        FEDERAL MARITIME COMMISSION
        46 CFR Part 540
        [Docket No. 20-15]
        RIN 3072-AC82
        Passenger Vessel Financial Responsibility

          AGENCY:
          Federal Maritime Commission.

          ACTION:
          Advance Notice of Proposed Rulemaking (ANPRM).

          SUMMARY:
          The Federal Maritime Commission (Commission) is issuing this ANPRM to seek comment on potential regulatory changes to its passenger vessel operator financial responsibility requirements. These changes were recommended in an Interim Report issued by the Fact Finding Officer in Commission Fact Finding 30: COVID-19 Impact on Cruise Industry.

          DATES:
          Submit comments on or before November 13, 2020.

          ADDRESSES:
          You may submit comments, identified by Docket No. 20-15, by the following methods:
          • Email: secretary@fmc.gov. For comments, include in the subject line: “Docket No. 20-15, Comments on PVO Financial Responsibility Rulemaking.” Comments should be attached to the email as a Microsoft Word or text-searchable PDF document.

            Instructions: For detailed instructions on submitting comments, including requesting confidential treatment of comments, and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to the Commission's website, unless the commenter has requested confidential treatment.

            Docket: For access to the docket to read background documents or comments received, go to the Commission's Electronic Reading Room at: https://www2.fmc.gov/readingroom/proceeding/20-15/.

          FOR FURTHER INFORMATION CONTACT:

          Rachel E. Dickon, Secretary; Phone: (202) 523-5725; Email: secretary@fmc.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Executive Summary
          II. Background
          A. PVO Program
          B. Fact Finding 30
          III. Proposed Changes and Request for Comments
          A. Defining Nonperformance of Transportation
          B. Process for Obtaining Refunds From PVO Instruments After Nonperformance of Transportation
          1. General
          2. Deadline for Submitting Refund Requests
          3. Deadline for Refund Payment
          4. Form and Amount of Refund Payment
          5. Publishing Information on How To Obtain Refunds
          C. Passenger Cancellations
          IV. Public Participation
          V. Rulemaking Analyses and Notices

        I. Executive Summary
        Before a passenger vessel operator (PVO) may arrange, offer, advertise, or provide transportation on a vessel, the PVO must file with the Commission evidence of responsibility to indemnify passengers in the event of nonperformance of transportation.1
           Satisfactory evidence includes a copy of a bond, insurance, guaranty, or escrow agreement meeting the Commission's requirements in 46 CFR part 540. The Commission reviews the PVO's submission and if it meets the Commission's requirements, it will issue the PVO a Certificate of Financial Responsibility for Indemnification of Passengers for Nonperformance of Transportation (Certificate (Performance)).2

            1 46 U.S.C. 44102; 46 CFR part 540, subpart A.

            2 46 CFR 540.7.

        Following the arrival of Coronavirus disease 2019 (COVID-19) in the United States, the Centers for Disease Control and Prevention (CDC) issued a “No Sail Order and Suspension of Further Embarkation,” (CDC No Sail Order) causing PVOs to cease all operations and raising questions regarding passengers' ability to obtain refunds of monies paid for transportation disrupted by COVID-19. In response, the Commission initiated Fact Finding 30: COVID-19 Impact on Cruise Industry, on April 30, 2020.

        The Fact Finding Officer issued an Interim Report on PVO Refund Policies on July 27, 2020, concluding that clearer guidance is needed in determining whether a passenger is entitled to obtain a refund if a PVO cancels a voyage, makes a significant schedule change, or significantly delays a voyage.3
           The Fact-Finding Officer proposed, among other things, that the Commission provide a clear interpretation of nonperformance of transportation and modify the appropriate provisions of the Commission's PVO regulations to make clear how passengers may obtain refunds under the PVOs' financial responsibility instruments filed with the Commission. The Commission voted on August 10, 2020, to initiate a rulemaking to implement the recommended changes.

            3 See Fact Finding Investigation No. 30: COVID-19 Impact on Cruise Industry, Interim Report: Refund Policy, at 11-13 (July 27, 2020) (Fact Finding 30 Interim Report or Interim Report).

        The Commission is requesting comment on these recommended changes and their effects on PVOs and passengers. In addition to general comments, the Commission is requesting focused comment on the issues identified below in section III for each of the recommended changes.
        II. Background
        A. PVO Program
        On November 6, 1966, Congress enacted Public Law 89-777. Section 2 of the statute (codified at 46 U.S.C. 44103) requires owners and charterers of vessels having berth or stateroom accommodations for 50 or more passengers, and embarking passengers at United States ports, to establish financial responsibility to meet any liability incurred for death or injury to passengers or other persons on voyages to or from United States ports. Section 3 of the statute (codified at 46 U.S.C. 44102) requires persons arranging, offering, advertising, or providing passage on such vessels to establish financial responsibility for indemnification of passengers for nonperformance of transportation. The Commission published implementing regulations at 46 CFR part 540 in 1967.4

            4 32 FR 3986 (Mar. 11, 1967) (establishing regulations governing nonperformance coverage); 32 FR 7282 (May 16, 1967) (establishing regulations governing casualty coverage).

        Under this program, the Commission issues two types of certificates to PVOs of vessels that: (1) Have berths for 50 or more passengers; and (2) embark passengers from U.S. ports. The first type of Certificate (Performance) is issued by the Commission when a PVO provides the Commission with acceptable coverage to satisfy liability incurred for nonperformance of transportation up to the amount of unearned passenger revenue (UPR) held by the PVO or the monetary cap set in the Commission's regulation. Such coverage may be in the form of insurance, a guaranty, a surety bond, or escrow agreement (collectively referred to as financial responsibility instruments).5
           The coverage is used to reimburse passengers when the PVO fails to perform cruises as contracted and has taken no further actions to refund passengers.6
           The second type of Certificate (Casualty) is issued by the Commission when a PVO provides the Commission with acceptable coverage to satisfy any liability incurred for death or injury during a voyage, as provided in the regulations and statute.

            5 The Commission's regulations also permit smaller PVOs to request to substitute alternative forms of financial protection as evidence of financial responsibility. See 46 CFR 540.9(l).

