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Office of Personnel Management.
Interim final rule; request for comments.
The Office of Personnel Management is issuing an interim final rule to implement the Federal Employee Paid Leave Act, which provides 12 weeks of paid parental leave to certain Federal employees covered by the Family and Medical Leave Act (FMLA). Implementation of the new law also requires changes to OPM's existing FMLA regulations.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method:
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All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at
Bryce Baker by email at
The Office of Personnel Management (OPM) is issuing an interim final rule to implement provisions of the Federal Employee Paid Leave Act (subtitle A of title LXXVI of division F of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92, December 20, 2019), which will hereafter be referred to as “FEPLA.” FEPLA makes paid parental leave available to certain categories of Federal civilian employees. These OPM regulations will implement FEPLA provisions dealing with Federal employees covered by the Family and Medical Leave Act (FMLA) provisions in subchapter V of chapter 63 of title 5, United States Code, which were originally enacted through title II of the Family and Medical Leave Act of 1993. (See sections 7602, 7605(a), and 7606 of FEPLA.) The title 5 FMLA provisions, which apply to the majority of civilian Federal employees, are administered by OPM. (See 5 CFR part 630, subpart L.)
FEPLA amended 5 U.S.C. 6382(d) to allow the substitution of up to 12 weeks of paid parental leave for FMLA unpaid leave granted in connection with the birth of an employee's son or daughter or the placement of a son or daughter with an employee for adoption or foster care. (See 5 U.S.C. 6382(a)(1)(A) and (B).) In order to implement FEPLA, OPM is adding a new subpart—subpart Q (Paid Parental Leave)—in part 630 (Absence and Leave) of title 5, Code of Federal Regulations, and making necessary clarifications, changes, and additions in subpart L (Family and Medical Leave).
Section 7602(c) of FEPLA provides that the amendments to 5 U.S.C. 6382 dealing with paid parental leave are not effective with respect to any birth or placement (for adoption or foster care) occurring before October 1, 2020. Thus, by law, paid parental leave is available to covered employees only in connection with the birth or placement of a son or daughter that occurs on or after October 1, 2020. Since paid parental leave may not be used prior to the birth or placement involved, paid parental leave may not be used for any period of time prior to October 1, 2020.
Section 7605(a) of FEPLA, dealing with the crediting of certain periods of active duty in the uniformed services performed by members of the National Guard or Reserves for the purpose of the 12-month service requirement for FMLA leave eligibility in 5 U.S.C. 6381(1)(B), was effective on December 20, 2019—the date FEPLA was enacted.
Section 7606 of FEPLA, dealing with the coverage of screener personnel employed by the Transportation Security Administration (TSA) under the title 5 FMLA law, was effective on December 20, 2019, the date FEPLA was enacted. However, as noted above, use of paid parental leave by TSA screener personnel under the title 5 FMLA law is available only in connection with the birth or placement (for adoption or foster care) of a son or daughter that occurs on or after October 1, 2020.
A summary of the paid parental leave provisions incorporated within the title 5 FMLA provisions is provided below.
An employee is eligible for paid parental leave only if he or she is a covered “employee” under the definition in 5 U.S.C. 6381(1)(A) and has completed at least 12 months of service as such an employee, as required by 5 U.S.C. 6381(1)(B). (See also 5 CFR 630.1201(b).) We note that the section 6381(1)(A) definition of “employee” excludes individuals employed on a temporary or intermittent basis. Unlike the title 29 FMLA eligibility requirements, employees under the title 5 FMLA are
A covered employee may elect to substitute up to 12 weeks of paid parental leave for FMLA unpaid leave granted under 5 U.S.C. 6382(a)(1)(A) or (B) in connection with the occurrence of the birth or placement (for adoption or foster care) of a son or daughter. Such FMLA unpaid leave may be used to care for the newly born or placed son or daughter, and thus allows for bonding between parent and child.
By law, FMLA unpaid leave is generally limited to a total of 12 weeks in any 12-month period. The FMLA unpaid leave is permitted for various
Paid parental leave may be used only “in connection with the birth or placement involved” (5 U.S.C. 6382(d)(2)(B)(i))—that is,
Paid parental leave may be used no later than the end of the 12-month period beginning on the date of the birth or placement involved. At the end of that 12-month period, any unused balance of paid parental leave granted in connection with the given birth or placement permanently expires and is not available for future use. No payment may be made for unused paid parental leave or paid parental leave that has expired. Paid parental leave is not considered to be annual leave and thus may not be included in a lump-sum payment for annual leave following separation (5 U.S.C. 6382(d)(2)(D)).
Under the law, an employee may not use any paid parental leave unless the employee agrees in writing, before commencement of the leave, to subsequently work for the applicable employing agency for at least 12 weeks. This 12-week work obligation is triggered once the employee's paid parental leave concludes. The work obligation is statutorily fixed at 12 weeks regardless of the amount of leave used by an employee. An agency head must waive the work obligation if an employee is unable to return to work because of the continuation, recurrence, or onset of a serious health condition (including mental health) of the employee or the newly born/placed child—but only if the condition is related to the applicable birth or placement.
If an employee fails to return to work for the required 12 weeks, the employing agency “may” (but is not required to) recover from the employee an amount equal to the total amount of Government contributions paid by the agency under 5 U.S.C. 8906 on behalf of the employee to maintain the employee's health insurance coverage during the period of paid parental leave. This reimbursement provision may not be applied if the employee is unable to return to work based on the conditions that qualify for waiver described in the preceding paragraph. Also, this provision may not be applied if the employee fails to meet the 12-week work obligation for any other circumstance beyond the employee's control (see 5 CFR 630.1705(h)).
OPM is issuing interim final regulations that will provide more detail regarding the implementation of the statutory provisions summarized above.
In order to implement FEPLA, OPM is amending part 630 (Absence and Leave) of title 5, Code of Federal Regulations, by amending subpart L (Family and Medical Leave) and adding a new subpart Q (Paid Parental Leave). OPM is making changes in subpart L to establish how the FMLA provisions will now operate, since the appropriate substitution of paid parental leave for FMLA unpaid leave hinges on having a complete understanding of the standards for granting FMLA unpaid leave. Below we provide a section-by-section explanation of the changes in subpart L and the new provisions in the new subpart Q. Hereafter in this
Subpart L deals with FMLA
The section heading for § 630.1201 is revised to specifically reference agency responsibilities, which are described in an amended paragraph (c). (In current regulations, § 630.1203(g) also addresses agency responsibilities. We believe it is better to address agency responsibilities in one place in the introductory § 630.1201. We are revising § 630.1203(g) to address other matters.) We have added a sentence to paragraph (a) to note that the subpart L regulations also are used in establishing eligibility for paid parental leave under subpart Q. Paragraph (b) is revised to (1) address the coverage of TSA screener personnel, consistent with section 7606 of FEPLA; (2) clarify that temporary and intermittent employees in each listed category of employees are excluded from FMLA coverage; (3) correct obsolete references to the Secretary of Transportation (related to the fact that Coast Guard nonappropriated fund instrumentalities are now located in the Department of Homeland Security); and (4) address the creditability of certain active duty service by employees who are members of the National Guard or Reserves towards the 12-month service requirement, consistent with section 7605(a) of FEPLA.
Section 630.1202 is amended by (1) removing the definitions for
The new definition of
Also, in the definitions of
Section 630.1203(a)(2) is revised to clarify that FMLA leave taken “because of the placement” of a son or daughter for adoption or foster care includes the care of the newly placed son or daughter after the placement. This is consistent with the “care” language in the provision dealing with FMLA leave for a newly born son or daughter.
Section 630.1203(b) is revised to give an employee who was incapacitated more time to retroactively invoke FMLA leave. The employee must retroactively invoke FMLA leave within 5 workdays—instead of 2 workdays—after returning to work. A parallel deadline is being established for cases of incapacitation in the paid parental leave regulations in subpart Q.
Section 630.1203(d) is revised to delete language that seems to suggest that there is always only one 12-month period in connection with FMLA unpaid leave used in connection with a birth or placement. As provided in section 6382(a)(2) and § 630.1203(d), the entitlement to use FMLA unpaid leave in connection with a birth or placement terminates at the end of the 12-month period beginning on the date of birth or placement. However, if an employee uses FMLA unpaid leave before birth or placement, the associated 12-month FMLA period may end during the 12-month period that begins on the date of birth or placement, and the employee will be eligible to start a new entitlement to FMLA unpaid leave after the prior FMLA period ends. (See section 630.1203(c).) If the employee uses FMLA unpaid leave after obtaining that new entitlement, a new 12-month FMLA period will commence, and the employee will be able to use 12 weeks of FMLA unpaid leave during that period. However, no FMLA unpaid leave for birth or placement purposes may be used after the date that is 12 months after birth or placement. Paid parental leave may be substituted for FMLA unpaid leave used after birth or placement even if there are two 12-month periods involved; however, the total amount of paid parental leave in connection with any given birth or placement is limited to 12 weeks.
For example, after not using FMLA leave for at least 12 months, an employee uses a type of FMLA leave described in § 630.1203(a) (
Section 630.1203(d) is also revised to address the circumstances under which an employee may use FMLA unpaid leave because of an anticipated birth (under § 630.1203(a)(1)) or because of an anticipated placement (under § 630.1203(a)(2)) prior to the date of the birth or placement. In the case of an anticipated birth, the allowed circumstances involve a pregnancy-related health condition of the expectant mother that prevents her from working or prenatal care provided to that expectant mother by health care providers. This provision applies not only to an employee who is an expectant mother but also to an employee who is the other parent of the expected child, to the extent that other parent is providing necessary care for the expectant mother. We rely on the definition of “serious health condition” in § 630.1202 in applying this provision. We recognize that an employee may be able to use FMLA unpaid leave before birth based on § 630.1203(a)(1) or § 630.1203(a)(3) or (a)(4) based on the same set of circumstances. We note that certain statutory and regulatory rules differ based on which provisions are invoked (
Section 630.1203(e) is revised to clarify how the entitlement of 12 administrative workweeks of family and medical leave is converted to hours or days, depending on the nature of an employee's scheduled tour of duty and whether leave is charged on an hourly or daily basis. For example, for a regular full-time employee who has 80 hours in the biweekly scheduled tour of duty and who is charged leave on an hourly basis, 12 administrative workweeks translate into 480 hours. (12 weeks = 6 biweekly periods. 6 times 80 hours = 480 hours.)
Section 630.1203(f) is revised to clarify how to recalculate an employee's unused balance of family and medical leave if there is a change in an employee's scheduled tour of duty during any 12-month FMLA period that commenced due to use of family and medical leave. For example, if a regular full-time employee has a balance of 120 hours of unused family and medical leave for a 12-month FMLA period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours. (The new part-time tour is 40 hours biweekly, compared to 80 for a regular full-time tour. 40/80 times 120 equals 60 hours remaining under the new scheduled tour of duty.)
Paragraph (g) in § 630.1203 is revised. The current paragraph (g) deals with agency responsibilities to provide information to employees. This matter is now addressed in a revised § 630.1201(c). The revised paragraph (g) establishes that FMLA unpaid leave linked to a birth event includes leave necessary for an employee who is the birth mother to recover from giving birth, even if the employee is not involved in caring for the son or daughter during portions of that recovery period. (The recovery period would be whatever is specified by a health care provider. The medical standard for a normal recovery period is generally 6 weeks for vaginal birth and 8 weeks for caesarian section, unless complications arise.) The birth event provision in law states that it applies to leave taken “because of the birth of a son or daughter of the employee and in order to care for such son or daughter” (section 6382(a)(1)(A)). A birth mother's need to recover from giving birth is clearly “because of the birth” of a child.
A new paragraph (i) in § 630.1203 clarifies that FMLA unpaid leave taken to care for a newly born child generally refers to leave covering periods when the parent-employee is in the home with the child or is otherwise involved in spending time with the child (bonding). Such FMLA unpaid leave may also be used to cover short periods away from the child's physical presence to support the care of the child (
A new paragraph (j) in § 630.1203 provides regulations on FMLA leave to care for a covered servicemember, as provided in 5 U.S.C. 6382(a)(3)-(4). OPM has not issued final regulations to address this type of FMLA leave, which was added by Public Law 110-181 in 2008. This FMLA unpaid leave to care for covered servicemembers is subject to special rules, including special rules related to the substitution of annual and sick leave. Since we are revising the leave substitution regulations in § 630.1206 to address changes made by FEPLA, we determined we should address FMLA leave for care of covered servicemembers in subpart L. (See revised § 630.1206(d), which links to § 630.1203(j).) In contrast to other types of FMLA leave, the leave entitlement for FMLA leave to care for a covered service member is 26 administrative workweeks during a single 12-month period. If an employee uses other types of FMLA leave in that single 12-month period, the combined amount of FMLA leave is limited to 26 administrative workweeks. Thus, there could be circumstances where the substitution of paid parental leave for a period of FMLA unpaid leave for birth or adoption purposes would potentially be affected by the 26-workweek limit. (See revised § 630.1203(j)(3).) For example, consider an employee who invokes FMLA unpaid leave to care for a covered servicemember and uses 16 weeks of such leave starting on August 15, 2022. If the same employee gave birth to a child on October 7, 2022, the employee would be able to use only 10 weeks of FMLA unpaid leave under § 630.1203(a)(1) during the single 12-month period from August 15, 2022, to August 14, 2023, since there is a 26-week limit for that single 12-month period. That would also limit the employee to no more than 10 weeks of paid parental leave during that single 12-month period. However, the employee would be able to use FMLA unpaid leave under § 630.1203(a)(1)—and to substitute 2 weeks of paid parental leave for that unpaid leave—after August 14, 2023, and no later than October 6, 2023 (the expiration of the 12-month period following the birth on October 7, 2022)—since only 12 weeks of paid parental leave is available in connection with any given birth or placement (
Section 630.1206, dealing with substitution of paid leave for FMLA unpaid leave, is revised to reflect changes in the law and to clarify certain matters. Section 7602(a) of FEPLA amended section 6382(d) of title 5, United States Code, by making the statutory leave substitution rules that had applied to all types of FMLA leave apply only to FMLA leave granted under subparagraphs (C), (D), and (E) of section 6382(a)(1) and section 6382(a)(3)—which deal with an employee's care of certain family members who have a serious health condition, the incapacitation of an employee due to a serious health condition, a qualifying exigency related to certain family members' Armed Forces deployments, and an employee's care of certain covered servicemembers, respectively. The paid leave substitution rules for FMLA unpaid leave granted under subparagraphs (A) and (B) of section 6382(a)(1)—dealing with a child birth event and with the placement of a child for adoption or foster care, respectively—are now addressed in a new subsection (d)(2) of section 6382. Section 630.1206 addresses paid leave substitution for the various categories of FMLA unpaid leave.
Section 630.1206(b) provides that paid parental leave may be substituted for FMLA unpaid leave based on a birth or placement event as provided in the new subpart Q. Paragraph (b) also addresses the possibility of substituting annual and sick leave for FMLA unpaid leave based on birth or placement. If an employee has not already (before birth or placement) begun a 12-month FMLA period, the employee could have no more than 12 weeks of FMLA unpaid leave between the date of birth or placement and the date that is 12 months after the date of birth or placement. Thus, the 12 weeks of paid parental leave would completely fill any FMLA unpaid leave for birth or placement purposes, and there would be no opportunity to substitute annual or sick leave.
However, if an employee has a 12-month “FMLA period” (as established under § 630.1203(c)) in progress at the time of birth or placement, that 12-month FMLA period would end after birth or placement and before the date that is 12 months after the birth or placement. When that 12-month FMLA
Section 630.1206(c) addresses the paid leave substitution rules for FMLA leave connected to a serious health condition or an exigency. (See paragraph (3), (4), and (5) of § 630.1203(a), which correspond to subparagraphs (C), (D) and (E) of section 6382(a)(1), respectively.) These rules are consistent with existing rules on paid leave substitution.
Section 630.1206(d) addresses paid leave substitution for FMLA leave to care for a covered servicemember. These rules are consistent with statutory rules on paid leave substitution for this category of FMLA leave. (See section 6382(a)(3), which provides authority to provide 26 weeks of FMLA unpaid leave in a single 12-month period to care for a covered servicemember. There are currently no OPM FMLA regulations regarding this category of leave. In the absence of regulations, statutory provisions of sections 6382-6383 that refer to section 6382(a)(3) are governing.)
Section 630.1206(e) states various general rules related to an employee's entitlement to substitute paid leave. An employee is entitled to elect whether or not to substitute paid leave for FMLA unpaid leave, subject to applicable law and regulation. Thus, an agency may not deny an employee's election to make a substitution permitted under this section. Nor may an agency require an employee to substitute paid leave for FMLA leave without pay. Paragraph (4) adds a statement, not previously included in the FMLA regulations, indicating that an employee may request to use annual leave or sick leave without invoking family and medical leave, and, in that case, the agency exercises its normal authority with respect to approving or disapproving the timing of when the leave may be used. OPM is aware of misconceptions held by some that an employee must invoke FMLA for personal and family health situations for which they could just as easily request sick leave, thereby preserving their FMLA entitlement for any additional needs that may arise. Sick leave, under the circumstances specified by statute and regulation, is an employee entitlement; therefore, an agency generally may not deny an employee's request to take sick leave outside of FMLA for a sick leave purpose authorized at § 630.401. (In certain circumstances—for example, when the timing of a doctor's appointment is not a medical necessity—an agency may disapprove the timing of an employee's sick leave request and require the employee to reschedule.) An employee also has a right to take annual leave, subject to the right of the agency to schedule the time at which annual leave may be taken. Therefore, the agency has the right to deny the scheduling of an employee's annual leave requested outside of an FMLA request, but if the employee's scheduling of FMLA leave is approved, the employee's request to substitute annual leave for FMLA leave without pay may not be denied.
Section 630.1206(f) addresses an employee's obligation to generally give advance notice of the employee's election to substitute paid leave for FMLA unpaid leave. In other words, the general rule is that retroactive substitution is not allowed. However, paragraphs (f)(2) through (f)(4) do address some limited exceptions. Paragraph (f)(4) addresses the retroactive substitution of paid parental leave and links to § 630.1706, which allows retroactive substitution only if an employee is physically or mentally incapacitated. Under section 6382(d)(2)(F)(i), as added by FEPLA, there is a general requirement that an employee agree (in writing), before the commencement of paid parental leave, to perform 12 weeks of work after the use of paid parental leave concludes. Thus, the law anticipates that paid parental leave would be provided on a prospective basis after an employee elects to use the leave and enters into a work obligation agreement.
Section 630.1213, dealing with records and reports in connection with use of FMLA leave, is revised to refer to FMLA leave under the entire subpart rather than refer solely to leave under § 630.1203(a), since a provision on leave to care for covered servicemembers has been added in § 630.1203(j). Also, since § 630.1206 has been revised, the reference to the substitution of paid leave under § 630.1206(b) is being changed to a more general reference to § 630.1206.
Section 630.1701(a) addresses the purpose of the new subpart Q.
Section 630.1701(b) states that subpart Q applies to employees to whom subpart L applies and also to employees who are covered by agency FMLA regulations issued under § 630.1201(b)(3)—for example, certain Department of Defense teachers or employees of certain nonappropriated fund instrumentalities. In the case of such employees, the subpart Q regulations will apply, but the agency may issue any necessary supplemental regulations.
Section 630.1701(c) specifies that agency heads are responsible for proper administration of subpart Q, including the responsibility of informing employees of their entitlements and obligations.
Section 630.1702 provides that the definitions in the FMLA regulations in subpart L are applicable in subpart Q, to the extent those defined terms are used, except that, to the extent any definitions of terms have been further revised in § 630.1702(b), the provisions of that section shall apply for purposes of subpart Q. Section 630.1702 also provides definitions of additional terms used in subpart Q—
The definition of
Section 630.1703 provides various rules related to the entitlement to paid parental leave.
Section 630.1703(a) states that an employee may elect to substitute available paid parental leave for any FMLA unpaid leave granted based on the occurrence of a birth or placement (for adoption or foster care).
Section 630.1703(b) states that the paid parental leave that is available for substitution is 12 administrative workweeks in connection with the birth or placement involved. In other words, an employee can receive up to 12 administrative workweeks of paid parental leave for each birth or placement event. The entitlement to paid parental leave is triggered by the actual occurrence of a birth or placement, which results in the employee having a parental role. Thus, paid parental leave must only be used after the birth or placement has occurred. Paid parental leave continues to be available only as long as the employee has a continuing parental role with respect to the newly born or placed child. Since paid parental leave is substituting for FMLA unpaid leave, use of paid parental leave is constrained by the use of FMLA unpaid leave, which is limited to 12 weeks in any 12-month FMLA period (as established under § 630.1203(c)).
The regulation explains that, with respect to FMLA leave under § 630.1203(a) (corresponding to 5 U.S.C. 6382(a)(1)) that is limited to a total of 12 weeks in any 12-month period, any use of FMLA unpaid leave for a purpose other than birth or placement may affect an employee's ability to use the full 12 weeks of paid parental leave during the 12-month period following a birth or placement. In other words, an employee will be able to use the full amount of paid parental leave only to the extent that there are 12 weeks of available FMLA unpaid leave granted based on birth or placement. For example, if an employee uses 6 consecutive weeks of FMLA unpaid leave based on the employee's own serious health condition, the employee could only use 6 weeks of FMLA unpaid leave based on birth or placement (for which paid parental leave could be substituted) during the 12-month period that began when the employee commenced using FMLA unpaid leave based on the employee's serious health condition.
We note that the 12-week entitlement to paid parental leave under 5 U.S.C. 6382(d)(2) is applied on a per employee basis without regard to movements between different agencies during the 12-month period following a birth or placement. As long as the employee is covered by the title 5 FMLA unpaid leave and paid parental leave provisions while serving in different agencies, the employee would be limited to a total of 12 weeks of paid parental leave per qualifying birth or placement. However, if an employee has received paid parental leave benefits in connection with a given birth or placement under a different paid parental leave authority applicable to Federal employees (
Section 630.1703(c) and (d) address how the entitlement of 12 administrative workweeks of paid parental leave is converted to hours or days, depending on the nature of an employee's scheduled tour of duty and whether leave is charged on an hourly or daily basis. For example, paragraph (c) gives an example of a regular full-time employee who has 80 hours in the biweekly scheduled tour of duty and who is charged leave on an hourly basis. For such an employee, 12 administrative workweeks translate into 480 hours. (12 weeks = 6 biweekly periods. 6 times 80 hours = 480 hours.) Paragraph (c) also addresses employees with part-time work schedules or uncommon tours. Paragraph (d) addresses employees who are charged leave on a daily basis. For example, for an employee who has 8 workdays each biweekly pay period, 12 administrative workweeks translate to 48 days (12 weeks = 6 biweekly periods. 8 days times 6 biweekly periods = 48 days.).
Section 630.1703(e) addresses how to recalculate an employee's unused balance of paid parental leave if there is a change in an employee's scheduled tour of duty during the 12-month period commencing on the date of the given birth or placement. For example, if a regular full-time employee has a balance of 120 hours of unused paid parental leave for a 12-month period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours. (The new part-time tour is 40 hours biweekly, compared to 80 for a regular full-time tour. 40/80 times 120 equals 60.)
Section 630.1703(f)(1) provides that an agency may not require an employee to use annual leave or sick leave to the employee's credit before allowing the employee to use paid parental leave, consistent with section 6382(d)(2)(C). Paragraph (f)(1) also states that an employee may request to use annual leave or sick leave without invoking FMLA unpaid leave under subpart L. As discussed earlier in connection with § 630.1206(e), by requesting to use annual or sick leave without invoking FMLA leave, an employee can preserve entitlement to use FMLA unpaid leave at another time and to substitute paid parental leave for that FMLA unpaid leave. For example, an employee who is a birth mother has an entitlement to use sick leave for the post-birth recovery period. By using sick leave to cover the post-birth recovery period, the employee would preserve the ability to invoke FMLA leave and take an additional 12 weeks of paid parental leave at a later time (up to 1 year following birth), thus extending the time the employee can spend with the newly born child. An agency has more control over the scheduling of an employee's annual leave if it is requested independent of FMLA leave. However, if an employee invokes FMLA leave based on the birth or placement of a child, the employee would be entitled to use that FMLA leave for a continuous block of time following the birth or placement and then would be entitled to substitute annual leave for that block of time. (In contrast, FMLA leave based on the birth or placement of a child may not be taken intermittently unless the employee and the employing agency agree otherwise. See section 6382(b) and § 630.1205(a). We note that employees have a right to substitute paid parental leave for FMLA unpaid leave for birth/placement purposes. Thus, if an agency agrees to intermittent use of FMLA unpaid leave for birth/placement purposes, the agency is, in effect, agreeing to intermittent use of paid parental leave leave.)
Section 630.1703(f)(2) provides that paid parental leave may not be used
Section 630.1703(f)(3) states that an employee with a seasonal work schedule may not use paid parental leave during the off-season period designated by the agency—the period during which the employee is scheduled to be released from work and placed in nonpay status. In other words, paid parental leave cannot be used as a basis for extending a seasonal employee's work season. (For employees appointed under title 5, seasonal employment is addressed in 5 CFR 340.402.)
Section 630.1703(g) provides that, if an employee has any unused balance of
Section 630.1703(h) addresses an agency's authority to require documentation of leave entitlement and the submission of employee certifications. At an agency's request, an employee must provide the agency with appropriate documentation it deems necessary to establish that the employee's use of paid parental leave is directly connected to a birth or placement. Appropriate documentation could include, but is not limited to, a birth certificate or a document from an adoption or foster care agency regarding the placement. Also, an agency may require that an employee sign a certification attesting that the paid parental leave is being taken in connection with a birth or placement that has occurred. The employee may also be required to attest that the paid parental leave is being used for appropriate purposes, such as the birth mother's recovery from giving birth or to care for the child. (See § 630.1203(g) and (i)). This employee certification may contain a statement in which the employee acknowledges an understanding of the consequences of engaging in fraud by providing a false certification.
The effective date of an employee's election of paid parental leave may not be delayed because an employee has not provided requested certifications. However, the granting of paid parental leave will be considered to be conditional or provisional in nature, subject to the employee providing agency-required documentation or certification within required time frames. The required time frame is usually 15 calendar days from the date of an agency request (if any) for documentation. If it is not practicable for an employee to respond within the 15-day time frame, despite the employee's diligent, good faith efforts, the employee must provide the documentation or certification within a reasonable period of time, but no later than 30 calendar days after the date of the agency's original request. (These time frames are consistent with the documentation requirements for sick leave in 5 CFR 630.405(b), the FMLA leave in 5 CFR 630.1208(h) and the disabled veteran leave in 5 CFR 630.1307(c).) If certain documentation desired by the agency is not readily available, an agency could require an employee to self-certify that the leave is being taken for a valid reason and to commit to providing the documentation as soon as practicable. If the employee does not provide the documentation, the agency could then make a request that triggers the 15-day clock.
If agency-requested documentation or certification is not timely submitted, the agency may invalidate the paid parental leave and convert the employee to an appropriate nonpay status, which would result in a salary overpayment debt owed to the agency. An employee may request that the debt be eliminated by applying annual leave or other appropriate types of paid time off to the employee's credit to the affected periods of time. If the agency determines that an employee fraudulently claimed an entitlement to paid parental leave, the agency may pursue an appropriate disciplinary action, up to and including removal from the Federal service.
Section 630.1704(a) states the principle that the pay an employee receives when using paid parental leave shall be the same pay the employee would receive if the employee were using annual leave. In other words, agency payroll systems will apply the same rules they apply in determining what pay continues during annual leave.
Section 630.1704(b) provides that paid parental leave is a type of leave that is counted in applying the 8-hour rule in 5 U.S.C. 5545(a) and 5 CFR 550.122(b) that determines whether night pay is payable during periods of leave. This is consistent with the treatment of annual leave.
Section 630.1704(c) provides that the pay received during paid parental leave may not include Sunday premium pay, consistent with the statutory bar in section 624 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277, div. A, § 101(h), October 21, 1998).
Section 630.1705(a) provides that an employee may not use paid parental leave unless the employee agrees (in writing), before the start of paid parental leave, to work for the applicable employing agency for not less than 12 weeks beginning on the first scheduled workday after such leave concludes. This means that paid parental leave may not be provided to an employee unless the employee enters into such an agreement. (An exception to this rule is provided in cases where an employee is incapacitated and unable to enter into such agreement. See § 630.1706.)
Section 630.1705(b) provides rules for interpreting § 630.1705(a). The term “in writing” in connection with an employee agreement is defined to include an acceptable electronic signature. The term “work” means a period during which the employee is in duty status (
The term “applicable employing agency” means the agency employing the employee at the time use of paid parental leave concludes. The time paid parental leave concludes is the date that is the workday on which an employee finishes using 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement. If the employee does not use 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement, the day that is the last workday on which an employee takes paid parental leave is considered to be the date the paid parental leave concludes.
Section 630.1705(c) provides instructions on how to convert the 12-week work obligation to hours for employees who are charged leave on an hourly basis (including fractions of an hour). The 12-week work obligation must be converted to hours based on the number of hours in the employee's scheduled tour of duty, consistent with the rules in § 630.1703(c). If an employee's scheduled tour of duty changes before the employee completes the 12-week work obligation, the agency must recalculate the balance of work hours owed, consistent with the rules in § 630.1703(e).
Section 630.1705(d) provides how to convert the 12-week work obligation to days for employees who are charged leave on a daily basis. The days
Section 630.1705(e) provides that, as part of the written agreement described in § 630.1705(a), an employee must agree that, in the event the employee does not complete the 12-week work obligation, the employee will pay the reimbursement amount specified in 630.1705(f) unless the affected employing agency determines the reimbursement requirement will not be applied.
Section 630.1705(f) states the rules for applying the reimbursement requirement when an employee fails to fulfill the work obligation as stated in the employee's written agreement. Under the work obligation, an employee is required to return to work for 12 weeks after paid parental leave concludes. If the employee fails to return to work for 12 weeks, an agency may require a reimbursement equal in amount to the total amount of any Government contributions paid by the agency on behalf of the employee to maintain the employee's health insurance coverage under the Federal Employees Health Benefits Program established under 5 U.S.C. chapter 89 during the period(s) when paid parental leave was used. If an agency determines that reimbursement must be made, it must seek collection of the full amount. There is no authority for a partial waiver of the amount owed.
