I. Background

The regulations at part 802 to title 31 of the Code of Federal Regulations (part 802) implement the provisions in section 721 of the Defense Production Act of 1950, as amended (DPA), and establish the process and procedures of the Committee on Foreign Investment in the United States (CFIUS) with respect to reviewing transactions involving the purchase or lease by, or concession to, a foreign person of certain real estate in the United States.

The final rule establishing part 802 (see 85 FR 3158) identifies a subset of military installations around which certain real estate transactions are covered under CFIUS jurisdiction. The specific military installations are listed in appendix A by name and location. Section 802.227 sets forth the category descriptions of military installations identified in Appendix A. The preamble to the final rule establishing part 802 noted that the military installations listed in the appendix were determined by the U.S. Department of Defense based upon an evaluation of national security considerations, and that the Department of Defense will continue on an ongoing basis to assess its military installations and the geographic scope set under the rules to ensure appropriate application in light of national security considerations.

This proposed rule would make certain amendments to part 802 as a result of the ongoing evaluation of military installations by the Department of Defense.

This proposed rule would amend the definition of “military installation” at § 802.227 and add eight military installations to the list at appendix A.

This proposed rule includes an amended definition of the term “military installation.” As defined in the existing regulations, the term “military installation” means any site that meets certain category descriptions, as identified in the list at appendix A to part 802. The definition of “military installation” would be amended with respect to paragraph (m) of § 802.227. This proposed rule would add Arizona, California, Iowa, North Dakota, South Dakota, and Texas to the set of states listed in paragraph (m).

The appendix to the existing regulations identified bases, ranges, and other installations that meet the definition of “military installation” at § 802.227, and, as applicable, related counties or other geographic areas throughout the United States that are covered real estate for the purposes of this part.

This proposed rule would include revisions to appendix A to include the eight sites listed below.

This rule is not subject to the general requirements of Executive Order 12866, as amended, which covers review of regulations by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB), because it relates to a foreign affairs function of the United States, pursuant to section 3(d)(2) of that order. In addition, this rule is not subject to review under section 6(b) of Executive Order 12866 pursuant to section 7(c) of the April 11, 2018 Memorandum of Agreement between the Treasury Department and OMB, which states that CFIUS regulations are not subject to OMB's standard centralized review process under Executive Order 12866.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to prepare a regulatory flexibility analysis, unless the agency certifies that the rule will not, once implemented, have a significant economic impact on a substantial number of small entities. The RFA applies whenever an agency is required to publish a general notice of proposed rulemaking under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553), or any other law. As set forth below, because regulations issued pursuant to the DPA, such as these regulations, are not subject to the APA, or other law requiring the publication of a general notice of proposed rulemaking, the RFA does not apply.

This proposed rule makes amendments to the regulations implementing section 721 of the DPA. Section 709(a) of the DPA provides that the regulations issued under it are not subject to the rulemaking requirements of the APA. Section 709(b)(1) instead provides that any regulation issued under the DPA be published in the Federal Register and opportunity for public comment be provided for not less than 30 days. Section 709(b)(3) of the DPA also provides that all comments received during the public comment period be considered and the publication of the final regulation contain written responses to such comments. Consistent with the plain text of the DPA, legislative history confirms that Congress intended that regulations under the DPA be exempt from the notice and comment provisions of the APA and instead provided that the agency include a statement that interested parties were consulted in the formulation of the final regulation. See H.R. Conf. Rep. No. 102-1028, at 42 (1992) and H.R. Rep. No. 102-208 pt. 1, at 28 (1991). The limited public participation procedures described in the DPA do not require a general notice of proposed rulemaking as set forth in the RFA. Further, the mechanisms for publication and public participation are sufficiently different to distinguish the DPA procedures from a rule that requires a general notice of proposed rulemaking. In providing the President with expanded authority to suspend or prohibit certain real estate transactions involving foreign persons if such a transaction would threaten to impair the national security of the United States, Congress could not have contemplated that regulations implementing such authority would be subject to RFA analysis. For these reasons, the RFA does not apply to these regulations. Regardless of whether the provisions of the RFA apply to this rulemaking, for reasons noted in the preamble to the final rule establishing part 802 (see 85 FR 3158), the Treasury Department determined that the implementation of the provisions of section 721 relating to real estate transactions would most likely not affect a substantial number of small entities. The amendments in this rule do not change that analysis or determination. Notwithstanding this certification, the Treasury Department invites comments on the potential impacts of this rule on small entities.

For the reasons set forth in the preamble, the Treasury Department proposes to amend part 802 to title 31 of the Code of Federal Regulations to read as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register IGLD85 International Great Lakes Datum of 1985 LWD Low Water Datum based on IGLD85 OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The River Rouge is a 127-mile river that winds through the Detroit metropolitan area of southeastern Michigan. The river flows into the Detroit River at Zug Island, which is the boundary between the cities of River Rouge and Detroit.

The River Rouge is highly polluted and was designated as a Great Lakes Area of Concern (AOC) under the Great Lakes Water Quality Agreement in 1987. The designated AOC covers the entire River Rouge watershed, which touches 48 communities. The River Rouge watershed drains into the Detroit River, which serves as a maritime border between the United States and Canada.

In the 1970s, the lower three miles of the river were channelized, widened, and dredged to allow freighter access to Ford's River Rouge Plant inland factory facilities. The plant was built between 1915 and 1927. It was the first manufacturing facility for automobiles that included within the plant virtually everything needed to produce the cars: blast furnaces, an open-hearth mill, a steel rolling mill, a glass plant, a huge power plant, and an assembly line. During the 1930s, some 100,000 workers were employed here. The plant has been designated as a National Historic Landmark and is still in use.

Domestic and foreign freighters continue to use the lower three miles of the River Rouge for trade. A steel mill near the head of navigation receives bulk shipments regularly; other industries using the river include a petroleum refinery, cement dock, and stone dock. Other smaller docks are located along the banks of the river. A dormant steel mill can be found on Zug Island at the mouth of the river.

Recreational vessels are welcome to use the River Rouge, but there is little infrastructure to support recreational vessels in this waterway.

Thirteen bridges cross the Rouge River between the river mouth and river mile 2.75; eight of these bridges are movable. The controlling fixed structure is the Fisher Freeway I-75 Bridge, mile 1.85, that provides a horizontal clearance of 230-feet and a vertical clearance of 100-feet above LWD.

The National Steel Cooperation Railroad Bridge, mile 0.40, is a single leaf bascule bridge that provides horizontal clearance of 125-feet and a vertical clearance of 6-feet in the closed and an unlimited clearance above LWD.

The West Jefferson Avenue Bridge, mile 1.10, is a double leaf bascule Bridge that provides horizontal clearance of 125-feet and a vertical clearance of 9-feet in the closed and an unlimited clearance in the open position above LWD.

The Conrail Bridge, mile 1.48, is a single leaf bascule bridge that provides horizontal clearance of 123-feet and a vertical clearance of 8-feet in the closed and an unlimited clearance in the open position above LWD. It is remotely operated.

The Norfolk Southern Railroad Bridge, mile 1.87, is a single leaf bascule Bridge that provides horizontal clearance of 125-feet and a vertical clearance of 8-feet in the closed and an unlimited clearance in the open position above LWD.

The Fort Street Bridge, mile 2.20, is a single leaf bascule Bridge that provides horizontal clearance of 118-feet and a vertical clearance of 9-feet in the closed and an unlimited clearance in the open position above LWD.

The main channel of the river was the result of Mr. Henry Ford needing to straighten the entrance of the River Rouge to accommodate deliveries of raw materials to his automotive plant. This main channel, formally known as the short cut channel, formed Zug Island at the mouth of the river. The original channel that curves around the north and west sides of Zug Island is know known as the old channel and is crossed by two movable bridges.

The Delray Connecting Railroad Bridge, mile 0.34, is a single leaf bascule Bridge that provides horizontal clearance of 120-feet and a vertical clearance of 7-feet in the closed and an unlimited clearance in the open position above LWD.

The Delray Connecting Railroad Bridge, mile 0.80, is a swing Bridge that provides horizontal clearance of 102-feet and a vertical clearance of 7-feet in the closed and an unlimited clearance in the open position above LWD.

Large freighters will not enter the River Rouge without communicating their intentions to the drawbridges they need to pass through because the river has several bends and, due to the large drainage area, river currents in the River Rouge can vary from mild to wild in a short amount of time. This deviation increases the difficulty for large vessels to maintain position near bridges.

There are no alternate routes for vessels to avoid going through the bridges listed here.

The Coast Guard has received an increase in delay reports for the River Rouge caused by a failure in communications between bridgetenders and mariners. We propose to require all bridges to operate and maintain a radiotelephone.

Because most of the delays have been at rail bridges, we propose to require the Conrail Bridge, mile 1.48 and the Norfolk Southern Railroad Bridge to maintain and operate a telephone. Both bridges currently provide telephone numbers to mariners, as requested, and this proposed rule would not require the installment of any new equipment.

The regulations for the National Steel Cooperation Railroad Bridge, mile 0.40, the Delray Connecting Railroad Bridge, mile 0.34, and the Delray Connecting Railroad Bridge, mile 0.80 would remain as written.

Most of the rivers in the Great Lakes have winter hours that allow bridge owners to receive a 12-hour advance notice for openings during times when ice hinders navigation or during reduced river traffic. We asked the Lake Carriers Association, the Passenger Vessel Association, and the Chamber of Marine Commerce in Canada for informal comments and did not receive any.

We are proposing starting winter hours on January 1 through March 31 for all bridges crossing the River Rouge. Each bridge would be required to provide the Coast Guard District Bridge office with appropriate phone number each fall to advertise to the mariners to provide the 12-hour advance notice.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders.

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

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

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

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG- 2023-0183 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

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

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register IGLD International Great Lakes Datum of 1985 LWD Low Water Datum based on IGLD85 OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background, Purpose and Legal Basis

The Portage River is 41.5 miles long and empties into Lake Erie at Port Clinton, Ohio. The lower twelve miles of the Portage River, between Oak Harbor and the mouth at Port Clinton, is an estuary and is over 3,000 feet wide making it a prime location for recreational boating, canoeing, and kayaking.

Several inspected and uninspected passenger vessels operate in the river, sharing the waterway with approximately 12,000 (state registered) powered and unpowered recreational vessels.

The river is crossed by two movable bridges. The Monroe Street Highway Bridge, mile 0.4, is a double leaf bascule bridge that provides a horizontal clearance of 75-feet and a vertical clearance of 9-feet in the closed position and an unlimited clearance in the open position based on LWD. The Norfolk Southern Railroad Bridge, mile 1.5, is a single leaf bascule bridge with a horizontal clearance of 109-feet and a vertical clearance of 9-feet in the closed position and an unlimited clearance in the open position based on LWD and is remotely operated by the Norfolk Southern Railroad Bridge, mile 5.76, over the Maumee River, Toledo, OH.

The current bridge regulation was written in 1986 (49 FR 17452); it has been amended four times. We intend to revise the regulation to make it easy to understand and to align this regulation with the regulations of the Maumee and Sandusky Rivers, for the ease of drawtenders and the mariners.

Paragraph (a) of 33 CFR 117.851 speaks of emergency and public vessels crossing at the bridge. This requirement was included with the original regulation before the requirements of 33 CFR 117.31 were promulgated and to prevent any confusion with part a of 33 CFR 117. Accordingly, we propose removing this language.

We propose to remove the board gauge requirement in paragraph (b) since the water fluctuations in the river do not change rapidly and both bridges over the river will be required to open on signal. If a mariner is not certain of the clearance under the bridge, they can request a full opening. We look forward to public comments on the actual need and usefulness of the current board gauges.