            6 In practice, passengers generally receive refunds for canceled cruises from the PVOs directly or, if the passenger paid by credit card, from the credit card issuer. Refund payments under the PVO financial responsibility instruments are rare and usually only occur if the PVO ceases operations or declares bankruptcy.

        There have been few changes to the regulations in part 540 since its inception. Changes have included several increases to the monetary cap for required performance coverage under section 44102, the elimination of the self-insurance option for PVOs, some limitations on the types of entities acceptable as guarantors, and the elimination of certain sliding-scale provisions as to the amount of coverage required. Most recently, the Commission increased the cap on required performance coverage in two annual steps, from $15 million to $22 million in 2014, and then from $22 million to $30 million in 2015.7
           Since 2015, the cap has been adjusted for inflation every two years based upon the U.S. Bureau of Labor Statistics' Consumer Price Index. The current cap is $32 million.8

            7 46 CFR 540.9(j); Final Rule: Passenger Financial Responsibility Requirements for Nonperformance of Transportation, 78 FR 13268 (Feb. 27, 2013).

            8 Notice: Financial Responsibility for Indemnification of Passengers for Nonperformance of Transportation-Cap Adjustment, 84 FR 17410 (June 24, 2019).

        B. Fact Finding 30
        In response to COVID-19, the Centers for Disease Control and Prevention (CDC) issued a “No Sail Order and Suspension of Further Embarkation” (CDC No Sail Order) on March 14, 2020, causing PVOs to cease all operations. Due to the unpredictable nature of the disease, the CDC has extended the term of the order through September 30, 2020.9
           Consequently, questions arose concerning future cruises and passengers' ability to obtain refunds of monies paid for transportation disrupted by COVID-19.

            9 CDC Newsroom, https://www.cdc.gov/media/releases/2020/s0716-cruise-ship-no-sail-order.html.

        The Commission initiated Fact Finding 30 on April 30, 2020, to investigate COVID-19's impact and identify commercial solutions to COVID-19-related issues that interfere with the operation of the cruise industry. The Commission's Fact Finding Officer has been meeting with PVOs, marine terminal operators, and other stakeholders to understand COVID-19's effects on the cruise industry.
        On July 27, the Fact Finding Officer issued an Interim Report recommending certain regulatory changes to the Commission's regulations with respect to PVOs. The Fact Finding Officer concluded that clearer guidance is needed in determining whether a passenger is entitled to obtain refunds if a PVO cancels a voyage, makes a significant schedule change, or significantly delays a voyage.
        The Fact Finding Officer stated that a clear and consistent policy toward ticket refunds would eliminate any uncertainty on the part of passengers and would provide clear terms upon which the industry may plan for future operations. The Fact Finding Officer proposed, among other things, that the Commission provide a clear interpretation of nonperformance of transportation and modify the appropriate provisions of the Commission's PVO regulations in part 540 to make clear how passengers may obtain refunds under the PVOs' financial instruments filed with the Commission. These recommendations were as follows:

          Therefore, it is proposed that the Commission: (1) Interpret “nonperformance of transportation” to include cancelling a sailing or delaying passenger boarding by twenty-four (24) hours or more; and (2) modify the appropriate provisions of the Commission's PVO regulations to make clear how passengers may obtain refunds under the PVOs' financial instruments:
          1. When a sailing is cancelled or consumer boarding is delayed by twenty-four (24) hours or more for any reason other than due to a government order or declaration in paragraph 2 below, full refunds must be paid within sixty (60) days following a passenger refund request.

          2. When a sailing is cancelled or consumer boarding is delayed by twenty-four (24) hours or more due to a governmental order or declaration, full refunds must be paid within one hundred eighty (180) days following a passenger refund request. This includes all consumers who, at their own discretion, cancelled their booking within sixty (60) days prior to said governmental action and commensurate cancelled or delayed sailing.
          3. If, following a declaration of a public health emergency, any consumer cancels a cruise booking of a sailing that may be affected by such emergency after the PVO's refund deadline, but the sailing is not cancelled, the PVO will provide a credit for a future cruise equal to the consumer's amount of deposit. In all other cases in which a consumer cancels and embarkation and sailing occur within the prescribed timeline, the cruise line's rules for cancellation will apply.
          4. A PVO may set a reasonable deadline for a consumer entitled to a refund to request the refund which shall not be less than 6 months after the scheduled voyage.
          5. Refunds should include all fees paid to carrier by consumer to include all ancillary fees remitted to the carrier by the consumer.
          6. Refunds to be given in same fashion as monies were originally remitted to the carrier. The PVO will be deemed to have made a refund payment if the deposited revenue as to a passenger requesting a refund is remitted by the PVO in the same manner as the passenger's original payment, by: (1) Mailing a check payable in immediately available funds to the passenger at an address furnished by the passenger, (2) issuing an electronic funds transfer, including wire transfer, automated clearinghouse (ACH) or other electronic means, in immediately available funds, or (3) posting of a credit to the credit card processor for the benefit of the credit card account used by passenger to make payments to the applicant. The refund will be deemed timely notwithstanding that passenger may not immediately have access to the transferred funds in its account or any credit card account due to rules and processes of any third-party services provider.
          7. Nothing in this rule shall be interpreted to preclude the consumer and the PVO from entering into an alternative form of compensation in full satisfaction of a required refund, such as a future cruise credit.10

              10 Fact Finding 30 Interim Report at 11-12.

        The Fact Finding Officer also recommended the Commission mandate that: (1) PVOs provide on their websites clear instructions on how passengers may obtain refunds; and (2) PVOs submit current web addresses showing their refund instructions to the Commission for publication on the Commission's website.11

            11 Id. at 12.

        III. Proposed Changes and Request for Comments
        A. Defining Nonperformance of Transportation
        As discussed above, 46 U.S.C. 44102 requires that PVOs file with the Commission evidence of financial responsibility to indemnify passenger for nonperformance of transportation. The Commission's regulations in 46 CFR part 540 do not expressly define what constitutes nonperformance of transportation, but the substantive provisions and required financial responsibility instrument terms indicate that it means the PVO's failure to provide transportation or other accommodations and services subject to part 540, subpart A,12
           in accordance with the terms of the ticket contract between the PVO and passenger.13

            12 The scope of the transportation, accommodations, and services covered is described in the definition of “unearned passenger revenue” in § 540.2 and includes water transportation and all other accommodations, services, and facilities relating thereto, but excludes air transportation, hotel accommodations, or tour excursions. 46 CFR 540.2(i).