Since the statutory language about returning to work shows an intent that the employee be continuously employed by the applicable employing agency (
The determination to impose the reimbursement requirement is generally within an agency's sole and exclusive discretion. However, an agency may not impose the reimbursement requirement if the agency determines that the employee is unable to return to work for the required 12 weeks because of (1) the continuation, recurrence, or onset of serious health condition (including mental health) of the employee or the newly born or placed child that is related to birth or placement, or (2) any other circumstance beyond the employee's control. In the case of a newly born or placed child, any serious health condition of the child will be deemed to be related to the applicable birth or placement.
We note that clauses (i) and (iii) of section 6382(d)(2)(F) speak of an employee being “unable to return to work” and section 6382(d)(2)(G)(i) speaks of an employee who “fails to return from paid leave.” Given the express requirement in section 6382(d)(2)(F)(i) that an employee agree to work for the applicable employing agency for 12 weeks after paid parental leave concludes, we are interpreting the language referenced in the preceding sentence as referring to an employee who has not returned to work for the 12 weeks to which the employee committed in the agreement.
Section 630.1705(g) provides that when making a determination to forbear from requiring a reimbursement, an agency may require an employee to provide certification from a health care provider supporting the employee's claim that a serious health condition is causing the employee to be unable return to work for the required 12 weeks. An agency may require additional examinations and certifications from other health care providers if it deems it necessary. Any such additional examinations will be at the agency's expense.
Section 630.1705(h) states the principles governing determinations that circumstances beyond the employee's control prevent the employee from completing the 12-week work obligation. (See § 630.1705(f)(ii).) These circumstances must be ones that truly compel an employee to not return to work with the employing agency. Circumstances that constitute a matter of employee preference or convenience, such as an employee choosing to stay home to care for a healthy newborn will not suffice.
Section 630.1705(i) provides how to apply the reimbursement requirement described in § 630.1705(f)(1) if more than one agency provided Government contributions on behalf of an employee for that employee's health insurance coverage during periods of paid parental leave. In those cases, the employing agency that employed the employee at the time use of paid parental leave concluded is responsible for informing any other affected agency of the employee's failure to complete the required 12 weeks of work. If an employee fails to complete the 12-week work obligation, any agency that provided Government contributions for health insurance during a period of paid parental leave is responsible for determining whether the reimbursement requirement associated with a period of agency employment should be applied. The agency that employed the employee at the time paid parental leave concludes must first make its reimbursement determination and then inform any other affected agency of its determination.
Section 630.1705(j) provides that each agency is responsible for adopting its own set of policies governing when it will or will not apply the reimbursement requirement described in § 630.1705(f). A single agency-wide set of policies should be in place so that employees within an agency are treated consistently.
Section 630.1705(k) states an imposed reimbursement represents a debt owed to the affected agency and is subject to collection procedures under the Federal Claims Collection Standards in 31 CFR parts 900 through 904.
Section 630.1706 provides the application of paid parental leave in cases where an employee is incapacitated at the time the use of paid parental leave would be permissible. Paragraph (a) allows the employee to retroactively use paid parental leave. This provision allows for the retroactive election to use paid parental leave under FMLA if the agency determines that an otherwise eligible employee who could have made an election during a past period to substitute paid parental leave and enter a work obligation agreement was physically or mentally incapable of doing so during that past period. Upon this determination, the agency must allow the employee, when no longer incapacitated, to make an election to substitute paid parental leave for applicable FMLA unpaid leave. The employee must make this election within 5 workdays of returning to work. As part of such election, the employee must also sign a work obligation agreement.
Paragraph (b) allows an employee's personal representative to elect, on behalf of the employee, to substitute paid parental leave for applicable FMLA unpaid leave (
An employee covered by paragraph (b) who has been incapacitated would be required—within 5 workdays after the employee returns to work—to enter into a written agreement to (1) meet the work obligation described in § 630.1705 or (2) pay the required reimbursement (if determined to be applicable).
An employee who does not agree to enter into the required work obligation agreement will have any used paid parental leave cancelled and designated as invalid. The invalidated leave that was used based on the conditional approval during the employee's incapacitation must be converted to an unpaid absence(s) as “leave without pay” (LWOP). An employee can request to use other types of qualifying paid leave or other paid time off to the employee's credit to cover the LWOP period. If the employee does not elect to use other qualifying periods of paid time off for the LWOP period, the LWOP period represents a debt owed by the employee to which debt collection procedures apply.
Section 630.1707 addresses the application of paid parental leave in cases in which an employee has multiple children newly born or placed in the same time period. If an employee has multiple children born or placed on the same day, that event will be treated as a single event triggering a single entitlement of up to 12 weeks of paid parental leave during the 12-month period following the event. If an employee has one or more children born or placed during the 12-month period following the date of an earlier birth or placement, each subsequent birth or placement event will result in a 12-month period commencing on the date of birth or placement with its own 12-week limit. Any use of paid parental leave during a given 12-month period will count toward that period's 12-week limit. Thus, when such 12-month periods overlap, any use of paid parental leave during the overlap will count toward each affected 12-month period's 12-week limit. The regulations provide an example.
Section 630.1708(a) provides that an agency must maintain an accurate record of an employee's usage of paid parental leave.
Section 630.1708(b) provides that in agency data systems (including timekeeping systems) and in data reports submitted to OPM, an agency must record usage of paid parental leave in the manner prescribed by the Office of Personnel Management.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Office of Management and Budget has determined that this is an economically significant regulatory action. In accordance with the provisions of Executive Order 12866, this rule was reviewed by the Office of Management and Budget.
OPM is issuing the rule to implement the Federal Employee Paid Leave Act. Currently, Federal employees must take unpaid parental leave unless they use their sick or annual leave during parental leave. This regulation will provide paid parental leave to parents of newly born or placed children in the Federal workforce, serving as a model for the rest of the country.
This rule applies to Federal civilian employees and the agencies that employ them covered by FMLA provisions in title 5, United States Code. We estimate that approximately 2 million Federal civilian employees will be covered by the interim final rule based on coverage under title 5 FMLA provisions.
This estimate reflects coverage of most Executive Branch employees. Employees of certain Executive Branch agencies such as the U.S. Postal Service, the Postal Regulatory Commission, the Federal Reserve Board, the Federal Aviation Administration, and the Transportation Security Administration (TSA) are excluded, as those agencies are not covered by the title 5 FMLA provisions (except for TSA screener personnel, as discussed in this
The estimate includes approximately 26,000 Judicial Branch employees who are covered by title 5 FMLA provisions. The estimate excludes Legislative Branch employees, except for approximately 1,600 employees of the Government Publishing Office (GPO), as all other Legislative Branch employees are not covered by title 5 FMLA provisions.
While approximately 2 million employees will be covered by this interim final rule, eligibility depends on the occurrence of a birth of an employee's child or placement of a child with the employee for purposes of adoption or foster care. OPM identified annual birth rate data for mothers and fathers (by age group) in National Vital Statistics Reports published by the Centers for Disease Control and Prevention.
OPM then applied that data to Federal civilian employees by gender and by age group to derive estimates of annual birth events. For the population of approximately 1.9 million nonseasonal, full-time permanent Federal employees, OPM estimated that there would be about 51,000 annual birth events (51,248/1,889,147 = 2.71 percent occurrence rate). We note that a birth may be counted as two birth events if both parents are covered by this interim final rule. We also note that this rule may affect birth rates for Federal employees, and that many other factors unrelated to this rule may affect birth rates. For simplicity, we use this figure to estimate annual transfers associated with this rule.
We note that at least two Federal agencies, the Securities and Exchange Commission (SEC) and the Federal Deposit Insurance Corporation (FDIC)
OPM used average salaries by gender and by age group to estimate the dollar value of salary, not including employer-paid benefits, for 12 weeks of paid parental leave in connection with a birth event. If each birth event resulted in 12 weeks of paid parental leave for an affected employee, OPM estimated that the total value of the salary paid during parental leave in a year would be approximately $900 million. This equals about 0.54 percent of total basic payroll for the 1.9 million Federal employees in OPM's study population.
However, the 1.9 million employee population used to generate the $900 million annual estimate count was based on nonseasonal, full-time permanent employees in the OPM-managed Governmentwide database and was not adjusted based on employee coverage under title 5 FMLA provisions. For example, it included roughly 100,000 FAA and TSA employees but excluded part-time and seasonal employees. In addition, some employees covered by title 5 FMLA provisions are not in the OPM database. However, the 1.9 million employee population included in this database can reasonably be viewed as representative of the 2.0 million employee population covered by title 5 FMLA provisions. Based on OPM data, the 2.0 million employee population includes approximately 50,000 part-time employees. If we assumed that 50,000 of the 100,000 employees between 1.9 million and 2.0 million were part-time employees who on average had a half-time work schedule, then we would adjust the $900 million estimate to be $935 million in terms of direct salary costs.
This rule also affects an employee following the occurrence placement of a child with the employee for purposes of adoption or foster care. OPM does not have data regarding the extent to which Federal employees have children placed with them for adoption or foster care. A National Council for Adoption report stated the annual number of adoptions in the United States is about 110,000.
If we assume there are annually 110,000 adoptions and 260,000 foster care placements, we have 370,000 total placements. This number can be compared to the number of persons in the United States in the age range of 18 to 64—an age range that roughly corresponds the age range for Federal Government employees. According to the July 2019 census data, the total U.S. population was 328,239,523. Of that total, 16% were 65 and older and another 22.4% were under 18, meaning that the remaining 61.6%, or 202,195,546, were in the 18-64 age range. If we divide 370,000 by 202 million, we derive 0.18 percent, which represents the percentage of U.S. adults ages 18-64 who will have an adoption or foster care placement in a given year. We will assume that the same percentage of Federal employees will have an adoption or foster care placement event in a given year. Applying that percentage (0.18 percent) to the 2 million Federal employees covered by the title 5 FMLA provisions, we estimate that these Federal employees will have 3,600 adoption or foster care placement events annually. In contrast, we estimated above that these Federal employees will have about 51,000 birth events annually (2.71 percent). The combined event percentage would be 2.89 percent (2.71 + 0.18), which represents an increase of about 6.6 percent above the 2.71 percent factor that was used to generate the direct salary cost estimate of approximately $935 million. Thus, we can apply that same 6.6 percent adjustment factor to derive a revised direct salary cost estimate of about $995 million.
OPM also lacks data on Federal employees who might yield custody of a child for adoption or under a surrogacy arrangement at the time of birth, which would not generate a 12-week paid parental leave benefit under the interim final rule. For purposes of this analysis, OPM assumes these cases will not have a significant effect on the overall estimates.
The payment of paid parental leave generates a “transfer”—a movement or redistribution of monetary payments from one group to another that does not affect total resources. The Government is transferring payments from the general public to Federal employees. For purposes of these estimates, we assume that the amount of service performed by Federal employees is not affected by this rule. That means that staff will perform the work that would have been performed by employees newly taking parental leave, and that new staff may need to be hired to complete this work. Employees may also receive additional payment in cases where they would have otherwise taken other categories of leave. This implies that total payments to Federal employees will increase, while total services provided by the Federal workforce will remain constant.
In the context of paid parental leave, there are a variety of types of shifts or transfers, depending on what would have otherwise happened if the employee had not received paid parental leave.
• If an employee would have otherwise used leave without pay for periods covered by paid parental leave, there is an immediate transfer from the Government to the employee receiving paid parental leave, but there is no need for other staff to work additional hours to maintain the level of Government service.
• If an employee would have otherwise used annual leave during periods covered by paid parental leave, the employee will have a higher balance of annual leave. The employee could use that annual leave at a later time. If
• If an employee would have otherwise used sick leave during period covered by paid parental leave, the availability of paid parental leave will cause the employee to have a higher sick leave balance. While we lack data, we believe that Federal employees, particularly birth mothers, use significant amounts of sick leave in connection with a birth event. While it is possible that some of the extra sick leave might be used later by an employee in lieu of leave without pay, we believe that the saved sick leave will generally be fully reflected in the employee's balance at the time of separation. For employees who retire with entitlement to an immediate annuity, unused sick leave is creditable service for the purpose of computing an employee's retirement annuity. So, for this type of shift, the transfer is less than the value of the paid parental leave and is delayed until retirement—and applies only to those with entitlement to an immediate annuity. The Congressional Budget Office estimated that higher annuity payments due to increased sick leave balances at retirement (resulting from availability of paid parental leave) would increase direct spending by less than $500,000 over the 2020-2029 period.
• If an employee would otherwise not have taken leave, other staff will perform the work that would have been performed by that employee, and new staff may need to be hired to complete this work.
While we have identified scenarios in which the transfers could be delayed or even, in the sick leave scenario, not equal to the full value of the paid parental leave, we lack data to estimate the effects those scenarios will have on annual costs during the 5-year timeframe for this regulatory impact analysis.
Employees who, after use of paid parental leave concludes, do not return to duty and complete 12 weeks of work are subject to a possible reimbursement obligation that is based on the cost of agency contributions to health insurance premiums during the use of paid parental leave. However, the employing agency has considerable discretion in imposing the reimbursement requirement and is barred from imposing it in some cases. We expect that the number of employees who do not complete the required 12 weeks of work would be a small percentage. In light of those factors, we do not believe that the reimbursement requirement will have a significant impact of transfer estimates.
In order to estimate transfers, it is necessary to make assumptions about utilization. We lack data to assume that employees will not take full advantage of this paid parental leave. We are aware that there is some data that parental leave is not fully utilized—especially by males. However, the referenced examples of which we are aware do not involve full income replacement, as does the new paid parental leave for Federal employees. Until we have actual experience under the Federal paid parental leave program, we lack data to assert that employees will use less than the full amount of leave that is available. However, we note that the utilization rate substantially impacts transfer estimates.
We recognize that transfers include the cost of government-paid benefits as well as for direct salary costs. These include contributions towards retirement and insurance, Thrift Savings Plan (TSP) contributions, Social Security and Medicare taxes, and paid leave and holidays—which would inflate the total compensation costs by about 50 percent above the estimated direct salary costs of $995 million (
As noted, we lack data to quantify many important aspects of the effects of this rule on payments to Federal staff. In particular, we lack data to forecast utilization of paid parental leave, and the extent to which paid parental leave will replace utilization of sick leave. Accordingly, at this time, we estimate that the value of transfers associated with paid parental leave, including salary and benefits, will be about $1.49 billion ($995 million salary and $498 million benefits) per year before accounting for incomplete utilization of paid parental leave and shifts in leave utilization from sick leave to paid parental leave. We estimate that, after accounting for these factors, the rule will result in transfers of between 60 and 90 percent of this value. This implies annual transfers of between $890 million and $1.3 billion, with a mean estimate of $1.1 billion. This represents under 1 percent of total basic payroll for Federal employees covered by the title 5 FMLA provisions. We request public comment on these estimates.
This interim final rule will affect the operations of over 120 Federal agencies—ranging from cabinet-level departments to small independent agencies. We estimate that this rule will require individuals employed by these agencies to spend time in order to update agency policies and procedures for parental leave, and to devote additional time to manage staffing following increased utilization of parental leave. For the purpose of this cost analysis, the assumed average salary rate of Federal employees performing this work will be the rate in 2020 for GS-14, step 5, from the Washington, DC, locality pay table ($137,491 annual locality rate and $65.88 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $131.76 per hour.
In order to comply with the regulatory changes in this interim final rule, affected agencies will need to review the rule and update their policies and procedures. We estimate that, in the first
As discussed previously, we estimate that this rule results in shifts in activity toward the care of young children by Federal employees, and away from other activities. We are unable to quantify the societal value of the benefits of paid parental leave and the societal value of activities foregone as a result of the rule. As a result, we are unable to quantify the net benefit of this shift in activity.
The benefits of increased parental care of newborn and newly placed children enabled by paid parental leave are significant and can be described in qualitative terms. First of all, more Federal employees will be able to spend significant time with newly born or placed children during the first year after birth or placement. Various studies have shown the positive impact of increasing bonding between parent and child. Paid parental leave is not just a benefit for Federal employees, but for American society as a whole. It is a significant benefit that the Federal Government is acting as a role model in providing paid parental leave to its employees. This could have a large impact on other employers, influencing them to offer similar benefits. In turn, parents around the country would be able to spend additional time bonding with children.
Various studies indicate that paid parental leave may improve the health of the birth mother and the child. Paid parental leave will allow parents to preserve annual and sick leave balances for future family needs. In general, in our society, women have traditionally borne greater responsibility for caring for children and sacrificing work careers. This paid parental leave benefit is gender neutral and also neutral between the birth mother and the other parent. This may help change expectations that parents have regarding the role each will play in raising children. It is expected to result in fathers having more involvement in child care, which could provide significant societal benefits, such as stronger marriage and family relationships. We believe that this benefit may support greater income equality between men and women by reducing the length of interruptions in the woman's career—by making it easier to have a child and then return to work. Such a policy may also address women's declining labor force participation that has been dropping since 2000, which has potential to positively impact the U.S. economy.
While it is difficult to demonstrate cause and effect when it comes to adopting one new employee benefit, there are surveys and other indications that a family-friendly paid parental leave policy can help make an employer more attractive to job seekers, increase job satisfaction, increase employee morale and engagement, increase the likelihood of a birth mother returning to work, and reduce turnover (
For the most part, the paid parental leave benefit is established by statute. The amount of leave is set by statute at 12 weeks for each eligible employee. By statute, it applies equally to both parents. The statute requires that paid parental leave be provided via substitution for FMLA unpaid leave for purposes of birth and placement for adoption or foster care. The statute requires a fixed 12-week work obligation after paid parental leave concludes but allows agencies to decide whether to apply a reimbursement requirement (linked to Government contributions toward health insurance premiums), subject to specified limitations. The statute requires that OPM “shall prescribe regulations necessary for administration” of the title 5 FMLA leave provisions, including the paid parental leave provisions (5 U.S.C. 6387)
In many cases, the OPM regulations are explanatory in nature. OPM regulations do fill in some policy gaps, but any regulatory decisions had a marginal impact on transfers, costs, and benefits. OPM considered alternatives with respect to the documentation that would be required from employees seeking paid parental leave. One option was to require documentation in all cases and to specify the necessary types of documentation in regulation (
In considering these options, we weighed the burden on supervisors and employees versus the need to ensure that appropriated monies are properly used and to prevent fraud. We recognized that in some cases, a supervisor may have personal knowledge of an employee's situation and a paperwork requirement would be unnecessary. In general, we believe the risk of fraud is low—especially in birth cases. We determined that the regulations should not mandate documentation in all cases, but should give agencies, as a necessary tool, the authority to require submission of documentation and/or employee certifications. We also determined that the employing agency should be responsible for determining what documentation is sufficient proof of entitlement to paid parental leave.
This interim final rule is considered an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action. We estimate that this rule generates $5.9 million in annualized costs, in 2016 dollars, discounted at seven percent over a perpetual time horizon relative to 2016.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.
OPM is issuing this rulemaking as an interim final rule and has determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), it would be impracticable and contrary to the public interest to delay a final regulation until a public notice and comment process has been completed. For the same reasons, under the Civil Service Reform Act's parallel rulemaking provision, 5 U.S.C. 1103(b)(3), OPM is waiving general notice of proposed rulemaking because the interim rule is temporary in nature and necessary to be implemented expeditiously as a result of an emergency.
The conclusion of a public notice and comment period before the rule is finalized would be impracticable because it would impede due and timely execution of OPM's functions. Specifically, OPM issuing an interim final rule is required by events and circumstances beyond its control, which were not foreseen in time to comply with the usual notice and comment procedures. On December 20, 2019, the Federal Employee Paid Leave Act (the Act) was enacted, in which Congress set the effective date for the new paid parental leave rules as October 1, 2020, just 9 months after enactment. This was insufficient time for the notice and comment rulemaking process because of the need for OPM to conduct a detailed regulatory impact analysis accounting for costs, benefits, and alternatives, and because the regulation requires significant changes to personnel processing and payroll systems at Federal agencies. To properly prepare for the congressionally-mandated effective date of the new rules on paid parental leave, agencies need this regulation to be promulgated with sufficient lead time to create internal policies and procedures, to modify their payroll systems, to retrain their human resources staff, and to provide effective notice to eligible employees.
In addition to the short window for preparing this rule, OPM has had to unexpectedly devote its pay and leave policy resources to coordinate Federal employee policies in response to the COVID-19 public health emergency during this time period, including implementing the Families First Coronavirus Response Act, Public Law 116-127 and the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, and advising agencies on the optimal use of pay, leave, and incentives to respond to the national emergency. As such, 9 months was an insufficient amount of time for OPM to publish a notice of proposed rulemaking seeking public comments and a final rule responding to comments with enough lead time for agencies to prepare for the October 1, 2020 deadline.
The conclusion of a public notice and comment period before the rule is finalized would be also be contrary to public interest, because it would result in serious damage to important interests. If OPM does not have regulations in place with sufficient lead time for over 120 Federal agencies to implement their policies and procedures, and payroll systems, eligible employees may not be able to claim their paid parental leave benefits on October 1, 2020. Likewise, ensuring that expectant parents have complete information about paid parental leave policies will allow them to prepare for taking paid parental leave. Thus, OPM has determined that the rule must be implemented expeditiously as a result of an emergency.
For these reasons, OPM has determined that the public notice and participation that the law ordinarily requires would, in this case, be impracticable and contrary to the public interest and that good cause exists for waiving proposed rulemaking and delaying its solicitation of comments from the public until after it issues an interim final rule. The interim final rule is temporary in nature, and OPM will promulgate a final rule as soon as practical after receiving public comments on the interim final rule.
This action is subject to the CRA, 5 U.S.C. 801
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.
Government employees.
Office of Personnel Management.
For the reasons stated in the preamble, OPM amends part 630 of title 5 of the Code of Federal Regulations as follows:
5 U.S.C. chapter 63 as follows: Subparts A through E issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and (f), 6304(d)(2), 6306(b), 6308(a), and 6311; subpart F issued under 5 U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311; subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340, 6363, 6365(d), 6367(e), and 6373(a); subpart K issued under 5 U.S.C. 6391(g); subpart L issued under 5 U.S.C. 6383(f) and 6387; subpart M issued under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329 note); subpart P issued under 5 U.S.C. 6329c(d); and subpart Q issued under 5 U.S.C. 6387.
The revisions and addition read as follows:
(a) * * * This subpart also provides the basis for determining the periods of unpaid leave for which paid parental leave may be substituted under subpart Q of this part, which must be read with this subpart to establish eligibility.
(b)
(i)(A) Is defined as an “employee” under 5 U.S.C. 6301(2); or
(B) Is an employee carrying out screening functions who is appointed under section 111(d) of Public Law 107-71 (49 U.S.C. 44935 note); and
(ii) Has completed at least 12 months of service (excluding any service as an employee identified in paragraph (b)(2) of this section) at any time as—
(A) An employee, as defined under 5 U.S.C. 6301(2);
(B) An employee of the Veterans Health Administration appointed under title 38, United States Code, in occupations listed in 38 U.S.C. 7421;
(C) A “teacher” or an individual holding a “teaching position,” as defined in section 901 of title 20, United States Code;
(D) An employee identified in section 2105(c) of title 5, United States Code, who is paid from nonappropriated funds;
(E) An employee carrying out screening functions who is appointed under section 111(d) of Public Law 107-71 (49 U.S.C. 44935 note); or
(F) An employee performing covered active duty (as defined in 5 U.S.C. 6381(7)(B)) that interrupts civilian service due to a qualifying call or order for deployment to a foreign country as a member of the National Guard or Reserves, to the extent that such active duty is not already creditable service under paragraphs (A) through (E) of this paragraph (b)(1)(ii).
(c)
The revisions and additions read as follows:
The revisions and additions read as follows:
(a) * * *
(2) The placement of a son or daughter with the employee for adoption or foster care and the care of such son or daughter.
(d)(1) The entitlement to leave under paragraphs (a)(1) and (2) of this section shall expire at the end of the 12-month period beginning on the date of birth or placement. Leave for a birth or placement must be concluded within this 12-month period.
(2)(i) Leave taken under paragraphs (a)(1) and (2) of this section, may begin prior to the actual date of birth or placement for adoption or foster care.
(ii) Use of leave under paragraph (a)(1) of this section before the date of birth is limited to situations in which an employee is using the leave—
(A) Because of the employee's serious health condition related to the anticipated event of the employee giving birth to a son or daughter; or
(B) In order to care for the birth mother of the employee's expected son or daughter in connection with the birth mother's serious health condition related to pregnancy.
(iii) Use of leave under paragraph (a)(2) before the date of placement is limited to situations in which the employee must be absent to engage in activities necessary to allow an anticipated adoption or a foster care arrangement to proceed.
(e)(1) Family and medical leave under this subpart is available to full-time and part-time employees. The entitlement to a total of 12 administrative workweeks of leave in connection with leave granted under paragraph (a) of this section must be converted to hours or days, as provided in paragraphs (e)(2) and (e)(3) of this section. Leave under paragraph (a) allows an employee to be absent during the employee's scheduled tour of duty established for leave charging purposes. Such leave is not applied to days designated as holidays and other nonworkdays when the employee would be excused from duty.
(2) For employees who are charged leave on an hourly basis (including fractions of an hour), the 12 administrative workweeks referenced in paragraph (a) of this section must be converted to hours based on the number of hours in the employee's scheduled tour of duty (at the time the 12-month period of leave eligibility commences) subject to the following rules:
(i) For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours.
(ii) For a full-time employee with an uncommon tour of duty (as defined in § 630.201 and described in § 630.210), the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's biweekly scheduled tour of duty (or 6 times the average hours if the biweekly tour hours vary over an established cycle). For example, if an employee has an uncommon tour consisting of six 24-hour shifts (144 hours) per biweekly pay period, the amount would be 864 hours.
(iii) For a part-time employee, the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's scheduled tour of duty over a biweekly pay period. For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours.
(3) For employees who are charged leave on a daily basis, the days equivalent of 12 administrative workweeks must be derived based on the average number of workdays in the employee's established tour of duty over a biweekly pay period. For example, if an employee had 8 workdays each biweekly pay period, the days equivalent of 12 administrative workweeks would be 48 days.
(f) If there is a change in an employee's scheduled tour of duty during any 12-month period that commenced due to use of family and medical leave, and the employee has not used the full allotment of family and medical leave during such 12-month period, the remaining balance of family and medical leave must be recalculated based on the change in the number of average hours in the employee's scheduled tour of duty. For example, if a regular full-time employee has a balance of 120 hours of unused family and medical leave for a 12-month period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours. (Since the old schedule was 80 hours biweekly or an average of 40 hours weekly, the new part-time tour is half of the former full-time tour. 40/80 times 120 equals 60.)
(g) Leave taken because of the birth of a son or daughter of the employee, as described in paragraph (a)(1) of this section, includes leave necessary for an employee who is the birth mother to recover from giving birth, or for an employee who is the other parent to care for the birth mother during her recovery period, even if the employee is not involved in caring for the son or
(i) Leave taken in order to care for a newly born or placed son or daughter, as described in paragraphs (a)(1) and (a)(2) of this section, generally refers to leave covering periods when the parent-employee is in the home with the child or is otherwise involved in spending time with the child (bonding). It may include short periods away from the child's physical presence to purchase supplies needed to care for the child (
(j)(1) For family and medical leave granted in connection with care of a covered servicemember under 5 U.S.C. 6382(a)(3) and (4), the leave entitlement is 26 administrative workweeks in a single 12-month period. This leave applies to an employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember and who provides care for the covered servicemember. In applying this leave, the definitions in 5 U.S.C. 6381(8) through (12) must be applied.
(2) The entitlement of 26 administrative workweeks of leave described in paragraph (j)(1) of this section must be converted to hours or days, consistent with the methodologies set forth in paragraph (e) of this section. Any recalculation of the unused leave entitlement due to a change in the employee's scheduled tour of duty must be made in a manner consistent with the methodology described in paragraph (f) of this section.
(3) If an employee receives leave under this paragraph (j) and leave under paragraph (a) of this section during the single 12-month period, the combined amount of leave in that period may not exceed 26 administrative workweeks. With respect to the single 12-month period, an employee who uses more than 14 weeks of leave under this paragraph (j) will not be able to use the full allotment of 12 administrative workweeks in connection with leave granted under paragraph (a) of this section. The leave granted under this paragraph (j) will not count against the employee's 12-week FMLA entitlement in any other 12-month period, as established under paragraph (a) of this section. For example, consider an employee who invokes family and medical leave to care for a covered servicemember and uses 16 weeks of such leave starting on August 15, 2022. If the same employee gave birth to a child on October 7, 2022, the employee would be able to use only 10 weeks of family and medical leave under § 630.1203(a)(1) during the single 12-month period from August 15, 2022, to August 14, 2023, since there is a 26-week limit for that single 12-month period. That would also limit the employee to no more than 10 weeks of paid parental leave during that single 12-month period. However, the employee would be able to use family and medical leave under § 630.1203(a)(1) after August 14, 2023, and before the expiration of the 12-month period following the birth on October 6, 2023, and could substitute (to the extent possible) any remaining amount of the employee's 12 weeks of paid parental leave, or substitute annual leave or sick leave, if applicable.
(4) In addressing requests to use intermittent leave, or leave on a reduced leave schedule, in connection with leave under this paragraph (j), an agency is subject to the same rules that govern such requests for leave under paragraphs (a)(3) and (a)(4) of this section. (See 5 U.S.C. 6382(b) and § 630.1205.)
(5) Employees who seek to use leave under this paragraph (j) are subject to the same notification and scheduling requirements that apply to employees receiving leave under paragraph (a)(1) through (4) of this section in parallel circumstances. (See 5 U.S.C. 6382(e)(1) and (2) and § 630.1207.)
(6) An agency may require that a request for leave under this paragraph (j) be supported by a medical certification, as provided by 5 U.S.C. 6383(f).
(a)
(b)
(i) Up to 12 administrative workweeks of paid parental leave in connection with the occurrence of a birth or placement, as provided in subpart Q of this part; and
(ii) Any annual or sick leave to the employee's credit for such family and medical leave not covered by paid parental leave.
(2) The annual or sick leave to the employee's credit under paragraph (b)(1)(ii) of this section consists of the following:
(i) Accrued or accumulated annual or sick leave under subchapter I of chapter 63 of title 5, United States Code (or equivalent annual or sick leave under another authority), without regard to the normal limitations on the use of sick leave;
(ii) Advanced annual or sick leave approved under the same terms and conditions that apply to any other agency employee who requests advanced annual or sick leave, except that the normal limitations on the use of sick leave are not applicable; and
(iii) Annual leave donated to an employee under the Voluntary Leave Transfer Program or the Voluntary Leave Bank Program, consistent with subparts I and J of this part, or equivalent donated annual leave under another authority.