Monroe Street Highway Bridge, mile 0.4, currently the bridge opens on the hour and half-hour in the summer; this schedule was intended to preserve the bridge until it could be replaced. However, since the publication of the original rule, the bridge has completed an extensive rehabilitation, with both leaves having been removed and new leaves fabricated for the bridge. New modern controls have been installed. The bridge has annual daily crossings of 3,227 vehicles in 2022, compared to 1994, when the bridge had an annual daily crossing of 5,800 vehicles. The trend has been a 2% to 17% drop in vehicles crossing this bridge year over year. Hourly and half-hour opening are tools used to extend the longevity of a failing drawbridge and balance the needs of vehicle crossings while still meeting the reasonable needs of navigation in the waterway. The Coast Guard believes that the previous justifications for hourly and half-hour openings have diminished. Accordingly, the Coast Guard is proposing removal of the hourly and half-hour openings. Rather, the Coast Guard is proposing that the bridge open on signal (with notice requirements during certain winter months).

The Norfolk Southern Railroad Bridge, mile 1.5, will continue to operate remotely, maintain and operate a radiotelephone, and open on signal. At this time, we do not propose that the bridge should remain in the open position through the summer like the nearby Norfolk Southern Railroad Bridge, mile 5.76; however, we will propose the bridge operate and maintain a telephone the number, to be posted at the bridge, so mariners may call and request an opening.

When the winds exceed 40 mph there is a danger that lightweight railcars could be blown off the Norfolk Southern Railroad Bridge, mile 1.5. These half floating railcars are a potential hazard to motorists and marine traffic. During wind events, the railroad routinely sets upwind blocker, composed of heavy railcars on the parallel track to block the wind, which protects railcars from the wind. However, the railroad must coordinate with the local Coast Guard Sector office before posting wind blockers, as the wind blockers may disrupt a bridge's posted operating schedule. Often, there is confusion on how long the wind blocker can be posted and when it needs to be moved to allow vessels to pass through the bridge. The Coast Guard is proposing new language that will specify when a wind blocker is appropriate and stipulate how it will be used by the railroad.

The winter hours noted in paragraph 2 of the current regulation is an antiquated regulation from when the U.S. Army Corps of Engineers regulated bridges over navigable waters and allowed a 24-hour advance notice. We propose amending the winter hours to require a 12-hour advance notice, in line with current policies. Further, we propose moving the dates from December 1 to April 30 to November 1 to April 30. These dates will be in harmony with the inspected and uninspected passenger vessels schedules and better meet the reasonable needs of navigation for both the Monroe Street Highway Bridge, mile 0.4, and the Norfolk Southern Railroad Bridge, mile 1.5.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive orders.

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

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

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

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0186 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

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

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are a pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

EPA is proposing to establish exemptions from the requirement of a tolerance for residues of the antimicrobial pesticides Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate on food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. EPA is proposing these exemptions to cover residues of Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate that may be found in food as a result of the use of these antimicrobials on food-contact surfaces. This tolerance exemption will supersede the current exemption for Ortho-benzyl-para-chlorophenol under 40 CFR 180.940(c), which is listed as Phenol, 4-chloro-2-(phenylmethyl)-, an alternative name for Ortho-benzyl-para-chlorophenol. The current exemption limits the end-use concentration of this substance to 320 ppm in end-use antimicrobial solutions. Upon establishment of the new exemption, EPA intends to remove the existing exemption as it would be unnecessary and redundant.

EPA is proposing these tolerance actions to implement the tolerance changes identified as necessary during the registration review processes to cover these pesticide chemical residues when used in antimicrobial formulations consistent with current label use directions. Registration review documents, such as the draft risk assessment, typically identify certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings, that may be necessary or appropriate to cover pesticide chemical residues or reflect current EPA policy.

For the pesticide chemicals at issue in this rulemaking, EPA issued the “O-Benzyl-p-Chlorophenol (OBPCP) Interim Registration Review Decision” (OBPCP ID) in November 2019. Electronic copies of the OBPCP ID and other documents are available in EPA docket number EPA-HQ-OPP-2011-0423, which can be found at https://www.regulations.gov. EPA's risk assessment for OBPCP contains the Agency's assessment of the potential risk associated with current product uses, and based on the findings of that risk assessment, the OBPCP ID identified the need to establish exemptions from the requirement of a tolerance for Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate on food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils.

Section 408(e) of the FFDCA authorizes EPA to establish exemptions from the requirement of a tolerance. 21 U.S.C. 346a(e)(1)(B). Before issuing the final exemption, EPA is required to issue a proposed rulemaking and provide a comment period. Id. at 346a(e)(2).

A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, authorizes the establishment, modification, and revocation of tolerances and exemptions from the requirement of a tolerance for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Residues of pesticides in or on food that are not covered by a tolerance or exemption are deemed unsafe, 21 U.S.C. 408(a), and any food containing unsafe residues is considered adulterated under FFDCA section 402(a), 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce, 21 U.S.C. 331(a). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA but also must be registered under FIFRA, 7 U.S.C. 136 et seq. Moreover, residues of food-use pesticides not registered in the United States must also be covered by a U.S. tolerance or exemption in order for commodities treated with those pesticides to be imported into the United States.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” 21 U.S.C. 346a(c)(2)(A)(ii). This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(c)(2)(B) of the FFDCA requires EPA, when making a safety determination concerning an exemption, to take into account, among other relevant considerations, the considerations listed in section 408(b)(2)(C) and (D) of the FFDCA. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 408(b)(2)(D) identifies various factors, including available information on aggregate and cumulative exposure, for EPA consideration in making a safety determination.

EPA is proposing that these tolerance actions become effective on the date of publication of the final rule in the Federal Register .

EPA is proposing this rule to implement the tolerance actions identified in the OBPCP ID. As noted in the November 2019 OBPCP ID, there is an exemption from the requirement of a tolerance under 40 CFR 180.940(c) for residues of Ortho-benzyl-para-chlorophenol resulting from applications to food-processing equipment and utensils, with the limitation that the end-use concentration of Ortho-benzyl-para-chlorophenol does not exceed 320 ppm. During registration review, EPA determined that Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate were also registered for use in public eating areas and on dairy-processing equipment, as well as at a higher rate on food-processing equipment and utensils; therefore, there is a need to establish additional exemptions for residues resulting from these registered uses. EPA, on its own initiative, is proposing to establish the necessary exemptions under 40 CFR 180.940(a), which would cover all food-contact uses of Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate pesticide products, when used in antimicrobial formulations not to exceed a concentration of 2,080 ppm in the end-use formulation. When established, the 180.940(a) exemption will supersede the current exemption in 40 CFR 180.940(c) for registrations containing Ortho-benzyl-para-chlorophenol up to 320 ppm used on food processing equipment and utensils.

In order to establish tolerances or exemptions from the requirement of a tolerance, EPA is required to determine that each tolerance or exemption meets the safety standard of FFDCA. In its risk assessment supporting the OBPCP ID, EPA considered the potential risks from exposure to Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate from registered uses and concluded that those uses did not present risks of concern. See U.S. EPA, Registration Review Draft Risk Assessment for: O-Benzyl-P-Chlorophenol (OBPCP) and Salts (OBPCP DRA), available at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2011-0423.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to support the establishment of exemptions from the requirement of a tolerance for residues of Ortho-benzyl-para-chlorophenol, Sodium 2-benzyl-4-chlorophenate, and Potassium 2-benzyl-4-chlorophenate.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime.

EPA's risk assessment Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate can be found in full at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2011-0423. That document explains EPA's analysis of the toxicity of the pesticide chemicals as well as the selection of toxicological points of departure and levels of concern for use in evaluating the risk posed by human exposure to the pesticide. In addition, that document is based on the maximum label rate for commercial use.

The Agency did not identify any dietary or aggregate risks of concern for Ortho-benzyl-para-chlorophenol, Sodium 2-benzyl-4-chlorophenate, and Potassium 2-benzyl-4-chlorophenate during the risk assessment.

Based on the lack of any aggregate risks of concern, EPA concludes that these exemptions from the requirement of a tolerance for residues of Ortho-benzyl-para-chlorophenol, Sodium 2-benzyl-4-chlorophenate, and Potassium 2-benzyl-4-chlorophenate, including the limitation for the end-use formulation concentration of each of these pesticides does not exceed 2,080 ppm, are safe, i.e., there is a reasonable certainty that no harm will result from aggregate exposures to Ortho-benzyl-para-chlorophenol, Sodium 2-benzyl-4-chlorophenate, or Potassium 2-benzyl-4-chlorophenate, when used in accordance with the terms of the respective exemptions. In addition, EPA has determined that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C).

Therefore, EPA is proposing to establish exemptions in 40 CFR 180.940(a) for residues of the antimicrobial pesticide ingredients Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate from the requirement of a tolerance when used on or applied to food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils, with a limitation in concentration of 2,080 ppm in end-use formulations. In addition, EPA is proposing to remove the existing exemption in 40 CFR 180.940(c) the exemption for Phenol, 4-chloro-2-(phenylmethyl)-, as it will be superseded by these new exemptions.

In this proposed rule, EPA is proposing to exempt residues of the antimicrobial pesticide ingredients Ortho-benzyl-para-chlorophenol, Potassium 2-benzyl-4-chlorophenate, and Sodium 2-benzyl-4-chlorophenate from the requirement of a tolerance when used on or applied to food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils. This document is proposing to establish exemptions from the requirement of a tolerance under FFDCA section 408(e), and also remove a specific exemption as no longer necessary. The Office of Management and Budget (OMB) has exempted these types of actions ( e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq., ) or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ). Nor does it require any special considerations as required by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This proposed rule does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published in the Federal Register of May 4, 1981 (46 FR 24950) and December 17, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed rule will not have a significant negative economic impact on a substantial number of small entities. Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposed rule that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposed rule and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this proposed rule will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132, requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects 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.” This proposed rule directly regulates growers, food processors, food handlers, and food retailers, not States. This proposed rule does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

The additions read as follows:

Table of Contents for Preamble I. Public Participation and Request for Comments II. Abbreviations III. Basis and Purpose IV. Background V. Discussion of Proposed Rule VI. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

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

Submitting comments. We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2021-0097 in the search box, and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

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

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

Public meeting. We do not plan to hold a public meeting, but we will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

The legal basis of this rulemaking is Title 46 of the United States Code (U.S.C.), Sections 7101(b) and 7301(b), which authorize the Secretary of the department in which the Coast Guard is operating to prescribe regulations relating to issuing Merchant Mariner Credentials (MMCs) for officer and rating endorsements. The Secretary of the Department of Homeland Security (DHS) has delegated the rulemaking authority under 46 U.S.C. 7101(b) and 7301(b) to the Coast Guard through 46 U.S.C. 2104 and DHS Delegation No. 00170.1, Revision No. 01.3, paragraph (II)(92)(e). Additionally, 14 U.S.C. 102(3) grants the Coast Guard broad authority to issue and enforce regulations to promote safety of life and property on waters subject to the jurisdiction of the United States, which includes establishing the experience, professional qualifications, and processes required for issuing credentials.

This proposed rule would require Coast Guard-approved training providers to submit students' course completion data electronically to the Coast Guard within 5 business days of the course ending. This action would lessen the probability of issuing MMCs to mariners who have not met the professional requirements for their endorsements and improve the efficiency of the credentialing process. In addition, the proposed rule would replace gendered titles for certain officer and rating endorsements to align with the Coast Guard's policy of using gender-neutral language.