            13 See 46 CFR 540.1(a) (stating that PVOs must file evidence of financial responsibility or a bond or other security for obligations under the terms of ticket contracts to indemnify passengers for nonperformance of transportation to which they would be entitled; Form FMC-132A to Subpart A of Part 540 (stating that: (1) The purpose of the bond is to insure financial responsibility and the supplying transportation and other services subject to subpart A of part 540, in accordance with the ticket contract between the PVO and the passenger; and (2) the scope of the surety's liability is for refunds due under ticket contracts made by the PVO for the supplying of transportation and other services).

        As noted in the Fact Finding 30 Interim Report, what constitutes nonperformance of transportation under the current regulations depends on the specific terms of each PVO's ticket contract and may vary from PVO to PVO or from contract to contract.14
           Accordingly, the Interim Report recommended interpreting nonperformance of transportation under 46 U.S.C. 44102 to include: (1) Canceling a voyage; and (2) delaying passenger boarding by 24 hours or more. Similar to the U.S. Department of Transportation's policy (cited in the Interim Report) addressing when airline passengers are entitled to refunds from air carriers, a delay would only constitute nonperformance if the passenger chooses not to embark on the delayed voyage.

            14 Fact Finding 30 Interim Report at 11.

        The Commission is seeking comment on adopting this definition of nonperformance of transportation. The Commission anticipates that implementing this change would involve amending the regulations in part 540, subpart A, to include the definition and revising the language of the forms for financial responsibility instruments (surety bonds, guaranties, and escrow agreements) to reflect coverage in situations under the definition.15
           To that end, the Commission has developed the following draft definition:

            15 These forms include Form FMC-132A, Passenger Vessel Surety Bond (Performance); Form FMC-133A, Guaranty in Respect of Liability for Nonperformance, Section 3 of the Act; Appendix A, Example of Escrow Agreement for Use Under 46 CFR 540.5(b)). There is no required or optional form for insurance, which must meet the requirement in § 540.5(a).

            Nonperformance of transportation means: (1) Canceling a voyage; or (2) delaying the boarding of passengers by more than twenty-four (24) hours if the passenger elects not to embark on the substitute or delayed voyage.

        The Commission predicts that this interpretation may change the situations in which passengers could make claims for refunds against the PVO's financial responsibility instrument. In addition to a request for comments on the draft definition provided above, the Commission requests comments on:
        • Necessary changes to the Commission's regulations, including the financial responsibility instrument forms, to implement the revised definition of nonperformance of transportation;

        • Whether this change will increase or decrease claims for refunds against PVO financial responsibility instruments (i.e., bond, insurance, guaranty, or escrow agreement), and if so, the magnitude of the increase or decrease (including number of claims and total dollar amounts paid to passengers);

        • Whether this change will increase or decrease the cost to PVOs of obtaining compliant financial responsibility instruments (e.g., higher or lower premiums or collateral requirements), and if so, the magnitude of the increase or decrease (i.e., dollar amount);
        • Other effects of this change the Commission should consider.
        B. Process for Obtaining Refunds From PVO Instruments for Nonperformance of Transportation
        1. General
        Although the Commission regulations require certain coverage and terms to be included in financial responsibility instruments, the regulations do not include uniform procedures regarding how and when passengers may make claims for refunds against the various financial responsibility instruments. The Fact Finding 30 Interim Report recommended that the Commission revise its regulations to make clear how passengers may obtain refunds under these instruments and include specific provisions related to such claims and the timing of refund payments.16

            16 Fact Finding 30 Interim Report at 11-12.

        Neither part 540 nor the financial responsibility instrument forms provide specific instructions on how or when passengers may obtain refunds under a PVO's financial responsibility instrument. For example, the Guaranty Form (Form FMC-133A) provides that Guarantor will make refund payments to passengers when: (1) The PVO and passenger enter into settlement agreement, approved by the Guarantor; or (2) the passenger obtains a final judgment against the PVO and the PVO does not make payment within 21 days. Similarly, the suggested language for Escrow Agreements in Appendix A states that an Escrow Agent will make refund payments to passengers when either: (1) The PVO provides written instructions to the Escrow Agent to make such payment; or (2) the passenger obtains a final judgment against the PVO, the PVO does not make payment within 21 days, and the Escrow Agent receives a certified copy of the court order.
        The Fact Finding 30 Interim Report recommended the following general procedure: (1) The passenger makes a request for a refund from a PVO financial responsibility instrument when nonperformance has occurred; and (2) the refund payment is made within a certain period, depending on certain conditions.17
           Under this procedure, the passenger would not need a final court judgment in order to obtain a refund. The Commission anticipates that implementing these changes would involve amending the regulations in part 540, subpart A and the language of the financial responsibility instruments forms to reflect the new procedure. The Commission requests comment on the following issues related to this procedure that would need to be resolved in any proposed revisions to the Commission's regulations:

            17 Fact Finding 30 Interim Report at 11-12.

        • To whom passengers should submit requests for refunds under the revised procedures.

        • Should passengers submit refund claims to the financial responsibility instrument providers directly (e.g., surety company, insurer, guarantor, or escrow agent)? Alternatively, should passengers submit refund claims to the PVO, and the PVO in turn authorizes payment from the financial responsibility instrument (similar to the current procedure for escrow agreements)?
        • Information passengers will need to provide to obtain a refund.
        • Should the Commission specify the information necessary for passengers to submit to obtain refunds from a PVO financial responsibility instrument, or should those decisions be left to the individual PVOs and their financial responsibility providers?
        • If the Commission should specify the necessary information from passengers, what information should be required beyond evidence of payment to the PVO, ticket contract, and evidence of cancellation or delayed boarding?
        • Necessary changes to the Commission's regulations, including the financial responsibility instrument forms, to implement the revised process for obtaining refunds.
        The Commission is also requesting comments on the effects of the recommended changes described in this section (section III.B) (individually and as a whole), including:
        • Whether these changes will increase or decrease claims for refunds against PVO financial responsibility instruments, and if so, the magnitude of the increase or decrease (including number of claims and total dollar amounts paid to passengers).