(c)
(1) Accrued or accumulated annual or sick leave under subchapter I of chapter 63 of title 5, United States Code (or equivalent annual or sick leave under another authority), consistent with the law and regulations governing the granting and use of annual or sick leave (including the limitations on the purposes for which sick leave may be used under § 630.401(a) and the hours limitations in § 630.401(b) through (e));
(2) Advanced annual or sick leave approved under the same terms and conditions that apply to any other agency employee who requests advanced annual or sick leave; and
(3) Annual leave donated to an employee under the Voluntary Leave Transfer Program or the Voluntary Leave Bank Program, consistent with subparts I and J of this part, or equivalent donated annual leave under another authority.
(d)
(e)
(2) An agency may not deny an employee's election to make a substitution permitted under this section.
(3) An agency may not require an employee to substitute paid leave for leave without pay.
(4) An employee may request to use annual leave or sick leave without invoking family and medical leave, and, in that case, the agency exercises its normal authority with respect to approving or disapproving the timing of when the leave may be used.
(f)
(2) An employee may retroactively substitute annual leave or sick leave for leave without pay granted under this subpart covering a past period of time, if the substitution is made in conjunction with the retroactive granting of leave without pay under § 630.1203(b).
(3) An employee may retroactively substitute transferred (donated) annual leave for leave without pay granted under this subpart in the circumstances covered by §§ 630.909(d) or 630.1009(d).
(4) An employee may retroactively substitute paid parental leave for applicable leave without pay granted under this subpart, as provided in § 630.1706(a) and subject to the requirements governing paid parental leave in subpart Q of this part. If the employee's leave without pay was not granted on a prospective basis under this subpart, the retroactive substitution of paid parental leave may not be made unless the leave without pay period has been retroactively designated as leave under this subpart, as allowed under § 630.1203(b).
(b) * * *
(3) The number of hours or days of leave taken under this subpart, including any paid leave substituted for leave without pay under § 630.1206; and
(a)
(b)
(2) An agency head authorized to issue regulations on family and medical leave under 5 U.S.C. chapter 63, subchapter V, as provided in § 630.1201(b)(3), is authorized to issue any necessary supplemental regulations on paid parental leave, providing those supplemental regulations are consistent with the regulations in this subpart.
(3) This subpart applies to a birth or placement occurring on or after October 1, 2020. Paid parental leave may not be provided under this subpart for any period of time before October 1, 2020.
(c)
(a)
(b)
(a)
(b)
(2) Since an employee may use only 12 weeks of FMLA unpaid leave in any 12-month period under § 630.1203(a), use of FMLA unpaid leave not associated with paid parental leave may affect an employee's ability to use the full 12 weeks of paid parental leave. Notwithstanding paragraph (b)(1) of this section, an employee will be able to use the full amount of paid parental leave only to the extent that there are 12 weeks of available FMLA unpaid leave granted under the birth or placement provisions in § 630.1203(a)(1) or (2) during the 12-month period commencing on the date of birth or placement. The availability of paid parental leave will depend on when the employee uses various types of FMLA unpaid leave relative to any 12-month period established under § 630.1203(c).
(c)
(1) For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours.
(2) For a full-time employee with an uncommon tour of duty (as defined in § 630.201 and described in § 630.210), the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's biweekly scheduled tour of duty (or 6 times the average hours if the biweekly tour hours vary over an established cycle). For example, if an employee has an uncommon tour consisting of six 24-hours shifts (144 hours) per biweekly pay period, the amount would be 864 hours.
(3) For a part-time employee, the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's scheduled tour of duty over a biweekly pay period. For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours.
(d)
(e)
(f)
(2) Paid parental leave may be used in connection with the occurrence of a birth or placement only during the 12-month period following birth or placement. (See § 630.1703(b).) Paid parental leave may not be used prior to the birth or placement involved even if the employee was granted FMLA unpaid leave under § 630.1203(a)(1) or (2) for periods prior to the birth or placement event, as allowed under § 630.1203(d).
(3) An employee with a seasonal work schedule may not use paid parental leave during the off-season period designated by the agency—the period during which the employee is scheduled to be released from work and placed in nonpay status.
(g)
(h)
(2) An agency may require that an employee sign a certification attesting that the paid parental leave is being taken in connection with a birth or placement. This employee certification may contain a statement in which the employee acknowledges an understanding of the consequences of providing a false certification (
(3) An employee must provide any documentation or certification required by the agency no later than 15 calendar days after the date the agency requests such documentation or certification. If it is not practicable under the particular circumstances for an employee to respond within the 15-day time frame, despite the employee's diligent, good faith efforts, the employee must provide the documentation or certification within a reasonable period of time under the circumstances involved, but no later than 30 calendar days after the date of the agency's original request.
(4) An agency may grant paid parental leave prior to receiving any requested documentation or certification under this paragraph (h) based on an employee's communications with a supervisor or management. Under these circumstances, the granting of paid parental leave is considered to be provisional, pending receipt of the requested documentation or certification.
(5) If the employee fails to provide the agency with the required documentation
(i) Allow the employee to request that the absence be charged to leave without pay, sick leave, annual leave, or other forms of paid time off, as appropriate; or
(ii) If the employee acted fraudulently, charge the employee as absent without leave (AWOL) and pursue any other appropriate action.
(a) The pay an employee receives when using paid parental leave shall be the same pay the employee would receive if the employee were using annual leave.
(b) Paid parental leave is a type of leave that is counted in applying the 8-hour rule in 5 CFR 550.122(b) that determines whether night pay is payable during periods of leave.
(c) The pay received during paid parental leave may not include Sunday premium pay. (See section 624 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, div. A, § 101(h), 112 Stat. 2681-518 (Oct. 21, 1998).)
(a)
(b)
(1) The term “in writing” means an agreement with the employee's handwritten signature or an acceptable electronic signature, consistent with the requirements in 5 CFR 850.106, and also is deemed to include an agreement documented in an email or text message from the employee, as long as the employee, within 24 hours, supplies the required signature;
(2) The term “work” means a period during which the employee is in duty status, excluding any periods (paid or unpaid) of leave, time off (including holiday time off), or other nonduty status (including furlough or AWOL status). Such excluded periods will not count toward completion of the 12-week work obligation.
(3) The term “applicable employing agency” means the agency employing the employee at the time use of paid parental leave concludes; and
(4) The date paid parental leave concludes is—
(i) The workday on which an employee finishes using 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement; or
(ii) If the employee does not use 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement, the day that is the last workday on which an employee used paid parental leave.
(c)
(d)
(e)
(f)
(2) The determination to impose the reimbursement requirement is at the agency's sole and exclusive discretion, except that an agency may not impose the requirement if, in the agency's judgment, the employee is unable to return to work for the required 12 weeks because of—
(i) The continuation, recurrence, or onset of a serious health condition (including mental health) of the employee or the child whose birth or placement was the basis for the paid parental leave, but, in the case of the employee's serious health condition, only if the condition is related to the applicable birth or placement; or
(ii) Any other circumstance beyond the employee's control, subject to paragraph (h) of this section.
(g)
(h)
(i)
(j)
(k)
(a) If an agency determines that an otherwise eligible employee who could have made an election during a past period to substitute paid parental leave (as provided in § 630.1703) and enter a work obligation agreement (as described in § 630.1705) was physically or mentally incapable of doing so during that past period, the employee may, within 5 workdays of the employee's return to duty status, make an election to substitute paid parental leave for applicable FMLA unpaid leave under § 630.1703(a) on a retroactive basis. Such a retroactive election shall be effective on the date that such an election would have been effective if the employee had not been incapacitated at the time. Consistent with § 630.1206(f)(4), this retroactive election must be made in conjunction with a retroactive election under § 630.1203(b), if the FMLA unpaid leave was not already approved. As part of such election, the employee must agree (in writing, as described in § 630.1705(b)(1)) to meet the work obligation or pay the required reimbursement (if applicable) unless—
(1) Applying the work obligation and the associated reimbursement requirement is barred under § 630.1705(f)(2); or
(2) The agency later concludes under its policies established under § 630.1705(f)(1) that the circumstances support a determination to not apply the reimbursement requirement.
(b)(1) If an agency determines that an otherwise eligible employee is physically or mentally incapable of making an election to substitute paid parental leave (as provided in § 630.1703) and entering into a work obligation agreement (as described in § 630.1705), the agency must, upon the request of a personal representative of the employee whom the agency finds acceptable, provide conditional approval of substitution of paid parental leave for applicable FMLA unpaid leave under § 630.1703(a) on a prospective basis. The conditional approval is based on the presumption that the employee would have elected to substitute paid parental leave for the applicable FMLA unpaid leave and would have entered into the work obligation agreement if the employee had not been incapacitated. Within 5 workdays after returning to work, the employee must enter into a written agreement to meet the work obligation described in § 630.1705 or pay the required reimbursement (if applicable) unless—
(i) Applying the work obligation and the associated reimbursement requirement is barred under § 630.1705(f)(2); or
(ii) The agency later concludes under its policies established under § 630.1705(f)(1) that the circumstances support a determination to not apply the reimbursement requirement.
(2) If an employee covered by paragraph (b)(1) of this section declines to enter into the written agreement after being determined by the agency to no longer be incapacitated, the agency must cancel any portion of the 12 weeks of paid parental leave that has not been exhausted, and designate as invalid any paid parental leave that was used based on the conditional approval. The time covered by the invalidated paid parental leave must be converted to leave without pay unless the employee requests that other paid leave or paid time off to the employee's credit be applied (as appropriate) in place of the invalidated paid parental leave. To the extent the employee has invalidated paid parental leave hours not replaced by other paid leave or paid time off, pay received for those hours is a debt to the employing agency and is subject to collection under the Federal Claims Collection Standards in 31 CFR parts 900 through 904.
(a) If an employee has multiple children born or placed on the same day, the multiple-child birth/placement event is considered to be a single event that triggers a single entitlement of up to 12 weeks of paid parental leave under § 630.1703(b).
(b) If an employee has one or more children born or placed during the 12-month period following the date of an earlier birth or placement of a child of the employee, the provisions of this subpart shall be independently administered for each birth or placement event. Any paid parental leave substituted for FMLA unpaid leave during the 12-month period beginning on the date of a child's birth or placement shall count towards the 12-week limit on paid parental leave described in § 630.1703(b) applicable in connection with the birth or placement involved. The substitution of paid parental leave may count toward multiple 12-week limits to the extent that there are multiple ongoing 12-month periods beginning on the date of an applicable birth or placement, each of which encompasses the day on which the leave is used. Therefore, whenever paid parental leave is substituted during periods of time when separate 12-month periods (each beginning on a date of birth or placement) overlap, the paid parental leave will count toward each affected period's 12-week limit. For example, if an employee has a child born on June 1 and another child placed for adoption on October 1 of the same year, each event would generate entitlement to substitute up to 12 weeks of paid parental leave during the separate 12-month periods beginning on the date of the birth and on the date of the placement, respectively. Those two 12-month periods would be June 1-May 31 and October 1-September 30. The overlap period for these two 12-month periods would be October 1-May 31. If
(a)
(b)
Office of Personnel Management.
Interim rule.
The Office of Personnel Management is issuing interim regulations to assist agencies and employees responding to the National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak and for future national emergencies. The regulations provide that employees who would forfeit annual leave in excess of the maximum annual leave allowable carryover because of their work to support the nation during a national emergency will have their excess annual leave deemed to have been scheduled in advance and subject to leave restoration.
The interim regulations are effective on August 10, 2020. Comments must be received on or before October 9, 2020.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method:
All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at
Doris Rippey by telephone at (202) 606-2858 or by email at
On March 13, 2020, President Trump declared a “National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” (85 FR 15337 at
OPM issued CPM 2020-09 on June 18, 2020, to remind agencies and employees of the normally applicable rules for annual leave and various paid time off categories. We reminded agencies to work with their employees to ensure that they continue to take any annual leave or other paid time off before it expires. For further guidance on the normal applicable rules, agencies and employees may review the guidance at
For most employees, the maximum annual leave that may be carried into the next leave year is 30 days (240 hours). Currently, an agency may restore annual leave that was forfeited due to an exigency of the public business or sickness of the employee only if the annual leave was scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year (typically late November or early December). Any annual leave scheduled after that date will be forfeited if not used by the final day of the leave year.
The regulations provide that, once the agency head or designee has made appropriate determinations, employees who would forfeit annual leave in excess of the maximum annual leave allowable carryover because of their work to support the nation during a national emergency will have their excess annual leave deemed to have been scheduled in advance and subject to leave restoration.
The procedures established by these interim regulations are similar to those established in previously rescinded 5 CFR 630.310 for employees whose services were deemed essential to the Year 2000 (Y2K) computer conversion and in current 5 CFR 630.311, for employees whose services were deemed essential to the emergency response in the aftermath of the September 11, 2001, terrorist attacks, which are being rescinded by this interim rule. These interim regulations differ from the previous regulations in that they allow this authority to be used not only for the current national emergency related to the COVID-19 outbreak, but also for certain future national emergencies for which OPM issues notification permitting use of this authority. These regulations allow agencies to respond quickly to the annual leave restoration needs of their employees who are responding to a national emergency.
OPM is rescinding 5 CFR 630.311, Scheduling of annual leave by employees determined necessary to respond to the “National Emergency by Reason of Certain Terrorist Attacks.” The regulations at 5 CFR 630.311 provided that the national emergency following the September 11, 2001 terrorist attacks was deemed to be an exigency of the public business for the purpose of restoring annual leave to any employee who forfeited annual leave under 5 U.S.C. 6304 because the agency determined the employee's services were required in response to that national emergency. The practical purpose of the regulations was to address the statutory and regulatory requirements for advanced scheduling of annual leave for leave restoration purposes.
The statute requires that, in order for annual leave to be eligible for restoration because of an exigency of the public business, it must have been scheduled in advance. (See 5 U.S.C. 6304(d)(1)(B).) The implementing regulations at 5 CFR 630.308(a) require annual leave to be scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year in order to meet the statutory requirement for being “scheduled in advance” unless 5 CFR 630.308(b) applies.
These requirements were difficult to meet in the aftermath of the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. The terrorist attacks occurred on September 11, 2001, which was very late in the 2001 leave year and only a couple of months before December 1, 2001, the date by which employees were required to schedule their annual leave subject to forfeiture in order for it to be considered for restoration. Many employees were involved in the response to that national emergency, and it was clear that their involvement would preclude their use of annual leave before January 12, 2002, which was the end of the 2001 leave year. Because it was known in advance that it was not going to be possible for such employees to be absent on leave, OPM published those interim regulations, which directly addressed this scheduling requirement and deemed that any annual leave forfeited as a result of an employee's work on the national emergency would be deemed to have been scheduled in advance for the purpose of satisfying the scheduling requirements at 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.308.
Although the national emergency by reason of the terrorist attacks is still in effect (see 84 FR 48545, Sept. 13, 2019), employees performing work towards that national emergency are now better able to schedule and take annual leave. Because the regulation was issued to address the difficulty of employees needing to be in a constant work status and their agencies not being able to approve any of their requests to schedule and take annual leave, and these employees have since been able to schedule and take annual leave, § 630.311 is no longer needed. Therefore, going forward, the normal requirements for restoration of annual leave for an exigency of the public business will apply to any employee still performing work on activities related to the “National Emergency by Reason of Certain Terrorist Attacks.” In order for an agency to consider restoring annual leave to an employee performing such work, the employee must have followed the leave scheduling requirements of 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.308 (
Section 6304 of title 5, United States Code, establishes limitations on the amount of annual leave an employee may carry over from one leave year to the next. Most employees may carry over no more than 240 hours of annual leave to the next leave year. However, 5 U.S.C. 6304(d)(1) provides that excess annual leave lost because of “exigencies of the public business when the annual leave was scheduled in advance . . . shall be restored to the employee.” For the purpose of Federal leave administration, an exigency of the public business occurs when the employing agency determines there is a pressing need for an employee's service, and the employee cannot use his or her excess annual leave because there are no other practical alternatives available to accomplish the work by a given deadline.
At certain times when the President declares a national emergency, the services of many employees in Federal agencies will be essential to respond to that national emergency. As a result, many of these employees will be faced with the possible forfeiture of “use or lose” annual leave because they must remain on the job to work towards the fulfillment of the agencies' missions during the critical response period. In the normal course, and in the absence of this new regulation, in order for annual leave to be considered for restoration, it must have been scheduled before the start of the third biweekly pay period prior to the end of the leave year. This requirement means that agencies and their employees would be faced with the administrative burden of scheduling, canceling, and restoring such leave for each of these employees at a time when all available attention and energy should be focused on the national emergency.
As referenced above, OPM has previously issued regulations such as 5 CFR 630.311, Scheduling of annual leave by employees determined necessary to respond to the “National Emergency by Reason of Certain Terrorist Attacks,” and the previously rescinded 5 CFR 630.310, Scheduling of annual leave by employees determined necessary for Year 2000 computer conversion efforts. Both of these prior regulations deemed the national emergency and the Y2K circumstances exigencies of the public business for purposes of restoration of annual leave. The regulations also deemed annual leave that was forfeited for these reasons to have been scheduled in advance. Those regulations were issued in response to specific emergencies. However, going forward, OPM has determined that it would be prudent to issue a generally applicable regulation to provide OPM with the flexibility to respond quickly to a future national emergency, rather than promulgate new rules for each emergency, resulting in potential delays in implementation.
To accomplish this goal, OPM is replacing the reserved 5 CFR 630.310 with a new 5 CFR 630.310 entitled “Scheduling of annual leave by employees determined necessary to respond to certain national emergencies.” Below we provide an explanation of the provisions in interim 5 CFR 630.310. Hereafter in this
In order to initiate a streamlined process to restore forfeited annual leave, the Director of OPM has the authority to respond to a specific national emergency as declared by the President. OPM's central response will allow agencies to restore annual leave expeditiously. Under this regulation, OPM will notify agencies that they may utilize this authority to restore annual leave to employees whose work is considered essential for the particular national emergency.
Under the National Emergencies Act (50 U.S.C. 1601
Paragraph (a)(1) of the new § 630.310 provides that the Director of OPM may deem a specific national emergency as declared by the President under the National Emergencies Act to be an exigency of the public business for the purpose of restoring annual leave forfeited under 5 U.S.C. 6304(d)(1)(B) and will notify agencies of this decision. Since the passage of the National Emergencies Act, the President has declared various national emergencies. However, few have required a sustained response from large portions of the civilian workforce, which would preclude many employees from being able to use their annual leave to avoid forfeiture. For example, some national
As noted above, for those emergencies that qualify under such circumstances, this generally applicable regulation will provide agencies with flexibility to permit restoration of annual leave expeditiously. The OPM Director expects to make a determination pursuant to these regulations when a certain national emergency as declared by the President will require the service of Federal employees on a large scale, such that employees will be unable to use annual leave to prevent forfeiture of the leave. Only when the Director of OPM makes such a determination and provides notice to agencies of such determination may agencies use the authority.
Paragraph (a)(2) of the new § 630.310 requires each agency head to take proactive steps to establish procedures and policies necessary to administer this annual leave restoration authority and to update them as necessary so that they are available for immediate use during a declared national emergency. The interim regulations require all agency heads to create these policies and procedures as part of their emergency planning, meaning that agencies must establish such policies and procedures to be available for use during any national emergency for which OPM issues a notice under paragraph (a)(1). In this way, all agencies will be prepared to immediately use this authority for any and all future national emergencies for which it may be necessary.
As provided in paragraph (b), once the Director of OPM informs agencies that it has deemed a certain national emergency an exigency of the public business for purposes of the restoration of annual leave, each agency head (or designee), in his or her sole and exclusive discretion, must perform the following actions. The agency head (or designee) will be required to identify any employees covered under this annual leave restoration authority because they are affected by the exigency of the public business described in the OPM notification, due to their services being considered essential to the response to the national emergency, and they therefore cannot use their annual leave. This agency designation is necessary because the employees whose work is considered essential in responding to a national emergency will vary depending on the nature of the emergency. For example, for the “National Emergency by Reason of Certain Terrorist Attacks,” the services of certain intelligence analysts may have been considered essential to the emergency response, whereas for the “National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” the services of employees such as physicians, nurses, certain clinical laboratory scientists, and public health specialists may be more likely to be designated as essential to the emergency response. The agency head (or designee) may make such a determination for groups of employees or for individual employees. Once the agency head (or designee) has made such a determination, the agency head (or designee) must inform the designated employees or group of employees in writing of this determination and its application to them. It is critical that such employees know that their services have been designated as essential during the emergency because the employees need to know that the normal requirement to schedule annual leave in writing before the start of the third biweekly pay period prior to the end of the leave year, as required by § 630.308, is not applicable during the designated time period. Employees also need to understand how the other provisions in § 630.310 apply to them.
The regulations provide that the agency's determination may not be made by any official whose leave would be affected by the decision.
Paragraph (c) of the new § 630.310 simplifies the procedures for restoring annual leave forfeited as a result of the national emergency. In many instances, as it is known in advance that it is not possible for designated employees involved in the national emergency to be absent on annual leave, the scheduling and canceling of such leave places an unnecessary administrative burden on the employees and the agencies involved. Paragraph (c) simplifies the administrative process by deeming annual leave forfeited in a leave year as a result of a national emergency for which OPM issues a notification under paragraph (a) to have been scheduled in advance for the purpose of satisfying the requirements in 5 U.S.C. 6304(d)(1)(B) and § 630.308. Therefore, annual leave forfeited at the end of a leave year because of the national emergency and the need for employees' services during the national emergency will be restored under 5 U.S.C. 6304(d)(1)(B) and placed in a separate restored leave account.
Paragraph (d) of the new § 630.310 parallels the current § 630.306 and provides the rules governing the timeframes in which an employee must schedule and use annual leave forfeited under these regulations. Employees who already have large restored annual leave accounts and employees remaining in positions performing work that is essential to respond to the national emergency for an extended period of time may accrue large amounts of annual leave in their accounts. Under the current regulations, the affected employees would have to schedule and use all of the restored annual leave by the end of the leave year ending 2 years after the termination date of the exigency of the public business. As a result, employing agencies would have to deal with the consequence of employees using sizeable amounts of leave within 2 to 3 years after the end of the national emergency. At the same time, annual leave that accrues during that 2- to 3-year period would routinely create a “use or lose” situation.
To help alleviate this situation, § 630.310(d) provides that annual leave restored as a result of the exigency of public business caused by the national emergency will have the same time limits for restoration as are currently used for Department of Defense (DoD) employees in installations undergoing closure or realignment. (See § 630.306(b).) A full-time employee will be required to schedule and use excess annual leave of 416 hours or less by the end of the leave year in progress 2 years after the date fixed by the agency head (or designee) as the termination date of the exigency of the public business. The agency will extend that period by 1 leave year for each additional 208 hours of excess annual leave or any portion thereof. A part-time employee will be required to schedule and use excess annual leave in an amount equal to or less than 20 percent of the number of hours in the employee's scheduled annual tour of duty by the end of the leave year in progress 2 years after the date the employee is no longer subject to the exigency. The agency will extend this period by 1 leave year for each additional number of hours of excess annual leave, or any portion thereof, equal to 10 percent of the number of hours in the employee's scheduled annual tour of duty.
We are also making a concurrent change to the regulations related to uncommon tours of duty at § 630.210 by adding a new paragraph (d) to clarify that in applying sections of the back pay regulations at § 550.805(g), the regulations at § 630.306(b) for DoD installations undergoing closure, and these interim regulations to employees on such tours of duty, the referenced number of hours for full-time employees (416 hours and 208 hours) are to be proportionally adjusted based on the percentage amount by which the number of hours in the uncommon tour of duty exceeds the number of hours in a regular full-time tour of duty. For example, if the uncommon tour of duty consists of 120 hours in a biweekly pay period instead of the 80 hours for a regular full-time employee, the percentage adjustment would be 50 percent [(120/80) − 1]; accordingly, 416 hours would be converted to 624 hours and 208 hours would be converted to 312 hours. Section 630.310(d)(1) references this new regulation regarding employees on uncommon tours of duty at § 630.210(d).
Paragraph (e) of the new § 630.310 recognizes that some employees who will be involved in responding to the exigency of the public business determined by the Director of OPM will already have an “active” restored leave account—
Paragraph (f) of the new § 630.310 provides parameters for monitoring the agency response to the declared national emergency and conditions under which the provisions of § 630.310 will no longer be applicable to specific employees or groups of employees and the normal annual leave forfeiture rules will again apply to them. Employees whose services are required in response to the national emergency will all, at some point, generally be able to again schedule and take annual leave following the normal procedures in § 630.308(a). Therefore, it is incumbent on the agency to determine, for any exigency of the public business, when any employee is no longer affected by the exigency to the extent that the employee cannot schedule and take annual leave. The regulations therefore lay out when the national emergency as an exigency of the public business must be terminated.
Section 630.310(f)(1) requires the agency head (or designee) to continually monitor the agency response to the national emergency and determine whether the services of individual employees or groups of employees continue to be required in response to the emergency such that annual leave may not be scheduled according to the normal procedures described in § 630.308(a). This is a necessary role that the agency head (or designee) must perform in order to use this authority for its intended purpose.
Section 630.310(f)(2) makes the agency head (or designee) responsible for fixing a specific date as the termination date of the exigency of the public business for each affected employee or group of employees based on application of provisions in paragraphs (i) through (v). The exigency of the public business as it affects an individual employee or group of employees must be terminated at the earliest occurrence of one of a series of possible events. The exigency may end when the President declares an end to the national emergency. It may also end when the Director of OPM deems the national emergency to no longer be an exigency of the public business for the purposes of this regulation. As time passes, it can be that the services of fewer and fewer employees are required in response to the national emergency. Therefore the exigency of the public business may also end when the agency head (or designee), in his or her sole and exclusive discretion, determines that the employee's or group of employees' services are no longer essential to the response to the national emergency or that such employees can once again adhere to the normal leave requesting procedures at § 630.308(a). For example, a hospital struggling to treat patients affected by COVID-19 may require the services of all hospital employees in response to the need. As operations go back to normal, the agency head (or designee) could determine the specific date that operations are back to normal, and a group of cardiologists are able to request leave under normal conditions as of a date specified by the agency head (or designee) and declare the exigency to no longer apply to those employees. However, the agency head (or designee) may determine that the services of pulmonary specialists may still be required and thus the exigency still applies to these employees. Because the continual and ongoing need for employees' services such that they cannot schedule annual leave according to the normal procedures will eventually end, the regulations provide that the exigency terminates on the day that is 12 months after the national emergency has been declared, except that the agency head (or designee), in his or her sole and exclusive discretion, may extend this deadline annually by an additional 12 months. Under no circumstances may an agency grant more than two 12-month extensions under this paragraph in connection with any national emergency, thus this authority may not be applied for more than a total of 3 years from the initial date of the declared emergency. The reason for this termination at the 3-year anniversary is that there is already another authority for an extended exigency of the public business at § 630.309 that provides authority for an exigency that lasts more than 3 calendar years and meets other requirements. Finally, the regulations provide that the exigency terminates when an employee whose services were determined to be essential for response to the national emergency moves to a position in which the employee is not performing services considered essential to responding to the national emergency.
Section 630.310(f)(3) requires the agency head (or designee) to inform both the affected employees and the agency payroll provider in writing of this termination date. Payroll providers need to know the date of the end of the exigency in order to set the date when the restored annual leave will expire. The affected employees also need to know this date so they can plan to use the restored annual leave before it expires.
Paragraph (g) of the regulations allows an agency to consider restoration of annual leave forfeited at the end of the leave year to an employee whose involvement in the national emergency ends during the leave year if the agency determines that there is a correlation between the lack of advance scheduling and the employee's services in response to the national emergency.
As noted earlier, § 630.308 currently requires that before forfeited annual leave may be considered for restoration, the leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year. We are concerned about the possible consequences of requiring advance scheduling for an employee or group of employees when the national emergency to which affected employees have been responding terminates (as described in paragraph (f)) during the latter portion of a leave year. It is possible that such employees would have annual leave in excess of the maximum limitation but would still be unable to schedule it in time for it to be restored.
OPM believes such annual leave may be considered for restoration. Section 630.310(g) requires affected employees to make a reasonable effort to comply with the advance scheduling requirement in § 630.308(a). However, the head of an agency (or designee), in his or her sole and exclusive discretion, may exempt an employee from the advance scheduling requirement if the employee can show that he or she was involved in work necessary to respond to the national emergency during the leave year and was unable to comply with the scheduling requirement under § 630.308(a) because of circumstances beyond his or her control. Because the agency may determine that there was sufficient time for the employee to schedule and use annual leave before the end of the leave year, this provision does not guarantee that excess annual leave will be restored.
OPM is amending § 630.306(a) to add a reference to this regulation. OPM is also amending § 630.308(a) to remove the reference to the rescinded § 630.311.
OPM is issuing this rulemaking as an interim final rule and has determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), it would be impracticable and contrary to the public interest to delay a final regulation until a public notice and comment process has been completed. OPM also is waiving general notice of proposed rulemaking under the Civil Service Reform Act's parallel rulemaking provision, 5 U.S.C. 1103(b)(3), because the interim rule is temporary in nature and necessary to be implemented expeditiously as a result of an existing emergency, as well possible unanticipated future emergencies.
The conclusion of a public notice and comment period before the rule is finalized would be impracticable because it would impede due and timely execution of the functions of OPM, employing agencies, and payroll providers.
In order for the streamlined restoration process to occur, the regulations require agencies to establish internal policies and procedures before using this new authority. For larger agencies, policies must be established at the headquarters level and then communicated to component levels. Significant changes to personnel processing also may be required. After implementing policies are established, the agency head (or designee) needs to identify all affected employees and communicate to those employees that they are subject to this new authority and the scheduling requirement does not apply to them. All this must be done prior to the November 21, 2020, scheduling requirement.
There was insufficient time from the President's declaration of a national emergency in response to the COVID-19 public health crisis on March 13, 2020, for OPM to complete a notice and comment rulemaking process in time for agencies, payroll providers, and employees to prepare for the rule in advance of the November 21, 2020, scheduling requirement. In addition, OPM's pay and leave policy resources have been engaged during the same period in implementing the pay and leave requirements of the Families First Coronavirus Response Act (Pub. L. 116-127) and the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136).
The conclusion of a public notice and comment period before the rule is finalized would also be contrary to the public interest because it would result in serious damage to important interests. Implementing the regulation will be resource-intensive for agencies. Requiring agencies to wait until the conclusion of public notice and comment procedures to implement the regulation under a shorter deadline would be disruptive to agencies' missions during a national emergency, which will have a corresponding effect on the public.