The Coast Guard issues MMCs to mariners who have met the regulatory requirements for individual endorsement(s), as described in title 46 of the Code of Federal Regulations (CFR), parts 10, 11, 12, and 13. Professional requirements for an MMC endorsement generally include sea service, completion of Coast Guard-approved training, and having a met a standard of competence through practical demonstration and completion of a written examination.

Title 46 CFR 10.209(a) states that for any application for an MMC, whether for an original, renewal, duplicate, raise of grade, or new endorsement on a previously issued MMC, the applicant must establish that they satisfy all the requirements for the MMC and endorsement(s) sought before the Coast Guard will issue the MMC. When an individual submits a Form CG-719B Application for an MMC to the Coast Guard, supporting documentation must be included to establish that they have met the requirements for individual MMC endorsement(s). Supporting documentation for an MMC application may include evidence of sea service, course or program completion certificates, and documentation of having met a required standard of competence as appropriate for the endorsement requested.

The National Maritime Center (NMC), in accordance with the requirements of 46 CFR part 10, subpart D, approves training required for MMC endorsements. As described in 46 CFR 10.402, the Coast Guard may approve training designed to fulfill or substitute for MMC requirements, including a portion of required sea service, an examination required by the Coast Guard, professional competency requirements, or other regulatory requirements.

The general standards for Coast Guard-approved courses and programs are found in 46 CFR 10.403. Coast Guard-approved training providers are required to maintain physical or electronic records of all students who took a course for at least 5 years after the completion of the course. Although Coast Guard-approved training providers are required to maintain these student records, there is no requirement for them to submit a student's course completion data to the Coast Guard. The NMC receives approximately 55,000 MMC applications annually. Coast Guard evaluators at the NMC review applications for MMCs to determine whether the mariner has met the regulatory requirements for the endorsement(s) that they are seeking. The NMC uses the Merchant Mariner Licensing and Documentation (MMLD) database to maintain records of U.S. merchant mariners and issue MMCs to qualified mariners.

Validation of data has been a longstanding challenge for the mariner credentialing program. In 2011, Transport Canada conducted an independent evaluation of how the United States implemented the International Convention on Standards of Training, Certification, and Watchkeeping, 1978 as amended (STCW). The evaluation noted that the Coast Guard could not provide evidence of having established sufficient procedures and controls to ensure the authenticity and validity of documents submitted as part of an MMC application package. In 2016, Transport Canada conducted another independent evaluation of how the United States implemented STCW and restated the lack of verification controls to ensure the validity and authenticity of documents submitted as part of an MMC application package.

In 2019, as part of an ongoing investigation surrounding mariner examinations, the Coast Guard discovered that over an extended period, numerous mariners had submitted fraudulent course completion certificates to the NMC as part of their MMC application. As of June 2021, the Coast Guard identified 428 mariners involved in course certificate fraud since 2016. 1 In the absence of available procedures and resources to validate the authenticity of course completion certificates, the NMC accepted fraudulent certificates submitted by mariners as part of an MMC application package as evidence of completing required training for an MMC endorsement. As a result, the Coast Guard-issued these mariners endorsements that they were not professionally qualified to hold.

While training providers are required to retain course completion data, they are not required to submit the data to the Coast Guard. The Coast Guard typically reviews those records only as part of an audit of Quality Standard Systems (QSS) of Coast Guard-approved training providers under 46 CFR 10.410(g), as well as Coast Guard administrative visits and inspections under 46 CFR 10.403(a)(9). The Coast Guard is proposing to require Coast Guard-approved training providers to submit course completion data electronically to the Coast Guard within 5 business days of the course's completion. This data would be used to verify that mariners have met the regulatory training requirements for the MMC endorsements requested, and reduce opportunities for fraudulent information being accepted as part of an MMC application package.

The titles of MMC endorsements are prescribed in 46 CFR 10.109. This proposed rule would make non-substantive changes to 46 CFR parts 10, 11, 12, 13, 15, 16, 30, 35, and 39 to ensure the titles of certain officer and rating endorsements are gender-neutral to align with the Coast Guard's policy of removing gendered language from its rules and regulations. This policy is demonstrated by final rules published in 2002 and 2012 that made technical amendments to the CFR in order to remove gendered language. 2

This proposed rule would amend 46 CFR 10.403 to require Coast Guard-approved training providers to submit data on Coast Guard-approved courses conducted and mariners completing the courses to the NMC.

The information would be submitted electronically, in a manner specified by the Coast Guard, within 5 business days of completing a Coast Guard-approved course. Mariners submitting course completion data to the Coast Guard as part of their MMC application and Coast Guard-approved training providers submitting course completion data electronically to the Coast Guard would attest, under criminal penalty, that the records are accurate to the best of their knowledge and that no false entries or statements were made. See 18 U.S.C. 1001. The NMC would use this information to validate that mariners have completed the training required for the MMC endorsement requested. This action would lessen the probability of the Coast Guard accepting a fraudulent course completion certificate as part of an application for an MMC and improve the efficiency of the credentialing process.

The proposed 5-business day window to submit course completion data would ensure that a mariner's application would not be delayed because the NMC is waiting for training providers to submit the course completion data. Delaying the evaluation of an application and issuance of an MMC may result in loss of employment for a mariner, which is in conflict with NMC's mission to issue credentials to fully qualified mariners in the most effective and efficient manner possible.

Although the Coast Guard would electronically receive course completion data, Coast Guard-approved training providers should continue to issue course completion certificates to their students. Mariners would still be responsible for including their course completion certificates as supporting documentation with their MMC application package. This would allow Coast Guard evaluators to validate the information submitted by the mariner with their MMC application against the information submitted electronically by the training provider.

Under this proposed rule, training providers would be required to submit the name of the training provider, the training provider's Coast Guard-issued provider code, the title of the Coast Guard-approved course or program, the Coast Guard-issued course code, the dates the training provider held the course, and the name of the approved instructor. This information would allow the Coast Guard to validate that a course was approved by the Coast Guard, conducted by an approved instructor, and the dates the course was conducted. The proposed electronic submission would also require the student's full name as it appears on their MMC or other valid Government-issued identification, and their Coast Guard-issued mariner reference number (MRN), or their date of birth and place of birth if they do not currently have an MRN. 3 This information is critical should the Coast Guard need to verify whether a student attended a certain course or program.

The Coast Guard seeks comments regarding how course completion data from Coast Guard-approved courses can be submitted electronically to the Coast Guard. Submitting copies of course completion certificates by email, sending data files or spreadsheets listing required information, or adding data through a direct system entry or forms have been used or suggested as methods. The Coast Guard seeks specific information (example: data file type) and recommendations of how Coast Guard-approved training providers would submit this data. Information received through public comments will be used to determine the most effective method for training providers to submit course completion data to the Coast Guard. If a final rule is published, the Coast Guard will provide guidance to specify the submission process.

The Coast Guard has a voluntary program for submitting course completion data electronically through Homeport. 4 Currently, approximately 30 Coast Guard approved training providers voluntarily submit information to the Coast Guard using Homeport. This process is more fully discussed in the regulatory analysis of this proposal.

The Coast Guard recognizes that Homeport may be limited in the volume of submissions it can support as we move from voluntary to mandatory electronic submission of course completion data. The Coast Guard is currently in the process of replacing MMLD with a more secure, agile, and user-friendly system that provides better service to the maritime industry. This new system has yet to be developed, and the best way for training providers to comply with the proposed requirements to electronically submit course completion data continues to be through Homeport. When the new system is developed and fully operational, the Coast Guard will publish a document announcing that in the Federal Register and detailing the new system and best practice for compliance. The new system is not being created specifically for the electronic submission of mariner course completion data, so the cost of the new IT system will not be included in this proposed rule's cost analysis.

The Coast Guard understands that instant compliance upon publication of the final rule finalizing the new system may not be feasible for many training providers submitting mariner course completion data. For that reason, in this rulemaking the Coast Guard seeks public input regarding what a reasonable length of time would be needed to allow course providers to modify their procedures following publication of a final rule, as well as what kind of adjustments training providers would be required to make in order to pivot from current practices to compliant practices. The Coast Guard is taking comment on whether or not a “phased-in” applicability or multiple phased in applicability period(s) is necessary for training providers to modify their procedures to meet the proposed requirements set forth in this NPRM. If a final rule is published before the implementation of a system to replace MMLD, the Coast Guard will work with course providers to ensure they can submit course completion data using the existing Homeport process. The Coast Guard also seeks comments from training providers explaining what alternative approaches they might use in the event of IT issues. Public comments may include new information about any aspect of the proposed rule that would require a revision of the cost analysis. If that occurs, the Coast Guard will update it and publish a Supplemental Notice of Proposed Rulemaking (SNPRM) with the revised cost analysis, so that the public can ascertain the new cost of the proposed rule. An SNPRM will also begin a new period of public comments, so the Coast Guard can receive additional comments, including feedback on the revised cost analysis of the proposed rule. As any potentially impactful information from public comments are not known at this time, it is impossible to incorporate that information into the current cost analysis.

This NPRM also proposes to amend 46 CFR parts 10, 11, 12, 13, 15, 16, 30, 35, and 39 to ensure the names of certain officer and rating endorsements are gender-neutral. If a final rule is published, the Coast Guard will update any other regulations using the historical endorsement titles through future rulemakings. In this initiative, the Coast Guard specifically proposes to change the following endorsement titles as described in table 1:

If a final rule is issued, the Coast Guard would no longer issue endorsements using the current endorsement titles. Mariners would not have to submit an application to have the endorsements titles changed on their MMC. The endorsement titles would be updated at the next credential transaction when an application is submitted to the Coast Guard.

The Coast Guard is proposing to change the name of the Able Seaman endorsement to Able Seafarer. To differentiate in 46 CFR 10.231(c)(6)(ii) between the already established STCW endorsements of Able Seafarer-Deck and Able Seafarer-Engine and the proposed Able Seafarer endorsements, the endorsements would be referred as national Able Seafarer.

In addition, in some provisions of 46 CFR part 12, the legacy names of endorsements would not be changed to the proposed names. Specifically, §§ 12.501(b)(2) 12.607(b), 12.613(c), and 12.615(c) reference endorsements that would have been held before 2017 and would have been held with the legacy name.

Finally, the Coast Guard is proposing to remove the expired grandfathering provisions in 46 CFR 13.603(e), 13.605(e), 13.607(e), 13.609(b), and 13.611(b). These provisions provided a method for mariners who held valid national tankerman endorsements issued before March 24, 2014 to qualify for original STCW tanker cargo operations endorsements. Any national tankerman endorsements issued before March 24, 2014 would have expired as of March 23, 2019; therefore, the grandfathering provisions have expired and mariners who wish to obtain original STCW tanker cargo endorsements must meet the requirements of the applicable section.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this proposed rule a significant regulatory action under section 3(f) of Executive Order 12866. OMB has not reviewed this rule. Table 2 shows the summary of the estimated impacts of this proposed rule. A regulatory analysis (RA) follows.

The affected population for this proposed rule includes training providers approved by the NMC who offer training to meet the regulatory requirements for MMC endorsements. From 2010 to 2019, NMC reports that the number of Coast Guard-approved training providers ranged from a low of 299 training providers in 2010 to a high of 340 training providers in 2016, with an average of 326 training providers. The number of courses approved by the Coast Guard ranged from a low of 2,835 courses in 2010 to a high of 3,252 courses in 2017, for an average of 3,115 courses that were approved by the Coast Guard in a given year. The number of Coast Guard-approved courses offered by each training provider varies greatly depending on demand for the course, instructor availability, etc. Many providers may offer a single course, while some providers offer as many as 107 courses. The average number of courses per training provider is 6 courses, and there is a mode of 1 course offered per training provider.