        • Whether these changes will increase or decrease the cost to PVOs of obtaining compliant financial responsibility instruments (e.g., higher or lower premiums or collateral requirements), and if so, the source and magnitude of the increase or decrease (i.e., dollar amount).
        • Other effects of these changes the Commission should consider.
        2. Deadline for Submitting Refund Requests
        Commission regulations do not currently prescribe how long passengers have after a scheduled voyage to seek a refund from a PVO financial responsibility instrument. The Fact Finding 30 Interim Report recommended that the Commission specify that a PVO may set a reasonable deadline for passenger refund requests but the deadline may not be less than six months after the scheduled voyage.18
           The Commission has developed the following draft provision to reflect this recommendation:

            18 Fact Finding 30 Interim Report at 12.

          A passenger must submit a request for refund no later than 180 days 19
             after nonperformance occurs, unless the ticket contract or other passenger vessel operator policy allows a longer period of time for such requests.

            19 For clarity and ease of calculation, the Commission contemplates using a deadline of 180 days rather than six months.

        The Commission could include this provision in part 540 and require that the financial responsibility instrument specify the time period for passengers to file refund requests. The Commission requests comment on prescribing a minimum timeframe for refund requests, the amount of time recommended in the Fact Finding 30 Interim Report (six months) and the draft language provided above. As discussed above in section III.B.1, the Commission also requests comment on the effects of this change.
        3. Deadline for Refund Payment
        Commission regulations do not currently specify a time period within which passengers must receive a refund under a PVO financial responsibility instrument. The Fact Finding 30 Interim Report recommended that the Commission specify two different timeframes for payment depending on whether nonperformance was due to “a governmental order or declaration”: (1) When nonperformance is due to a governmental order or declaration, full refund payments must be made within 180 days after the passenger requests a refund; and (2) in all other cases, full refund payments must be made within 60 days after the passenger requests a refund.20
           The Interim Report also recommended that a refund payment be deemed timely notwithstanding that the passenger may not immediately have access to the funds due to the rules and processes of any third party services provider.21

            20 Fact Finding Interim Report at 11.

            21 Id. at 12.

        The Commission requests comment on prescribing a deadline for payment of refunds from financial responsibility instruments as a general matter, establishing two different timeframes for payment depending on whether nonperformance is due to a governmental order or declaration, and the deadlines recommended in the Interim Report (180 days when there is a governmental order or declaration; 60 days in all other cases). The Commission also requests comment on the following:
        • The types of governmental orders or declarations that would trigger the longer 180-day period for providing refunds.
        • Should these include only U.S. federal, state, and local orders or declarations, or should foreign government orders and declarations also trigger the longer refund payment period?

        • What types of governmental orders and declarations should qualify, i.e., should this be limited to governmental orders and declarations that expressly prohibit embarking passengers and suspend passenger operations like the CDC No Sail Order? If not, what other types of governmental orders and declarations should trigger the longer refund payment period?
        • The effects of this change as discussed above in section III.B.1.
        4. Form and Amount of Refund Payment
        Commission regulations provide that the PVO financial responsibility instruments must provide coverage for “unearned passenger revenue,” which is defined as passenger revenue received for water transportation and all other accommodations, services, and facilities relating thereto not yet performed; this includes port fees and taxes paid, but excludes such items as airfare, hotel accommodations, and tour excursions.22
           The regulations do not specify in what form refund payments must be made under PVO financial responsibility instruments.

            22 46 CFR 540.2(i).

        The Fact Finding 30 Interim Report recommended the Commission specify: (1) That refund payments must include all fees, including ancillary fees, paid to the PVO by the passenger; and (2) refund payments must be made in the same manner as the passenger's original payment, e.g., check, electronic funds transfer, or credit card chargeback.23

            23 Fact Finding 30 Interim Report at 11-12.

        Regarding the first recommendation, the Commission is requesting comment on whether to expand the definition of unearned passenger revenue and the scope of the ancillary fees to be included in any revised definition. The Fact Finding 30 Interim Report discusses the following types of ancillary charges paid by passengers to PVOs prior to sailing: Gratuities, shore excursions, pre-cruise onboard purchases, port fees, and taxes. Of these, the current definition of unearned passenger revenue expressly includes port fees and taxes and excludes excursions. The Interim Report does not discuss refunds for airfare or hotel accommodation.
        To facilitate comment, the Commission has developed the following draft definition:

            Unearned passenger revenue means that passenger revenue received for water transportation and all other related accommodations, services, and facilities relating thereto not yet performed; this includes port fees, taxes, and all ancillary fees remitted to the passenger vessel operator by the passenger.

        The Commission requests comment on expanding the definition of unearned passenger revenue, including:
        • What types of ancillary fees should be included as unearned passenger revenue subject to refund, and what types of fees should be excluded.

        • For example, should the Commission include the types of fees mentioned in the Fact Finding 30 Interim Report (e.g., shore excursions, dining packages, other onboard packages, and gratuities)?
        • Are there any types of fees that should be included?
        • Should the definition continue to exclude airfare and hotel accommodations?
        • The effects of this change as discussed above in section III.B.1.
        The Commission is also requesting comment on the recommendation to specify that refund payments must be made in the same manner as the passenger's original payment. Specifically, the Commission requests comment on the following:
        • Whether it is feasible for payment from a PVO financial responsibility instrument to be made in the same manner as the passenger's original payment.
        • Necessary changes to the Commission's regulations, including the financial responsibility instrument forms, to implement this recommendation.
        • The effects of this change as discussed above in section III.B.1.
        5. Publishing Information on How To Obtain Refunds
        The Fact Finding 30 Interim Report recommended the Commission mandate that: (1) PVOs provide on their websites clear instructions on how passengers may obtain refunds; and (2) PVOs submit current website addresses for their refund instructions to the Commission for publication on the Commission's website.24
           The Commission envisions that this recommendation could be implemented by: (1) Revising the Form FMC-131, Application for Certificate of Financial Responsibility, to require PVOs to provide the uniform resource locator (URL) for their refund instructions; and (2) amending § 540.4 to require PVOs to amend their application if the URL changes. The Commission requests comment on this potential change, including:

            24 Id. at 12.

        • Whether the Commission should prescribe any specific content or format requirements for published PVO refund instructions.
        • The nature of any additional regulatory burden associated with publishing refund policies on a PVO's website or providing the URL for those instructions to the Commission, as well as the estimated cost to PVOs.
        C. Passenger Cancellations
        In addition to recommendations related to passenger refunds in the event of nonperformance of transportation, the Fact Finding 30 Interim Report also proposed that the Commission amend its regulations to ensure PVO financial responsibility in the event passengers cancel their booking with a PVO prior to or following certain governmental orders or declarations. Specifically, the Fact Finding 30 Interim Report recommended that: (1) A passenger be entitled to a refund if they cancel their booking no more than 60 days prior to a governmental order or declaration that results in the PVO canceling the voyage or delaying boarding of passengers by more than 24 hours; and (2) a passenger be entitled to a future cruise credit if they cancel their booking following the declaration of a public health emergency and the voyage occurs as scheduled.
        The Commission requests comment on the recommendation regarding passenger refunds when the passenger cancels their booking and the voyage is subsequently canceled as a result of a governmental orders or declarations, including comment on the following:
        • The types of governmental orders or declarations that would make a passenger eligible for a refund when they cancel their booking.
        • Should these include only U.S. federal, state, and local orders or declarations, or should foreign government orders and declarations also trigger the longer refund payment period?

        • What types of governmental orders and declarations qualify, i.e., should this be limited to governmental orders and declarations that expressly prohibit embarking passengers and suspend passenger operations like the CDC No Sail Order? If not, what other types of governmental orders and declarations should qualify?
        • Information passengers will need to provide to obtain a refund.
        • Should the Commission specify the information necessary for passengers to submit to obtain refunds from a PVO financial responsibility instrument, or should those decisions be left to the individual PVOs and their financial responsibility providers?

        • If the Commission should specify the necessary information from passengers, what information should be required? Such required information could include evidence of payment to the PVO, ticket contract, evidence showing cancellation of the booking, evidence of a governmental order or declaration, and evidence of cancellation or delayed boarding of the voyage.
        The Commission also requests comment on the recommendation regarding the provision of future cruise credit when the passenger cancels their booking following declaration of a public health emergency but the voyage occurs as scheduled, including comment on the following:
        • Whether it is feasible for a passenger to obtain future cruise credit under a PVO financial responsibility instrument.
        • The type of public health emergency declaration that would make a passenger eligible for a future cruise credit when they cancel their booking.
        • Whether requests for future cruise credit should be subject to the same requirements as those recommended for refunds with respect to the deadline for requesting credit, the deadline for providing credit, and the amount of the credit.
        The Commission also requests comment on the following related to both recommendations:
        • Necessary changes to the Commission's regulations, including the financial responsibility instrument forms, to implement these changes.
        • Whether these changes will increase or decrease claims for refunds against PVO financial responsibility instruments, and if so, the magnitude of the increase or decrease (including number of claims and total dollar amounts paid to passengers).

        • Whether these changes will increase or decrease the cost to PVOs of obtaining compliant financial responsibility instruments (e.g., higher or lower premiums or collateral requirements), and if so, the magnitude of the increase or decrease (i.e., dollar amount).
        • Other effects of these changes the Commission should consider.
        IV. Public Participation
        How do I prepare and submit comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the docket number of this document in your comments.

        You may submit your comments via email to the email address listed above under ADDRESSES. Please include the docket number associated with this notice and the subject matter in the subject line of the email. Comments should be attached to the email as a Microsoft Word or text-searchable PDF document.
        How do I submit confidential business information?

        The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If your comments contain confidential information, you must submit the following by email to the address listed above under ADDRESSES:
        • A transmittal letter requesting confidential treatment that identifies the specific information in the comments for which protection is sought and demonstrates that the information is a trade secret or other confidential research, development, or commercial information.
        • A confidential copy of your comments, consisting of the complete filing with a cover page marked “Confidential-Restricted,” and the confidential material clearly marked on each page.
        • A public version of your comments with the confidential information excluded. The public version must state “Public Version—confidential materials excluded” on the cover page and on each affected page, and must clearly indicate any information withheld.
        Will the Commission consider late comments?

        The Commission will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments received after that date.
        How can I read comments submitted by other people?

        You may read the comments received by the Commission at the Commission's Electronic Reading Room at the address listed above under ADDRESSES.
        V. Rulemaking Analyses and Notices
        Regulatory Flexibility Act
        Under the Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612), no analysis is required for an ANPRM. However, PVOs are encouraged to comment on any aspects of the potential rulemaking that may apply to them and the potential impact.
        National Environmental Policy Act
        The Commission's regulations categorically exclude certain rulemakings from any requirement to prepare an environmental assessment or an environmental impact statement because they do not increase or decrease air, water or noise pollution or the use of fossil fuels, recyclables, or energy. 46 CFR 504.4. The ANPRM discusses potential amendments to Commission's program for certifying the financial responsibility of PVOs. This rulemaking thus falls within the categorical exclusion for certification of financial responsibility of passenger vessels under Part 540. § 504.4(2). Therefore, no environmental assessment or environmental impact statement is required.
        Paperwork Reduction Act
        The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in proposed rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. Any information collection requirements and associated burdens will be discussed in detail if a proposed rule is issued.
        Executive Order 12988 (Civil Justice Reform)
        The Commission will ensure that any proposed or final rule issued in this proceeding meets the applicable standards in E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.
        Regulation Identifier Number

        The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain.

          By the Commission.
          Rachel Dickon,
          Secretary.