Many employees are unable to take annual leave because they are required to support their agency's mission-related response to COVID-19. Because employees may not take annual leave, they are also not contemplating scheduling such leave because the agency needs employees to continue to support vital work-related functions related to the national emergency. In order to alleviate this burden on agencies and employees, this interim regulation provides that, upon the agency's determination, an employee would not need to meet the normal scheduling requirements under 5 CFR 630.308 in order to qualify for the restoration of any forfeited annual leave.
For the 2020 leave year, the date by which use or lose annual leave must be scheduled is November 21, 2020. Any employee to which these regulations would apply will need to know well in advance of this scheduling date that they are not required to schedule their annual leave before that date and may instead focus on their mission and required work directly related to COVID-19.
In addition, OPM has determined that extending the regulation to address potential future emergencies, and not only COVID-19, meets the above criteria for a waiver. The processes that the regulation outlines for potential future emergencies are the same as those that OPM followed in the two prior cited emergencies and that OPM intends to follow during COVID-19. The regulations engage agencies in contingency planning for future such instances and describe the process that OPM intends to follow in such instances. Only at the time of any future national emergency do the regulations require a determination by the OPM Director that a particular emergency is an exigency of the public business. The comment period noted above will enable OPM to consider any necessary changes for future emergencies in the final rule.
Accordingly, in order to give practical effect to these regulations, I find that good cause exists to waive the general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(B). The interim final rule is temporary in nature, and expeditious timing is required because of the circumstances facing agencies during the COVID-19 emergency. OPM will promulgate a final rule as soon as practical after receiving public comments on the interim final rule.
OPM is waiving the 30-day delayed effective date, and making this rule effective on the date of publication, because under 5 U.S.C. 553(d)(1), this is “a substantive rule which grants or recognizes an exemption or relieves a restriction” to permit the streamlined restoration of forfeited annual leave. In addition, I find, under 5 U.S.C. 553(d)(3), that good cause exists for making this rule effective in fewer than 30 days—
This rule has been designated a “significant regulatory action” and has been reviewed by the Office of Management and Budget in accordance with E.O. 13563 and 12866.
This rule is not subject to the requirements of E.O. 13771 because this rule results in no more than
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.
Government employees.
Accordingly, OPM is amending part 630 of title 5 of the Code of Federal Regulations as follows:
5 U.S.C. chapter 63 as follows: Subparts A through E issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and (f), 6304(d)(2), 6306(b), 6308(a) and 6311; subpart F issued under 5 U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311; subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340, 6363, 6365(d), 6367(e), 6373(a); subpart K issued under 5 U.S.C. 6391(g); subpart L issued under 5 U.S.C. 6383(f); subpart M issued under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329 note); and subpart P issued under 5 U.S.C. 6329c(d); and subpart Q issued under 5 U.S.C. 6387.
(d) In applying § 550.805(g) of this chapter, and §§ 630.306(b), and 630.310(d), the referenced number of hours for full-time employees (416 hours and 208 hours) shall be proportionally adjusted based on the percentage amount by which the number of hours in the uncommon tour of duty exceeds the number of hours in a regular full-time tour of duty. For example, if the uncommon tour of duty consists of 120 hours in a biweekly pay period instead of the 80 hours for a regular full-time employee, the percentage adjustment would be 50 percent [(120/80) − 1]; accordingly, 416 hours would be converted to 624 hours and 208 hours would be converted to 312 hours.
(a) Except as otherwise authorized under paragraphs (b) and (c) of this section, § 630.310(d), or other regulation, annual leave restored under 5 U.S.C. 6304(d) must be scheduled and used not later than the end of the leave year ending 2 years after:
(1) The date of restoration of the annual leave forfeited because of administrative error; or
(2) The date fixed by the agency head, or his or her designee, as the termination date of the exigency of the public business that resulted in forfeiture of the annual leave; or
(3) The date the employee is determined to be recovered and able to return to duty if the leave was forfeited because of sickness.
(a) Except as provided in paragraph (b) of this section and § 630.310, before annual leave forfeited under 5 U.S.C. 6304 may be considered for restoration under that section, use of the annual leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year.
(a)(1) The Director of OPM may deem a specific national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601,
(2) The head of each agency is responsible for the proper administration of this authority. All heads of agencies are required to establish and periodically update (as necessary) procedures to administer this authority so that these policies are in place and immediately available for use any time the Director of OPM notifies agencies of a determination under paragraph (a)(1) of this section.
(b)(1) Once the Director of OPM has issued a notification to agencies under paragraph (a)(1), the head of each agency (or designee) must, in his or her sole and exclusive discretion, do the following:
(i) Make determinations identifying the specific employees or groups of employees who are performing services that are essential in responding to the national emergency designated as an exigency of the public business and who are thus qualified for coverage under this section; and
(ii) Inform covered employees in writing of any such determination and its application to them.
(2) A determination under paragraph (b)(1)(i) of this section may not be made by any official whose leave would be affected by the determination.
(c) For any employee determined under paragraph (b) of this section to be covered under this section who forfeits
(d) With respect to annual leave forfeited under paragraph (c) of this section, the annual leave must be restored under 5 U.S.C. 6304(d)(1)(B) subject to the following time limits:
(1) A full-time employee must schedule and use excess annual leave of 416 hours or less by the end of the leave year in progress 2 years after the date fixed by the agency head (or designee) under paragraph (f)(2) of this section as the termination date of the exigency of the public business. The agency must extend this period by 1 leave year for each additional 208 hours of excess annual leave or any portion thereof.
For an employee on an uncommon tour of duty, the conversion rules in § 630.210(d) regarding the referenced number of hours for full-time employees (416 hours and 208 hours) must be applied.
(2) A part-time employee must schedule and use excess annual leave in an amount equal to or less than 20 percent of the number of hours in the employee's scheduled annual tour of duty by the end of the leave year in progress 2 years after the date fixed by the agency head (or designee) under paragraph (f)(2) of this section as the termination date of the exigency of the public business. The agency must extend this period by 1 leave year for each additional number of hours of excess annual leave, or any portion thereof, equal to 10 percent of the number of hours in the employee's scheduled annual tour of duty.
(e) The time limits established under paragraphs (d)(1) and (d)(2) of this section for using restored annual leave accounts shall not apply for the entire period during which an employee's services are determined by the agency to be essential for the response to the national emergency. When coverage under paragraphs (b) and (c) of this section ends due to the termination date of the exigency of the public business fixed by the agency under paragraph (f)(2), a new time limit will be established under paragraph (d) of this section for all annual leave restored to an employee under 5 U.S.C. 6304(d).
(f)(1) The agency head (or designee) must continually monitor the agency response to the national emergency and determine whether the services of individual employees or groups of employees continue to be essential for the response to the emergency such that annual leave may not be scheduled according to the normal procedures described in § 630.308(a).
(2) The agency head (or designee) must fix a date as the termination date of the exigency of the public business for each employee or group of employees as provided in this paragraph. The exigency of the public business as it affects an individual employee or group of employees must be terminated on the date one of the following events occurs, whichever is earliest:
(i) When the President declares an end to the national emergency;
(ii) When the Director of OPM deems the national emergency to no longer be an exigency of the public business for purposes of this authority;
(iii) When the agency head (or designee), in his or her sole and exclusive discretion, determines that the services of an employee or group of employees are no longer essential to the response to the national emergency or that such employees are able to follow the normal leave scheduling procedures in § 630.308(a);
(iv) On the day that is 12 months after the national emergency has been declared, an agency head (or designee), in his or her sole and exclusive discretion, may extend this deadline annually by an additional 12 months; under no circumstances may an agency grant more than two 12-month extensions under this paragraph in connection with any national emergency (however, § 630.309 may apply in the case of an extended exigency); or
(v) When an employee whose services were determined to be essential during the national emergency moves to a position not involving services determined by the agency to be essential to the response to the national emergency.
(3) The agency head (or designee) must inform both the affected employees and the agency payroll provider in writing of the termination date as determined in paragraph (f)(2) of this section.
(g) When the agency head (or designee) fixes a termination date of the exigency of the public business under paragraph (f) of this section, each affected employee must make a reasonable effort to comply with the scheduling requirement in § 630.308(a). The head of the agency (or designee), in his or her sole and exclusive discretion, may exempt such an employee from the advance scheduling requirement in § 630.308(a) if coverage under paragraphs (a) and (b) of this section terminated during the leave year and if the head of the agency (or designee) determines that the employee was unable to comply with the advance scheduling requirement because of circumstances beyond the employee's control.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This correction is effective August 17, 2020. The effective date of AD 2020-13-01 remains August 17, 2020.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 17, 2020 (85 FR 41906, July 13, 2020).
For service information identified in this final rule, contact Kodiak Aircraft Company, Inc., 1200 Turbine Drive, Sandpoint, Idaho 83864; phone: (208) 263-1111 or 1 (866) 263-1112; email:
You may examine the AD docket on the internet at
Wade Sullivan, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3530; email:
As published, AD 2020-13-01, Amendment 39-21146 (85 FR 41906, July 13, 2020), applies to all Daher Aircraft Design, LLC (type certificate previously held by Quest Aircraft Design, LLC), Model KODIAK 100 airplanes. AD 2020-13-01 requires a one-time inspection to determine if an affected nose landing gear (NLG) fork is installed, repetitive inspections of the affected NLG fork for cracks, repetitive inspections of the shimmy damper bracket for looseness and of the shimmy damper system for damaged components if an affected NLG fork is installed, and rework/replacement of parts as necessary.
As published, the TC holder in the regulatory heading that identifies the AD is incorrect. The heading incorrectly identified the TC holder as “Quest Aircraft Design, LLC.” The correct TC holder is Daher Aircraft Design, LLC (Type Certificate previously held by Quest Aircraft Design, LLC).
Although no other part of the preamble or regulatory information has been corrected, for clarity, the FAA is publishing the entire rule in the
The effective date of this AD remains August 17, 2020.
The FAA reviewed Quest Aircraft Field Service Instruction FSI-147, Revision 00, Release Date January 29, 2018, which provides instructions for inspection and, if necessary, replacement of the NLG fork. The FAA reviewed pages 32_110 and 32_111, section 3252, Shimmy Damper, Chapter 32, Landing Gear, of Quest Aircraft Company Kodiak 100 Maintenance Manual, Revision No. 21, dated February 15, 2017, which contains procedures for inspecting the shimmy damper system. The FAA also reviewed Quest Aircraft Field Service Instruction FSI-146, Revision 00, Release Date April 18, 2017, which provides instructions for modifying the shimmy damper attach bracket. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
Since this action only corrects the TC holder in a regulatory heading, the FAA finds that notice and public comment under 5 U.S.C. 553(b) is unnecessary. For the same reason, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective in less than 30 days.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective August 17, 2020.
None.
This AD applies to Daher Aircraft Design, LLC (type certificate previously held by Quest Aircraft Design, LLC), Model KODIAK 100 airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 32, Landing Gear.
This AD was prompted by reports from the manufacturer of fatigue cracks on the nose landing gear (NLG) fork. The FAA is issuing this AD to detect and prevent fatigue cracking of the NLG fork. The unsafe condition, if not corrected, could result in separation of the NLG fork with consequent reduced control on landing. If the NLG fork separates on an unimproved surface, the risk of the NLG digging in and the airplane overturning on the ground increases.
Comply with this AD within the compliance times specified, unless already done.
Within 25 hours time-in-service (TIS) after August 17, 2020 (the effective date of this AD), inspect the airplane to determine if an NLG fork part number (P/N) 100-410-7001 (type A) or an NLG fork P/N 100-410-7013 (type B) is installed. If you determine that an NLG fork P/N 100-410-7013 (type B) is installed during the inspection, no further action is required by this AD. If a review of the maintenance records can identify the P/N NLG fork that is installed, you may use a maintenance records review in lieu of inspecting the airplane to determine if an NLG fork P/N 100-410-7001 (type A) or an NLG fork P/N 100-410-7013 (type B) is installed.
(1) If you determine that an NLG fork P/N 100-410-7001 (type A) is installed during
(2) If you find any cracks of the NLG fork during any inspection required by paragraph (h)(1) of this AD, before further flight, replace the NLG fork with an NLG fork P/N 100-410-7013 (type B). Replacement of the NLG fork with an NLG fork P/N 100-410-7013 (type B) terminates the repetitive inspections required by paragraphs (h)(1) and (i)(1) of this AD.
(1) If you have not replaced an NLG fork P/N 100-410-7001 (type A) per the initial inspection and replacement requirements in paragraph (h) of this AD, then within 25 hours TIS after August 17, 2020 (the effective date of this AD) and thereafter at intervals not to exceed 200 hours TIS (until the NLG fork is replaced with a P/N 100-410-7013 (type B) fork), inspect the shimmy damper bracket for looseness, and inspect the shimmy damper system for damaged (loose, leaking, corroded, or worn) components, by following pages 32_110 and 32_111, section 3252, Shimmy Damper, found in Chapter 32, Landing Gear, of Quest Aircraft Company Kodiak 100 Maintenance Manual, Revision No. 21, dated February 15, 2017.
(2) If a loose shimmy damper bracket is found during any inspection required by paragraph (i)(1) of this AD, rework the shimmy damper bracket with interference-fit bolts by following Quest Aircraft Field Service Instruction FSI-146, Revision 00, Release Date April 18, 2017. Reworking the shimmy damper bracket with the interference-fit bolts terminates the repetitive inspections required by paragraph (i)(1) of this AD.
(3) If any other damaged components are found in the shimmy damper system during any inspection required by paragraph (i)(1) of this AD, before further flight, replace the damaged components.
In lieu of the NLG fork and shimmy damper bracket inspections required by paragraphs (h)(1) and (i)(1) of this AD, you may replace the NLG fork P/N 100-410-7001 (type A) with an NLG fork P/N 100-410-7013 (type B). This replacement terminates the inspection requirements of this AD, and no further actions are required.
Once an NLG fork P/N 100-410-7013 (type B) is installed on an airplane, do not install an NLG fork P/N 100-410-7001 (type A). If an NLG fork P/N 100-410-7013 (type B) is removed from the airplane for any reason (for example, to install floats), you must reinstall an NLG fork P/N 100-410-7013 (type B) when operating with wheels.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (m) of this AD. Information may also be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Wade Sullivan, Aerospace Engineer, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3530; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on August 17, 2020 (85 FR 41906, July 13, 2020).
(i) Pages 32_110 and 32_111, section 3252, Shimmy Damper, Chapter 32, Landing Gear, of Quest Aircraft Company Kodiak 100 Maintenance Manual, Revision No. 21, dated February 15, 2017.
(ii) Quest Aircraft Field Service Instruction FSI-146, Revision 00, Release Date April 18, 2017.
The Release Date is a pen-and-ink addition that appears only on the Revision Notice transmitted with FSI-146.
(iii) Quest Aircraft Field Service Instruction FSI-147, Revision 00, Release Date January 29, 2018.
The Release Date is a pen-and-ink addition that appears only on the Revision Notice transmitted with FSI-147.
(4) For service information identified in this AD, contact Kodiak Aircraft Company, Inc., 1200 Turbine Drive, Sandpoint, Idaho 83864; phone: (208) 263-1111 or 1 (866) 263-1112; email:
(5) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call 816-329-4148.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Financial Crimes Enforcement Network (FinCEN), Treasury.
Withdrawal of finding.
This document withdraws FinCEN's finding that BDA is a financial institution of primary money laundering concern, which was issued pursuant to Section 311 of the USA PATRIOT Act (Section 311). Subsequent to the issuance of this withdrawal, FinCEN will reassess whether BDA is presently a financial institution of primary money laundering concern and additional rulemaking is warranted. Elsewhere in this issue of the
As of August 10, 2020, the Notice of Finding, published September 20, 2005, at 70 FR 55214, is withdrawn.
The FinCEN Resource Center at
On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (USA PATRIOT Act). Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the Bank Secrecy Act (BSA), codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314, 5316-5332, to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR chapter X. The authority of the
Section 311 of the USA PATRIOT Act grants the Secretary the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, foreign financial institution, class of transactions, or type of account is of “primary money laundering concern,” to require domestic financial institutions and financial agencies to take certain “special measures” to address the primary money laundering concern. The five special measures enumerated under Section 311 are prophylactic safeguards that defend the U.S. financial system from money laundering and terrorist financing. FinCEN may impose one or more of these special measures in order to protect the U.S. financial system from these threats. To that end, special measures one through four, codified at 31 U.S.C. 5318A(b)(1)-(b)(4), impose additional recordkeeping, information collection, and information reporting requirements on covered U.S. financial institutions. The fifth special measure, codified at 31 U.S.C. 5318A(b)(5), allows the Secretary to prohibit or impose conditions on the opening or maintaining of correspondent or payable-through accounts by covered U.S. financial institutions for or on behalf of a foreign banking institution.
Taken as a whole, Section 311 provides the Secretary with a range of options that can be adapted to target specific money laundering and terrorist financing concerns most effectively. These options provide the authority to bring additional and necessary pressure on those jurisdictions and institutions that pose money-laundering threats and the ability to take steps to protect the U.S. financial system. Through the imposition of various special measures, FinCEN can: Gain more information about the concerned jurisdictions, financial institutions, transactions, and accounts; monitor more effectively the respective jurisdictions, financial institutions, transactions, and accounts; and, ultimately, protect U.S. financial institutions from involvement with jurisdictions, financial institutions, transactions, or accounts that pose a money laundering concern.
On September 20, 2005 (70 FR 55214), FinCEN published a finding in the
Shortly after FinCEN concluded its rulemaking proceedings, in April 2007, BDA submitted a petition requesting the immediate rescission of the Final Rule. The following month, Stanley Au and Delta Asia Group (Holdings) Ltd., the owners of BDA, filed a separate petition for rescission of the Final Rule. FinCEN denied both petitions on September 21, 2007. On November 16, 2010, BDA again petitioned FinCEN to repeal the Final Rule. As part of an ongoing dialogue between FinCEN and BDA from 2012 through 2019, BDA agreed to arrange for two independent reviews of the bank, the results of which were subsequently shared with FinCEN.
By letter dated September 26, 2019, FinCEN ultimately denied BDA's November 2010 petition, providing BDA a memorandum thoroughly explaining its decision. In its denial, FinCEN discussed the results of the independent reviews of BDA and identified the limitations in these reviews. FinCEN acknowledged that BDA had taken steps to address some of the deficiencies highlighted in the Notice of Finding and Final Rule, but concluded that BDA had failed to correct other significant deficiencies. FinCEN ultimately determined that BDA's AML compliance efforts remained inadequate to address the risks identified in the Notice of Finding and Final Rule.
In addition to petitioning FinCEN to withdraw the Final Rule, BDA filed suit on March 14, 2013, in the United States District Court for the District of Columbia challenging the Notice of Finding and the Final Rule. This litigation was stayed for many years so that the dialogue described above could continue. Both FinCEN and BDA have since agreed that there are advantages to FinCEN's revisiting the Final Rule and to settling this litigation. This course of action allows BDA to submit any remaining additional comments and permits FinCEN to take stock of the present circumstances and, if appropriate, to avail itself of the informal rulemaking process (providing the public with an opportunity for notice and comment, in contrast to action on a petition) if it decides to take further action. As part of this settlement, FinCEN has agreed to reassess whether BDA is presently a financial institution of primary money laundering concern. BDA will be permitted to submit comments to FinCEN regarding the September 26, 2019 petition denial prior to FinCEN's engaging in any additional Section 311 rulemaking involving BDA.
In the event that FinCEN determines that the imposition of any special measures may be warranted, it will undertake a new rulemaking effort (including the publication of a new notice of proposed rulemaking). Any such proposed rule will allow for 30 days of comment, and as part of the rulemaking proceeding, FinCEN will make available for comment the unclassified, non-protected material relied upon by FinCEN in connection with any such rulemaking. If FinCEN determines that a final rule is appropriate, FinCEN will publish such a final rule 60 days following the close of the comment period. If the extent of submitted comments requires additional time, or if COVID-19-related issues hinder the agency's ability to satisfy the proposed timeframes, FinCEN will so announce in the
For the reasons set forth above, FinCEN hereby withdraws the Notice of Finding that BDA is of primary money laundering concern published on September 20, 2005.
Financial Crimes Enforcement Network (FinCEN), Treasury.
Final rule.
This rule repeals regulations concerning Special measures against Banco Delta Asia, which were issued pursuant to Section 311 of the USA PATRIOT Act (Section 311). Subsequent to the issuance of this rule, FinCEN will
Effective August 10, 2020.
The FinCEN Resource Center at
On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (USA PATRIOT Act). Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the Bank Secrecy Act (BSA), codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314, 5316-5332, to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR chapter X. The authority of the Secretary of the Treasury to administer the BSA and its implementing regulations has been delegated to the Director of FinCEN.
Section 311 of the USA PATRIOT Act grants the Secretary the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, foreign financial institution, class of transactions, or type of account is of “primary money laundering concern,” to require domestic financial institutions and financial agencies to take certain “special measures” to address the primary money laundering concern. The five special measures enumerated under Section 311 are prophylactic safeguards that defend the U.S. financial system from money laundering and terrorist financing. FinCEN may impose one or more of these special measures in order to protect the U.S. financial system from these threats. To that end, special measures one through four, codified at 31 U.S.C. 5318A(b)(1)-(b)(4), impose additional recordkeeping, information collection, and information reporting requirements on covered U.S. financial institutions. The fifth special measure, codified at 31 U.S.C. 5318A(b)(5), allows the Secretary to prohibit or impose conditions on the opening or maintaining of correspondent or payable-through accounts by covered U.S. financial institutions for or on behalf of a foreign banking institution.
Taken as a whole, Section 311 provides the Secretary with a range of options that can be adapted to target specific money laundering and terrorist financing concerns most effectively. These options provide the authority to bring additional and necessary pressure on those jurisdictions and institutions that pose money-laundering threats and the ability to take steps to protect the U.S. financial system. Through the imposition of various special measures, FinCEN can: Gain more information about the concerned jurisdictions, financial institutions, transactions, and accounts; monitor more effectively the respective jurisdictions, financial institutions, transactions, and accounts; and, ultimately, protect U.S. financial institutions from involvement with jurisdictions, financial institutions, transactions, or accounts that pose a money laundering concern.
On September 20, 2005, FinCEN published a finding in the
Shortly after FinCEN concluded its rulemaking proceedings, in April 2007, BDA submitted a petition requesting the immediate rescission of the Final Rule. The following month, Stanley Au and Delta Asia Group (Holdings) Ltd., the owners of BDA, filed a separate petition for rescission of the Final Rule. FinCEN denied both petitions on September 21, 2007. On November 16, 2010, BDA again petitioned FinCEN to repeal the Final Rule. As part of an ongoing dialogue between FinCEN and BDA from 2012 through 2019, BDA agreed to arrange for two independent reviews of the bank, the results of which were subsequently shared with FinCEN.
By letter dated September 26, 2019, FinCEN ultimately denied BDA's November 2010 petition, providing BDA a memorandum thoroughly explaining its decision. In its denial, FinCEN discussed the results of the independent reviews of BDA and identified the limitations in these reviews. FinCEN acknowledged that BDA had taken steps to address some of the deficiencies highlighted in the Notice of Finding and Final Rule, but concluded that BDA had failed to correct other significant deficiencies. FinCEN ultimately determined that BDA's AML compliance efforts remained inadequate to address the risks identified in the Notice of Finding and Final Rule.
In addition to petitioning FinCEN to withdraw the Final Rule, BDA filed suit on March 14, 2013, in the United States District Court for the District of Columbia challenging the Notice of Finding and the Final Rule. This litigation was stayed for many years so that the dialogue described above could continue. Both FinCEN and BDA have since agreed that there are advantages to FinCEN's revisiting the Final Rule and to settling this litigation. This course of action allows BDA to submit any remaining additional comments and permits FinCEN to take stock of the present circumstances and, if appropriate, to avail itself of the informal rulemaking process (providing the public with an opportunity for notice and comment, in contrast to action on a petition) if it decides to take further action. As part of this settlement, FinCEN has agreed to reassess whether BDA is presently a financial institution of primary money laundering concern. BDA will be permitted to submit comments to FinCEN regarding the September 26, 2019, petition denial prior to FinCEN's engaging in any additional Section 311 rulemaking involving BDA.
In the event that FinCEN determines that the imposition of any special measures may be warranted, it will undertake a new rulemaking effort (including the publication of a new notice of proposed rulemaking). Any such proposed rule will allow for 30 days of comment, and as part of the rulemaking proceeding, FinCEN will make available for comment the unclassified, non-protected material relied upon by FinCEN in connection with any such rulemaking. If FinCEN determines that a final rule is appropriate, FinCEN will publish such a final rule 60 days following the close of the comment period. If the extent of submitted comments requires additional time, or if COVID-19-related issues hinder the agency's ability to satisfy the proposed timeframes, FinCEN will so announce in the
For the reasons set forth above, FinCEN hereby repeals the Final Rule.
Although Section 553 of the Administrative Procedure Act (5 U.S.C. 551
It has been determined that this rulemaking is not a significant regulatory action for purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), Public Law 104-4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 202 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN has determined that it is not required to prepare a written statement under Section 202 and has concluded that on balance the rule provides the most cost effective and least burdensome alternative to achieve the objectives of the rule.
Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This regulation discontinues the Office of Management and Budget Control Number 1506-0041 assigned to the final rule and, as a result, reduces the estimated average burden of one hour per affected financial institution, totaling 5,000 hours. This regulation contains no new information collection requirements subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)
Administrative practice and procedure, Banks and banking, Brokers, Counter-money laundering, Counter-terrorism, Foreign banking.
For the reasons set forth above, 31 CFR part 1010 is amended as follows:
12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314, 5316-5332; Title III, sec. 314, Pub. L. 107-56, 115 Stat. 307; sec. 701, Pub. L. 114-74, 129 Stat. 599.
Coast Guard, DHS.
Correcting amendments.
On February 13, 2020, the Coast Guard published a final rule on Navigation and Navigable Waters, and Shipping; Technical, Organizational, and Conforming Amendments for U.S. Coast Guard Field Districts 5, 8, 9, 11, 13, 14, and 17. Effective March 16, 2020, that rule removed a security zone regulation when only the section heading for that regulation needed to be amended. This document corrects that error.
Effective August 10, 2020.
Dominique Christianson, Coast Guard, telephone 202-372-3856 or fax 202-372-8405.
On February 13, 2020 the Coast Guard published a rule in the
All the 2020 rule should have done was to remove the reference to the Port of Port Lavaca-Point Comfort in the section heading. This document corrects the error of removing the Port of Corpus Christi Inner Harbor, Corpus Christi Safety Zone regulation by reinstating § 165.809 with the correct section heading.
We find good cause under 5 U.S.C. 553(d) to make this correction effective on its date of publication. Delaying its effective date would increase risk of vessel collisions as the security zone is needed to protect a portion of the waterway that has a high volume of commercial vessel traffic and military outload vessel traffic.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
Accordingly, 33 CFR part 165 is corrected by making the following correcting amendments:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(2) Recreational vessels, passenger vessels and commercial fishing vessels requiring entry into the security zone must contact the Captain of the Port Corpus Christi or a designated representative. The Captain of the Port may be contacted via VHF Channel 16 or via telephone at (361) 888-3162 to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port, Corpus Christi or a designated representative.
(3) Designated representatives include U.S. Coast Guard commissioned, warrant, and petty officers.
(c)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation for certain waters of the North Atlantic Ocean adjacent to Ocean City, MD. This action is necessary to provide for the safety of life on these navigable waters located at Ocean City, MD, during activities associated with an air show event from August 13, 2020, through August 16, 2020. This rule prohibits persons and vessels from entering the regulated area unless authorized by the Captain of the Port Maryland-National Capital Region or the Coast Guard Patrol Commander.
This rule is effective from August 13, 2020, through August 16, 2020. It will be enforced from 9 a.m. to 6 p.m. each day the rule is in effect.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MST2 Shaun Landante, U.S. Coast Guard Sector Maryland-National Capital Region; telephone 410-576-2516, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because an NPRM would be impracticable and contrary to the public interest. On June 16, 2020, the Town of Ocean City, MD, notified the Coast Guard that it will be conducting the 2020 Ocean City Air Show from 10 a.m. to 5 p.m. on August 16, 2020. The annual air show consists of various types of military and civilian aircraft performing low-flying, high-speed precision maneuvers and aerial stunts. In addition to these two air show performance dates, approach and circle maneuvers will be conducted by the U.S. Navy's Blue Angels flight demonstration squadron aircraft between 10 a.m. and 5 p.m. on August 13, 2020, and a full practice show rehearsal will be conducted by all air show performers from 10 a.m. to 5 p.m. on August 14, 2020. We must establish this safety zone by August 13, 2020, to ensure the safety of particpants and nearby waterway users. Hazards from the air show event include risks of injury or death resulting from aircraft accidents, dangerous projectiles, hazardous materials spills, falling debris, and near or actual contact among participants and spectator vessels or waterway users if normal vessel traffic were to interfere with the event. Additionally, such hazards include participants operating near a designated navigation channel, as well as operating adjacent to a popular summer beach area and its numerous oceanside businesses.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 1231). The Captain of the Port Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the air show, to be held from August 13, 2020 through August 16, 2020, will be a safety concern for anyone intending to participate in this event and for vessels that operate within specified waters of the North Atlantic Ocean. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone for the duration of this event.
This rule establishes special local regulations from 9 a.m. on August 13, 2020, through 6 p.m. on August 16, 2020. The regulated area will cover all navigable waters of the North Atlantic Ocean within an area bounded by the following coordinates: Commencing at a point near the shoreline in the vicinity of 33rd Street, Ocean City, MD, latitude 38°21′48.8″ N, longitude 075°04′10″ W,
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on size, location and duration of the regulated area, which will impact a small designated area of the North Atlantic Ocean adjacent to Ocean City, MD for 36 total enforcement hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule will allow vessels and persons to seek permission to enter the regulated area.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule will not have a significant economic impact on any vessel owner or operator.
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 rule. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area for 36 hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for Record supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP Maryland-National Capital Region at telephone number 410-576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz) or the PATCOM on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Those in the regulated area must comply with all lawful orders or directions given to them by the COTP Maryland-National Capital Region, PATCOM, or official patrol.
(3) Vessels are required to operate at a safe speed that minimizes wake while within the regulated area in a manner that would not endanger event participants or any other craft.