Figure 1 shows the distribution of how many Coast Guard-approved courses each training provider has in a given year. The first bar shows that 164 training providers have between 1 and 7 approved courses. The NMC does not track how many times a training provider offers each of their approved courses; it is possible that a training provider with only one Coast Guard approved course offers that course multiple times in a year. The analysis for this proposed rule focuses on the number of student records submitted rather than the number of courses offered, in order to best account for the unknown frequency in course offerings.

All course approvals are valid for 5 years per 46 CFR 10.407(e) and are not contingent on the frequency a Coast Guard-approved training provider may offer a course. The NMC receives mariner course completion data in two ways: as part of a mariner's MMC application, or through a training provider's electronic submission to the Coast Guard through Homeport. Applicants submit course completion certificates as evidence that they have met the regulatory training requirement for the MMC endorsement(s) they are requesting. As part of the evaluation of an MMC application, Coast Guard evaluators verify that a course completion certificate from a Coast Guard-approved training provider is submitted for each course required to obtain the requested endorsement, and NMC adds the course completion data to the mariner's record within MMLD manually.

In 2010, a secondary method to receive course completion data was established. Coast Guard approved training providers could now voluntarily submit course completion data electronically to the Coast Guard through Homeport, the Coast Guard's enterprise internet portal for the maritime community. Homeport's secure, role-based environment brings together Coast Guard personnel, members of the maritime community, and other designated individuals allowing them to share information quickly. The course completion data provided through Homeport is added to a database known as MTAD (Mariner Training and Assessment Data) and is then uploaded to individual mariner records in MMLD.

From 2010 to 2020, an average of 68,783 course completion records were submitted to the Coast Guard annually, of which an average of 12,498 course completion records were submitted by training providers electronically through Homeport. All other records were submitted by mariners as part of their application for an MMC. If a final rule is published, training providers will be submitting all the data electronically through Homeport. This proposed rule would require training providers to electronically submit course completion data directly to NMC. To validate the course completion data provided with a mariner's MMC application package, Coast Guard evaluators would match information submitted electronically by the training provider to the documentation provided by the mariner with their MMC application.

The Homeport Submissions column shows the number of student records that training providers submitted electronically through Homeport over a 10-year period, and can be considered the pilot program for the rulemaking. The cost estimate of the proposed rule includes the annual cost of submitting course completion data through Homeport over a 10-year period.

The cost of submitting course completion data through Homeport from 2010 to 2020 was $269,946, for an average of $24,541 per year. This has an annualized cost of $22,787 at the 7% discount rate. This cost may be considered the pilot program of the proposed rule and is not included in the cost analysis, as those training providers who already submit course completion data through Homeport have been included in the industry cost below. The cost of the pilot program is detailed in Table 4.

The main industry cost of the proposed rule for training providers is the additional time they would spend submitting course completion data to NMC: there are approximately 326 providers, who would submit an annual average of 68,783 records. Additionally, training providers would have to register for an account to use Homeport.

Cost to the government is detailed in the “Cost to the Federal Government” section. The initial cost to training providers would be the cost of time spent to register for a Homeport account so that they can submit course completion data. According to an NMC Subject Matter Expert (SME) familiar with Homeport, they estimate it would take a training provider 20 minutes to establish a Homeport account. All 326 providers would need to establish an account and given the wages for the personnel who would register the account, we find that the cost to industry would be a one-time total of $5,334.

To estimate the time cost for submitting records electronically, we surveyed training providers that currently use Homeport. Under the limits of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), we contacted eight providers and received four complete responses back, three of which quantified the time required to submit data through Homeport. If you have comments or questions concerning the sample, data, or assumption, please submit them identified by docket number USCG-2021-0097 using the Federal eRulemaking Portal at https://www.regulations.gov.

It is assumed that if the Coast Guard implements a new IT system, training providers would spend the same amount of time submitting course completion data through the new IT system as they do submitting through Homeport.

The key questions asked as part of the survey were:

• “Excluding time already spent on issuance of conventional paper course completion certificates, what is the minimum additional amount of time you estimate it takes to enter data into Homeport for each course?”

• “What is the maximum additional amount of time you estimate it takes to enter data into Homeport for each course?”

Using an average of the three survey responses, we estimate the time to submit each student record to be approximately 0.0114 hours (0.68 minutes) on the lower end and 0.0688 hours (4.13 minutes) on the higher end. Assuming that each course has an average of 20 students, the total hours of submission per course would be a range of .228 hours and 1.376 hours. The loaded mean hourly wage rate of submitters is approximately $49.09 for 2021, derived from an unloaded mean hourly wage rate of $32.51 for Training and Development Specialists  5 and a load factor of 1.51. 6 Applying the loaded hourly wage rate to the burden range, we estimate a total cost range of approximately $0.56 to $3.38 per student record. We estimate that training providers would submit 68,783 student records electronically annually, equal to the 10-year average number of student records manually entered to MMLD. Table 6 shows the calculation of the total cost to training providers of this proposed rule when we multiply the hourly burden per student record by the number of new records submitted electronically. We then multiply this amount by the wage of submitters.

We estimate the total discounted cost of the proposed rule on the lower end, as shown in Table 7. The total 10-year discounted cost would be approximately $237,156 at the 7% discount rate, and the annualized costs to be approximately $33,766 at the 7% discount rate.

This is a summary of the Commission's Sixth Further Notice of Proposed Rulemaking ( FNPRM ) in WC Docket No. 17-97, FCC 23-18, adopted on March 16, 2023, and released on March 17, 2023. The full text of this document is available for public inspection at the following internet address: https://docs.fcc.gov/public/attachments/FCC-23-18A1.pdf.

The proceeding this document 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 his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

This document may contain potential new or revised information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due July 5, 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), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. The Commission's rules require that a voice service provider “[a]uthenticate caller identification information for all SIP calls it originates and . . . to the extent technically feasible, transmit that call with authenticated caller identification information to the next voice service provider or intermediate provider in the call path.” In the Fifth Caller ID Authentication Further Notice, 87 FR 42916 (July 18, 2022), the Commission sought comment on whether it should amend its rules to address whether originating voice service providers may use third parties to perform their third-party authentication obligations. The resulting record confirms that third-party authentication is occurring. It does not, however, provide sufficient information to fully assess the impact that explicitly authorizing or prohibiting third-party authentication may have on the STIR/SHAKEN ecosystem. For instance, the record before the Commission is not sufficient for it to understand the full scope of the various arrangements that exist between providers and third parties that authenticate their calls. Nor does it allow the Commission to determine whether these third-party arrangements satisfy the requirements of its authentication rules, how and what information is shared within those arrangements, whether that information sharing implicates privacy, security, or other legal concerns, and whether they have a net positive or negative effect on the reliability of the STIR/SHAKEN framework and its objective to curtail illegal spoofing. The Commission thus seeks further comment on the use of third-party solutions to authenticate caller ID information and whether any changes should be made to its rules to permit, prohibit, or limit their use.

2. The Commission starts by seeking comment on the types of third-party authentication solutions being used by providers. Are originating or other providers entering into agreements with third parties to perform their authentication obligations under the Commission's rules and the Alliance for Telecommunications Industry Solutions (ATIS) technical standards? If so, who are these third parties, what is the nature of their relationship to the provider that has retained them, and how does any agreement between the provider and the third-party purport to assign responsibility for compliance with the Commission's authentication rules and the ATIS standards? The Commission notes that the ATIS technical standards acknowledge several scenarios in which providers may authenticate calls where they lack a direct relationship with the end user of a voice service. These cases—including those involving providers serving enterprise, communications reseller, and value-added service provider customers—generally involve an authenticating service provider that originates calls on behalf of a customer that itself maintains the direct relationship with the end user of the communications service. Are third-party authentication arrangements limited to these types of situations or are providers outside of these limited scenarios contracting with third parties to perform all or part of their authentication responsibilities? For instance, are providers that originate calls themselves entering into arms-length agreements with third parties for authentication services? Are there third parties marketing caller ID authentication services for originating and other providers? The Commission asks that commenters detail the different types of third-party authentication arrangements that are currently being employed by providers, address how prevalent each type of third-party authentication arrangement is in the STIR/SHAKEN ecosystem, and provide any available data substantiating how effective they are at facilitating the authentication of caller ID information.

3. Along those lines, the Commission seeks comment on whether, and under what circumstances, a third party may authenticate calls on behalf of a provider with A- or B-level attestations consistent with the ATIS standards. Pursuant to ATIS-1000074, in order to apply a B-level attestation for a call, the signing party must originate the call onto the IP-based service network and have a direct authenticated relationship with the customer An A-level attestation additionally requires the signing provider to establish a verified association with the telephone number used for the call. Can a third-party authenticating a call on behalf of an originating provider satisfy all or any these criteria, and if so, how? Does the answer to that question depend on the nature of the relationship between the originating provider and the third party? For instance, is it possible for a third party that is a wholesale provider for a reseller, or an intermediate provider, to apply A- or B-level attestations on behalf of an originating provider in a manner that complies with the ATIS attestation-level criteria, but not a different type of third party? Are there third parties authenticating calls on behalf of originating providers that can only apply C-level attestations under the ATIS criteria? If commenters contend that third parties can meet the ATIS criteria for signing calls with A- and B-level attestations because they effectively stand in the shoes of the originating provider with the direct relationship with the customer, the Commission asks that they specify the legal bases for that conclusion, e.g., the specific grounds for an agency theory, if any, and/or how the terms of the ATIS standards may be construed to include the third-party arrangement.

4. To the extent commenters contend that third parties may satisfy the criteria to sign calls with A- or B-level attestations, what information must be shared between originating providers and third parties for those attestation levels to be applied, is that information sharing occurring, and does it implicate any legal or public interest concerns, including privacy concerns? For instance, does any of the information shared constitute customer proprietary network information? Should any action taken by the Commission to explicitly authorize third-party authentication solutions be conditioned upon any particular restrictions or protections related to that information sharing? Should any explicit authorization of third-party authentication practices be conditioned upon providers ensuring that third parties have the information needed to apply A- or B-level attestations consistent with the ATIS standards?

5. The Commission seeks comment on whether there is a distinction between scenarios in which a third-party entity is retained to authenticate calls on behalf of a provider and the technical solutions described in the October 13, 2021, Deployment by Small Voice Service Providers Report, produced by the North American Numbering Council (NANC) Call Authentication Anchor Working Group (NANC Small Providers Report). In that report, the NANC stated that small service providers may wish to “leverage [a] number of vendor solutions” offering third-party call signing services in order to comply with their STIR/SHAKEN implementation obligations under the Commission's rules, identifying three options: (1) “hosted SHAKEN;” (2) “carrier SHAKEN;” and (3) “SHAKEN software.” Although each option involves different features, they each require the originating provider to “determin[e] the proper `A' `B,' or `C' level attestation” for a given call and to use the third-party platform to sign the call using the originating provider's SPC token. The NANC states that these options offer a cost-effective means for providers—particularly small providers—to implement STIR/SHAKEN consistent with the ATIS standards. The Commission seeks comment on these technical solutions and the extent to which they are currently in use by providers. If commenters agree that they satisfy the criteria for signing calls under the ATIS standards, is that because the solutions require the originating provider to make the attestation level determinations and sign calls using the originating provider's SPC token, as opposed to arrangements in which a third party is allowed to make attestation level determinations and sign calls using a different SPC token? Do these technical solutions, in fact, result in A- B-, and C-level attestations being accurately applied?

