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Federal Register / Vol. 86, No. 162 / Wednesday, August 25, 2021 / Proposed Rules
with scheduled and actual date of sailing. At the discretion of the financial instrument provider a judgment may be required prior to resolving the claim;
and 3 valid claims must be paid within 90 days of submission of claim to the financial instrument provider.
Additionally, the Commission decided not to propose a refund process that would apply in a situation when the passenger unilaterally cancels their cruise, which is supported by the ANPRM comments questioning whether those cancellations are nonperformance.
C. Definition of Unearned Passenger Revenue UPR
The Commission proposes defining Unearned Passenger Revenue as passenger revenue received for water transportation and all other accommodations, services and facilities that have not been performed by the PVO. Passenger revenue will include port fees, taxes and all ancillary fees submitted to the PVO by the passenger.
CLIA recommended to modify the definition to exclude such items as airfare, non-affiliated shore excursions, or other third-party provider costs for which the PVO is no longer holding the passengers deposit or is contractually obligated to pay such deposit to a thirdparty provider. In order to provide better protection to the consumer, and because PVOs have the existing relationship with the providers of ancillary services, the Commission believes PVOs should be responsible for refunding all monies collected by the PVOs for all services, and facilities not yet performed.
D. Publishing Information on How To Obtain Refunds
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The Commission proposes:
1 PVOs provide on their websites clear and precise instructions on how passengers may obtain refunds in the event of nonperformance of transportation; and 2 PVOs shall submit an active web page address with their refund instructions for nonperformance of transportation to the Commission for publication on the Commissions website.
3 Form FMC131 Application for Certificate of Financial Responsibility will include a required field for PVOs to provide the web page address of their refund instructions for nonperformance of transportation.

The Commission seeks further comment on whether the Commission should provide an example web page with refund instructions in Part 540 and if so, what it should include.

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V. Public Participation
VI. Rulemaking Analyses and Notices
How do I prepare and submit comments?

Regulatory Flexibility Act
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 Versionconfidential 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 Commissions Electronic Reading Room at the address listed above under ADDRESSES.

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Initial Regulatory Flexibility Analysis Under the Regulatory Flexibility Act RFA, whenever an agency is required to publish general notice of proposed rulemaking, the agency must prepare and make available for public comments an initial regulatory flexibility analysis IRFA describing the impact of the proposed rule on small entities, which in this case are PVOs.23 5 U.S.C. 603. As discussed below in more detail, the Commission does not collect performance data from small PVOs, nor is such specific information published.
Therefore, in this analysis, the Commission has used industry-wide published data as a proxy to estimate the impact of the proposed rule on both small and larger PVOs with a comparative assessment as recommended in the RFA guide of the Small Business Administration SBA.24
The Commission encourages comments on its analysis from interested parties with supporting data and information.
The requirements for preparing an IRFA of a proposed rule are set forth in 5 U.S.C. 603 and direct federal agencies to address the following topics:
Why the Commission Is Considering the Proposed Rule The proposed rule stems from the Commissions Fact Finding Investigation No. 30: COVID19 Impact on Cruise Industry, which concluded 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.
Objectives and Legal Basis for the Proposed Rule As discussed in the background section, 46 U.S.C. 44102 requires certain persons arranging, offering, advertising, or providing transportation on vessels to 23 Under 5 U.S.C. 601, the term small entity is defined as a small business, a not-for-profit enterprise which is independently owned and operated and is not dominant in its field, or a governmental jurisdiction with a population of less than 50,000. A small business is defined as a small business concern under section 3 of the Small Business Act. The Small Business Administration interprets the meaning of business concern as a business entity organized for profit, with a place of business located in the U.S., and which operates primarily within the U.S. or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials, or labor. 13 CFR 121.105a1.
24 Office of Advocacy, U.S. Small Business Administration, A Guide for Government Agencies How to Comply with the Regulatory Flexibility Act August 2017, p. 37.

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