(4) The air show aerobatics area located within the regulated area described in paragraph (a) of this section is restricted to participants.
(5) The COTP Maryland-National Capital Region will provide notice of the regulated area through advanced notice via Fifth Coast Guard District Local Notice to Mariners, broadcast notice to mariners, and on-scene official patrols.
(d)
(e)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce two safety zones in the Sector Long Island Sound area of responsibility on the dates and times listed in the table below. This action is necessary to provide for the safety of life on navigable waterways during the event. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port (COTP) Sector Long Island Sound or designated representative.
The Coast Guard will enforce the regulations in 33 CFR 165.151 Table 1 for the Lawrence Beach Club Fireworks on September 6, 2020, from 8:30 p.m. to 10:30 p.m.
If you have questions on this notice, call or email Petty Officer Chris Gibson, Waterways Management Division, U.S. Coast Guard Sector Long Island Sound; telephone 203-468-4565, email
The Coast Guard will enforce the safety zones listed in 33 CFR 165.151 Table 1 for the Lawrence Beach Club fireworks and the Town of Babylon fireworks.
Under the provisions of 33 CFR 165.151, these events listed are established as a safety zone. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the safety zones unless they receive permission from the COTP or designated representative.
The Coast Guard will enforce the safety zones for item 7.5 in Table 1 in § 165.151 for the Lawrence Beach Club Fireworks on September 6, 2020, with a rain date of September 7. The safety zone is in effect from 8:30 p.m. to 10:30 p.m. for the waters of the Atlantic Ocean off Lawrence Beach Club, Atlantic Beach, NY in approximate position, 40°34′42.65″ N, 073°42′56.02″ W (NAD 83).
On August 5, the Coast Guard will enforce a safety zone for the Town of Babylon Annual Fireworks from 8:30 p.m. to 10:30 p.m. The safety zone is for the waters off Cedar Beach Town Park, Babylon, NY in approximate position, 40°37′53″ N, 073°20′12″ W (NAD 83). The rain date for the event is August 6.
This notice is issued under authority of 33 CFR 165 and 5 U.S.C. 552 (a). In addition to this notice in the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to find that Texas has failed to submit State Implementation Plans (SIPs) to satisfy certain nonattainment area planning requirements of the Clean Air Act (CAA) for the 2010 1-hour primary Sulfur Dioxide (SO
This action is effective on September 9, 2020.
General questions concerning this document should be addressed to Robert Imhoff, EPA Region 6, Air and Radiation Division, by telephone (214) 665-7262 or by email at
Section 553 of the APA, Title 5 United States Code (U.S.C.) Section 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making findings of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submission to meet the requirement. Thus, notice and public procedures are unnecessary to take this action. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2020-0363. Publicly available docket materials are available electronically through
In June 2010, the EPA promulgated a new 1-hour primary SO
Areas designated as nonattainment for the SO
If the EPA finds that a state has failed to make the required SIP submittal or that a submitted SIP is incomplete, then CAA section 179(a) establishes specific consequences, including the imposition of mandatory sanctions for the affected area, after a period of time, if within that period the state does not submit a complete SIP for the nonattainment area. Additionally, such a finding also triggers an obligation under CAA section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding of failure to submit if the affected state has not submitted, and EPA has not approved, the required SIP submittal.
If the EPA has not affirmatively determined that a state has made the required complete SIP submittal for an area within 18 months of the effective date of this rulemaking, then, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) will apply in the affected nonattainment area. If the EPA has not affirmatively determined that the state has made a complete submission within 6 months after the offset sanction is imposed, then the highway funding sanction will apply in the affected nonattainment area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The sanctions will not take effect if, within 18 months after the date of these findings, the EPA affirmatively determines that the affected state has made a complete SIP submittal addressing the deficiency for which the finding was made. Additionally, if the state makes the required SIP submittal and the EPA takes final action to approve the submittal within 2 years of the effective date of these findings, the EPA is not required to promulgate a FIP for the affected nonattainment area.
As of the date of signature of this action, Texas failed to make complete SIP submittals required under part D of Title 1 of the CAA by July 13, 2018, for the three areas designated nonattainment effective January 12, 2017. The EPA is, therefore, issuing Texas a finding of failure to submit for the following three nonattainment areas: Portions of Anderson-Freestone Counties, Texas; portions of Rusk-Panola Counties Texas; and a portion of Titus County, Texas.
The EPA believes that the human health or environmental risks addressed by this action will not have disproportionately high or adverse human health or environmental effects on minority, low-income, or indigenous populations because it does not affect the level of protection provided to human health or the environment under the SO
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action is not an Executive Order 13771 regulatory action because it finds that Texas failed to meet the requirement in the CAA to submit SIPs under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) for the SO
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act. This final rule does not establish any new information collection requirement apart from what is already required by law. This rule relates to the requirement in the CAA for states to submit SIPs under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) which address the statutory requirements that apply to areas designated as nonattainment for the SO
I certify that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The rule is a finding that Texas has not made the necessary SIP submission for certain nonattainment areas to meet the requirements of part D of title I of the CAA.
This action does not contain any unfunded mandate as described in UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on Texas, on the relationship between the national government and Texas, or on the distribution of power and
This action does not have tribal implications as specified in Executive Order 13175. This rule finds that Texas has failed to complete the requirement in the CAA to submit SIPs under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) for the SO
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is a finding that Texas has failed to submit a complete SIP that satisfies the nonattainment area plan requirements under section 172 and subpart 5 of part D of Title I of the CAA and does not directly or disproportionately affect children.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. In finding that Texas has failed to submit a complete SIP that satisfies the nonattainment area planning requirements under section 172 and subpart 5 of part D of Title I of the CAA, this action does not adversely affect the level of protection provided to human health or the environment.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
This final action consists of a Finding of Failure to Submit certain required SIP provisions for the three identified areas in Texas designated nonattainment for the 2010 SO
Environmental protection, Administrative practice and procedures, Air pollution control, Approval and promulgation of implementation plans, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
42 U.S.C. 7401
Federal Emergency Management Agency, DHS.
Temporary final rule; extension of effective date with modifications.
In April, the Federal Emergency Management Agency (FEMA) issued a temporary final rule to allocate certain health and medical resources for domestic use, so that these resources may not be exported from the United States without explicit approval by FEMA. The rule covered five types of personal protective equipment (PPE), outlined below. While this rule remains in effect, and subject to certain exemptions stated below, no shipments of such designated materials may leave the United States without explicit approval by FEMA. Through this extension, FEMA modifies the types of PPE covered and extends the duration of the temporary final rule.
You may review the docket by searching for Docket ID FEMA-2020-0018, via the Federal eRulemaking Portal:
Daniel McMasters, Office of Policy and Program Analysis, 202-709-0661,
On April 10, 2020, FEMA published a temporary final rule in the
COVID-19 is a communicable disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan, Hubei Province, People's Republic of China. On January 30, 2020, the Director-General of the World Health Organization (WHO) declared that the outbreak of COVID-19 is a Public Health Emergency of International Concern under the International Health Regulations.
Within the United States, widespread transmission of COVID-19 has occurred. Widespread transmission of COVID-19 has resulted and will continue to result in large numbers of people needing medical care at the same time. Public health and healthcare systems have become overwhelmed in some areas, with elevated rates of hospitalizations and deaths, as well as elevated demand for PPE, including the PPE covered by this rule.
FEMA is extending and modifying this temporary final rule as part of its response to the COVID-19 pandemic. The rule is issued pursuant to the following authorities, among others:
• The Defense Production Act of 1950, as amended (“DPA” or “the Act”), and specifically sections 101 and 704 of the Act, 50 U.S.C. 4511, 4554;
• Executive Order 13909, 85 FR 16227 (Mar. 23, 2020);
• Executive Order 13911, 85 FR 18403 (Apr. 1, 2020);
• Department of Homeland Security (DHS) Delegation Number 09052 Rev. 00.1, “Delegation of Defense Production Act Authority to the Administrator of the Federal Emergency Management Agency” (Apr. 1, 2020); and
• The Presidential Memorandum on Allocating Certain Scarce or Threatened Health and Medical Resources to Domestic Use (April 3, 2020).
Under subsection 101(a) of the Act, 50 U.S.C. 4511(a), the President may (1) require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance. The President may also (2) allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense. FEMA refers to these authorities as relating to “priority ratings” and “allocation,” respectively.
Under subsection 101(b) of the Act, 50 U.S.C. 4511(b), the President may not use the aforementioned authorities to control the general distribution of any material in the civilian market unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.
Under subsection 101(d) of the Act, 50 U.S.C. 4511(d), the head of each Federal agency to which the President delegates authority under section 101 of the Act (1) shall issue, and annually review and update whenever appropriate, final rules, in accordance with 5 U.S.C. 553, that establish standards and procedures by which the priorities and allocations authority under section 101 is used to promote the national defense, under both emergency and nonemergency conditions; and (2) as appropriate and to the extent practicable, consult with the heads of other Federal agencies to develop a consistent and unified Federal priorities and allocations system.
On March 18, 2020, the President signed Executive Order 13909, which (among other things) contained a finding that health and medical resources needed to respond to the spread of COVID-19, including personal protective equipment and ventilators, meet the criteria specified in section 101(b) of the Act (50 U.S.C. 4511(b)).
On March 27, 2020, the President signed Executive Order 13911, which (among other things) delegated to the Secretary of Homeland Security the President's authority under section 101 of the Act with respect to health and medical resources needed to respond to the spread of COVID-19 within the United States. The Executive Order provides that the Secretary of Homeland Security may use the authority under section 101 of the Act to determine, in consultation with the heads of other executive departments and agencies as appropriate, the proper nationwide priorities and allocation of health and medical resources, including by controlling the distribution of such materials (including applicable services) in the civilian market, for responding to the spread of COVID-19 within the United States.
Additionally, on April 3, 2020, the President signed a Memorandum on Allocating Certain Scarce or Threatened Health and Medical Resources to Domestic Use (the Memorandum). The Memorandum reaffirmed the delegations and findings contained in Executive Orders 13909 and 13911, including that health and medical resources needed to respond to the spread of COVID-19, including personal protective equipment (PPE), meet the criteria specified in section 101(b) of the Act,
In furtherance of such policy, the President directed the Secretary of Homeland Security, through the FEMA Administrator, and in consultation with the Secretary of HHS, to use any and all authority available under section 101 of the Act to allocate to domestic use, as appropriate, the five types of PPE identified in the Memorandum. On April 10, 2020, FEMA executed this direction by issuing the allocation order as a temporary final rule pursuant to the Memorandum, and with the authority delegated to the Secretary of Homeland Security in E.O. 13911 and re-delegated to the FEMA Administrator in DHS Delegation 09052 Rev. 00.1.
Finally, on May 13, 2020, FEMA published an interim final rule to establish standards and procedures by which the priorities and allocations authority under section 101 is used to promote the national defense, under both emergency and nonemergency conditions.
As the COVID-19 pandemic continues in the United States, the FEMA Administrator, in consultation with other agencies as appropriate, has determined that it must continue to allocate some materials contained in the April 10, 2020 temporary final rule for domestic use, but that it is no longer appropriate to continue the allocation of certain covered materials listed in the Memorandum due to changes in domestic supply and demand. In addition, FEMA has determined, consistent with the Memorandum and FEMA's authorities under section 101 of the DPA, that it is appropriate to designate an additional category of such materials. In short, FEMA has determined that the original temporary final rule must be extended, but the list of covered materials under such rule must be modified.
Consistent with the authority delegated to the Secretary of Homeland Security in E.O. 13911 and re-delegated to the FEMA Administrator in DHS Delegation 09052 Rev. 00.1, FEMA now issues this temporary final rule to extend and modify the allocation order.
Following consultation with the appropriate Federal agencies; pursuant to the President's direction; and as an exercise of the Administrator's priority order, allocation, and regulatory authorities under the Act, the Administrator has determined that the April 10, 2020 temporary final rule (“covered materials”) shall be extended temporarily, and that the list of scarce and critical materials identified in such temporary final rule shall be modified to reflect current domestic needs. The materials identified in this rule will continue to be allocated for domestic use, and may not be exported from the United States without explicit approval by FEMA.
The rule is necessary and appropriate to promote the national defense with respect to the covered materials because the domestic need for them exceeds the supply. Under this temporary final rule extension, before any shipments of such covered materials may leave the United States, U.S. Customs and Border Protection (CBP) will continue to detain the shipment temporarily, during which time FEMA will determine whether to return for domestic use, issue a rated order for, or allow the export of part or all of the shipment under section 101(a) of the Act, 50 U.S.C. 4511(a). FEMA will continue to make such a determination within a reasonable time of being notified of an intended shipment and will make all decisions consistent with promoting the national defense.
In determining whether it is necessary or appropriate to promote the national defense to purchase covered materials, or allocate materials for domestic use, FEMA may continue to consult other agencies and will consider the totality of the circumstances, including the following factors: (1) The need to ensure that these items are appropriately allocated for domestic use; (2) minimization of disruption to the supply chain, both domestically and abroad; (3) the circumstances surrounding the distribution of the materials and potential hoarding or price-gouging concerns; (4) the quantity and quality of the materials; (5) humanitarian considerations; and (6) international relations and diplomatic considerations.
This extension to the rule continues the eleven exemptions that the Administrator has determined to be necessary or appropriate to promote the national defense.
Specifically, the Administrator has determined that FEMA will not purchase covered materials from shipments made by or on behalf of U.S. manufacturers with continuous export agreements with customers in other countries since at least January 1, 2020, so long as at least 80 percent of such manufacturer's domestic production of covered materials, on a per item basis, was distributed in the United States in the preceding 12 months. The Administrator decided that this exemption is necessary or appropriate to promote the national defense because it would limit the impact of this order on pre-existing commercial relationships, in recognition of the importance of these commercial relationships to the international supply chain, and for humanitarian reasons, in consideration of the global nature of the COVID-19 pandemic. If FEMA determines that a shipment of covered materials falls within this exemption, such materials may be transferred out of the United States without further review by FEMA, provided that the Administrator may waive this exemption and fully review shipments of covered materials subject to this exemption for further action by FEMA, if the Administrator determines that doing so is necessary or appropriate to promote the national defense. FEMA may develop additional guidance regarding which exports are covered by this exemption and encourages manufacturers to contact FEMA with specific information regarding their status under this exemption.
On April 21, 2020, FEMA published notification of ten additional exemptions to the original temporary final rule.
FEMA will continue to implement this rule with the cooperation and assistance of other U.S. Government agencies, including CBP, and will work with manufacturers, brokers, distributors, exporters, and shippers to ensure that the applicable requirements are carried out. Any covered materials intended for export may be detained by CBP while FEMA conducts its review of the shipment. FEMA will review the shipment and provide notification as soon as possible regarding the disposition of the covered materials under this order, provided that any goods that have been detained by CBP and are subsequently made subject to a DPA-rated order will be consigned to FEMA pending further distribution or agency direction. FEMA may provide additional guidance regarding the application of any exemptions to this temporary final rule, as appropriate.
FEMA is modifying the original temporary final rule at section 328.103(a) to update the designation of covered materials under the rule. FEMA is reducing the list of covered materials to four types of PPE as these modifications reflect current domestic demand, as indicated by the number of open requests for such materials from State, local, Tribal, and territorial (SLTT) jurisdictions. Specifically—
• FEMA is continuing the designation of N95 Filtering Facepiece Respirators as covered materials, with one modification. In the original temporary final rule, FEMA designated “N95 Filtering Facepiece Respirators, including devices that are disposable half-face-piece non-powered air-purifying particulate respirators intended for use to cover the nose and mouth of the wearer to help reduce wearer exposure to pathogenic biological airborne particulates.” This temporary final rule modifies the existing language by adding the word, “surgical” to clarify the types of N95 Filtering Facepiece Respirators subject to this order. N95 respirators for medical use are still subject to high demand within the United States, and supply is not expected to catch up with demand until January 2021. As of August 4, 2020, FEMA had open requests for over 6 million N95 respirators from SLTT jurisdictions. Because this demand is specific to surgical N95 respirators and does not include industrial respirators, FEMA is clarifying that the list only covers surgical N95 respirators.
• FEMA is continuing the designation of PPE surgical masks as covered materials due to the continued inability of domestic supply to meet current demands. As of August 4, 2020, FEMA had open requests for over 28 million surgical masks from SLTT jurisdictions.
• FEMA is also continuing the designation of PPE gloves or surgical gloves as covered materials, with modification. FEMA is narrowing the scope of the materials covered to PPE nitrile gloves, specifically those defined at 21 CFR 880.6250 (exam gloves) and 878.4460 (surgical gloves) and other such nitrile gloves intended for the same purposes. Domestic supply for latex and vinyl examination and surgical gloves has largely caught up with demand, but there is still a significant shortage of nitrile gloves. As of August 4, 2020, FEMA had open requests for over 139 million nitrile gloves from SLTT jurisdictions.
• FEMA is adding designations for Level 3 and 4 Surgical Gowns and Surgical Isolation Gowns that meet all of the requirements in ANSI/AAMI PB70
• FEMA is eliminating two items from the covered materials list as there are currently no indications that supply is not meeting domestic demand to require these items to continue to be subject to this order. FEMA is removing other filtering facepiece respirators as this category of respirator has seen a significant drop in the number of orders received from SLTT jurisdictions and the current supply is sufficient to fill demand from these jurisdictions. FEMA is also removing elastomeric, air-purifying respirators and appropriate particulate filters/cartridges from the list of covered materials as these items have seen low demand from SLTT jurisdictions and FEMA has been able to fill all orders that have been placed for these items in the past 45 days, as of July 16, 2020.
Note that this rule covers only those PPE items described above; it does not cover other forms of PPE not described in the rule, such as cloth-based masks.
Consistent with the DPA and the original temporary final rule, FEMA may continue to conduct such
At any point in time, and to the extent consistent with United States policy, the FEMA Administrator may determine additional materials to be subject to this allocation order. Upon a determination under section 101(b) of the DPA that an additional material is a scarce and critical material essential for national defense, and that being allocated to domestic use under this allocation order is the only way to meet national defense requirements without significant disruption to the domestic markets, the Administrator will include these additional materials in this allocation order, and will provide notification of this decision through publication in the
As explained in the original temporary final rule,
This rule is exempt from the APA under section 709(a) of the Act, 50 U.S.C. 4559(a). Instead, this rule is issued subject to the provisions of section 709(b). Pursuant to section 709(b)(2) of the Act, the Administrator has concluded, based on the facts related to the COVID-19 pandemic, which already have been summarized in this document, that, with respect to this temporary final rule, urgent and compelling circumstances make compliance with the notice and comment requirements of section 709(b)(1) of the Act, 50 U.S.C. 4559(b)(1), impracticable. If final regulations become necessary, an opportunity for public comment will be provided for not less than 30 days before such regulations become final, pursuant to section 709(b)(2)(C) of the Act, 50 U.S.C. 4559(b)(2)(C).
Furthermore, the same facts that warrant waiver under section 709(b)(2) of the Act would constitute good cause for FEMA to determine, under the APA, that notice and public comment thereon are impractical, unnecessary, or contrary to the public interest, and that the temporary final rule should become effective on August 10, 2020, the date on which the original temporary final rule would expire. The exigent need for this rule is related to the COVID-19 pandemic.
Although the Federal Government, along with State and local governments, have taken preventative and proactive measures to slow the spread of COVID-19, and to treat those affected, the ongoing spread of COVID-19 within the Nation's communities is straining the Nation's healthcare systems. It is imperative that health and medical resources needed to respond to the spread of COVID-19, including the PPE affected by this rule, continue to be allocated for domestic use as appropriate. Given the evolving nature of this pandemic and the frequently changing supply of and demand for the health and medical resources needed to combat it, full public notice and comment proceedings are impracticable. As explained earlier in the preamble, the volume of requests for certain health and medical resources continues to outpace domestic supply in some cases, while the domestic supply of other health and medical resources is now sufficient to meet the requests of SLTT jurisdictions. In addition, the number of requests fluctuates widely from day-to-day as FEMA receives the requests, evaluates them, and satisfies them.
FEMA is continuously monitoring SLTT jurisdictions' demand for these scarce and critical health and medical resources. This immediate action is needed to continue to ensure that such resources are appropriately allocated for domestic use, and to tailor the scope of such allocation to current needs as of the prior TFR's scheduled end-date.
In short, given the national and international emergency caused by COVID-19 and the continuously evolving nature of the situation, FEMA finds that urgent and compelling circumstances have made it impracticable and contrary to the public health—and, by extension, the public interest—to delay these implementing regulations until a full public notice-and-comment process is completed. This temporary final rule modification and extension is needed to appropriately allocate scarce and critical materials for domestic use, based on current needs.
The measures described in this rule are being issued on a temporary basis. This temporary final rule will cease to be in effect on December 31, 2020, unless sooner modified or terminated by the Administrator.
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 (including potential economic, environmental, and public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation (1) having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the
The Office of Management and Budget has designated this temporary final rule as an economically significant regulatory action. Given that the temporary final rule is a significant regulatory action, FEMA proceeds under the emergency provision of Executive Order 12866, section 6(a)(3)(D) based on the need for immediate action, as described above, based on the need for immediate action to ensure these health and medical resources are appropriately allocated for domestic use.
The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule that the agency issues under 5 U.S.C. 553 after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the
This is neither a proposed rule, nor a final rule that the agency has issued under 5 U.S.C. 553 of this title after being required by that section or any other law to publish a general notice of proposed rulemaking. This is a temporary final rule issued without a prior proposed rule, under the separate authority of the Defense Production Act of 1950. Accordingly, a regulatory flexibility analysis is not required.
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), 2 U.S.C. 1532, requires that covered agencies prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. Currently, that threshold is approximately $172 million. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires covered agencies to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. DHS has determined that this rule is not expected to result in expenditures by State, local, and Tribal governments, or by the private sector, of $172 million or more in any one year. This rule imposes no requirements on State, local, and Tribal governments and, therefore, cannot require them to expend any funds, let alone $172 million. To the extent that this rule affects the private sector, it only prohibits conduct, namely certain exports. It does not require any private sector expenditures within the meaning of the Unfunded Mandates Act. Further, the rule is excluded from the Unfunded Mandates Act under 2 U.S.C. 1503(4) and (5).
Under the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. 4321
Rulemaking is a major Federal action subject to NEPA. Categorical exclusion A3 included in the list of exclusion categories at Department of Homeland Security Instruction Manual 023-01-001-01, Revision 01, Implementation of the National Environmental Policy Act, Appendix A, issued November 6, 2014, covers the promulgation of rules, issuance of rulings or interpretations, and the development and publication of policies, orders, directives, notices, procedures, manuals, and advisory circulars if they meet certain criteria provided in A3(a-f). This temporary final rule meets Categorical Exclusion A3(a), “Those of a strictly administrative or procedural nature”.
This rule has been reviewed under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 1999). That Executive Order imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DHS has determined that this temporary final rule will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. Furthermore, there are no provisions in this rule that impose direct compliance costs on State and local governments. Accordingly, DHS believes that the rule does not warrant additional analysis under Executive Order 13132.
Under the Congressional Review Act (CRA), 5 U.S.C. 801-808, before a rule can take effect, the Federal agency promulgating the rule must: Submit to Congress and to the Government Accountability Office (GAO) a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; the proposed effective date of the rule; a copy of any cost-benefit analysis; descriptions of the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act; and any other information or statements required by relevant executive orders.
FEMA has sent this rule to the Congress and to GAO pursuant to the CRA. The Office of Information and Regulatory affairs has determined that this rule is a “major rule” within the meaning of the CRA. As this rule contains FEMA's finding for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, there is not a required delay in the effective date.
Administrative practice and procedure, Business and industry, Government contracts, Health or medical resource, Hoarding, Investigations, Materials, National defense, Scarce materials, Strategic and critical materials, Threatened materials.
Sections 101
(a)
(b)
(a)
(b)
(c)
(1) The need to ensure that scarce or threatened items are appropriately allocated for domestic use;
(2) Minimization of disruption to the supply chain, both domestically and abroad;
(3) The circumstances surrounding the distribution of the materials and potential hoarding or price-gouging concerns;
(4) The quantity and quality of the materials;
(5) Humanitarian considerations; and
(6) International relations and diplomatic considerations.
(d)
(2) The Administrator may establish, in his discretion, additional exemptions that he determines necessary or appropriate to promote the national defense and will announce any such exemptions by notice in the
(e)
(a) The Administrator has designated the following materials as “covered materials” under this part:
(1) Surgical N95 Filtering Facepiece Respirators, including devices that are disposable half-face-piece non-powered air-purifying particulate respirators intended for use to cover the nose and mouth of the wearer to help reduce wearer exposure to pathogenic biological airborne particulates;
(2) PPE surgical masks, including masks that cover the user's nose and mouth and provide a physical barrier to fluids and particulate materials;
(3) PPE nitrile gloves, including those defined at 21 CFR 880.6250 (exam gloves) and 878.4460 (surgical gloves) and such nitrile gloves intended for the same purposes; and
(4) Level 3 and 4 Surgical Gowns and Surgical Isolation Gowns that meet all of the requirements in ANSI/AAMI PB70 and ASTM F2407-06 and are classified by Surgical Gown Barrier Performance based on AAMI PB70.
(b) Upon determination that additional items are scarce and necessary for national defense, and that consideration under this allocation order is the only way to meet national defense requirements without significant disruption to the domestic markets, the Administrator may designate additional materials as “covered materials” in the list provided above. The Administrator will publish notice of these additional “covered materials” in the
(a) To administer or enforce this subpart, the Administrator may exercise the authorities available under section 705 of the Defense Production Act of 1950, as amended, 50 U.S.C. 4555, including the conduct of investigations, requests for information or testimony, and inspections of records or premises. Before such authorities are utilized, the Administrator will determine the scope and purpose of the investigation, inspection, or inquiry, and be assured that no adequate and authoritative data are available from any Federal or other responsible agency.
(b) Whenever, in the judgment of the Administrator, any person has engaged or is about to engage in any acts or practices that constitute or will constitute a violation of any provision of this subpart, or order issued thereunder, the Administrator may exercise the authorities available under section 706 of the Defense Production Act of 1950, as amended, 50 U.S.C. 4556, including applying for a preliminary, permanent, or temporary injunction, restraining order, or other order to enforce compliance with this subpart.
(c) Any person who willfully engages in violations of this part is subject to penalties available under section 103 of the Defense Production Act of 1950, as amended, 50 U.S.C. 4513, or other available authority.
Federal Communications Commission.
Final rule.
This document amends the FM Table of Allotments, of the Commission's rules, by reinstating certain vacant FM allotments. These FM allotments are considered vacant because of the cancellation of the associated authorizations and licenses, or the dismissal of long-form auction applications. Theses vacant FM allotments have previously undergone notice and comment rule making. Reinstatement of the vacant allotments is merely a ministerial action to effectuate licensing procedures. Therefore, we find for good cause that further notice and comment are unnecessary.
Effective August 10, 2020.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(b) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the Harpoon category fishery for large medium and giant (
Effective 11:30 p.m., local time, August 5, 2020, through November 15, 2020.
Sarah McLaughlin, 978-281-9260, Nicholas Velseboer, 978-675-2168, or Larry Redd, 301-420-8503.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota is reached or is projected to be reached. Retaining, possessing, or landing BFT under a quota category is prohibited on or after the effective date and time of a closure notice for that category until the opening of the relevant subsequent quota period or until such date as specified.
The base quota for the Harpoon category is 46 mt. See § 635.27(a). Effective July 13, 2020, NMFS transferred 30 mt from the Reserve category to the Harpoon category, resulting in an adjusted subquota of 76 mt for the Harpoon category and 113 mt for the Reserve category (85 FR 43148, July 16, 2020).
Based on the best available landings information for the Harpoon category BFT fishery, NMFS has determined that the adjusted Harpoon category quota of 76 mt has been reached and exceeded (
NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, Harpoon category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing
Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 635, which was issued pursuant to section 304(c), and is exempt from review under Executive Order 12866.
The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice of, and an opportunity for public comment on, for the following reasons: The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. This fishery is currently underway and delaying this action would be contrary to the public interest as it could result in BFT landings exceeding the Harpoon category quota. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
16 U.S.C. 971
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2016-25-29, which applies to certain The Boeing Company Model 767-200 and -300 series airplanes. AD 2016-25-29 requires replacing the cargo compartment insulation blankets on the left and right sides with new insulation blankets that incorporate fire stops. Since the FAA issued AD 2016-25-29, it was determined that an incorrect part number was specified for certain insulation blankets, and the FAA has determined that additional insulation blankets need to be replaced and that additional airplanes are subject to the unsafe condition. This proposed AD would continue to require the actions in AD 2016-25-29 for certain airplanes. This proposed AD would also add airplanes to the applicability and would require a general visual inspection of the replacement insulation blankets to determine if the blankets are in serviceable condition and correctly installed, and applicable on-condition actions. For certain airplanes, this AD would also require an inspection to determine the insulation blanket part number installed; replacement of additional insulation blankets; and applicable on-condition actions. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by September 24, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Julie Linn, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3584; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to the person identified in the
The FAA issued AD 2016-25-29, Amendment 39-18755 (81 FR 94956, December 27, 2016) (“AD 2016-25-29”), for certain The Boeing Company Model 767-200 and -300 series airplanes. AD 2016-25-29 requires replacing the cargo compartment
Since the FAA issued AD 2016-25-29, it was determined that an incorrect part number was specified for certain insulation blankets. Based on those findings, the FAA determined that certain insulation blankets that were replaced, as required by AD 2016-25-29, must be replaced with those having the improved design. In addition, the FAA determined that additional insulation blankets need to be replaced and that additional airplanes are subject to the unsafe condition.
The FAA reviewed Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019. The service information describes procedures for replacing cargo compartment insulation blankets between stringers 29 and 33, on the left and right sides, with new insulation blankets that incorporate fire stops; an inspection to determine the insulation blanket part number installed between stringers 29 and 33, on the left and right sides; a general visual inspection of the replacement insulation blankets between stringers 29 and 33, on the left and right sides to determine if the blankets are in serviceable condition and correctly installed; and applicable on-condition actions. On-condition actions include repair, replacement, and correction of insulation blanket installations.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA is proposing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
Although this proposed AD does not explicitly restate the requirements of AD 2016-25-29, this proposed AD would retain certain of the requirements of AD 2016-25-29. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraph (g) of this proposed AD. This proposed AD would add airplanes to the applicability. This proposed AD would also require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019, described previously.
For information on the procedures and compliance times, see this service information at
The FAA estimates that this proposed AD affects 329 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all available costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative,
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by September 24, 2020.