6. The record developed in response to the Fifth Caller ID Authentication Further Notice indicates that there could be benefits to explicitly authorizing third-party authentication arrangements. For instance, some commenters suggest that third-party authentication can strengthen the caller ID authentication regime by enabling STIR/SHAKEN to be applied to calls that would otherwise be transmitted without authentication. The Commission seeks comment on the full range of benefits that could result from authorization of different third-party authentication arrangements. The Commission also seeks comment on the potential pitfalls of third-party authentication. For example, some commenters suggest that improper third-party signing practices are resulting in misleading and improper attestations, which in turn undermine the efficacy of the STIR/SHAKEN framework and impair the analytics tools that rely on accurate attestation data to make blocking and labelling recommendations to their clients.

7. Accordingly, the Commission seeks comment on whether it should amend its rules to explicitly authorize third-party authentication and what, if any, limitations it should place on that authorization to ensure compliance with authentication requirements and the reliability of the STIR/SHAKEN framework. For instance, should the Commission limit third-party authentication to scenarios akin to those described in the ATIS standards, where the entity authenticating the call is originating the call for a customer, such as a reseller or an enterprise customer? ATIS-1000088 defines “customer” as “[t]ypically a service provider's subscriber, which may or not be the ultimate end-user of the telecommunications service,” and which “may be a person, enterprise, reseller, or value added service provider;” and defines “end user” as “[t]he entity ultimately consuming the VoIP-based telecommunications service.” Notwithstanding the definitions provided by the ATIS standards, should the Commission “clarify that, for the purposes of the STIR/SHAKEN standard, a `customer' means an end user and not a wholesale upstream provider” as USTelecom suggests? Should the Commission limit an authorization to the technical solutions described in the NANC Small Providers Report? Alternatively, should the Commission explicitly authorize third-party authentication more broadly but require the provider with the authentication obligation to make attestation-level determinations, rather than allowing them to rely on the third-party to make those determinations? If the Commission were to explicitly authorize third-party authentication, should the Commission also require third parties to sign calls using the provider's SPC token? Should the Commission prohibit providers from certifying to having implemented STIR/SHAKEN in the Robocall Mitigation Database unless their calls are signed with their own SPC token, whether directly or through a third party? Would such a requirement improve accountability by third-party authenticators? Is the ability to obtain SPC tokens likely to present a barrier to providers' compliance with such a requirement? If so, in what circumstances? Are there security or other concerns implicated by a provider sharing its SPC token with another entity for the purpose of signing calls? Would that undermine trust in the STIR/SHAKEN regime?

8. The Commission asks that commenters address the specific costs that would be incurred and gains that would be realized if it were to explicitly authorize or prohibit specific third-party authentication practices. Are there any other rules that the Commission would need to change if it were to explicitly authorize certain third-party authentication practices? What measures would the Commission need to implement to monitor compliance with the Commission's rules if third-party authentication arrangements are employed? For instance, should the Commission amend its rules to explicitly require providers to identify any third-party solutions they rely upon in their Robocall Mitigation Database certifications and robocall mitigation plans, including the identity of the third party providing the solution, any requirements the provider has imposed on the third party to ensure compliance with the requirements of the ATIS technical standards and the Commission's rules, and what the provider itself does to ensure compliance with those requirements under the third-party arrangement? Are there any other compliance or enforcement measures that the Commission should adopt if it explicitly authorizes third-party authentication?

9. The Commission also invites comment on whether a rulemaking is necessary to address third-party authentication or if another procedural device would be appropriate. For instance, to the extent commenters argue that third-party authentication is already authorized in the limited scenarios described in the ATIS standards, and no other third-party authentication arrangement should be permitted, should the Commission instead address these issues through a declaratory ruling? To the extent commenters advocate for imposing rules on third parties that authenticate calls on behalf of providers, rather than upon the providers themselves, the Commission seeks comment on its legal authority to do so.

10. Lastly, if the Commission were to explicitly authorize the use of third parties to authenticate caller ID information, the Commission seeks comment on whether it should require providers that are not currently required to implement STIR/SHAKEN because they do not have the facilities necessary to do so or are subject to an implementation extension to engage a third-party authentication solution for the SIP calls they originate. Would this significantly increase the number of calls authenticated with STIR/SHAKEN or is the impact likely to be minimal given the authentication obligation the Commission adopted in the Sixth Report and Order (FCC 23-18), published elsewhere in this issue of the of the Federal Register , for the first intermediate provider in the path of a SIP call and the fact that the implementation extension for facilities-based small providers will lapse on June 30, 2023?

11. The Commission seeks comment on whether to eliminate the STIR/SHAKEN implementation extension for providers that cannot obtain an SPC token. To participate in STIR/SHAKEN, a voice service provider must obtain an SPC token issued through the STIR/SHAKEN governance system. In the Second Caller ID Authentication Report and Order, 85 FR 73360 (November 17, 2020), the Commission granted voice service providers that are incapable of obtaining an SPC token due to Governance Authority policy a STIR/SHAKEN implementation extension until they are capable of obtaining said token.

12. The Commission seeks comment on whether it should eliminate this extension. What are the benefits of, or drawbacks to, retaining the extension? Given changes in token access policy since the Second Caller ID Authentication Report and Order making it easier to obtain an SPC token, which, if any, providers are likely to qualify for this extension today, and under what circumstances? Assuming some providers remain unable to obtain an SPC token, are there other ways the Commission could account for these providers in its rules, apart from an implementation extension? Alternatively, would the Commission's standard waiver provisions be sufficient protection for any providers unable to obtain an SPC token? Are there other solutions that would allow any providers who remain unable to obtain an SPC token to participate in the STIR/SHAKEN framework? The Commission seeks comment on these and any alternative approaches to eliminating the SPC token extension.

13. The Commission proposes to rely upon section 251(e) of the Communications Act of 1934 (the Act) and the Truth in Caller ID Act to require providers to meet any such requirements it adopts. The Commission seeks comment on this approach and whether there are any alternative sources of authority that it should consider.

14. The Commission proposes to rely on the TRACED Act to require originating providers to ensure that their calls are signed with their own token. To eliminate the extension for token access, the Commission proposes to rely on its authority under the TRACED Act to revise any granted extensions. The Commission seeks comment on these proposals. The Commission also seeks specific comment on its authority to eliminate an existing TRACED Act extension by Commission action outside of the annual extension reevaluation process mandated by the TRACED Act. Are there any other sources of authority the Commission should consider?

15. The Commission, as part of its continuing effort to advance digital equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. The Commission defines the term “equity” consistent with Executive Order 13985 as the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality. See Exec. Order No. 13985, 86 FR 7009, Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Jan. 20, 2021). Specifically, the Commission seeks comment on how its proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility.

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

17. In order to continue the Commission's work of protecting American consumers from illegal calls, the FNPRM seeks comment on the use of third-party caller ID authentication solutions and whether any changes should be made to the Commission's rules to permit, prohibit, or limit their use. It also seeks comment on whether to eliminate the STIR/SHAKEN implementation extension for voice service providers that cannot obtain an SPC token.

18. The FNPRM proposes to find authority largely under those provisions through which it has previously adopted rules. Specifically, the FNPRM proposes to find authority under section 251(e) of the Communications Act of 1934, as amended, the Truth in Caller ID Act, and the TRACED Act. The FNPRM solicits comment on these proposals.

19. 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 by the rule revisions on which the Notice seeks comment, 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.

20. 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 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.

21. 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.

22. 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.”

23. 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 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.

24. 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.

25. 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.

26. Incumbent Local Exchange Carriers (Incumbent LECs). 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.

27. 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 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 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.

28. The Commission has included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small-business size standard ( e.g., a telephone communications business having 1,500 or fewer employees) and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission therefore included small incumbent LECs in this RFA analysis, although it emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

29. 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.

30. 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. The Commission notes however, that the it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, the Commission is 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.

31. 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.

32. 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.

33. 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 $35 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.

34. 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.

35. 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. 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 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.

36. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card 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.

37. 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.

38. The FNPRM seeks comment on imposing several obligations on various providers, many of whom may be small entities. Specifically, the FNPRM seeks comment on the types of third-party authentication solutions being used by providers and the nature of any agreements or relationships with third parties, including whether providers are entering into agreements with third parties to perform their authentication obligations under the Commission's rules and the ATIS technical standards.

39. The FNPRM seeks comment on whether, and under what circumstances, a third party may authenticate calls on behalf of a provider with A- or B-level attestations consistent with the ATIS standards. To the extent that commenters contend that third parties can meet the ATIS standards for signing calls with A- and B-level attestations, the FNPRM seeks comment on the specific legal bases for that conclusion and the information that must be shared between originating providers and third parties for such attestation levels to be applied. It also seeks comment on whether the Commission should condition any explicit authorization of third-party authentication solutions upon any particular restrictions or protections related to information sharing, including ensuring that third parties have the information needed to apply A- or B-level attestations consistent with the ATIS standards.

40. The FNPRM further seeks comment on whether the Commission should amend its rules to explicitly permit third-party authentication and any limitations the Commission should place on any such authorization, including: (1) whether to limit authorization to scenarios akin to those described in the ATIS standards; (2) whether to limit authorization to the technical solutions described in the NANC's 2021 Small Providers Report; (3) whether to only permit third-party authentication if the third party signs the call using the provider's SPC token; (4) whether to require providers with the authentication obligation to make attestation-level determinations; and (5) whether to prohibit providers from certifying that they have implemented STIR/SHAKEN in the Robocall Mitigation Database unless their calls are singed with their own SPC token, whether directly or through a third-party.

41. The FNPRM seeks comment on whether the Commission should change any other rules if certain third-party authentication practices are explicitly authorized. In particular, it seeks comment on whether the Commission should require providers to explicitly identify certain additional information in their Robocall Mitigation Database certifications and plans, including: (1) any third-party solutions; (2) the identity of the third party providing the solution; and (3) any requirements the provider has imposed on the third party to ensure compliance with the requirements of the of the ATIS technical standards and Commission's rules, and any action taken by the provider to ensure compliance with those requirements.

42. The FNPRM seeks comment on whether there are any other compliance or enforcement measures that the Commission should adopt if it explicitly authorizes third-party authentication. It also seeks comment on whether a rulemaking is necessary to address third-party authentication or if another procedural device would be appropriate. To the extent that third-party caller ID authentication is explicitly authorized, the FNPRM seeks comment on whether the Commission should require providers that are not currently required to implement STIR/SHAKEN because they do not have the facilities necessary to do so or are subject to an implementation extension to engage a third-party authentication solution for the SIP calls they originate.

43. Lastly, the FNPRM also seeks comment on whether to eliminate the STIR/SHAKEN implementation extension for providers that cannot obtain an SPC token.

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

45. The FNPRM seeks comment on the particular impacts that the proposed rules may have on small entities. In particular, it seeks comment regarding the different types of third-party authentication arrangements currently being employed by providers, the prevalence of each type of third-party authentication arrangement in the STIR/SHAKEN ecosystem, and any available data substantiating how effective they are at facilitating the authentication of caller ID information.

46. The FNPRM seeks comment on whether third-party authentication providers are able to satisfy all or any of the ATIS standards, and whether the answer to such question is dependent on the nature of the relationship between the originating provider and the third party.

47. The FNPRM seeks comment on the information that must be shared between originating providers and third parties for A- or B-level attestations to be applied and whether information sharing practices implicate any legal or public interest concerns. It seeks comment on whether the Commission should condition any explicit authorization of third-party authentication practices upon providers ensuring that third parties have the information needed to apply A- or B-level attestations consistent with the ATIS standards.