      [FR Doc. 2020-21957 Filed 10-13-20; 8:45 am]
      BILLING CODE 6730-02-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 180
        [EPA-HQ-OPP-2015-0032; FRL-9956-86]
        Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Notice of filing of petitions and request for comment.

          SUMMARY:

          This document announces EPA's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

          DATES:
          Comments must be received on or before March 9, 2017.

          ADDRESSES:
          Submit your comments, identified by the Docket Identification (ID) Number and the Pesticide Petition Number (PP) of interest as shown in the body of this document, by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
          • Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.
          • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

          FOR FURTHER INFORMATION CONTACT:

          Robert McNally, Biopesticides and Pollution Prevention Division (BPPD) (7511P), main telephone number: (703) 305-7090, email address: BPPDFRNotices@epa.gov; or Michael Goodis, Registration Division (RD) (7505P), main telephone number: (703) 305-7090, email address: RDFRNotices@epa.gov. The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code. The division to contact is listed at the end of each pesticide petition summary.

        SUPPLEMENTARY INFORMATION:

        I. General Information
        A. Does this action apply to me?
        You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or 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).

        If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.
        B. What should I consider as I prepare my comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through 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 http://www.epa.gov/dockets/comments.html.

        3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, EPA seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.
        II. What action is EPA taking?
        EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

        Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

        As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.
        New Tolerances
        1. PP 6E8495. (EPA-HQ-OPP-2016-0661). Taminco US LLC, a subsidiary of Eastman Chemical Company, Two Windsor Plaza, Suite 400, 7540 Windsor Dr., Allentown, PA 18195, requests to establish tolerances in 40 CFR part 180 for residues of the plant regulator chlormequat chloride in or on barley grain at 3 parts per million (ppm); bovine, sheep, goat-fat at 0.06 ppm; bovine, sheep, goat-kidney at 0.5 ppm; bovine, sheep, goat-liver at 0.15 ppm; bovine, sheep, goat-muscle at 0.2 ppm; cattle-milk at 0.5 ppm; eggs at 0.1 ppm; oat grain at 15 ppm; poultry-fat at 0.03 ppm; poultry-liver at 0.1 ppm; poultry-muscle at 0.04 ppm; swine-fat at 0.02 ppm; swine-kidney at 0.5 ppm; swine-liver at 0.15 ppm; swine-muscle at 0.2 ppm; and wheat grain at 4 ppm. The Liquid Chromatography with tandem Mass Spectrometry (LC-MS/MS) method is used to measure and evaluate the chemical chlormequat chloride. Contact: RD.
        2. PP 6F8445. (EPA-HQ-OPP-2016-0254). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish tolerances in 40 CFR 180.475 for residues of the fungicide difenoconazole in or on cottonseed subgroup 20C at 0.40 ppm; rice, grain at 7 ppm; and rice, wild, grain at 7 ppm. Gas chromatography equipped with a nitrogen-phosphorous detector or liquid chromatography (LC)/mass spectrometry (MS)/(MS) is used to measure and evaluate the chemical difenoconazole. Contact: RD.
        3. PP 6F8457. (EPA-HQ-OPP-2016-0263). ISK Biosciences Corporation, 7470 Auburn Rd., Suite A, Concord, OH, 44077, requests to establish tolerances in 40 CFR 180.681 for residues of the fungicide isofetamid in or on apple, wet pomace, at 2.0 ppm; bushberry, subgroup 13-07B at 6.0 ppm; caneberry, subgroup 13-07A at 3.0 ppm; cattle fat and meat byproducts at 0.01 ppm; cherry subgroup 12-12A at 5.0 ppm; fruit, pome group 11-10 at 0.6 ppm; fruit, small vine climbing, except grape, subgroup 13-07E at 9.0 ppm; goat fat and meat byproducts at 0.01 ppm; horse fat and meat byproducts at 0.01 ppm; pea and bean, dried shelled, except soybean, subgroup 6C, except cowpea and field pea at 0.05 ppm; pea and bean, succulent shelled, subgroup 6B, except cowpea at 0.04 ppm; peach, subgroup 12-12B at 3.0 ppm; plum, prune, dried at 3.5 ppm; plum subgroup 12-12C at 0.8 ppm; sheep fat and meat byproducts at 0.01 ppm; and vegetable, legume edible podded, subgroup 6A at 1.5 ppm. The LC-MS/MS method is used to measure and evaluate the chemical isofetamid, N-[1,1-dimethyl-2-[2-methyl-4-(1-methylethoxy)phenyl]-2-oxoethyl]-3-methyl-2-thiophenecarboxamide (CA), and its metabolite GPTC, N-[1,l-dimethyl-2-(4-β-D-glucopyranosyloxy-2-methylphenyl)-2-oxoethyl]-3-methyl-2-thiophenecarboxamide, expressed as isofetamid. Contact: RD
        4. PP 6F8474. (EPA-HQ-OPP-2015-0775). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide pydiflumetofen in or on Barley, grain at 4.0 ppm; Barley, hay at 30.0 ppm; Barley, straw at 30.0 ppm; Corn, field, grain at 0.015 ppm; Corn, field, forage at 6.0 ppm; Corn, field, stover at 15.0 ppm; Corn, field, milled by products at 0.06 ppm; Corn, pop, grain at 0.015 ppm; Corn, pop, forage at 6.0 ppm; Corn, pop, stover at 15.0 ppm; Corn, sweet, ear at 0.01 ppm; Corn, sweet, forage at 5.0 ppm; Corn, sweet, stover at 9.0 ppm; Corn, sweet, cannery waste at 2.0 ppm; Crop Subgroup 4-15A, Leafy greens subgroup at 40.0 ppm; Crop Subgroup 22B, Leaf petiole vegetable subgroup at 15.0 ppm; Fruits, small vine climbing, except fuzzy kiwi subgroup 13-07F at 1.5 ppm; Grape, raisin at 2.0 ppm; Grape, wet pomace at 1.5 ppm; Grain, aspirated fractions at 100.0 ppm; Grain, cereal, forage, fodder and straw, group 16 at 50 ppm; Oat, grain at 2.0 ppm; Oat, forage at 10.0 ppm; Oat, hay at 40.0 ppm; Oat, straw at 20.0 ppm; Peas and bean, dried shelled, except soybean, subgroup 6C at 0.4 ppm; Peas, hay at 40.0 ppm; Peas, vine at 6.0 ppm; Peanut, nutmeat at 0.02 ppm; Peanut, refined oil at 0.05 ppm; Peanut, hay at 20.0 ppm; Potato, wet peel at 0.03 ppm; Potato, dried pulp at 0.05 ppm; Potato, processed waste at 0.03 ppm; Quinoa, grain at 4.0 ppm; Rapeseed, subgroup 20A at 0.9 ppm; Rye, grain at 4.0 ppm; Rye, hay at 50.0 ppm; Rye, straw at 30.0 ppm; Soybean, seed at 0.4 ppm; Soybean, forage at 30.0 ppm; Soybean, hay at 150 ppm; Tomato, dried pomace at 15.0 ppm; Tomato, wet pomace at 1.5 ppm; Tomato, sun-dried at 3.0 ppm; Vegetables, fruiting, crop group 8-10 at 0.6 ppm; Vegetables, tuberous and corm subgroup 1C at 0.015 ppm; Vegetables, cucurbit, crop group 9 at 0.5 ppm; Wheat, grain at 0.3 ppm; Wheat, forage at 15.0 ppm; Wheat, hay at 50.0 ppm; and Wheat, straw at 30.0 ppm. The method GRM061.03A is used to measure and evaluate the chemical pydiflumetofen. Contact: RD.
        5. PP 6F8474. (EPA-HQ-OPP-2015-0775). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide pydiflumetofen in or on cattle, fat at 0.03 ppm; cattle, kidney at 0.02 ppm; cattle, liver at 0.04 ppm; cattle, meat at 0.02 ppm; cattle, byproducts at 0.04 ppm; goat, fat at 0.03 ppm; goat, kidney at 0.02 ppm; goat, liver at 0.04 ppm; goat, meat at 0.02 ppm; goat, meat byproducts at 0.04 ppm; horse, fat at 0.03 ppm; horse, kidney at 0.02 ppm; horse, liver at 0.04 ppm; horse, meat at 0.02 ppm; horse, meat byproducts at 0.04 ppm; milk at 0.02 ppm; milk, cream at 0.04 ppm; sheep, fat at 0.03 ppm; sheep, kidney at 0.02 ppm; sheep, liver at 0.04 ppm; sheep, meat at 0.02 ppm; and sheep, meat byproducts at 0.04 ppm. The method GRM061.07A for animal products is used to measure and evaluate the chemicals pydiflumetofen and 2,4,6 trichlorophenol (free and conjugated) for the purposes of post-registration monitoring. Contact: RD.
        Amended Tolerance
        1. PP 6F8445. (EPA-HQ-OPP-2016-0254). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to amend the tolerance in 40 CFR 180.475 for residues of the fungicide difenoconazole in or on cotton, gin byproducts to 15 ppm. Gas chromatography equipped with a nitrogen-phosphorous detector or liquid chromatography (LC)/mass spectrometry (MS)/(MS) is used to measure and evaluate the chemical difenoconazole (1-[2-[2-chloro-4-(4-chlorophenoxy)phenyl]-4-methyl-1,3-dioxolan-2-ylmethyl]-1H-1,2,4-triazole). Contact: RD.
        New Tolerance Exemptions
        1. PP IN-10964. (EPA-HQ-OPP-2016-0507). Lewis & Harrison, LLC, 122 C St. NW., Suite 505, Washington, DC 20001 (on behalf of Wacker Chemie AG, Hanns-Seidel-Platz 4, D-81737 Munich, Germany), requests to establish an exemption from the requirement of a tolerance for residues of β-cyclodextrin, methyl ethers (CAS Reg. No. 128446-36-6) when used as a pesticide inert ingredient (stabilizing agent, solvent) at a concentration of not more than 40% by weight in pesticide formulations applied to growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.
        2. PP IN-10981. (EPA-HQ-OPP-2016-0616). Spring Trading Company, LLC, on behalf of BASF Corporation, 100 Park Ave., Florham Park, NJ 07932, requests to establish an exemption from the requirement of a tolerance for residues of polyethyleneimine (CAS Reg. No. 9002-98-6) when used as a pesticide inert ingredient in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest under 40 CFR 180.910. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.
        3. PP 6F8490. (EPA-HQ-OPP-2016-0687). BASF Corporation, 26 Davis Dr., P.O. Box 13528, Research Triangle Park, NC 27709, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide Bacillus subtilis strain BU1814 in or on all food commodities. The petitioner believes no analytical method is needed because it is expected that, when used as proposed, Bacillus subtilis strain BU1814 would not result in residues in or on food that are of toxicological concern. Contact: BPPD.
        4. PP 6F8508. (EPA-HQ-OPP-2016-0641). Technology Sciences Group, Inc., 1150 18th St. NW., Suite 1000, Washington, DC 20036 (on behalf of Bee Vectoring Technology, Inc., 4160 Sladeview Crescent #7, Mississauga, Ontario L5L 0A1, Canada), requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide Clonostachys rosea strain CR-7 in or on all food commodities. The petitioner believes no analytical method is needed because it is expected that, when used as proposed, Clonostachys rosea strain CR-7 would not result in residues that are of toxicological concern. Contact: BPPD.

          Authority:
           21 U.S.C. 346a.

          Dated: December 28, 2016.
          Robert McNally,
          Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs.

      [FR Doc. 2017-02475 Filed 2-6-17; 8:45 am]
       BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AT45

        Endangered and Threatened Wildlife and Plants; Notice of the Availability of Draft Economic Analysis for the Proposed Designation of Critical Habitat for the Riverside Fairy Shrimp (Streptocephalus woottoni)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft economic analysis and reopening of public comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft economic analysis of the proposed designation of critical habitat for the Riverside fairy shrimp (Streptocephalus woottoni), and the reopening of the public comment period on the proposed rule to designate critical habitat for the Riverside fairy shrimp. Comments previously submitted for this proposed rule need not be resubmitted as they have already been incorporated into the public record and will be fully considered in any final decision.