This AD replaces AD 2016-25-29, Amendment 39-18755 (81 FR 94956, December 27, 2016) (“AD 2016-25-29”).
This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by a report of a fire in the bilge area of the cargo compartment that burned through the insulation blankets that were intended to prevent smoke from migrating behind the cargo compartment sidewall liners and upward into the main cabin. The FAA is issuing this AD to address a fire in the bilge area of the cargo compartment, which if not contained could lead to a possible smoke and fire event in the passenger compartment.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019.
Where Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019, uses the phrase “the Revision 1 date of this service bulletin,” this AD requires using “the effective date of this AD.”
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2016-25-29 are approved as AMOCs for the corresponding provisions of Boeing Special Attention Service Bulletin 767-25-0550, Revision 1, dated December 4, 2019, that are required by paragraph (g) of this AD.
(5) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(5)(i) and (ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Julie Linn, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3584; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
Food and Drug Administration, HHS.
Notification; establishment of docket; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is opening a docket to receive information and comments related to certain produce commodities with no or low reported consumption in the database relied on to create the list of rarely consumed raw commodities that are exempt from the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption regulation. FDA intends to use the information to consider whether any of these commodities should be added to the rarely consumed raw list.
Submit either electronic or written comments by November 9, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Samir Assar, Center for Food Safety and Applied Nutrition (HFS-317), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1636.
In the
Produce is subject to the produce safety regulation (
The RCR list is a list of produce commodities that we determined are almost always consumed in the United States only after being cooked. Cooking is a kill step that can be expected to adequately reduce the presence of microorganisms of public health significance in most cases. FDA concluded that it is not reasonably necessary to subject RCR commodities to the produce safety regulation.
FDA's classification of produce as RCR was based on food consumption patterns reported in a robust dataset: The National Health and Nutritional Examination Survey/What We Eat in America (NHANES/WWEIA) dataset (Ref. 1), which is the most comprehensive, robust, and nationally representative dataset currently available on dietary intake in the United States. We also used the U.S. Environmental Protection Agency's Food Commodity Intake Database (Ref. 2), which is a recipe database that identifies proportions of commodity ingredients in NHANES/WWEIA codes, and also identifies the cooking status (uncooked or cooked) and the food forms (
Note that the identification of a commodity on the RCR list does not mean the produce is never eaten raw or that it is not eaten raw, typically or occasionally, in specific regions of the United States (or among specific ethnic
Consumption patterns for a commodity had to meet three criteria that were used to determine if a commodity qualified as rarely consumed raw. First, the commodity had to be consumed uncooked by less than 0.1 percent of the United States population. Second, the commodity had to be consumed uncooked on less than 0.1 percent of eating occasions. Third, at least 1 percent of the weighted number of survey respondents must have reported consuming the commodity in any form for the data to provide a reasonable representation of how that commodity is consumed by U.S. consumers. The purpose of the third criteria was to ensure that we had sufficient data to provide a reasonable representation of how the commodity is consumed in the United States for the purpose of exempting commodities from the coverage of the produce safety regulation (80 FR 74354 at 74388). For commodities not reported as consumed by at least 1 percent of the weighted number of respondents, we consider the overall reported rate to be too low to justify relying on these data as a reasonable representation of consumption among all U.S. consumers.
Commodities that failed to satisfy all three NHANES/WWEIA food consumption criteria were not included in the RCR list. Several produce commodities satisfied the first two NHANES/WWEIA food consumption criteria for demonstrating that the commodities are almost always eaten only after being cooked, but are covered by the produce safety regulation because the 2003-2010 NHANES/WWEIA dataset did not demonstrate consumption of the commodities in any form by at least 1 percent of survey respondents. (See Response to Comments 68 and 69, 80 FR 74354 at 74392 to 74394.) In the remainder of this document, we refer to these commodities as “produce commodities with low reported consumption.” The following is an exhaustive list
Some produce commodities did not appear in the NHANES/WWEIA at all; a commodity is added to NHANES/WWEIA partly based on the number of times the new food is reported and partly based on whether a new reported food has nutrient contents that are very different from the nutrient contents of a food that already exists in the database. In the remainder of this document we refer to these commodities as “produce commodities with no reported consumption.” Arrowroot and fiddleheads are examples of produce commodities with no reported consumption.
As we stated when we issued the produce safety final rule, we will consider updating the list of RCR commodities if new data become available (80 FR 74354 at 74390). We therefore invite interested persons to submit data, information, and/or comment to support whether particular commodities with either no or low reported consumption in NHANES/WWEIA should be categorized as RCR. We seek commodity-specific data that would indicate whether that particular fruit or vegetable is consumed cooked by almost all consumers across the United States at this time. To be most useful, newly submitted data should be quantitative data of U.S. consumption patterns that are sufficiently robust such that we could draw from them scientifically valid conclusions. The data should clearly indicate what proportion of the population consumes the commodity in the uncooked form and/or how often the commodity is consumed uncooked compared to the cooked form. Results of a well-designed consumer survey would be one possible type of data that may be submitted. Market data that closely parallels consumer consumption data may also be helpful. Another type of data that could be useful is data indicating that a commodity cannot safely be consumed uncooked,
For this Request for Information, FDA is requesting data, information, and comments from all interested parties, including, but not limited to, academic and government researchers, industry, and any other source. When submitting information, please include details about how the data were collected, including information on the study design and sample population, year(s) of data collection, a detailed summary of the methods and measures used (
The following references are on display in the Dockets Management Staff (see
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to partially approve and partially disapprove revisions to the San Diego Air Pollution Control District (SDAPCD) portion of the California State Implementation Plan (SIP). These revisions concern the District's demonstration regarding reasonably available control technology (RACT) requirements and negative declarations for the 2008 ozone national ambient air quality standards (NAAQS or “standards”) in the San Diego ozone nonattainment area (NAA) under the jurisdiction of the SDAPCD. We are taking comments on this proposal and plan to follow with a final action.
Comments must be received on or before September 9, 2020.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2020-0136 at
Nancy Levin, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3848 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the document addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On October 12, 2017, the submittal for the SDAPCD 2016 RACT SIP was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of the RACT SIP and negative declarations in the SDAPCD portion of the California SIP for the 2008 ozone NAAQS.
Emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NO
Section III.D of the preamble to the EPA's final rule to implement the 2008 ozone NAAQS discusses RACT requirements.
The EPA's technical support document (TSD) has more information about the District's RACT SIP, negative declarations, and the EPA's evaluations thereof. Our TSD is included in the docket materials.
SIP rules must require RACT for each category of sources covered by a CTG document and for each major source of VOCs or NO
States should also submit for SIP approval negative declarations for those source categories for which they have not adopted CTG-based regulations (because they have no sources above the CTG-recommended applicability threshold), regardless of whether such negative declarations were made for an earlier SIP.
The District's analysis must demonstrate that each major source of VOCs or NO
Rules that are submitted for inclusion into the SIP must be enforceable (CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (CAA section 110(l)), and must not modify certain SIP control requirements in NAAs without ensuring equivalent or greater emissions reductions (CAA section 193).
In addition to the documents listed above, guidance and policy documents that we use to evaluate enforceability, stringency, and revision/relaxation requirements include the following:
SDAPCD's 2016 RACT SIP provides the District's demonstration that the applicable SIP for the SDAPCD satisfies CAA section 182 RACT requirements for the 2008 ozone NAAQS. This conclusion is based on the District's analysis of SIP-approved requirements that apply to the following: (1) Source categories for which a CTG has been issued, and (2) major non-CTG stationary sources of VOC or NO
With respect to CTG source categories, SDAPCD analyzed in Attachment A of the 2016 RACT SIP those source categories that had sources within the District subject to the recommendations in the various CTGs, and the District rules regulating these sources. Based on our analysis, the EPA concludes that, with the exception of the deficiencies identified in section II.C below and described in more detail in the TSD, SDAPCD's analysis has demonstrated that the required RACT rules are in place. Where there are no existing sources covered by a particular CTG document, or no major non-CTG stationary sources of VOCs or NO
We reviewed SDAPCD's list of negative declarations in the 2016 RACT SIP Attachment B and the CARB facility database for 2016 to verify the District's conclusion that it has no stationary sources subject to the CTG source categories for which it has adopted a negative declaration. We agree with the District's negative declarations in the 2016 RACT SIP Attachment B, and propose to approve them into the SIP.
The 2016 RACT SIP Attachment D—Major Sources in San Diego Country Subject to District Rules lists major sources of VOC emissions and the rules that the District evaluated as applying to those facilities. The two facilities that exceed the major source threshold for VOCs are the San Diego City of Miramar Landfill, and National Steel & Shipbuilding. The District has documented that the 168.5 tpy emissions from the Miramar Landfill are fugitive. The Miramar Landfill therefore does not constitute a major stationary source under the Act, and the District is not required to demonstrate that this source is implementing RACT-level controls.
National Steel & Shipbuilding is a major source of VOC emissions, and is regulated primarily by Rule 67.18. It is therefore evaluated as a CTG source. Accordingly, we conclude that the District does not have any major non-CTG sources of VOCs in the NAA, and must adopt a negative declaration for major non-CTG sources of VOCs.
The District does not list any major sources of NO
Our review found that certain CTG categories were not addressed by either a negative declaration or a RACT rule. These deficiencies are described in section II.C below and explained in greater detail in the TSD. These approvability issues preclude full approval of the 2016 RACT SIP. Our TSD has more information on our evaluation of the 2016 RACT SIP.
The following provisions do not satisfy the requirements of section 110 and part D of title I of the Act and prevent full approval of the 2016 RACT SIP.
1. Missing negative declaration (or rule) for the following CTG and Major Source categories.
2. Existing rule does not represent RACT for the 2008 ozone standard.
Our TSD has detailed information on these deficiencies.
Our TSD includes recommendations for future rule improvements and suggested revisions related to the required RACT SIP submittal for the 2015 ozone standard.
Under CAA section 110(k)(3), we propose to partially approve and partially disapprove CARB's submittal of the SDAPCD 2016 RACT SIP, as reflected in Tables 5 and 6. As discussed, the RACT SIP must document current RACT for sources covered by CTGs and for major non-CTG sources of VOC and NO
The EPA
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not 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 action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 8 is issuing a Notice of Intent to Delete the Beryllium Operable Unit 9 (OU9), the Flue Dust OU11 and the Arbiter OU12 of the Anaconda Co. Smelter Superfund Site (Site) located in Anaconda, MT, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and
This partial deletion pertains to three Operable Units; the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12). The other areas of the Site will remain on the NPL and are not being considered for deletion as part of this action.
Comments must be received by September 9, 2020.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1983-0002, by one of the following methods:
•
•
•
• Written comments submitted by mail are temporarily suspended and no hand deliveries will be accepted. We encourage the public to submit comments via
The EPA is temporarily suspending its Docket Center and Regional Records Centers for public visitors to reduce the risk of transmitting COVID-19. In addition, many site information repositories are closed and information in these repositories, including the deletion docket, has not been updated with hardcopy or electronic media. For further information and updates on EPA Docket Center services, please visit us online at
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID.
Charles Coleman, Remedial Project Manager, U.S. Environmental Protection Agency, Region 8, 10 West 15th Street, Suite 3200, Helena, Montana 59626, (406) 457-5038, email:
EPA Region 8 announces its intent to delete three Operable Units of the Anaconda Co. Smelter Superfund Site (Site); the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12), from the National Priorities List (NPL) and request public comment on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as those sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the three Operable Units of the Anaconda Co. Smelter Superfund Site (Site); the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12), is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (November 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.
EPA will accept comments on the proposal to partially delete this site for thirty (30) days after publication of this document in the
Section II of this preamble explains the criteria for deleting sites from the NPL. Section III of this preamble discusses procedures that EPA is using for this action. Section IV of this preamble discusses where to access and review information that demonstrates how the deletion criteria have been met for the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12) of the Anaconda Co. Smelter Superfund Site
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12) of the Site:
(1) The EPA consulted with the State before developing this Notice of Intent for Partial Deletion.
(2) The EPA has provided the state 30 working days for review of this action prior to publication of it today.
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
(4) The State of Montana, through the MDEQ, has concurred with the deletion of the the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12) of the Anaconda Co. Smelter Superfund Site from the NPL.
(5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the
(6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket, made these items available for public inspection, and copying at the Site information repositories identified above.
If comments are received within the 30-day comment period on this action, EPA will evaluate and respond accordingly to the comments before making a final decision to delete the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12). If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Beryllium (OU9), the Flue Dust (OU11) and the Arbiter (OU12) of the Anaconda Co. Smelter Superfund Site, the Regional Administrator will publish a final Notice of Partial Deletion in the
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket. The material provides explanation of EPA's rationale for the partial deletion and demonstrates how it meets the deletion criteria. This information is made available for public inspection in the docket identified above.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1251
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) takes further steps to protect the nation's communications networks from potential security threats as the Commission integrates provisions of the recently enacted Secure and Trusted Communications Networks Act of 2019 (Secure Networks Act) into its existing supply chain rulemaking proceeding. The Commission seeks comment on proposals to implement further Congressional direction in the Secure Networks Act.
Comments are due on or before August 31, 2020, and reply comments are due on or before September 14, 2020.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments and reply comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
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Filings can be sent by hand or messenger delivery, by commercial
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.
Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with § 1.49 and all other applicable sections of the Commission's rules. The Commission directs all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to use a table of contents, regardless of the length of their submission. The Commission also strongly encourages parties to track the organization set forth in the Further Notice in order to facilitate its internal review process.
For further information, please contact Brian Cruikshank, Telecommunications Access Policy Division, Wireline Competition Bureau, at
This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (Further Notice) in WC Docket No. 18-89, adopted July 16, 2020 and released July 17, 2020. Due to the COVID-19 pandemic, the Commission's headquarters will be closed to the general public until further notice. The full text of this document is available at the following internet address:
1. America's communications networks have become the indispensable infrastructure of our economy and our everyday lives. The COVID-19 pandemic has demonstrated as never before the importance of these networks for employment and economic opportunity, education, health care, social and civic engagement, and staying connected with family and friends. It is therefore imperative that the Commission safeguards this critical infrastructure from potential security threats.
2. The Commission has taken a number of targeted steps in this regard. For example, in November 2019, the Commission prohibited the use of public funds from the Commission's Universal Service Fund (USF) to purchase or obtain any equipment or services produced or provided by companies posing a national security threat to the integrity of communications networks or the communications supply chain. The Commission also initially designated Huawei Technologies Company (Huawei) and ZTE Corporation (ZTE) as covered companies for purposes of this rule, and it established a process for designating additional covered companies in the future. Additionally, last month, the Commission's Public Safety and Homeland Security Bureau issued final designations of Huawei and ZTE as covered companies, thereby prohibiting the use of USF funds on equipment or services produced or provided by these two suppliers.
3. The Commission takes further steps to protect the nation's communications networks from potential security threats as it integrates provisions of the recently enacted Secure Networks Act into the Commission's existing supply chain rulemaking proceeding. The Commission seeks comment on proposals to implement further Congressional direction in the Secure Networks Act.
4. The concurrently adopted Declaratory Ruling finds that the
5. After the Commission has adopted rules to further implement the Secure Networks Act, the Commission may prohibit the use of federal funds for potentially insecure communications equipment and services through two separate methods. First, pursuant to the
6. As an initial matter, the Commission seeks comment on the definition of two terms used throughout the Secure Networks Act. Specifically, the Act's requirements apply to “communications equipment or service” and to providers of “advanced communications service.” The Act defines “communications equipment or service” as “any equipment or service
7. The Commission proposes to include within this definition of “communications equipment or service[s]” all equipment or services used in fixed and mobile broadband networks, provided they include or use electronic components. The Commission believes that all equipment or services that include or use electronic components can be reasonably considered essential to broadband networks. Moreover, the presence of electronic components provides a bright-line rule that will ease regulatory compliance and administrability. The Commission seeks comment on this interpretation.
8. The Commission also proposes to include within the definition of “advanced communications service” any connection at least 200 kbps in either direction. Such a reading is consistent with the Commission's historic interpretation of section 706 of the Telecommunications Act and the requirements that the Commission has imposed on providers of advanced telecommunications capability for purposes of reporting their broadband deployments. The Commission thus believes its consistent with congressional intent to capture the same pool of facilities-based providers who are currently required to report broadband deployment to comply with the requirements of the Secure Networks Act.
9. The Commission recognizes the greater than 200 kbps reporting threshold reflects historical considerations as to speeds needed to provide advanced telecommunications capability. The Commission has since determined, with advancements in technology, that fixed services with download speeds of at least 25 Megabits per second (Mbps) and upload speeds of at least 3 Mbps “meet the statutory definition of advanced telecommunications capability.” For mobile services, the Commission evaluates deployment using “multiple metrics instead of relying on a single benchmark,” starting first “where service providers claim a minimum advertised speed of 5/1 Mbps.” However, importing a narrower definition of advanced communications service could leave insecure equipment in our nation's interconnected broadband networks even though it has been determined to pose a threat to national security. The Commission seeks comment on this interpretation and any alternatives.
10. Section 2(a) of the Secure Networks Act directs the Commission to publish, no later than one year after enactment, a list of covered communications equipment and services (Covered List). The remainder of section 2 lays out how the Commission is to construct this list.
11. Section 2(c) of the Secure Networks Act states that “in taking action under subsection (b)(1), the Commission shall place” on the Covered List “any communications equipment or service that poses an unacceptable risk to the national security of the United States or the security and safety of United States persons based solely on one or more of the following determinations,” and then lists four separate sources for such determinations. The Commission believes that the Secure Networks Act's use of the term “shall” provides the Commission no discretion to accept determinations from other sources not listed in the Secure Networks Act because the Commission must rely “solely” on one or more of the determinations listed in section 2(c) for the purposes of taking the steps required under section 2(b)(1) to compile the Covered List. The Commission seeks comment on this interpretation.
12. The external determinations as to whether communications equipment or services pose “an unacceptable risk to the national security of the United States and the security and safety of United States persons” come from the following agencies or legislation, pursuant to section 2(c):
(1) “A specific determination made by any executive branch interagency body with appropriate national security expertise, including the Federal Acquisition Security Council”;
(2) “A specific determination made by the Department of Commerce pursuant to Executive Order No. 13873 . . . relating to securing the information and communications technology and services supply chain”;
(3) “The communications equipment or service being covered telecommunications equipment or services, as defined in section 889(f)(3)” of the 2019 NDAA; or
(4) “A specific determination made by an appropriate national security agency.”
13. The Secure Networks Act defines “executive branch interagency body” as “an interagency body established in the Executive Branch.” One of these bodies is the Federal Acquisition Security Council, established by 41 U.S.C. 1322(a). The Federal Acquisition Security Council is tasked with developing criteria and processes for assessing threats and vulnerabilities to the supply chain posed by the acquisition of information technology. The Commission believes other executive agency bodies that could make determinations relevant to section 2(c) include the National Security Council, Homeland Security Council, Interagency Policy Committees, and other committees created for or chartered with a national security purpose. The Commission seeks comment on this view and asks if there are additional executive branch interagency bodies with appropriate national security expertise that can make the external determinations under section 2(c)(1). What role do the Committee on Foreign Investment in the United States (CFIUS) and Team Telecom have in this process? The Commission also seeks comment on the process and procedures it should use to incorporate executive branch interagency body determinations into the Covered List.
14. Section 2(c) also requires the Commission to rely on determinations made by the Department of Commerce. Executive Order No. 13873 grants the Secretary of Commerce the authority to prohibit any transaction of any information and communications technology or service where the Secretary, in consultation with other relevant agency heads, determines that the transaction: (i) Involves property in which a foreign country or national has an interest; (ii) includes information and communications technology or services designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary; and (iii) poses certain undue risks to the critical infrastructure or the digital economy in the United States or certain unacceptable risks to U.S. national security or U.S. persons. In November 2019, the Department of Commerce commenced a rulemaking to implement Executive Order No. 13873. The Commission seeks comment on the process and procedures it should use to incorporate Department of Commerce external determinations into the Covered List.
15. The Commission is also required to incorporate into the Covered List equipment or services identified in section 889(f)(3) of the 2019 NDAA. The Commission seeks comment on section 889(f)(3) generally and each of its subparts. Section 889(f)(3) of the 2019 NDAA defines “covered telecommunications equipment or services” to include “(A) telecommunications equipment produced by Huawei or ZTE; (B) for the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation (Hytera), Hangzhou Hikvision Digital Technology Company (Hikvision), or Dahua Technology Company (Dahua); [and] (C) telecommunications or video surveillance services provided by such entities or using such equipment.” Additionally, section 889(f)(3)(D) provides that covered telecommunications equipment or services includes “[t]elecommunications or video surveillance equipment or services produced or provided by an entity that the Department of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of [the People's Republic of China].”
16. The Commission seeks comment on how it must use section 889(f)(3) of the 2019 NDAA to add communications equipment and services to the Covered List. The plain language of section 2(c) provides that because telecommunications equipment from Huawei and ZTE are covered in section 889(f)(3)(A) of the 2019 NDAA, such equipment poses an unacceptable threat to U.S. national security or the safety and security of U.S. persons. The Commission reads section 2(c) as providing that video surveillance and telecommunications equipment from Hytera, Hikvision, and Dahua, to the extent it is used for public safety or security, poses an unacceptable threat to U.S. national security or the safety and security of U.S. persons. And the Commission reads section 2(c) as saying that “telecommunications or video surveillance services provided by” Huawei, ZTE, Hytera, Hikvision, or Dahua—those entities listed earlier in the paragraph—as well as any “telecommunications or video surveillance services” that use the equipment specified under subparagraphs (A) and (B) all pose an unacceptable threat to U.S. national security or the safety and security of U.S. persons. The Commission seeks comment on each of these interpretations. Does video surveillance equipment produced by Hytera, Hikvision, or Dahua or video surveillance service offered by Huawei, ZTE, Hytera, Hikvision, or Dahua qualify as “communications equipment or service” for the purposes of the Secure Networks Act? How should the Commission interpret section 889(f)(3)(D) and any subsequent designations made by the Department of Defense? What other considerations are relevant to its interpretation of section 889(f)(3)?
17. The final potential source of an external determination in section 2(c) of the Secure Networks Act is an appropriate national security agency. Section 9(2) of the Secure Networks Act defines “appropriate national security agency” as the Department of Homeland Security, the Department of Defense, the Office of the Director of National Intelligence, the National Security Agency, and the Federal Bureau of Investigation. Some of these agencies, such as the Department of Homeland Security, include sub-agencies that may be involved in national security determinations, such as the Cybersecurity and Infrastructure Security Agency. The Commission interprets the term “appropriate national security agency” to include any determination by a sub-agency of the Department of Homeland Security, the Department of Defense, the Office of the Director of National Intelligence, the National Security Agency, and the Federal Bureau of Investigation, and seek comment on this interpretation. The Commission also seeks comment on the process and procedures it should use to incorporate their determinations into the Covered List.
18. The Commission seeks comment on what constitutes a specific determination that triggers its obligations under section 2(b)(1). Do the entities listed in section 2(c) have different processes to identify the equipment and services that the Commission should publish as covered equipment? For example, the Federal Acquisition Security Council makes a confidential recommendation to the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence, who then review the recommendation and decide whether or not to issue exclusion or removal orders. Should the Commission interpret the term “specific determination” broadly to ensure that any guidance or order from the entities listed in section 2(c) can be incorporated into our list? How specific must these determinations be? Must external determinations list specific information, such as model numbers of equipment, or detailed descriptions of prohibited services that the external source determines poses an unacceptable national security risk, or will the external source identify classes or categories of equipment at a less granular level? If an external source declines to specify equipment or services, or classes or categories thereof but instead simply provides the name of an entity, would that qualify as a “determination” under section 2(c)? Must a determination use the precise words of the statute (that certain “communications equipment or service . . . poses an unacceptable risk to the national security of the United States or the security and safety of United States persons”) or should the Commission consider determinations that convey the same concept even if using different wording? Given the Commission's limited control over the format of a determination from an external source, what should the Commission do if it is unclear whether a particular decision by a section 2(c) source qualifies as a determination?
19. Relatedly, the Commission seeks comment generally on the mechanics of
20. Section 2(b) of the Secure Networks Act states that the Commission “shall place” on the Covered List “any communications equipment or service” that (1) “is produced or provided by any entity” “if, based exclusively on the determinations” under section 2(c), “such equipment or service poses an unacceptable risk to the national security of the United States and the security and safety of United States persons” and (2) is “capable” of “(A) routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles; (B) causing the network of a provider of advanced communications service to be disrupted remotely; or (C) otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons.”
21. The Commission starts with an observation: Specifically, if certain equipment or services have been found under section 2(c) to “pose[] an unacceptable risk to the national security of the United States and the security and safety of United States persons” (and thus fulfills the section 2(b)(1) criterion), isn't such equipment or service necessarily “capable” of “posing an unacceptable risk to the national security of the United States or the security and safety of United States persons” (and thus fulfilling the section 2(b)(2) criterion)?
22. The Commission resolves this potential for surplusage by recognizing that external determinations may be done at different levels of generality. For example, a section 2(c) source may determine a particular model of equipment (or a particular service) “poses an unacceptable risk” at a very granular level. In making such a determination, the Commission would expect the section 2(c) source to consider whether the particular model of equipment (or particular service) is “capable” of “(A) routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles; (B) causing the network of a provider of advanced communications service to be disrupted remotely; or (C) otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons” precisely because those are the types of consideration necessary to determine whether that particular equipment or service actually “poses an unacceptable risk” under the law. And so, in such a case, the Commission believes that the specific equipment or service must be placed on the Covered List because another agency has already concluded that the particular equipment or service poses an unacceptable national security risk (and thus it must be “capable” of posing such a risk under section 2(b)(2)(C) regardless of whether it also meets the section 2(b)(2)(A) or (B) criteria). Thus, the Commission's placement of the equipment or service on the Covered List in such a case is a non-discretionary, ministerial act. The Commission seeks comment on this view.
23. In contrast, a section 2(c) source may determine that a broader class of equipment or services “poses an unacceptable risk”—as section 889(f)(3)(A) of the 2019 NDAA does when it lists all “telecommunications equipment produced by Huawei or ZTE (or any subsidiary or affiliate of such entities).” When an external source identifies classes or categories of equipment or services as part of its external determination, the Commission believes that the best reading of the Secure Networks Act is to apply the external determination to particular models of equipment or services in light of the section 2(b)(2) criteria. So in applying the general determination that telecommunications equipment from ZTE or Huawei poses an unacceptable risk to a particular piece of equipment, the Commission would look to whether that equipment is “capable” of “(A) routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles; (B) causing the network of a provider of advanced communications service to be disrupted remotely; or (C) otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons.” As such, the Covered List would include “Telecommunications equipment produced by Huawei or ZTE that is capable of (A) routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles, (B) causing the networks of a provider or advanced communications service to be disrupted remotely, or (C) otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons.” The Commission seeks comment on this proposal. In turn, the Commission seeks comment on how it should define “capable” for purposes of section 2(b)(2) of the Secure Networks Act. The Commission believes “capable” should be read broadly, and equipment or services may be “capable” of fulfilling section 2(b)(2)(A) or (B) even if they are not ordinarily used to perform the functions in 2(b)(2)(A) or (B), so long as they can possibly perform those functions. The Commission seeks comment on this view. How will interested parties determine whether specific equipment or services are capable of posing an unacceptable national security risk, pursuant to section 2(b)(2)(C)?
24. The Commission seeks comment on alternatives to its lead proposal. For example, once the Commission receives an external determination that communications equipment or services pose an unacceptable security risk, should the Commission conduct an independent analysis of the capabilities of each specific piece of communications equipment or services before including it on the Covered List? If so, could the Commission permissibly find that equipment is not “capable” of posing an unacceptable risk even if it must “exclusively” rely on a section 2(c) source to determine that it does actually pose such a risk? Must the Commission identify the specific capability from section 2(b)(2)(A)-(C) that warrants inclusion on the Covered List for every piece of communications equipment and service? Is such an analysis of each and every piece of equipment included in a section 2(c) determination even possible in light of the one-year deadline for creating such a list? Even if such an analysis could be done, would a particularized Covered List be easily evaded given how frequently communications equipment is updated? Are there best practices for producing a detailed list that is
25. Finally, regardless of how the Commission interprets the interplay of section 2(b)'s various provisions, it seeks comment on the process for allowing interested parties to clarify whether a specific piece of communications equipment or a specific service is on the Covered List. What is the best method for allowing the interested party to seek clarity? For example, the Commission's rules provide for declaratory rulings to remove uncertainty. How can the Commission provide interested parties adequate opportunities to demonstrate that specific equipment or services are or are not included on the Covered List while meeting its obligations under the Secure Networks Act?
26. Section 2(d) of the Secure Networks Act sets out certain requirements for the Commission to maintain the Covered List. Section 2(d)(1) requires the Commission to update the Covered List “periodically” to address changes in the determinations made by other governmental agencies. The Commission must monitor the Covered List to add additional communications equipment or services or remove equipment or services if the basis for its inclusion no longer exists. For each 12-month period during which the Covered List is not updated, the Commission must notify the public that no updates were necessary to protect national security or to address changes in existing determinations. The Commission reads the language of section 2(d) to be mandatory—precluding it from altering the list beyond the specific updates (all tied to changes in section 2(c) determinations) required by its terms. The Commission seeks comment on this interpretation. The Commission also seeks comment on the process to update and publish the Covered List and solicit ideas and best practices for ways to maintain the Covered List and keep it current and readily available.
27. Consistent with the Secure Networks Act, which establishes no notice period before the publication of the Covered List, the Commission proposes to publish the Covered List without first seeking public comment on the contents. The Commission notes that section 2(d) uses mandatory language and thus does not appear to give the Commission discretion not to update the Covered List based on changes in determinations, and hence it would be unclear what purpose a notice period would serve. The Commission seeks comment on this proposal.
28. In the concurrently adopted Declaratory Ruling, the Commission found that the prohibition adopted in § 54.9 of the Commission's rules substantially implements the prohibition contained in section 3 of the Secure Networks Act. That is, the Commission's current § 54.9 prohibition on spending USF funds, adopted pursuant to the Communications Act, broadly applies to all equipment and services produced or provided by entities designated as “posing a national security threat.” Section 3 of the Secure Networks Act, in comparison, applies to Federal programs subsidizing capital expenditures necessary for the provision of advanced communications service and more narrowly to covered communications equipment and services identified in the Covered List.