48. The FNPRM seeks comment on whether there is a distinction between scenarios in which third parties authenticate calls on behalf of a provider and the technical solutions described in the 2021 Small Providers Report produced by the NANC. The FNPRM notes that the NANC described the technical solutions as a cost-effective means for providers—particularly small providers—to implement STIR/SHAKEN consistent with the ATIS standards, and sought comment on these solutions. The FNPRM seeks comment on whether the Commission should limit any authorization of third-party authentication to the technical solutions described in the NANC's 2021 Small Provider Report. It also seeks comment on only permitting third-party authentication if the third party signs the call using the provider's SPC token and prohibiting providers from certifying that they have implemented STIR/SHAKEN in the Robocall Mitigation Database unless their calls are signed with their own SPC token. In so doing, it specifically seeks comment on whether the ability to obtain an SPC token is likely to present a barrier to providers' compliance with such a requirement.

49. The FNPRM further seeks comment on the full range of potential benefits that could result from authorization of different third-party authentication arrangements, as well as the potential pitfalls of third-party authentication. It also seeks comment on the specific costs that would be incurred and gains that would be realized if the Commission were to explicitly authorize or prohibit specific third-party authentication practices. In addition, the FNPRM seeks comment on whether there are any other rules that the Commission would need to change if it were to explicitly authorize certain third-party authentication practices. Moreover, if third-party caller ID authentication is explicitly permitted, the FNPRM seeks comment on whether to require providers that are not currently required to implement STIR/SHAKEN because they do not have the facilities necessary to do so or are subject to an implementation extension to engage a third-party authentication solution for the SIP calls they originate.

50. Lastly, the FNPRM seeks comment on whether to eliminate the STIR/SHAKEN implementation for providers that cannot obtain an SPC token, as well as any benefits or drawbacks to retaining the extension.

51. Small entities may provide input in these areas addressing, among other considerations, any particular implementation challenges faced by small entities. The Commission expects to evaluate the economic impact on small entities, as identified in comments filed in response to the Further Notice and this IRFA, in reaching its final conclusions and taking action in this proceeding.

52. None.

53. Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this FNPRM. The IRFA is set forth above. Written public comments are requested on the IRFA. Comments must be filed by the deadlines for comments on the FNPRM indicated on the first page of this document and must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the SBA.

54. Paperwork Reduction Act. The FPRM may contain proposed new and revised information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 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 we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

55. Accordingly, it is ordered that, pursuant to sections 4(i), 4(j), 201, 202, 217, 227, 227b, 251(e), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 201, 202, 217, 227, 227b, 251(e), and 303(r), this FNPRM is adopted.

56. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this FNPRM, including the IRFA analysis, to the Chief Counsel for Advocacy of the SBA.

Background

The United States is a contracting party to the Convention on the Conservation of Antarctic Marine Living Resources (Convention) and a member of the governing body established under the Convention—the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR or Commission). During its annual meetings, the Commission formulates and adopts conservation measures (CMs) that apply to fishing for Antarctic marine living resources in the Convention Area, which generally consists of the Southern Ocean. The Antarctic Marine Living Resources Convention Act of 1984 (AMLRCA), codified at 16 U.S.C. 2431, et seq., provides the statutory authority for the United States to carry out its obligations under the Convention. Under section 307(b)(1) of AMLRCA, 16 U.S.C. 2436(b), the Secretary of Commerce has authority to promulgate regulations as necessary and appropriate to implement the Act. Acting under a delegation of that authority, the Assistant Administrator for Fisheries has implemented Commission-adopted conservation measures that are binding on the United States through regulations at 50 CFR part 300, subpart G.

To inhibit trade of illegal catches, CCAMLR adopted Conservation Measure 10-05, which established an electronic Catch Documentation Scheme (CDS) for tracking of Dissostichus species from harvest through the trade cycle, including transshipment, landing, import, export, and re-export, regardless of where the fish were harvested. Under the regulations at 50 CFR part 300, subpart G, the Assistant Administrator has implemented the CCAMLR CDS, among other U.S. requirements, as a part of U.S. monitoring of trade in Antarctic marine living resources. Those regulations require a preapproval certificate for importation of frozen Dissostichus species, 50 CFR 300.105(a), and, for re-export or export of frozen or fresh product, an electronically-generated Dissostichus re-export document (DRED), 300.106(f)(1)(ii) or export document (DED), 300.106(g)(1)(ii). As explained in more detail below, this proposed rule would revise regulations at section 300.105 that apply to issuance of preapproval certificates required for importation of frozen Dissostichus species, add new regulations to section 300.106 that would apply to issuance of DREDs or DEDs, and make corresponding changes to the prohibitions under section 300.114.

In addition, NMFS proposes to clarify that a person must receive the electronically-generated DRED or DED required for re-export or export of Dissostichus species before re-exporting or exporting any shipments.

Lastly, NMFS proposes to update references to the Antarctic Conservation Act (16 U.S.C. 2401, et seq., as amended) and associated regional agreements, and update contact information at NMFS and the Department of State for reporting violations of conservation measures adopted by CCAMLR.

These proposed regulatory revisions are further explained below.

U.S. regulations provide that: “No shipment of Dissostichus species shall be released for entry into the United States unless accompanied by an accurate, complete, valid and validated CCAMLR CDS document.” 50 CFR 300.106(a)(2). This applies to all shipments, whether or not the subject Dissostichus species were harvested within or outside of the CCAMLR Convention Area and regardless of whether the respective harvesting vessel is flagged to a CCAMLR contracting party or a non-contracting party cooperating with CCAMLR by participating in the CDS. See 50 CFR 300.106(a)(1). Regulations that apply to issuance of preapproval certificates for importation of frozen Dissostichus species at 300.105(h) provide the circumstances when NMFS will not issue a preapproval certificate. These include any shipment of Dissostichus species determined to have been harvested or transshipped in contravention of any CCAMLR Conservation Measure in force at the time of the harvest or transshipment; or harvested or transshipped by a vessel identified by CCAMLR as having engaged in illegal, unreported and unregulated (IUU) fishing. However, the current regulations do not provide that NMFS will deny a preapproval certificate for Dissostichus species illegally harvested or transshipped outside the Convention Area, including within foreign exclusive economic zones or high seas areas under the competence of a regional fisheries management organization, despite the fact that such imports would be prohibited under other existing federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)). To address this inconsistency, and to avoid a possible scenario where a preapproval certificate is issued for product determined to be subject to enforcement action, NMFS proposes to include additional bases for denial in 50 CFR 300.105(h).

Section 307(1)(Q) of the Magnuson-Stevens Act prohibits, among other things, imports or exports of any fish “taken, possessed, transported, or sold in violation of any foreign law or regulation or any treaty or in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.” 16 U.S.C. 1857(1)(Q). Consistent with that provision, this proposed rule would revise 50 CFR 300.105(h) to provide that NMFS will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in violation of:

• any foreign law or regulation; or

• any treaty within the meaning of section 2 of article II of the U.S. Constitution.

In addition, NMFS proposes that it will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.

NMFS has also noted a gap in the current regulations that apply to issuance of DREDs and DEDs for re-export or export of Dissostichus species. These regulations at sections 300.106(f)(1)(ii) and (g)(1)(ii) do not explicitly provide that NMFS may deny issuance of a DRED or DED when Dissostichus species are harvested or transshipped in contravention of a CCAMLR conservation measure in force. Under the conservation measure that established the CCAMLR CDS, the export and re-export of Dissostichus species determined to have been harvested in a manner inconsistent with CCAMLR conservation measures is prohibited. Thus, in order to implement that requirement, NMFS is proposing to revise 300.106(f) and (g) to provide that a DRED or a DED will not be issued for Dissostichus species that NMFS has determined were harvested or transshipped in contravention of a CCAMLR Conservation Measure, AMLRCA, or the regulations of this subpart. In addition, NMFS proposes to revise these paragraphs to include, as relevant, the bases for denial of issuance of a DRED or DED that are proposed to be added to section 300.105(h) (preapproval certificates) as discussed above. As with preapproval certificates, these bases for denial of a DRED or a DED are necessary to avoid an inconsistency where NMFS issues a re-export or export document for Dissostichus species that is prohibited from trade and that may be subject to an enforcement action under other existing Federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)).

NMFS also proposes to make corresponding revisions to the prohibitions under 50 CFR 300.114(o).

This action would remove the prohibition on the importation of toothfish harvested from FAO Statistical Areas 51 and 57 in 50 CFR 300.105(h)(1) and 300.114(o). NMFS believes removal of this prohibition is appropriate because the management, monitoring and control of toothfish fishing in the Southern and Indian Oceans has improved. In 2003, to prevent the entry of illegally-harvested toothfish into the U.S. market, NMFS implemented an import prohibition of those species identified as originating from FAO Statistical Areas 51 and 57. Information available to NMFS at that time suggested that catches attributed to Areas 51 and 57 in CDS documents had in fact been illegally harvested from the Convention Area by unlicensed vessels. Any catches of toothfish reported as originating from Statistical Areas 51 and 57 were deemed to be misrepresented because fisheries surveys and bathymetric data available at the time suggested those areas had no fishable concentrations of toothfish. In addition, there was insufficient vessel monitoring system (VMS) data from the vessels operating in those areas to verify the harvest location of catches reported as originating from Statistical Areas 51 and 57.

Since 2003, CCAMLR has made a number of improvements and advancements that enable verification of toothfish harvest locations reported in CDS documents. Among these, CCAMLR has strengthened VMS requirements for vessels participating in toothfish fisheries and processes are in place to compare CDS data with relevant catch data. In addition, since 2010, NMFS has, as a condition for issuance of a preapproval certificate for importation of frozen toothfish, required verifiable documentation that a harvesting vessel reported positions to CCAMLR's centralized VMS from port-to-port in real-time regardless of harvest location. 50 CFR 300.105(c).

In 2012, the Southern Indian Ocean Fisheries Agreement (SIOFA) entered into force. SIOFA manages bottom-fishing activities in the Southern Indian Ocean, including the high seas portions of Statistical Areas 51 and 57. Vessels operating in SIOFA-managed areas are now harvesting toothfish in commercial quantities under SIOFA-adopted catch limits. In the last few years, toothfish has been caught in Statistical Areas 51 and 57 by vessels of CCAMLR members, who are also members of SIOFA, and tracked as required through the CDS. Thus, the bases for the prohibition on imports from those areas ( i.e., apparent lack of fishable concentrations and insufficient monitoring and reporting) no longer appear to be concerns.

The Office of International Affairs, Trade, and Commerce has made the application process for preapproval certificates available online, including the ability to access forms, submit required information, and complete payment through a web portal. This process is in addition to options for applying by mail or email using the portable document format application form. The online application decreased the processing time for preapproval certificates and serves to facilitate entry processing for importers. Language in 50 CFR 300.105 would be updated to delete the requirement to provide information “in writing,” as well as note that applications for a preapproval certificate are available from NMFS instead of NMFS Headquarters and the National Seafood Inspection Laboratory. Accordingly, the National Seafood Inspection Laboratory would be removed from the list of definitions in 50 CFR 300.101. These proposed regulatory text changes do not affect the previously approved public reporting burden for this information collection.

Under 50 CFR 300.106(f)(1)(ii) and (g)(1)(ii), a person must receive an electronically-generated DRED or export document DED in order to re-export or export Dissostichus species from the United States. While NMFS believed that it is clear that a person must have a DRED or DED before re-exporting or exporting Dissostichus species, in order to ensure that there is no confusion on when a person must have a DRED or DED to legally export or re-export Dissostichus species, NMFS proposes to revise 50 CFR 300.106(f)(1)(ii) and (g)(1)(ii) to explicitly provide that a person must receive the electronically-generated DRED or DED before shipments of Dissostichus species are re-exported or exported.

