRESSES for information on how to submit comments.

Promulgation of any final regulation to list this species will take into consideration the comments and any additional data we receive during the comment period, and this process may lead to a final regulation that differs from this proposal. Specifically, we are interested in new or updated information regarding: (1) the range, distribution, and abundance of the Atlantic humpback dolphin; (2) the genetics and population structure of the Atlantic humpback dolphin; (3) habitat within the range of the Atlantic humpback dolphin that was present in the past, but may have been lost over time; (4) any threats to the Atlantic humpback dolphin ( e.g., fisheries bycatch, coastal development, etc.); (5) current or planned activities within the range of the Atlantic humpback dolphin and their possible impact on the species; (6) recent observations or sampling of the Atlantic humpback dolphin; and (7) conservation efforts that are addressing threats to the Atlantic humpback dolphin.

We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments in accordance with the instructions provided in the ADDRESSES section above.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information, and applies to influential scientific information or highly influential scientific assessments disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we solicited peer review comments on the draft status review report (Austin 2023) from four independent scientists selected from the academic and scientific community. We received and reviewed comments from these scientists. All peer reviewer comments, which are publically available (see ADDRESSESS ) were addressed prior to dissemination of the draft status review report and publication of this proposed rule.

A complete list of all references cited herein is available upon request (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(1)(A) of the ESA restricts the information that may be considered when assessing species for listing and sets the basis upon which listing determinations must be made. Based on the requirements in section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), we have concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. Given that this species occurs entirely outside of U.S. waters, there will be no federalism impacts because listing the species will not affect any state programs.

For the reasons set out in the preamble, NOAA proposes to amend 50 CFR part 224 as follows:

On May 11, 2021, NMFS received a petition pursuant to the Administrative Procedure Act from the Natural Resources Defense Council, Healthy Gulf, Center for Biological Diversity, Defenders of Wildlife, Earthjustice, and New England Aquarium requesting that we utilize our authorities under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) to establish a “Vessel Slowdown Zone” to protect Rice's whales from collisions with vessels and noise pollution. The petition proposes a year-round 10-knot vessel speed restriction within waters between 100 meters (m) and 400 m deep from approximately Pensacola, FL, to just south of Tampa, FL ( i.e., from 87.5° W longitude to 27.5° N latitude) plus an additional 10 kilometers (km) around that area (referred to in the petition as the “Vessel Slowdown Zone”). The petition proposes the following additional restrictions within this “Vessel Slowdown Zone”: (a) no vessel transits at night; (b) vessels transiting through the zone must report their plans to NMFS, utilize visual observers, and maintain a separation distance of 500 m from Rice's whales; (c) use and operate an Automatic Identification System, or notify NMFS of transits through the zone; and (d) report deviations from these requirements to NMFS. The petitioners discuss the vulnerability of the species, identify vessel strikes and vessel noise as risks to the whales, and describe NMFS' authority under the ESA and MMPA to establish a “Vessel Slowdown Zone” with regulations. The petition describes the features of a “Vessel Slowdown Zone” and asserts that the petitioned vessel-related mitigation measures are necessary for the conservation and recovery of Rice's whales.

We are soliciting information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the petitioned action. In particular, we request information and comments on: (1) the advisability of and need for regulations to establish a “Vessel Slowdown Zone;” (2) the geographic scope of any such regulations; (3) alternative management options for regulating vessel interactions with Rice's whales, including but not limited to the options in the petition; (4) scientific and commercial information regarding the effects of vessels on Rice's whales, or other similar species, and their habitat; (5) information regarding potential economic effects of regulating vessel interactions; and (6) any additional, relevant information that NMFS should consider. The petition is available at: https://www.fisheries.noaa.gov/species/rices-whale#conservation-management.

You may submit your information and materials electronically or via mail (see ADDRESSES section). We request that all information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. We also would appreciate the submitter's name, address, and any association, institution, or business that the person represents; however, anonymous submissions will also be accepted.

If NMFS decides to initiate rulemaking, we will notify the petitioners and publish a notice of our decision in the Federal Register . If NMFS decides not to proceed with the petitioned action, we will notify the petitioners and provide a brief statement of the grounds for the decision.