29. The Commission proposes and seeks comment on the designation of covered communications equipment and services on the Covered List. If the Commission's proposal here is adopted, it would have two different designation processes, one for the designation of an entity, as currently provided by the Commission's rules and another, more targeted process, for the designation of specific communications equipment and services per section 2 of the Secure Networks Act. To accommodate this outcome, the Commission proposes a new rule, independent of the § 54.9 prohibition, that would prohibit, going forward, the use of federal subsidies made available through a program administered by the Commission to purchase, rent, lease, otherwise obtain, or maintain any covered communications equipment and services identified and published on the Covered List. The Commission proposes that the new prohibition on the use of USF funds pursuant to the Secure Networks Act would be effective 60 days after communications equipment or services are placed on the Covered List. The Commission seeks comment on this proposal, which tracks the text of section 3 of the Secure Networks Act and would more closely align the Commission's rules with the Secure Networks Act than currently provided for under § 54.9.
30. As discussed in the concurrently adopted Declaratory Ruling, the Commission reads the prohibition in section 3 as intending to apply to all universal service programs but not other Federal subsidy programs to the extent those programs may at times tangentially or indirectly involve expenditures related to the provision of advanced communications services. The Commission seeks comment on this proposal. The Commission believes that applying this prohibition to USF programs furthers its responsibility to ensure that public funds are not spent on equipment or services from companies that present a risk to the supply chain, whether that responsibility arises from its own statutory imperatives or from the Secure Networks Act. The prohibition would also apply to any other programs administered by the Commission that primarily support the provision of advanced communications services, as well as any future USF programs implemented by the Commission. The Commission seeks comment on this approach.
31. The Commission seeks comment on how the proposed rule would affect multiyear contracts or contracts with voluntary extensions between fund recipients and companies producing or providing communications equipment or services posing a supply chain security risk, if any such contracts exist. The Commission specifically seeks comment on whether the Secure Networks Act, which states that the prohibition shall apply 60 days after the date on which it places a service or piece of equipment on the Covered List, permits the Commission to grandfather any such arrangements. If the Commission does grandfather contracts, should it only grandfather unexpired annual or multiyear contracts, or also grandfather one-year contracts with voluntary extensions? The Commission notes that in the
32. Are there other practical issues raised by the Commission's proposals that it should address in implementing this proposed rule? Would section 3, any other section of the Secure Networks Act, or the Secure Networks
33. Section 5 of the Secure Networks Act requires each “provider of advanced communications service” to report annually, “in a form to be determined by the Commission,” if it has “purchased, rented, leased, or otherwise obtained any covered communications equipment or service.” All covered communications equipment or services on the initial Covered List published under section 2(a) of the Secure Networks Act that was purchased, leased, or otherwise obtained by a provider on or after August 14, 2018 must be reported, and any additional covered equipment or services must be reported within 60 days after the list is updated.
34. The Secure Networks Act also requires providers to include “a detailed justification” for procuring such communications equipment or services, information about whether the equipment or service has subsequently been removed and replaced, and information about any plans for the continued purchase, rent, lease, installation, or use of such covered communications equipment or services. If a provider does not have any covered communications equipment or services in its network, then subsequent annual reports beyond an initial certification are not required unless subsequent purchases or other actions make the initial certification inaccurate.
35. While the Commission recently conducted an information collection to better understand the extent of Huawei and ZTE equipment in our communications networks, it recognizes the annual reporting requirement contained in section 5 goes beyond the scope and frequency of that collection. The Commission limited the earlier collection requirement to ETCs, their subsidiaries, and their affiliates, but allowed service providers with pending ETC designations and others to participate on a voluntary basis. The type of information reported in the earlier collection did not track the requirements of section 5. For example, the earlier collection did not require any justification as to purchasing decisions. Accordingly, the collection would not satisfy section 5 of the Secure Networks Act absent significant modification.
36. The Commission therefore proposes and seeks comment on a new information collection requirement to implement section 5. Specifically, the Commission proposes to require that all “providers of advanced communications services” must comply with the new reporting requirement contained in section 5 of the Secure Networks Act. The information contained in the report would generally encompass the requirements in section 5. Consistent with section 5, the Commission proposes to require that filers report the type, location, date obtained, and any removal and replacement plans of covered equipment and services in their network. Filers will also have to provide a “detailed justification” explaining why they obtained covered equipment or services. The Commission seeks comment on what the detailed justification should include and on these other proposals. Is there additional information the Commission should require, to be consistent with the Secure Networks Act's purpose and obligations, that would prove helpful in monitoring and assessing the presence and replacement of covered equipment and services? For example, would it be helpful to know the amount paid for the covered equipment and services or the supplier from whom the equipment was purchased? The Commission also seeks comment on how it could use the information it has already collected to reduce potentially duplicative reporting requirements for carriers.
37. To what extent should the Commission make reported information publicly available or treat it as presumptively confidential and not subject to routine public inspection? Consistent with the
38. Section 7(a) requires the Commission to treat violations of the Secure Networks Act and violations of the regulations pursuant to that statute as violations of the Communications Act. Accordingly, the Commission would have authority to subject those found in violation of the Secure Networks Act to forfeitures as authorized under section 503(b) of the Communications Act and § 1.80 of the Commission's rules. Additional regulations to implement this particular provision appear unnecessary as there are already regulations governing Commission processes regarding forfeiture proceedings. The Commission seeks comment on the assumptions that it needs not propose any new procedural enforcement requirements associated with section 7(a) of the Secure Networks Act.
39. Separately, section 7(b) requires the repayment of funds disbursed per the reimbursement program prescribed in section 4 of the Secure Networks Act by recipients if they are found to have violated section 4, the Commission's regulations promulgated pursuant to section 4, or the “commitments made by the recipient in the application for the reimbursement.” Section 4 establishes the reimbursement program providers may use to help pay for the removal, replacement, and disposal of covered communications equipment and services. The statute further calls for the referral of such violations to “all appropriate law enforcement agencies or officials for further action under applicable criminal and civil laws.” The statute bars violators from further participation in the section 4 reimbursement program, and violators may be barred from participating in other Commission programs, “including the Federal universal service support programs.” Before requiring repayment and triggering the additional penalty actions, the Commission must first give alleged violators notice and a 180-day opportunity to cure the violation. The Commission proposes to adopt regulations tracking the language contained in section 7 and seek comment on this proposal.
40. The Commission is also required by section 7(c) to “immediately take action to recover all reimbursement funds awarded” when a recipient is required to repay reimbursement under section 7(b)(1)(A) due to a violation. The Commission proposes to initiate such action by sending a request for repayment to the recipient immediately following the expiration of the opportunity to cure where the recipient does not respond to the notice of violation required by section 7(b)(2). If the alleged violator does respond to the notice but is ultimately determined by the Commission to have not cured the violation, the Commission will then request repayment following that determination. What additional clarifications and/or rules are needed to implement these enforcement provisions?
41. The proposals in the Further Notice generally reflect mandates from
42. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite 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. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
43.
44. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Further Notice. Written comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Further Notice provided on the first page of the item. 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 Further Notice and IRFA (or summaries thereof) will be published in the
45. Consistent with the Commission's obligation to be responsible stewards of the public funds used in the USF programs and increasing concern about ensuring communications supply chain integrity, the Further Notice proposes and seeks comment on rules to implement sections 2, 3, 5, and 7 of the Secure Networks Act and their applicability to the Commission's ongoing efforts to secure the communications supply chain.
46. Specifically, the Commission proposes to establish the rules for the creation and maintenance of the Covered List, which will list communications equipment and services that providers of advanced communications services will be prohibited from using any Federal subsidy to purchase or maintain. The Commission also proposes to require advanced communications service providers to report their use of communications equipment and services published on the Covered List, and to adopt enforcement mechanisms the Commission may implement to as part of the reimbursement program established by section 4 of the Secure Networks Act.
47. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small SBA.
48.
49. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and
50. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, 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, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”
51. Small entities potentially affected by the proposals herein include eligible schools and libraries, eligible rural non-profit and public health care providers, and the eligible service providers offering them services, including telecommunications service providers, internet Service Providers (ISPs), and vendors of the services and equipment used for telecommunications and broadband networks.
52. The Further Notice proposes rules that establish a Covered List of communications equipment and services that advanced communications providers are prohibited from using federal subsidies administered by the Commission to purchase or maintain. The Further Notice also proposes rules to create a reporting requirement for advanced communications providers to identify whether they use or maintain any equipment or services on the Covered List in their networks. The Commission seeks comment on this proposal, and its likely costs and benefits, as well as on alternative approaches and any other steps it should consider taking.
53. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
54. In compliance with the Secure Networks Act, the Further Notice specifically proposes to establish the Covered List, reporting requirements for advanced communications providers, and enforcement mechanisms for violations of the prohibition on the use of federal subsidies to purchase or maintain communications equipment and services on the Covered List.
55. The Commission expects to take into account the economic impact on small entities, as identified in comments filed in response to the Further Notice and this IRFA, in reaching our final conclusions and promulgating rules in this proceeding. The Further Notice generally seeks comment on how to adopt enacted legislation that mandates action by the Commission and seeks specific comment on how to mitigate the impact on small entities.
56. Accordingly,
57.
Administrative practice and procedure, Civil rights, Claims, Communications, Communications common carriers, Communications equipment, Cuba, Drug abuse, Environmental impact statements, Equal access to justice, Equal employment opportunity, Federal buildings and facilities, Government employees, Historic preservation, Income taxes, Indemnity payments, Individuals with disabilities, internet, Investigations, Lawyers, Metric system, Penalties, Radio, Reporting and recordkeeping requirements, Security measures, Satellites, Telecommunications, Telephone, Television, Wages.
Communications common carriers, Health facilities, Infants and children, internet, Libraries, Puerto Rico, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone, Virgin Islands.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1 as follows:
47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted.
(a)
(b)
(2)
(i) Physical facilities that the entity owns and that terminate at the end-user premises;
(ii) Facilities that the entity has obtained the right to use from other entities, such as dark fiber or satellite transponder capacity, as part of its own network, or has obtained;
(iii) Unbundled network element (UNE) loops, special access lines, or other leased facilities that the entity uses to complete terminations to the end-user premises;
(iv) Wireless spectrum for which the entity holds a license or that the entity manages or has obtained the right to use via a spectrum leasing arrangement or comparable arrangement pursuant to subpart X of this part (§§ 1.9001-1.9080); or
(v) Unlicensed spectrum.
(3)
(c)
(1) Identify any covered communications equipment or service that is purchased, rented, leased or otherwise obtained on or after:
(i) August 14, 2018, in the case of any covered communications equipment or service on the initial list published pursuant to § 1.40002(b) of this chapter; or
(ii) Within 60 days after the date on which the Commission places such equipment or service on the list required by § 1.40002(b) of this chapter;
(2) Provide details on the covered communications equipment or services in its network, including the type, location, date purchased, rented, leased or otherwise obtained, and any removal and replacement plans;
(3) Provide a detailed justification as to why the facilities-based provider of broadband service purchased, rented, leased or otherwise obtained the covered communications equipment or service;
(4) Provide information about whether any such covered communications equipment or service has subsequently been removed and replaced pursuant to Commission's reimbursement program contained in 47 CFR part 54, subpart P;
(5) Provide information about whether such provider plans to continue to purchase, rent, lease, or otherwise obtain, or install or use, such covered communications equipment or service and, if so, why; and
(6) Include a certification as to the accuracy of the information reported by an appropriate official of the filer, along with the title of the certifying official.
(d)
(e)
(f)
47 U.S.C. chs. 5, 15.
The purpose of this subpart is to set out the terms by which the Commission will publish and maintain the Covered List in accordance with the Secure and Trusted Communications Networks Act of 2019, Public Law 116-124, 133 Stat. 158.
For purposes of this subpart:
(a)
(b)
(1) The Department of Homeland Security;
(2) The Department of Defense;
(3) The Office of the Director of National Intelligence;
(4) The National Security Agency; and
(5) The Federal Bureau of Investigation.
(c)
(d)
(e)
(f)
(a)
(b)
(1) Is produced or provided by any entity if, based exclusively on the following determinations, such equipment or service produced or provided by such an entity poses an unacceptable risk to the national security of the United States or the security and safety of United States persons. The sources for these determinations are:
(i) A specific determination made by any executive branch interagency body with appropriate national security expertise, including the Federal Acquisition Security Council established under section 1222(a) of title 41, United States Code;
(ii) A specific determination made by the Department of Commerce pursuant to Executive Order No. 13873 (relating to securing the information and communications technology and services supply chain);
(iii) Equipment or service being covered telecommunications equipment or services, as defined in section 889(f)(3) of the John S. McCain National
(iv) A specific determination made by an appropriate national security agency.
(2) And is capable of:
(i) Routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles;
(ii) Causing the networks of a provider of advanced communications services to be disrupted remotely; or
(iii) Otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons.
(a)
(b)
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 229, 254, 303(r), 403, 1004, 1302, and 1601-1609, unless otherwise noted.
(a) A Federal subsidy made available through a program administered by the Commission that provides funds to be used for the capital expenditures necessary for the provision of advanced communications service may not be used to:
(1) Purchase, rent, lease, or otherwise obtain any covered communications equipment or service; or
(2) Maintain any covered communications equipment or service previously purchased, rented, leased, or otherwise obtained.
(b) The term “covered communications equipment or service” is defined in § 1.40001(c) of this chapter.
(c) The prohibition in paragraph (a) of this section applies with respect to any covered communications equipment or service beginning on the date that is 60 days after the date on which such equipment or service is placed on a published list pursuant to § 1.40002(b) of this chapter. In the case of any covered communications equipment or service that is on the initial list published pursuant to § 1.40002(b), such equipment or service shall be treated as being placed on the list on the date which such list is published.
The purpose of this subpart is to set out the terms by which providers of advanced communications service can seek and obtain reimbursements to replace covered communications equipment or services in accordance with the Secure and Trusted Communications Networks Act of 2019, Public Law 116-124, 133 Stat. 158.
(a)
(1) Shall repay to the Commission all reimbursement funds provided to the recipient under the Program;
(2) Shall be barred from further participation in the Program;
(3) Shall be referred to all appropriate law enforcement agencies or officials for further action under applicable criminal and civil law; and
(4) May be barred by the Commission from participation in other programs of the Commission, including the Federal universal service support programs established under section 254 of the Communications Act of 1934, as amended.
(b)
(1) The Commission, the Wireline Competition Bureau, or the Enforcement Bureau provides the recipient with notice of the violation; and
(2) The recipient fails to cure the violation within 180 days after the Commission or Bureau provides such notice.
(c)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
90-Day petition finding, request for information, and initiation of status review.
We, NMFS, announce a 90-day finding on a petition to list the black teatfish (
Scientific and commercial information pertinent to the petitioned action must be received by October 9, 2020.
You may submit comments on this document, identified by NOAA-NMFS-2020-0093 by the following method:
•
Interested persons may obtain a copy of the petition online at the NMFS website:
Adrienne Lohe, NMFS Office of Protected Resources, (301) 427-8442,
On May 14, 2020, we received a petition from the Center for Biological Diversity to list the black teatfish (
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms to address identified threats; (5) or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).
Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (
If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such
We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (
The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petition will generally not be considered to present substantial scientific and commercial information indicating that the petitioned action may be warranted unless the petition provides new information or analysis not previously considered.
At the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.
To make a 90-day finding on a petition to list a species, we first evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, if we conclude the petition presents substantial scientific or commercial information suggesting that the petitioned entity may constitute a “species,” we evaluate whether the information indicates that the species may face an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate whether the petition presents any information on specific demographic factors pertinent to evaluating extinction risk for the species (
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
Morphological characteristics were historically used to distinguish between teatfish species, though morphological features alone were determined to be unreliable markers of identification due to high interspecies variability (Uthicke
The black teatfish occurs in coral reef habitats between 0 and 40 meters depth, and is most commonly found in reef flats and outer reef slopes with a preference for hard substrates (CITES 2019; Conand
Sea cucumbers of the order Aspidochirotida, including
Although data on abundance and population trends for
The petition asserts that
An estimated 10,000 tons of dried and processed sea cucumber are traded internationally each year, corresponding to about 200 million individuals harvested from marine ecosystems annually (Purcell
Several of the black teatfish's life history traits make it vulnerable to overexploitation, including its low mobility, slow growth, late maturity, density-dependent reproduction, and low recruitment rates (CITES 2019; FAO 2019). These traits, combined with its occurrence in shallow, easily accessible waters, and high value in international markets, have led to local extirpations and depletion of stocks throughout most of its range (CITES 2019; FAO 2019). The species is estimated to have declined between 60-70 percent over at least 80 percent of its range, as evidenced by vastly reduced catch per unit effort, reduced sizes of harvested individuals, and extremely low observed population densities (Conand
After reviewing the petition, the literature cited in the petition, and other information readily available in our files, we find that listing
To ensure that the status review is based on the best available scientific and commercial data, we are soliciting comments and information from interested parties on the status of the black teatfish. Specifically, we are soliciting information in the following areas:
(1) Historical and current abundance, density, and distribution of
(2) Historical and current condition of habitat for
(3) The effects of harvest for commercial international trade on the distribution and abundance of
(4) The effects of other known or potential threats, including coral reef and seagrass bed degradation, climate change, disease and predation, and the inadequacy of existing regulatory mechanisms, on the distribution and abundance of
(5) Management or conservation programs for
We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments to one of the
A complete list of all references cited herein is available upon request (See
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a public meeting of the Board for International Food and Agricultural Development (BIFAD),
This convening follows the June 4, 2020 181st BIFAD meeting,
The meeting provides dedicated time to discuss how the global community can work together to protect and advance nutrition outcomes across sectors during COVID-19 response and recovery. In real time, researchers and implementers are gathering evidence to better understand the impacts of the pandemic and learning how to respond.
The meeting will be organized to achieve three objectives:
1. To provide an update on what emerging research and data can tell us about the current and expected impacts of COVID-19 containment and control measures on nutrition, and how we should use this emerging evidence to guide our response.
2. To learn from our implementing partners and USAID Missions across sectors that have pivoted their implementation to respond to COVID-19 and protect nutrition outcomes. To understand the realities on the ground, and to include the innovations and expertise of those on the frontlines in the discourse.
3. To discuss and prioritize actions for the near, medium, and long term to safeguard and accelerate nutrition progress.
The meeting is intended to help support decision making by USAID and its partners and stakeholders working to advance food security and nutrition at global, regional and national levels. On the basis of testimony, including public comments, shared at the meeting, BIFAD will provide formal findings, conclusions, and recommendations to the Agency on best-bet operational and programmatic investments.
BIFAD is a seven-member, presidentially appointed advisory board to USAID established in 1975 under Title XII of the Foreign Assistance Act, as amended. The provisions of Title XII concern bringing the assets of U.S. universities to bear on development challenges in agriculture and food security, and BIFAD's role is to help carry out this function.
Participants may register at
Commodity Credit Corporation and Farm Service Agency, USDA.
Notice.
The Farm Service Agency (FSA), on behalf of the Commodity Credit Corporation (CCC), is announcing changes to the availability of funding and payment calculation for certified organic operations, which are required based on expected participation levels and limited funding, under the Organic Certification Cost Share Program (OCCSP). FSA is also announcing the opportunity for State Agencies to apply for grant agreements to administer the OCCSP program in fiscal year (FY) 2020.
Tona Huggins, Program Policy Branch Chief, (202) 720-6825,
OCCSP provides cost share assistance to producers and handlers of agricultural products for the costs of obtaining or maintaining organic certification under the National Organic Program (NOP). Funding for OCCSP is provided through two authorizations: (1) National Organic Certification Cost Share Program (National OCCSP)
The purpose of this NOFA is to announce changes to the funding availability and payment calculation provisions for FY 2020 through 2023 and to notify State Agencies of the opportunity to apply to administer OCCSP in their State for FY 2020. On April 29, 2019, FSA published a NOFA in the
For FY 2020 through 2023, FSA is revising the reimbursement amount to 50 percent of the certified organic operation's eligible expenses, up to a maximum of $500 per scope. This change is due to the limited amount of funding available and will allow a larger number of certified organic operations to receive assistance. If additional funding is authorized at a later time, FSA may provide additional assistance to certified operations that have applied for OCCSP, not to exceed 75 percent of their eligible costs, up to $750 per scope.
The changes to the payment calculation and maximum payment amount are applicable to all certified organic operations, regardless of whether they apply through an FSA county office or a participating State Agency. Due to the changes, State Agencies that are interested in overseeing reimbursements to producers and handlers in their States must establish new agreements with FSA for FY 2020. FY 2020 agreements will include provisions that allow FSA to extend the agreements to provide additional funds and allow State Agencies to continue to administer OCCSP for future years. FSA has not yet determined whether an additional application period will be announced for later years for State Agencies that choose not to participate in FY 2020; State Agencies that would like to administer OCCSP for future years are encouraged to establish an agreement for FY 2020 to ensure that they will be able to continue to participate. If additional funds are authorized for OCCSP for FY 2020, FSA and State Agencies may amend the grant agreements to provide additional funds and increase the payment amount that a certified organic operation may receive.
To provide cost share assistance for FY 2020, State Agencies must complete an Application for Federal Assistance (Standard Form 424 and 424B) and enter into a grant agreement with FSA. State Agencies must submit the Application for Federal Assistance (Standard Form 424 and 424B) electronically via
There are no changes to the information collection request for OCCSP that has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The OMB control number for the approval is 0560-0289.
The title and number of the Federal assistance program in the Catalog of Federal Domestic Assistance to which this NOFA applies is 10.171, Organic Certification Cost Share Program (OCCSP).
The environmental impacts of this NOFA have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). The purpose of OCCSP is to provide cost share assistance to producers and handlers of agricultural products in obtaining organic certification. This NOFA merely announces funding availability and changes to general eligibility and administrative provisions for FY 2020 through 2023. FSA is not making substantive changes to OCCSP. As such, the Categorical Exclusions found at 7 CFR part 799.31 apply, specifically 7 CFR 799.31(b)(6)(iii) (that is, financial assistance to supplement income). No Extraordinary Circumstances (7 CFR 799.33) exist. As such, FSA has determined that this NOFA does not constitute a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this administrative action and this NOFA serves as documentation of the programmatic environmental compliance decision.
Forest Service, USDA.
Notice of meeting.
The Missoula Resource Advisory Committee (RAC) will hold a virtual meeting. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the Act. RAC information can be found at the following website:
The meeting will be held on September 8, 2020, starting at 3 p.m. (MST).
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held with virtual attendance only. For virtual meeting information, please contact the person listed under
Written comments may be submitted as described under
Quinn Carver, Designated Federal Officer (DFO), by phone at 406-677-3905 or email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Hear proposal presentations;
2. Approve meeting minutes;
3. Discuss, recommend, and approve new Title II projects; and
4. Discuss and make recommendations on recreation fee proposals for sites located within Missoula County on the Lolo National Forest.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by September 3, 2020, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Kate Jerman, RAC Coordinator, Lolo National Forest Supervisor's Office, 24 Fort Missoula Road, Missoula, Montana 59804; or by email to
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Delaware Advisory Committee to the Commission will convene by conference call, on Wednesday, September 2, 2020 at 1:00 p.m. (EDT). The purpose of the meeting is for project planning and selection of additional Committee officers.
Wednesday, September 2, 2020 at 1:00 p.m. (EDT).
Conference call number: 1-800-367-2403 and conference call ID: 4195799.
Ivy L. Davis, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call number: 1-800-367-2403 and conference call ID: 4195799. Please be advised that before placing them into the conference call, the conference call operator may ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number herein.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call number:1-800-822-2024 and conference call ID: 4195799.
Members of the public are invited make statements during the Public Comment section of the meeting or to submit written comments; the written comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425 or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing, as they become available at this FACA link, click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is partially rescinding its administrative review of the antidumping duty (AD) order on drawn stainless steel sinks (drawn sinks) from the People's Republic of China (China) for the period of review (POR) April 1, 2019 through March 31, 2020.
August 10, 2020.
Adam Simons, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2972.
On April 1, 2019, Commerce published in the
In April 2020, Commerce received timely requests from Elkay Manufacturing Company, KaiPing Dawn Plumbing Products, Inc. (KaiPing Dawn), and Zuhai Kohler Kitchen & Bathroom Products, Ltd. (Zuhai Kohler) to conduct an administrative review of the AD order on drawn sinks from China.
On June 8, 2020, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if a party that requested a review withdraws its request within 90 days of the date of publication of notice of initiation of the requested review. The petitioner withdrew its request for an administrative review of the following companies within 90 days of the date of publication of the
The instant review will continue with respect to the following companies: Guangdong G-Top Import and Export Co., Ltd.; Jiangmen New Star Hi-Tech Enterprise Ltd.; Jiangmen Pioneer Import & Export Co., Ltd.; KaiPing Dawn Plumbing Products, Inc.; Zhongshan Superte Kitchenware Co., Ltd.; and Zhuhai Kohler Kitchen & Bathroom Products Co., Ltd.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of this notice in the
This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Hampton Roads Connector Partners (HRCP) to incidentally harass, by Level A and Level B harassment, marine mammals during pile driving and removal activities associated with the Hampton Roads Bridge-Tunnel (HRBT) Expansion Project, Hampton-Norfolk, Virginia.
This Authorization is effective for one year from July 10, 2020 to July 9, 2021.
Stephanie Egger, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
On September 18, 2019, NMFS received a request from the HRCP for an IHA to take marine mammals incidental to impact and vibratory pile driving activities associated with the HRBT, in Hampton and Norfolk, Virginia for one year from the date of issuance. The application was deemed adequate and complete on February 4, 2020. The HRCP request is for take of a small number of five species of marine mammals by Level A and B harassment. Neither the HRCP nor NMFS expects injury, serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. The planned activities are part of a larger project and the applicant has requested rulemaking and a letter of authorization for the other components of this project.
The HRCP is working with the Virginia Department of Transportation (VDOT) and Federal and state agencies to advance the design, approvals, and multi-year construction of the Interstate (I)-64 HRBT Expansion project. The overall project will widen I-64 for approximately 15.93 kilometer (km) (9.9 miles) along I-64 from Settlers Landing Road in Hampton, Virginia to the I-64/I-564 interchange in Norfolk, Virginia. The project will create an eight-lane facility with six consistent use lanes. The project will include full replacement of the North and South Trestle Bridges, two new parallel tunnels constructed using a Tunnel Boring Machine (TBM), expansion of the existing portal islands, and widening of the Willoughby Bay Trestle Bridges, Bay Avenue Trestle Bridges, and Oastes Creek Trestle Bridges. Also, upland portions of I-64 will be widened to accommodate the additional lanes, the Mallory Street Bridge will be replaced, and the I-64 overpass bridges will be improved. The planned activities below are part of the overall project (see the application for additional details on the overall project). Only the activities relevant to the IHA requested by HRCP are discussed below. This includes the following components:
TBM Platform at the South Island;
Conveyor Trestle at the South Island;
Temporary trestles for jet grouting at the South Island;
Temporary trestle for bridge construction at the North Shore;
Mooring piles at the South Trestle (located at the South Island), North Island, and Willoughby Bay; and
Installation and removal of piles for test pile program.
Pile installation methods will include impact and vibratory driving, jetting, and drilling with a down-the-hole (DTH) hammer. Pile removal techniques for temporary piles will include vibratory pile removal or cutting below the mud line. Installation of steel pipe piles could be 24-, 36-, or 42-inches (in) in diameter to support temporary work trestles, platforms, and moorings. Test piles would consist of 30-in square concrete or 54-in concrete cylinder piles. Only load test piles will be removed under this IHA. In-water pile installation using impact and vibratory driving, and drilling with a DTH hammer, and pile removal using a vibratory hammer, have the potential to harass marine mammals acoustically and could result in incidental takes of individual marine mammals. Jetting is not likely to result in take.
Work could occur at any point during the year, and will occur during the day. Pile installation may extend into
The HRBT is located in the waterway of Hampton Roads adjacent to the existing bridge and island structures of the HRBT in Virginia. Hampton Roads is located at the confluence of the James River, the Elizabeth River, the Nansemond River, Willoughby Bay, and the Chesapeake Bay (Figure 1). Hampton Roads is a wide marine channel that provides access to the Port of Virginia and several other deep water anchorages upstream of the project area (VDOT and Federal Highway Administration (FHWA) 2016). Navigational channels are maintained by the U. S. Army Corps of Engineers within Hampton Roads to provide transit to the many ports in the region.
Pile installation will occur in waters ranging in depth from less than 1 meter (m) (3.3 feet (ft)) near the shore to approximately 8 m (28 ft), depending on the structure and location. The majority of the piles will be in water depths of 3.6-4.6 m (12-15 ft).
Three methods of pile installation are anticipated and expected to result in take of marine mammals. These include use of vibratory, impact, and DTH hammers. More than one installation method will be used within a day. Most piles will be installed using a combination of vibratory (ICE 416L or similar) and impact hammers (S35 or similar). Overall, steel pipe piles at the North Shore Work Trestle, Jet Grouting Trestle, and TBM Platform would be installed using the vibratory hammer approximately 80 percent of the time and impact hammer approximately 20 percent of the time, while all mooring piles and steel pipe piles at Conveyor Trestle would be installed using the
Prior to installing steel pipe piles near shorelines protected with rock armor and/or rip rap (
Detailed descriptions of the project components for this IHA request are explained below.