Congress amended the Antarctic Conservation Act of 1978 (ACA) to implement the Protocol on Environmental Protection to the Antarctic Treaty (Protocol) and as part of those amendments the statute was renamed the “Antarctic Conservation Act.” This proposed rule would update 50 CFR 300.101 to reflect that renaming. 50 CFR 300.102(b) would be revised to replace the reference to Agreed Measures for the Conservation of Antarctic Fauna and Flora, which is no longer in effect, with the Protocol. Similarly, the reference to the Agreed Measures would be removed from 50 CFR 300.113(c)(1). Also in 50 CFR 300.113(a)(2), the reference to the Protocol would be removed because there is no protected system under the Protocol that would apply to CCAMLR Ecosystem Monitoring Program (CEMP) sites. A reference related to specially protected areas regulated under the ACA is also updated.

In 50 CFR 300.115, NMFS is proposing amendments that would update contact information for reporting any violations of CCAMLR conservation measures observed in the Convention Area.

This proposed rule is published under the authority of the Antarctic Marine Living Resources Convention Act of 1984 (16 U.S.C. 2431 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ). The NMFS Assistant Administrator has determined that this proposed action is consistent with the provisions of these and other applicable laws, subject to further consideration after any relevant public comment.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

The proposed rule relates to trade of toothfish: Antarctic and Patagonian toothfish species ( Dissostichus mawsoni and D. eleginoides, respectively). There are approximately 80 dealers who could fall within the scope of NMFS's AMLRCA regulations. All U.S. dealers are considered small entities under the “Small Business Size Regulations” established by the SBA under 13 CFR 121.201. Although all regulated entities are considered small under the SBA size standard, this rule is expected to have no significant economic impact on these regulated entities.

The proposed changes would amend the circumstances when NMFS will deny a preapproval certificate for importation of frozen Dissostichus species, to include the following additional circumstances, consistent with section 307(1)(Q) of the Magnuson-Stevens Fishery Conservation and Management Act: determined to have been taken, possessed, transported or sold in violation of:

• any foreign law or regulation; or

• any treaty within the meaning of section 2 of article II of the U.S. Constitution.

In addition, NMFS proposes that it will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.

These changes are not expected to have any economic impacts on dealers of Antarctic marine living resources (AMLR) product. These additional circumstances in which NMFS will deny a preapproval certificate would not require importers to change anything they currently do to apply for a preapproval certificate. Similarly, the addition of the same criteria for denying a DRED or DED is not expected to have any economic impacts on dealers of AMLR product and would not require exporters to do anything differently when re-exporting or exporting toothfish species. By providing additional circumstances in which NMFS will deny a preapproval certificate, DRED, or DED these proposed amendments will ensure that such documents are not issued for trade that would be prohibited under other existing federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)). As this proposed change does not affect compliance costs or add any regulatory burden, AMLR dealers would not incur additional economic costs.

The proposed change to remove the import prohibition of Dissostichus species harvested in FAO Statistical Areas 51 and 57 (in the Indian Ocean) would allow AMLR dealers an additional potential source of toothfish for import into the United States. Toothfish imports from these dealers average 14 million kilograms per year and are valued at $225 million per year. Toothfish is considered a luxury product due to its high market price (according to the industry source Urner Barry, the average market price for processed toothfish has ranged from $18 to $20 per pound since 2019, with more recent pricing on the upper end of that scale). The increased sourcing options for dealers of toothfish, in addition to the existing available sources, expands dealer access to product. This additional source of product may increase options for small entities to seek more competitive prices and increase profits from this high end product.

The other proposed changes in this rule: clarifying that an electronically-generated DRED or DED must be received before re-exporting or exporting shipments of Dissostichus species; updating language by removing “in writing” in preapproval certificate application provisions; updating references to the Antarctic Conservation Act (ACA); and revising contact information are administrative in nature and not expected to economically impact dealers engaged in the import, re-export, and export of toothfish. The clarification of the requirement to receive the DRED or DED prior to re-exporting or exporting shipments of toothfish would not impact dealers of toothfish because this requirement already exists and dealers already have to comply with it. NMFS is clarifying the requirement to prevent any possible confusion. The remaining proposed changes listed here would not affect dealers of toothfish.

For the above reasons, this proposed rule is not expected to have a significant economic impact on a substantial number of small entities. As a result, a regulatory flexibility analysis was not prepared.

This proposed rule contains no new or revised collection-of-information requirements subject to the Paperwork Reduction Act. The proposed regulatory text changes do not affect the previously approved public reporting burden for this information collection.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 300 as follows:

NMFS and the Council manage the Gulf reef fish fishery, which includes gray triggerfish, under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

All weights in this proposed rule are given in round weight unless indicated otherwise.

Gray triggerfish are managed under the FMP, and are harvested by commercial and recreational fishermen in the Gulf. The stock was determined to be undergoing overfishing according to the results of the 2006 Southeast Data, Assessment, and Review (SEDAR) 9 stock assessment. Based on the criteria selected by the Council in Amendment 30A to the FMP, the gray triggerfish stock was also considered overfished. Therefore, NMFS implemented a gray triggerfish rebuilding plan through Amendment 30A, as well as annual catch limits (ACLs), ACTs, and accountability measures (73 FR 38139, July 3, 2008). Amendment 30A also established the current allocation of the stock ACL as 21 percent for the commercial sector and 79 percent for the recreational sector. The 2011 SEDAR 9 Update Assessment found that gray triggerfish were still overfished and undergoing overfishing. NMFS published a final temporary rule (77 FR 28308, May 14, 2012) that reduced the commercial and recreational ACLs and ACTs to end overfishing while the Council developed Amendment 37 to the FMP. Amendment 37 established a plan to rebuild the stock in 5 years and the implementing final rule reduced the ACLs and ACTs for gray triggerfish (78 FR 27084, May 9, 2013). Amendment 37 also established the first commercial trip limit of 12 fish to reduce commercial landings. The commercial trip limit is the amount of the applicable species that may be possessed on the vessel, or landed, purchased, or sold from a vessel per day (50 CFR 622.43). The Council decided to establish the commercial trip limit in numbers of fish instead of weight based on recommendations made by the Council's Law Enforcement Advisory Panel, who advised it would be difficult to enforce a low poundage limit of fish per trip, e.g., if a commercial trip limit was set at less than 75 lb (34 kg).

In 2017, the Council developed Amendment 46 to the FMP in response to the 2015 SEDAR 43 stock assessment. The assessment indicated the gray triggerfish stock was not experiencing overfishing, but was not rebuilt and remained overfished. Amendment 46 specified a new rebuilding timeline, and revised ACLs and ACTs. Commercial landings per trip were analyzed to determine the impact of changing the trip limit because the commercial sector was often harvesting gray triggerfish below its ACT since the implementation of the 12-fish commercial trip limit. The analyses supported an increase of the commercial trip limit to 16 fish to provide a better opportunity for the commercial sector to catch its ACT while the gray triggerfish stock continued to rebuild (82 FR 59523, December 15, 2017).

In 2017, the Council also developed Amendment 44 to the FMP. Amendment 44 reduced the overfished thresholds for gray triggerfish and six other reef fish species to reduce the likelihood that stock status changes between overfished and not overfished would occur frequently as a result of scientific uncertainty or natural fluctuations in biomass levels (82 FR 61487, December 28, 2017). Although this action resulted in the determination that gray triggerfish was no longer overfished, the rebuilding plan remained in place because the rebuilding target, which is the biomass that produces maximum sustainable yield, had not been achieved.

In 2020, the Council's Scientific and Statistical Committee (SSC) reviewed an interim analysis of the gray triggerfish stock conducted by the NMFS Southeast Fisheries Science Center. The analysis suggested an increasing biomass trend of the gray triggerfish stock that could support a greater harvest. The Council's SSC determined the interim analysis was suitable for providing sufficient catch advice to update the acceptable biological catch (ABC), and the SSC recommended an increase in the ABC. As a result, the Council increased the ACLs and ACTs consistent with the ABC increase through a framework action under the FMP. The final rule, implemented on July 29, 2021, increased the commercial ACL for gray triggerfish from 64,100 lb (29,075 kg) to 95,949 lb (43,522 kg) and the commercial ACT increased from 60,900 lb (27,624 kg) to 88,273 lb (40,040 kg) based on the current sector allocations (86 FR 34159, June 29, 2021).

Since implementation of the 16-fish trip limit in 2018, commercial landings have been below the commercial ACL and ACT, with the exception of in 2018 when 100.9 percent of the ACL was landed. Additionally, since the most recent ACL and ACT increase in 2021, commercial landings in 2021 and preliminary 2022 commercial landings were 45 and 47 percent, respectively, of the sector's ACL, and 49 and 51 percent, respectively, of the sector's ACT.

During public testimony at meetings of the Council and the Council's Reef Fish Advisory Panel, commercial industry stakeholders indicated that the 16-fish trip limit is still limiting commercial landings and gray triggerfish are only landed incidentally when targeting other species. As a result, the commercial industry stakeholders requested the Council increase the trip limit to reduce discards when encountering gray triggerfish and allow for increased harvest of these fish to make it worthwhile to retain them when they are encountered. Analyses of alternatives increasing the trip limit to 20, 25, and 30 fish indicated that increasing the trip limit is not expected to result in an early closure of the commercial harvest of gray triggerfish. The Council selected the 25-fish commercial trip limit based on the advice of its Reef Fish Advisory Panel, which advocated for a conservative approach that allows for an increased trip limit but reduces the likelihood of an in-season closure that may occur with a higher trip limit.

If implemented, this proposed rule would increase the Gulf gray triggerfish commercial trip limit from 16 fish to 25 fish. Although this trip limit increase is projected to increase annual landings of gray triggerfish by 33 percent, projections developed for the framework action indicate the commercial season would stay open through each fishing year with the exception of the existing seasonal closure from June 1 through July 31.

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

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

Pursuant to section 605(b) of the RFA, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.

A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this proposed rule. The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule.

This proposed rule, if implemented, would increase the commercial trip limit for gray triggerfish. The commercial trip limit would apply to all federally-permitted commercial vessels that fish for or harvest gray triggerfish in Federal waters of the Gulf. It would not directly apply to federally-permitted dealers. Any change in the supply of gray triggerfish available for purchase by dealers as a result of this proposed rule, and associated economic effects, would be an indirect effect of the proposed rule and would therefore fall outside the scope of the RFA.

During 2020, there were a total of 837 valid or renewable commercial permits for Gulf reef fish. On average from 2017 through 2021, there were 261 federally-permitted commercial vessels with reported landings of gray triggerfish in the Gulf. The average annual vessel-level gross revenue from all species for 2017 through 2021 was $159,747 (2021 dollars) and gray triggerfish harvested in the Gulf accounted for less than half a percent of this revenue. For commercial vessels that harvest gray triggerfish in the Gulf, economic profits are estimated to be $51,279, or approximately 32.1 percent of annual gross revenue, on average. The maximum annual revenue from all species reported by a single one of the vessels that harvested gray triggerfish from 2017 through 2021 was approximately $2.8 million (2021 dollars).

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (North American Industry Classification System code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial fishing businesses directly regulated by this proposed rule are believed to be small entities based on the NMFS size standard. No other small entities that would be directly affected by this rule have been identified.

This proposed rule would raise the commercial trip limit for gray triggerfish from 16 fish to 25 fish per vessel. NMFS expects this change to increase commercial gray triggerfish landings by 16,782 lb (7,612 kg) in gutted weight, or 33 percent relative to the status quo. These additional landings would be worth an estimated $38,246 (2021 dollars) in aggregate annual ex-vessel revenue. Divided by the average number of vessels with reported landings of gray triggerfish from 2017 through 2021, this translates to an annual increase of $147, or approximately 0.1 percent of average annual per vessel gross revenue. Because gray triggerfish generates only a fraction of total revenue for vessels that land the species, NMFS assumes this proposed rule would not materially affect fishing effort or trip costs. Therefore, this increase in ex-vessel revenue would equate to an equivalent increase in economic profits (0.3 percent of average annual economic profits). Individual fishing businesses, however, may experience varying levels of economic effects, depending on their fishing practices, operating characteristics, and profit maximization strategies.