          DATES:
          We will accept comments and information until 5 p.m. on November 18, 2004. Any comments received after the closing date may not be considered in the final decision on this action.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          1. You may submit written comments and information to the Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92009;
          2. You may hand-deliver written comments and information to our Carlsbad Fish and Wildlife Office at the above address, or fax your comments to 760/431-9618; or

          3. You may send your comments by electronic mail (e-mail) to fw1rvfs@r1.fws.gov. For directions on how to submit electronic filing of comments, by e-mail see the “Public Comments Solicited” section. In the event that our internet connection is not functional, please submit your comments by the alternate methods mentioned above.

          FOR FURTHER INFORMATION CONTACT:
          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the above address (telephone 760/431-9440; facsimile 760/431-9618).

        SUPPLEMENTARY INFORMATION:

        Public Comments Solicited
        We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation and on our draft economic analysis of the proposed designation. We are particularly interested in comments concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat;
        (2) Specific information on the amount and distribution of Riverside fairy shrimp and its habitat, and which habitat is essential to the conservation of this species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
        (4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;
        (5) How our approach to critical habitat designation could be improved or modified to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments;
        (6) We request information on how many of the State and local environmental protection measures referenced in the draft Economic Analysis were adopted largely as a result of the listing of the Riverside fairy shrimp, and how many were either already in place or enacted for other reasons;
        (7) Whether the economic analysis identifies all State and local costs attributable to the proposed critical habitat designation. If not, what other costs are overlooked;
        (8) Are the adjustments to local governments' economic data made by the draft Economic Analysis, as set out in its appendices, reasonable? If not, please provide alternative interpretations and the justification for the alternative and/or the reasons the interpretation in the draft Economic Analysis is incorrect;

        (9) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
        (10) Whether the economic analysis appropriately identifies all costs that could result from the designation;
        (11) Whether the economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation;
        (12) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;
        (13) The economic analysis should identify all costs related to the designation of critical habitat for the Riverside fairy shrimp which was intended to take place at the time the species was listed. As a result, the assumption is the economic analysis should be consistent with our listing regulations. We request comment on whether our analysis achieves that consistency;
        (14) We request comment on whether it is appropriate that the analysis does not include the cost of project modification to projects that are the result of informal consultation;
        (15) We request comment on whether there is information on known or estimated impacts to development activities likely to occur on the lands proposed for designation at the former March Air Force Base;
        (16) Some of the lands we have identified as essential for the conservation of the Riverside fairy shrimp are not being proposed as critical habitat. These are: lands on Marine Corps Air Station Miramar; “mission-critical” training areas on Marine Corps Base, Camp Pendleton; areas within San Diego Multiple Species Conservation Program and the Orange County Central-Coastal Natural Communities Conservation Program; and areas in the draft Western Riverside Multiple Species Habitat Conservation Plan. These areas have been excluded because we believe the benefit of excluding these areas outweighs the benefit of including them. We specifically solicit comment on the inclusion or exclusion of such areas, and: (a) Whether these areas are essential; (b) whether these areas warrant exclusion; and (c) the basis for not designating these areas as critical habitat (section 4(b)(2) of the Act); and
        (17) We request information from the Department of Defense to assist the Secretary of the Interior in evaluating critical habitat on lands administered by or under the control of the Department of Defense, specifically information regarding impacts to national security associated with proposed designation of critical habitat.

        All previous comments and information submitted during the initial comment period on the proposed rule need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the draft Economic Analysis and the proposed rule by any one of several methods (see ADDRESSES section). Our final designation of critical habitat for the Riverside fairy shrimp will take into consideration all comments and any additional information received.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received, as well as supporting documentation used in preparation of the proposal to designated critical habitat, will be available for public inspection, by appointment, during normal business hours at the above address.
        If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of any special characters or any form of encryption. Also, please include “Attn: RIN 1018-AT45” and your name and return address in your e-mail message regarding the Riverside fairy shrimp proposed rule. If you do not receive a confirmation from the system that we have received your e-mail message, please submit your comments in writing using one of the alternate methods described above.
        Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours, in our Carlsbad Fish and Wildlife Office at the above address.

        Copies of the proposed critical habitat rule for the Riverside fairy shrimp and the draft economic analysis are available on the Internet at http://carlsbad.fws.gov or in hard copy by contacting the Carlsbad Fish and Wildlife Office as identified in the ADDRESSES section above. In the event that our internet connection is not functional, please obtain copies of documents directly from the Carlsbad Fish and Wildlife Office.
        Background
        On April 27, 2004, we published a proposed rule in the Federal Register (69 FR 23024) to designate critical habitat for the Riverside fairy shrimp. We proposed to designate a total of approximately 5,795 acres (2,345 hectares) of critical habitat in Los Angeles, Orange, Riverside, San Diego, and Ventura Counties, CA. The first comment period on the Riverside fairy shrimp proposed critical habitat rule closed on May 27, 2004.

        Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that we designate or revise critical habitat on the basis of the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impacts of specifying any particular area as critical habitat. We have prepared a draft Economic Analysis of the April 27, 2004 (69 FR 23024), proposed designation of critical habitat for the Riverside fairy shrimp.

        The draft Economic Analysis considers the potential economic effects of actions relating to the conservation of the Riverside fairy shrimp, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the Riverside fairy shrimp in essential habitat areas. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (e.g., lost economic opportunities associated with restrictions on land use). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this analysis looks retrospectively at costs that have been incurred since the date the species was listed as an endangered species and considers those costs that may occur in the 20 years following the designation of critical habitat.
        Riverside fairy shrimp-related conservation activities associated with sections 4, 7, and 10 of the Act, including those attributable to designating critical habitat are expected to range from approximately $470 million to $770 million. These totals include $400 million in impacts estimated to have occurred since the species was listed in 1993, and $70 to $370 million in impacts that may occur in the 20 years following the proposed designation of critical habitat.
        Author

        The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife Office (see ADDRESSES section).
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: October 8, 2004.
          Paul Hoffman,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 04-23225 Filed 10-18-04; 8:45 am]
      BILLING CODE 4310-55-P