In summary, the information provided above supports a determination that this proposed rule would not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

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

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 622 as follows:

Background

Atlantic HMS fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). The 2006 Consolidated HMS FMP and its amendments are implemented by regulations at 50 CFR part 635. A brief summary of the background of Draft Amendment 15 and this proposed rule is provided below. Additional information regarding spatial management can be found in Draft Amendment 15 itself, the 2006 Consolidated HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at: https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

Closed areas are typically discrete geographic areas where certain types of fishing are restricted or prohibited (usually by restricting a particular type of gear) for limited periods of time or the entire year. Closed areas can be particularly effective in reducing or eliminating fishing interactions between particular species and gears. Since 1999, NMFS has implemented a number of time/area closures and gear restricted areas in the Atlantic Ocean and Gulf of Mexico to reduce discards and bycatch of a number of species. NMFS acknowledges that incidental catch is different than “bycatch,” which has a specific definition under the Magnuson-Stevens Act, see 16 U.S.C. 1802(2). However, for ease of communication in this rule, unless otherwise noted, “bycatch species” generally refer to all non-target catch species, including incidentally-caught species that fishermen may or may not retain. Four spatial management areas are being addressed by Draft Amendment 15 and this proposed action: Charleston Bump, DeSoto Canyon, East Florida Coast, and Mid-Atlantic shark closed areas. In 2000, NMFS published a final rule that, in addition to other things, closed the Charleston Bump, DeSoto Canyon, and East Florida Coast areas to pelagic longline gear effective in early 2001 (65 FR 47213, August 1, 2000). The Charleston Bump closed area is a seasonal closure from February through April every year, whereas the DeSoto Canyon and East Florida Coast closed areas are closed year-round to pelagic longline gear. The closures were implemented to reduce bycatch and incidental catch of overfished and protected species by pelagic longline fishermen who target HMS. In 2005, NMFS published a final rule that, in addition to other things, implemented the Mid-Atlantic shark closed area. HMS fishermen are prohibited from using bottom longline gear in the Mid-Atlantic shark closed area from January through July. The intent of this closure was to reduce both the catch and mortality of dusky and juvenile sandbar sharks (68 FR 74746, December 24, 2003). Further information on the four spatial management areas is contained in the above-cited FR documents and Section 4.11 of Draft Amendment 15.

Since implementation of these time/area closures, there has been little to no formal evaluation on whether the closures are still effective in achieving their objectives or whether the balance of associated costs and benefits over time is still appropriate. Given the static nature of the existing time/area management measures, the highly dynamic nature of HMS fisheries, and the highly dynamic nature of the ocean environment, the need to assess the effectiveness of time/area closures and other gear restricted management measures is heightened. However, while closed areas can be an effective management tool for achieving certain objectives, closed areas can also reduce or eliminate the ability to gather fishery-dependent data within the areas. Fishery-dependent data are information collected during normal fishing operations ( e.g., catch composition, bycatch rates, fishing effort), and provide a vital and cost-effective source of information for fisheries management. In general, such data are critical in determining stock status, assessing bycatch levels, and in meeting other fishery management needs. Relevant to this proposed rule, it is important to recognize that in addition to reducing fishery-dependent data, the closed areas have also reduced the ability to collect fishery-independent data from these areas. Fishery-independent data are similar to fishery-dependent data, but the information is collected by scientists and the data collection methods may not be directly comparable to the methods used by fishermen, even if the data are collected on the same gears. The collection of fishery-independent data is more costly than fishery-dependent data and relies on scientists being able to collect the information and obtain the permits needed to fish in the closed areas. Of all four areas, because it is the only area that had research built into its design, only the Mid-Atlantic shark closed area has had consistent data collection and monitoring. In the mid-2000s, there was one research project that collected data in the East Florida Coast closed area from three vessels over three years (73 FR 450, January 3, 2008). In 2017, NMFS approved another research project for that area (82 FR 37566, August 11, 2017), but that research did not occur.

To address the lack of catch information inside of closed areas and provide a means of evaluating the efficacy of the closed areas, NMFS developed a spatial modeling tool, HMS Predictive Spatial Modeling (PRiSM). HMS PRiSM combines observer-collected catch data with environmental variables ( e.g., sea surface temperature, salinity, chlorophyll-A, bathymetry) to create a model that predicts catch of modeled species even in areas where limited or no data has been collected. HMS PRiSM fishery interaction predictions provide important information on where commercial bycatch is likely to occur and helps direct data collection efforts to avoid jeopardizing conservation goals. The model does not use other catch or location data ( e.g., tagging data or fishery-independent location data) because the intent is to model when and where the commercial fishery is likely to interact with species, not to model when and where the species can be found generally. Further details on PRiSM and analyses conducted for this action are in Chapter 2 and Appendices 1-6 of Draft Amendment 15.

On May 16, 2019, NMFS published a Notice of Intent in the Federal Register that provided formal notice to the public that NMFS intended to prepare an environmental impact analysis; announced the availability of the Issues and Options Paper and the start of the public scoping process (with a comment period of May 16 through July 31, 2019); and solicited public comments (84 FR 22112). On May 22, 2019, NMFS published a notice that provided the dates and locations of five scoping meetings, including a webinar, pertaining to spatial management research (84 FR 23519). Also on May 22, 2019, NMFS conducted scoping during the spring HMS Advisory Panel meeting.

Draft Amendment 15 is a consolidated document that includes a Draft Environmental Impact Statement (DEIS), Initial Regulatory Flexibility Analysis (IRFA), Draft Regulatory Impact Review, and Draft Social Impact Assessment. It contains a complete description and analysis of the range of alternatives analyzed. The preferred alternatives in Draft Amendment 15 are the measures proposed in this rule, described below. A description of the significant alternatives to the proposed measures is provided later in this preamble in the summary of the IRFA.

This proposed rule is designed to: (1) use spatial management tools to minimize bycatch and bycatch mortality, to the extent practicable, while also optimizing fishing opportunities for U.S. fishing vessels; (2) develop methods of collecting target and non-target species occurrence and catch rate data from HMS spatial management areas for the purpose of assessing area performance; (3) broaden the considerations for the use of spatial management areas as a fishery management tool, including to provide flexibility to account for the highly variable nature of HMS and their fisheries, manage user conflicts, facilitate collection of information, address the need for regular evaluation and performance review, plan for climate resilience, and address environmental justice; (4) evaluate the effectiveness of existing HMS spatial management areas, and if warranted, modify them to achieve an optimal balance of ecological and socioeconomic benefits and costs; and (5) modify the HMS electronic monitoring program as necessary to augment spatial management and address the requirements of relevant NMFS policies regarding electronic monitoring. In Draft Amendment 15, NMFS considered a reasonable range of different alternatives to meet these objectives and is proposing to implement the preferred alternatives in this proposed rule. NMFS' detailed analysis of the alternatives is provided in Draft Amendment 15 (see ADDRESSES for how to get a copy) and a summary is provided in the IRFA below. In developing this proposed rule, NMFS considered comments received at HMS Advisory Panel meetings, other conservation and management measures that have been implemented in HMS fisheries since 2006 that have affected relevant fisheries and bycatch issues, and public comments received during scoping on the Issues and Options paper for this rulemaking (84 FR 22112, May 16, 2019), including comments provided at the May 2019 HMS Advisory Panel meeting. In response to public comment on this proposed rule and Draft Amendment 15, NMFS may make changes in the final rule by modifying the proposed measures or adopting different or additional measures in response to public comment.

For each of the four spatial management areas, Draft Amendment 15/DEIS analyzed a range of alternatives, including no action alternatives, on evaluation and modification of the areas, now referred to as “spatial management areas” (A alternatives); commercial data collection programs for the areas (B alternatives), and evaluation timing of the areas (C alternatives). The A alternatives include different temporal and/or spatial changes for each area and identify high- and low-bycatch-risk areas therein. The B alternatives consider data collection approaches for the high- and low-bycatch-risk areas: establishing a research fishery; cooperative research through exempted fishing permits; and monitoring areas ( i.e., low-bycatch-risk areas inside the spatial management areas) with effort caps, bycatch caps, trip-level effort controls, observer coverage, electronic monitoring, and/or data sharing and communication protocols. The C alternatives consider three and five-year review cycles for spatial management areas; review of areas as warranted based on regulatory review factors; and a sunset provision for spatial management areas. On a related note, NMFS proposes in this action to reorganize, clarify and add regulatory provisions regarding modifying or establishing spatial management areas (preferred alternative E2). Separate from the spatial management areas, Draft Amendment 15 also analyzed a range of alternatives related to transfer of sampling costs of the HMS pelagic longline electronic monitoring program from the Agency to industry (F alternatives).

As reflected below, NMFS has described its preferred packages of A, B, and C alternatives for each spatial management area that would allow for the bycatch risk-appropriate collection of data needed to evaluate the performance of spatial management measures in meeting conservation and management goals. The preferred packages are labeled D1, D2, D3, and D4 in Section 5.4 of Draft Amendment 15. While these proposed changes would directly impact bottom and pelagic longline fishermen who hold Atlantic HMS fishing permits, HMS commercial fishermen who use other gear types and HMS recreational fishermen have expressed concern about potential indirect impacts from changes to the current closed areas as a result of possible changes in fishing effort, strategy or location. Discussion of HMS recreational fisheries is in Section 5.4.6 of Draft Amendment 15.

For evaluation timing and review of all four spatial management areas, NMFS' preferred alternatives are C2, C4 and E2. NMFS would evaluate data collected from the spatial management areas once three years of catch and effort data is finalized and available (Alternative C2). In addition, NMFS may review spatial management areas if specific concerns arise, which may include but is not limited to unexpectedly high or low bycatch, high or low data collection efforts, fishing effort that is overly clustered temporally or spatially, changed conditions within the fishery as a whole, or changed status of relevant stocks (Alternative C4). NMFS also prefers Alternative E2, which provides for adding or revising regulations to provide considerations for review, evaluation, and adjustment of spatial management areas. See Spatial Management regulatory provisions discussion below.

Proposed 50 CFR 635.34(d) and 635.35(e) contain regulatory text related to the preferred C and E alternatives. New text for the preferred A and B alternatives is mainly in proposed §§ 635.35 (spatial management area restrictions), 635.2 (definitions), and 635.69(e)(2)(i) and (5) (additional VMS hailing out declarations and reporting within Monitoring Areas)). Additions of or revisions to terminology ( i.e., using “spatial management areas” and “monitoring areas” instead of “closed areas”), reorganization of provisions, and updates to citations and other consistency edits appear in §§ 635.21(c)-(d) (sea turtle measures and possession/landing limits), 635.24 (commercial retention limits), 635.32 (exempted fishing permit (EFP)), and 635.34 (adjustment of management measures). However, substantive aspects of those provisions remain unchanged from current regulations.

Currently, HMS closed areas, as well as regulations back-stopping NMFS regional closed areas, are in § 635.21. This action would move regulatory text for those areas to proposed § 635.35, update and streamline names and citations for NMFS regional closed areas in § 635.35(d), and delete an outdated provision at current § 635.21(c)(3) (2020-2022 pelagic longline monitoring areas). Text regarding transiting areas, gear stowage, rebuttable presumption, shark research fishery, and Northeast Distant gear restrict area (NED) is the same in proposed § 635.35(a) as in current § 635.21. Proposed § 635.71 contains new prohibitions for spatial management areas as well as consistency edits.