The project design is divided into five segments (see also Figure 2) as follows:
• Segment 1a (Hampton) begins at the northern terminus of the Project in Hampton and ends at the north end of the north approach slabs for the north tunnel approach trestles. This segment has two interchanges and also includes improvements along Mallory Street to accommodate the bridge replacement over I-64. This segment covers approximately 1.2 miles along I-64;
• Segment 1b (North Trestle-Bridges) includes the new and replacement north tunnel approach trestles, including any approach slabs. This segment covers approximately 1 km (0.6 mi) along I-64;
• Segment 2a (Tunnel) includes the new bored tunnels, the tunnel approach structures, buildings, the North Island improvements for tunnel facilities, and South Island improvements. This segment covers approximately 2.9 km (1.8 mi) along I-64;
• Segment 3a (South Trestle-Bridge) includes the new South Trestle-Bridge and any bridge elements that interface with the South Island to the south end of the south abutments at Willoughby Spit. This segment covers approximately 1.93 km (1.2 mi) along I-64;
• Segment 3b (Willoughby Spit) continues from the south end of the south approach slabs for the south trestle and ends at the north end of the north approach slabs for the Willoughby Bay trestles. This segment includes a modified interchange connection to Bayville Street, and has a truck inspection station for the westbound tunnels. This segment covers approximately 1 km (0.6 mi) along I-64;
• Segment 3c (Willoughby Bay Trestle-Bridges) includes the entire structures over Willoughby Bay, from the north end of the north approach slabs on Willoughby Spit to the south end of south approach slabs near the 4th View Street interchange. This segment covers approximately 1.6 km (1.0 mi) along I-64;
• Segment 3d (4th View Street Interchange) continues from the Willoughby Trestle-Bridges south, leading to the north end of the north approach slabs of I-64 bridges over Mason Creek Road along mainline I-64. This segment covers approximately 1.6 km (1.0 mi) along I-64;
• Segment 4a (Norfolk-Navy) goes from the I-64 north end of the north approach slabs at Mason Creek Road to the north end of the north approach slabs at New Gate/Patrol Road. There are three interchange ramps in this segment: Westbound I-64 exit ramp to Bay Avenue, eastbound I-64 entrance ramp from Ocean Avenue, and westbound I-64 entrance ramp from Granby Street. The ramps in this segment are all on structure. This segment covers approximately 2.4 km (1.5 mi) along I-64; and
• Segment 5a (I-564 Interchange) starts from the north end of the north approach slab of the New Gate/Patrol Road Bridge to the southern Project Limit. This segment runs along the Navy property and includes an entrance ramp from Patrol Road, access ramps to and from the existing I-64 Express Lanes, ramps to and from I-564, and an eastbound I-64 entrance ramp from Little Creek Road. This segment covers approximately 1.93 km (1.2 mi) along I-64.
However, the only planned in-water marine construction activities that have potential to affect marine mammals and result in take would occur at the following locations in the following segments:
North Trestle-Bridges (Segment 1b);
Tunnel—North Island and South Island (Segment 2a);
South Trestle-Bridge (Segment 3a); and
Willoughby Bay Trestle-Bridges (Segment 3c).
Approximately, 1070 piles (of all sizes) would be installed (only some removed) under this IHA (Table 1). For 36-in steel piles, 698 piles would be installed. For 42-in steel piles, 257 piles would be installed. For 24-in piles, 66 piles would be installed. For 54-in concrete cylinder piles, 33 piles would be installed. For 24-in or 30-in concrete square piles, 16 piles would be installed. Removal would only occur for piles as part of the test pile program (Table 1).
The TBM Platform is a steel structure founded on (216) 36-in diameter steel piles, with an overall area of approximately 0.40 acres (approximately 50.6 m x 2.7 m). The piles will be installed using a combination of vibratory and impact hammers except along the perimeter where down-the-hole hammering may be needed to install piles through the rock armor stone. The piles are 47 m (154 ft) long and will have an average embedded length of approximately 42.7 m (140 ft). Table 1 provides additional information on the pile driving operation including estimated pile installation times and number of strikes necessary to drive a pile to completion.
The superstructure of the platform is set on top of the piles and consists of transverse and longitudinal beams below a 13/16-in-thick plate set on top of the beams. Rail beams will be installed on top of the plate and will support the gantry crane. A concrete slab may be placed on top of the steel plates or timber trusses.
Dolphins will be installed along the shoreline of the South Island in the areas adjacent to the TBM Platform. Each dolphin will consist of 36-in steel piles and will be installed with a combination of vibratory and impact hammers.
The Conveyor Trestle is a steel structure founded on (84) 36-in diameter steel piles, with an overall area of approximately 0.42 acres (approximately 205 m x 8 m). The piles will be installed using a combination of vibratory (International Construction Equipment (ICE) 416L or similar) and impact hammers (S35 or similar). The piles are approximately 42.7 m (140 ft) long and will have an average embedded length of approximately 30.5 m (100 ft). Table 1 provides additional information on the pile driving operation including estimated pile driving times and number of strikes necessary to drive a pile to completion.
Additionally, mooring dolphins will be installed along the outside edge of the Conveyor Trestle. Each dolphin will consist of 36-in steel piles and will be installed with a combination of vibratory and impact hammers.
Dolphins will be installed at the southern end and along the outside edge of the work trestle. Each dolphin will consist of 24-in steel piles. In addition, 42-in steel pipe piles will be installed along the outer edge of the work trestle to provide additional single mooring points for barges and vessels delivering material and accessing the trestle. The mooring dolphin piles and the single mooring point piles will be installed using a vibratory hammer.
Two temporary work trestles will be constructed along either side of the planned tunnel alignment to support jet grouting activity. Each trestle will be approximately 12.2 m (40 ft) wide and extend approximately 305 m (1,000 ft) west of the South Island shoreline, for a total overall approximate area of 0.007 km
An additional (50) 42-in steel pipe piles will be installed in Willoughby Bay to create moorings for additional staging of barges and safe haven for vessels in the event of severe weather. The moorings will be configured as (2) 2,000-ft long lines with a 42-in mooring pile every 24.4 m (80 ft). The piles will be installed using a vibratory hammer.
The HRCP will perform limited pile load testing to confirm permanent
Planned in-water marine construction activities that have potential to affect marine mammals will occur at the following locations in Construction Areas 2 and 3 (Figure 2):
North Trestle-Bridges (Segment 1b);
Tunnel—North Island and South Island (Segment 2a);
South Trestle-Bridge (Segment 3a); and
Willoughby Bay Trestle-Bridges (Segment 3c).
Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting section).
A detailed description of the planned project is provided in the
A notice of NMFS's proposal to issue an IHA to HRCP was published in the
The Commission points out that the HRCP plans to conduct more than 5 years of activities. This IHA only pertains to one year of those activities. The applicant has requested a rulemaking/Letter of Authorization for another 5 years of work to complete the overall project. NMFS will consider the potential need for hydroacoustic monitoring with the applicant as part of the rulemaking/Letter of Authorization process.
Changes were made to the source level for 30- and 54-in concrete piles during impact pile driving. Therefore, Level A and Level B harassment zones were recalculated and corrected in Tables 11 and 12 and in the final authorization. The Level B harassment zone was also recalculated for DTH drilling for 36-in piles, reflecting use of the continuous noise, 120-dB threshold. Appropriate corrections were made to Table 12 and in the final authorization. Changes to the estimated take numbers for harbor seals and bottlenose dolphins were made, as recommended by the Commission. For mitigation and monitoring, clarification of the timing of the work as well as PSO locations were also made.
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species or stocks for which take is expected and authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's United States Atlantic and Gulf of Mexico Marine Mammal SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the draft 2019 SARs (
As indicated above, all five species (with seven managed stocks) in Table 2, temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and therefore authorized. All species that could potentially occur in the planned project area are included in Table 3-1 of the application. While North Atlantic right whales (
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (three cetacean and two phocid pinniped) have the reasonable potential to co-occur with the planned survey activities. Please refer to Table 2. Of the cetacean species that may be present, one is classified as low-frequency (humpback whale), one is classified as mid-frequency (bottlenose dolphin) and one is classified as high-frequency (harbor porpoise).
The effects from underwater noise from the planned pile driving and removal activities have the potential to result in Level A and Level B harassment of marine mammals in the vicinity of the project area. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Take of marine mammals incidental to HRCP's pile driving and removal activities could occur by Level A and Level B harassment, as pile driving has the potential to result in disruption of behavioral patterns for individual marine mammals. The planned mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).
Dividing sound sources into two groups (
Choosing metrics that best address the impacts of noise on hearing sensitivity,
Dividing marine mammals into hearing groups and developing auditory weighting functions based on the science supporting that not all marine mammals hear and use sound in the same manner.
These thresholds were developed by compiling and synthesizing the best available science, and are provided in Table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log(range)). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log(range)). As is common practice in coastal waters, here we assume practical spreading loss (4.5 dB reduction in sound level for each doubling of distance). Practical spreading is a compromise that is often
The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. There are source level measurements available for certain pile types and sizes from the similar environments recorded from underwater pile driving projects (
During pile driving installation activities, there may be times when multiple construction sites are active and hammers are used simultaneously. For impact hammering, it is unlikely that the two hammers would strike at the same exact instant, and therefore, the sound source levels will not be adjusted regardless of the distance between the hammers. For this reason, multiple impact hammering is not discussed further. For simultaneous vibratory hammering, the likelihood of such an occurrence is anticipated to be infrequent and would be for short durations on that day. In-water pile installation is an intermittent activity, and it is common for installation to start and stop multiple times as each pile is adjusted and its progress is measured. When two continuous noise sources, such as vibratory hammers, have overlapping sound fields, there is potential for higher sound levels than for non-overlapping sources. When two or more vibratory hammers are used simultaneously, and the sound field of one source encompasses the sound field of another source, the sources are considered additive and combined using the following rules (see Table 6): For addition of two simultaneous vibratory hammers, the difference between the two SSLs is calculated, and if that difference is between 0 and 1 dB, 3 dB are added to the higher SSL; if difference is between 2 or 3 dB, 2 dB are added to the highest SSL; if the difference is between 4 to 9 dB, 1 dB is added to the highest SSL; and with differences of 10 or more decibels, there is no addition.
For simultaneous usage of three or more continuous sound sources, such as vibratory hammers, the three overlapping sources with the highest SSLs are identified. Of the three highest SSLs, the lower two are combined using the above rules, then the combination of the lower two is combined with the highest of the three. For example, with overlapping isopleths from 24-, 36-, and 42-in diameter steel pipe piles with SSLs of 161, 167, and 168 dB rms respectively, the 24- and 36-inwould be added together; given that 167−161 = 6 dB, then 1 dB is added to the highest of the two SSLs (167 dB), for a combined noise level of 168 dB. Next, the newly calculated 168 dB is added to the 42-in steel pile with SSL of 168 dB. Since 168−168 = 0 dB, 3 dB is added to the highest value, or 171 dB in total for the combination of 24-, 36-, and 42-in steel pipe piles (NMFS 2018b; WSDOT 2018). As described in Table 6, decibel addition calculations were carried out for all possible combinations of vibratory installation of 24-, 36- and 42-in steel pipe piles throughout the project area (Table 7).
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as from vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would incur PTS. Inputs used in the User Spreadsheet (Tables 8 through 10), and the resulting isopleths are reported below (Table 11).
In the chance that multiple vibratory hammers would be operated simultaneously, to simplify implementation of Level A harassment zones, the worst-case theoretical scenarios were calculated for the longest anticipated duration of the largest pile size (42-in steel pile) that could be installed within a day (see Table 8). However, it would be unlikely that six sets of three piles could be installed in synchrony, but more likely that installations of piles would overlap by a few minutes at the beginning or end, throughout the day, so that during a 12-hour construction shift, there would be periods of time when zero, one, two, three, or more hammers would be working.
For multiple hammering of 42-in steel pipe piles with a vibratory hammer on a single day, the calculated Level A harassment isopleth for the functional hearing groups would remain smaller than 100 m except for high-frequency cetaceans (
Utilizing the practical spreading loss model, underwater noise will fall below the behavioral effects threshold of 120 and 160 dB rms for marine mammals at the distances shown in Table 12 for vibratory and impact pile driving, respectively. Table 12 below provides all Level B harassment radial distances (m) and their corresponding areas (km
For the test pile program, in some cases, the calculated Level A harassment isopleths are larger than the Level B harassment zones. This has occurred due to the conservative assumptions going into calculation of the Level A harassment isopleths. Animals will most likely respond behaviorally before they are injured, especially at greater distances and unlikely to accumulate noise levels over a certain period of time that would likely lead to PTS.
When multiple vibratory hammers are used simultaneously, the calculated Level B harassment zones (Table 13) would be larger than the Level B harassment zones reported in above in Table 12 depending on the combination of sound sources due to decibel addition of multiple vibratory hammers as discussed earlier (see Table 7). Table 13 shows the calculated distances to the Level B harassment zone for decibel levels resulting from the simultaneous installation of piles with multiple vibratory hammers using the data provided in Table 7. However, the actual monitoring zones applied during multiple vibratory hammer use are discussed in the Monitoring and Reporting section.
In this section, we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Potential exposures to impact and vibratory pile driving and removal for each acoustic threshold were estimated using local observational data. Authorized take by Level A and B harassment is also described.
Humpback whales are more rare in the project area and density data for this species within the project vicinity are not available. Humpback whale sighting data collected by the U.S. Navy near Naval Station Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt
The expected number of bottlenose dolphins in the project area was estimated using inshore seasonal densities provided in Engelhaupt
Because the Level A harassment zones are relatively small (a 55-m isopleth is the largest during DTH drilling of 36-in piles) and we believe the PSO will be able to effectively monitor the Level A harassment zones, we do not anticipate take by Level A harassment of bottlenose dolphins.
The expected number of harbor seals in the project area was estimated using systematic, land- and vessel-based survey data for in-water and hauled-out seals collected by the U.S. Navy at the Chesapeake Bay Bridge Tunnel (CBBT) rock armor and portal islands from 2014 through 2019 (Jones
NMFS estimated take using the average daily seal count over five field seasons (2014-2019) (Jones
The expected number of gray seals in the project area was estimated using systematic, land- and vessel-based survey data for in-water and hauled out seals collected by the U.S. Navy at the CBBT rock armor and portal islands from 2014 through 2018 (Rees
Gray seals are expected to be very uncommon in the project area. The historical data indicate that approximately one gray seal has been seen per year. To be conservative, HRCP requests three instances of take by Level B harassment of gray seals during each winter month (December through February). Therefore, HRCP estimated and NMFS is authorizing nine instances of take by Level B harassment of gray seals (three gray seals per month multiple by three months = nine gray seals). Because of the unlikely to low occurrence of gray seals in the project area, we do not anticipate and are not authorizing take by Level A harassment of gray seals.
Harbor porpoises are known to occur in the coastal waters near Virginia Beach (Hayes
The largest calculated Level A harassment isopleth for high frequency cetaceans (
Table 18 below summarizes the authorized take for all the species described above as a percentage of stock abundance.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as proposed), the likelihood of effective implementation (probability implemented as proposed), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The following mitigation measures are included in the IHA:
HRCP would conduct work during daylight hours, and if poor environmental conditions restrict full visibility of the shutdown zone, pile installation must be delayed. However, work may extend into the night as necessary under conditions where there is full visibility of the shutdown zone or where stopping ongoing work would otherwise create an unsafe work condition.
For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m of such operations, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions.
For all pile driving activities, HRCP will establish shutdown zones for a marine mammal (see Table 19 below). The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). HRCP will maintain a minimum 10 m shutdown zone for all pile driving activities where the
If multiple vibratory hammering occurs, a shutdown zone of 100 m will be implemented for all species for each vibratory hammer on days when it is anticipated that multiple vibratory hammers will be used regardless of pile size.
During DTH drilling, a shutdown zone of 100 m for harbor seals will be implemented to reduce unnecessary shutdowns.
HRCP will use an air bubble curtain system during impact pile driving of 36-in steel pipe piles for the Jet Grouting Trestle. Bubble curtains would meet the following requirements:
The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring will ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects will prevent full mudline and/or rock bottom contact. The bubble curtain must be operated such that there is proper (equal) balancing of air flow to all bubblers. HRCP would employ the bubble curtain during impact pile driving in water depths greater than 6 m (20 ft) at the Jet Grouting Trestle.
HRCP would use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced energy strike sets. A soft start would be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
If a species enters or approaches the Level B harassment zone and that species is either not authorized for take or its authorized takes are met, pile driving and removal activities must shut down immediately using delay and shutdown procedures. Activities must not resume until the animal has been confirmed to have left the area or an observation time period of 15 minutes has elapsed.
Based on our evaluation of the HRCP's planned measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area in which take is anticipated (
Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
Effects on marine mammal habitat (
Mitigation and monitoring effectiveness.
Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 min or longer occurs, PSOs will observe the shutdown and monitoring zones for a period of 30 min. The shutdown zone will be cleared when a marine mammal has not been observed within the zone for that 30-min period. If a marine mammal is observed within the shutdown zone, pile driving activities will not begin until the animal has left the shutdown zone or has not been observed for 15 min. If the Level B harassment zone (
The HRCP will establish monitoring zones for Level B harassment as presented in Table 12. The monitoring zones for this project are areas where SPLs are equal to or exceed 120 dB rms (for vibratory pile driving/removal and DTH drilling) or 160 dB rms (for impact pile driving). These zones provide utility for monitoring conducted for mitigation purposes (
Due to the likelihood of multiple active construction sites across the project area, it is possible that multiple vibratory hammers with overlapping sound fields may be in operation simultaneously during certain times throughout the duration of the project. As described in the Estimated Take section, the decibel addition of continuous noise sources results in much larger zone sizes than a single vibratory hammer. Decibel addition is not a consideration when sound fields do not overlap. Willoughby Bay is largely surrounded by land, and sound will be prevented from propagating to other project construction sites (see Figure 1-1 and Figure 6-1 of the application). Therefore, Willoughby Bay will be treated as an independent site with its own sound isopleths and observer requirements when construction is taking place within the bay. Willoughby Bay is relatively small
Additionally, the South Trestle is the only site where the sound will propagate into Chesapeake Bay (see Figure 6-1 of the application). Sound from other construction sites will not overlap with South Trestle and will not propagate into Chesapeake Bay. Therefore, the South Trestle also will be treated as an independent site with its own sound isopleths and observer requirements when construction is taking place. When the South Trestle site is active, an observer will be positioned on land to view as much of the Level B harassment zone as possible. If the entire Level B harassment zone is not visible, Level B harassment takes will be extrapolated based upon the number of observed takes and the percentage of the Level B harassment zone that is not visible.
If two or more vibratory hammers at the other three project sites (North Trestle, North Shore, South Island) are installing piles, there is potential for the sound fields to overlap when installation occurs simultaneously. If two piles that are 36-in or larger in diameter are simultaneously installed with vibratory hammers, the Level B Harassment zone can extend up to a 25 km radius to the southwest (see Figure 6-1, 171 dB isopleth of the application). However, the Level B harassment zones resulting from simultaneous use of multiple vibratory hammers are truncated in nearly all directions by the mainland and islands, which prevent propagation of sound beyond the confines of a core area (see Figure 11-1 (area outlined in red) of the application). The largest ensonified radii extend to the south into the James and Nansemond rivers, areas where marine mammal abundance is anticipated to be low and approaching zero. Therefore, HRCP will monitor a core area, called the Core Monitoring Area, during times when two or more vibratory hammers are simultaneously active at the other three project construction sites (North Trestle, North Shore, South Island). The Core Monitoring Area would encompass the area between the two bridge/tunnels, with observers positioned at key areas to monitor the geographic area between the bridges (see Figure 11-1 (area outlined in red) of the application). Depending on placement, the observers will be able to view west/southwest towards Batten Bay and the mouth of the Nansemond River. Marine mammals transiting the area will be located and identified as they move in and out of the Chesapeake Bay.
Monitoring would be conducted 30 minutes before, during, and 30 minutes after all pile driving/removal activities. In addition, PSOs will record all incidents of marine mammal occurrence, regardless of distance from activity, and will document any behavioral reactions in concert with distance from piles being driven/removed. Pile driving/removal activities include the time to install, remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.
Monitoring will be conducted by PSOs from land. The number of PSOs will vary from one or more, depending on the type of pile driving, method of pile driving and size of pile, all of which determines the size of the harassment zones. Monitoring locations will be selected to provide an unobstructed view of all water within the shutdown zone and as much of the Level B harassment zone as possible for pile driving activities. Monitoring locations may vary based on construction activity and location of piles or equipment. HRCP will station between one and four PSOs at locations offering the best available views of the Level A and Level B monitoring zones during in-water pile driving at the North Trestle, North Island, South Trestle, and South Island. When and where able, as determined by the PSO or Lead PSO when multiple observers are required, Level A and Level B harassment zones may be monitored for multiple pile driving locations by the same individual PSO. HRCP will be required to station between one and two PSOs at locations offering the best available views of the Level A and Level B monitoring zones during in-water pile driving at Willoughby Bay. If any entire Level B monitoring zone is not visible, pile driving activities may continue, and the number of individual animals within the Level B zone will be estimated and recorded. Estimated numbers of individuals will be extrapolated by dividing the number of observed individuals by the percentage of the monitoring zone that was visible.
In addition, PSOs will work in shifts lasting no longer than 4 hours with at least a 1-hour break between shifts, and will not perform duties as a PSO for more than 12 hours in a 24‐hour period (to reduce PSO fatigue).
Monitoring of pile driving will be conducted by qualified, NMFS-approved PSOs, who will have no other assigned tasks during monitoring periods. The HRCP will adhere to the following conditions when selecting PSOs:
Independent PSOs will be used (
At least one PSO must have prior experience working as a marine mammal observer during construction activities;
Other PSOs may substitute education (degree in biological science or related field) or training for experience;
Where a team of three or more PSOs are required, a lead observer or monitoring coordinator will be designated. The lead observer must have prior experience working as a marine mammal observer during construction; and
The HRCP will submit PSO curriculum vitaes for approval by NMFS for all observers prior to monitoring.
The HRCP will ensure that the PSOs have the following additional qualifications:
Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
Experience and ability to conduct field observations and collect data according to assigned protocols;
Experience or training in the field identification of marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior;
Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary; and
Sufficient training, orientation, or experience with the construction operations to provide for personal safety during observations.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, HRCP will report the incident to the
The report must include the following information:
Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
Species identification (if known) or description of the animal(s) involved;
Condition of the animal(s) (including carcass condition if the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the animal(s); and
General circumstances under which the animal was discovered.
The HRCP will submit a draft report to NMFS no later than 90 days following the end of construction activities or 60 days prior to the issuance of any subsequent IHA for the project. PSO datasheets/raw sightings data would be required to be submitted with the reports. The HRCP will provide a final report within 30 days following resolution of NMFS' comments on the draft report. Reports will contain, at minimum, the following:
Dates and times (begin and end) of all marine mammal monitoring;
Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (
Weather parameters and water conditions during each monitoring period (
The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;
Age and sex class, if possible, of all marine mammals observed;
PSO locations during marine mammal monitoring;
Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);
Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active;
Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate);
Detailed information about any implementation of any mitigation triggered (
Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals;
An extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zone and the percentage of the Level B harassment zone that was not visible; and
Submit all PSO datasheets and/or raw sighting data (in a separate file from the Final Report referenced immediately above).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities associated with the planned HRCP project, as outlined previously, have the potential to disturb or displace marine mammals. The specified activities may result in take, in the form of Level B harassment (behavioral disturbance) or Level A harassment (auditory injury), incidental to underwater sounds generated from pile driving. Potential takes could occur if individuals are present in the ensonified zone when pile driving occurs. Level A harassment is only anticipated and authorized for harbor porpoises and harbor seals.
No serious injury or mortality is anticipated given the nature of the activities and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the mitigation measures. When impact pile driving is used, implementation of bubble curtains (during 36-in steel piles at the Jet Grouting Trestle in water depths greater than 6 m (20 ft)), soft start and shutdown zones significantly reduce the possibility of injury. Given sufficient notice through use of soft starts (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to it becoming potentially injurious.
HRCP will use qualified PSOs stationed strategically to increase detectability of marine mammals, enabling a high rate of success in implementation of shutdowns to avoid injury for most species. PSOs will be stationed to provide a relatively clear view of the shutdown zones and monitoring zones. These factors will limit exposure of animals to noise levels that could result in injury.
HRCP's planned pile driving activities are highly localized. Only a relatively small portion of the Chesapeake Bay may be affected. Localized noise exposures produced by project activities may cause short-term behavioral modifications in affected cetaceans and pinnipeds. Moreover, the mitigation and monitoring measures are expected to further reduce the likelihood of injury as well as reduce behavioral disturbances.
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In addition to the expected effects resulting from authorized Level B harassment, we anticipate that small numbers of harbor porpoises and some harbor seals may enter the Level A harassment zones undetected, particularly during times of DTH drilling when the Level A harassment zones are large. It is unlikely that the animals would remain in the area long enough for PTS to occur. If any animals did experience PTS, it would likely only receive slight PTS,
The project is not expected to have significant adverse effects on marine mammal habitat. No important feeding and/or reproductive areas for marine mammals are known to be near the project area. Project activities would not permanently modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammal foraging opportunities in a limited portion of the foraging range. However, because of the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized;
• Limited Level A harassment exposures (harbor porpoises and harbor seals) are anticipated;
• The anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior that would not result in fitness impacts to individuals;
• The specified activity and associated ensonifed areas are very small relative to the overall habitat ranges of all species and does not include habitat areas of special significance (Biologically Important Areas or ESA-designated critical habitat); and
• The presumed efficacy of the mitigation measures in reducing the effects of the specified activity.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The authorized take of four of the five marine mammal species/stocks comprises less than one-third of the best available stock abundance, with the exception of the bottlenose dolphin stocks. There are three bottlenose dolphin stocks that could occur in the project area. Therefore, the estimated dolphin takes by Level B harassment would likely be portioned among the western North Atlantic northern migratory coastal stock, western North Atlantic southern migratory coastal stock, and NNCES stock. Based on the stocks' respective occurrence in the area, NMFS estimated that there would be 216 takes from the NNCES stock, with the remaining takes evenly split between the northern and southern migratory coastal stocks. Based on consideration of various factors described below, we have determined the numbers of individuals taken would likely comprise less than one-third of the best available population abundance estimate of either coastal migratory stock.
Both the northern migratory coastal and southern migratory coastal stocks have expansive ranges and they are the only dolphin stocks thought to make broad-scale, seasonal migrations in coastal waters of the western North Atlantic. Given the large ranges associated with these two stocks it is unlikely that large segments of either stock would approach the project area and enter into the Chesapeake Bay. The majority of both stocks are likely to be found widely dispersed across their respective habitat ranges and unlikely to be concentrated in or near the Chesapeake Bay.
Furthermore, the Chesapeake Bay and nearby offshore waters represent the boundaries of the ranges of each of the two coastal stocks during migration. The northern migratory coastal stock is found during warm water months from
The Chesapeake Bay and waters offshore of the mouth are located on the periphery of the migratory ranges of both coastal stocks (although during different seasons). Additionally, each of the migratory coastal stocks are likely to be located in the vicinity of the Chesapeake Bay for relatively short timeframes. Given the limited number of animals from each migratory coastal stock likely to be found at the seasonal migratory boundaries of their respective ranges, in combination with the short time periods (~two months) animals might remain at these boundaries, it is reasonable to assume that takes are likely to occur only within some small portion of either of the migratory coastal stocks.
Both migratory coastal stocks likely overlap with the NNCES stock at various times during their seasonal migrations. The NNCES stock is defined as animals that primarily occupy waters of the Pamlico Sound estuarine system (which also includes Core, Roanoke, and Albemarle sounds, and the Neuse River) during warm water months (July-August). Members of this stock also use coastal waters (≤1 km from shore) of North Carolina from Beaufort north to Virginia Beach, Virginia, including the lower Chesapeake Bay. Comparison of dolphin photo-identification data confirmed that limited numbers of individual dolphins observed in Roanoke Sound have also been sighted in the Chesapeake Bay (Young, 2018). Like the migratory coastal dolphin stocks, the NNCES stock covers a large range. The spatial extent of most small and resident bottlenose dolphin populations is on the order of 500 km
Many of the dolphin observations in the Bay are likely repeated sightings of the same individuals. The Potomac-Chesapeake Dolphin Project has observed over 1,200 unique animals since observations began in 2015. Re-sightings of the same individual can be highly variable. Some dolphins are observed once per year, while others are highly regular with greater than 10 sightings per year (J. Mann, Potomac-Chesapeake Dolphin Project, pers. comm.). Similarly, using available photo-identification data, Engelhaupt
In summary and as described above, the following factors primarily support our determination regarding the incidental take of small numbers of the affected stocks of bottlenose dolphin:
• Potential bottlenose dolphin takes in the project area are likely to be allocated among three distinct stocks;
• Bottlenose dolphin stocks in the project area have extensive ranges and it would be unlikely to find a high percentage of any one stock concentrated in a relatively small area such as the project area or the Chesapeake Bay;
• The Chesapeake Bay represents the migratory boundary for each of the specified dolphin stocks and it would be unlikely to find a high percentage of any stock concentrated at such boundaries; and
• Many of the takes would likely be repeats of the same animals and likely from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the planned activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
As a result of these determinations, NMFS has issued an IHA to the HRCP for pile driving activities associated with the HRBT Expansion Project in Hampton-Norfolk, Virginia for a period of one year provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal.
NMFS has received a request from Ørsted Wind Power North America, LLC, (Ørsted) for authorization to take marine mammals incidental to high-resolution geophysical (HRG) survey activities in coastal waters from New York to Massachusetts in certain areas of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS). These areas are currently being leased by the Applicant's affiliates, Deepwater Wind New England, LLC, and Bay State Wind, LLC, respectively, and are identified as OCS-A 0486/0517, OCS-A 0487, and OCS-A 0500 (collectively referred to herein as the Lease Area). Ørsted is also planning to conduct marine site characterization surveys along one or more potential submarine export cable routes (ECRs) originating from the Lease Area and landing along the shore at locations from New York to Massachusetts, between Raritan Bay (part of the New York Bight) to Falmouth, Massachusetts. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take, by Level B harassment only, small numbers of marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time one-year renewal that could be issued under certain circumstances and, if all requirements are met, as described in
Comments and information must be received no later than September 9, 2020.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Electronic comments should be sent to
Carter Esch, Office of Protected Resources, NMFS, (301) 427-8421. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the proposed action qualifies to be categorically excluded from further NEPA review.
Information in Ørsted's application and this notice collectively provide the environmental information related to proposed issuance of the IHA for public review and comment. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the request for incidental take authorization.
On April 15, 2020, NMFS received a request from Ørsted for authorization to take marine mammals incidental to HRG surveys in the OCS-A 0486/0517, OCS-A 0487, and OCS-A 0500 Lease Areas designated and offered by the Bureau of
NMFS previously issued an IHA to Ørsted for similar activities (84 FR 52464, October 2, 2019); Ørsted has complied with all the requirements (
Ørsted proposes to conduct HRG surveys in support of offshore wind development projects in the Lease Areas and ECR Area. The purpose of the HRG surveys is to obtain a baseline assessment of seabed/sub-surface soil conditions in the Lease Areas and ECR Area to support the siting of potential future offshore wind projects. Underwater sound resulting from Ørsted's proposed site characterization surveys has the potential to result in incidental take of marine mammals in the form of behavioral harassment.
HRG surveys, under this IHA, are anticipated to commence in September 2020. Ørsted is proposing to conduct continuous HRG survey operations 12-hours per day (daylight only in shallow, nearshore locations) and 24-hours per day (offshore) using multiple vessels. Ørsted defines a survey day as a 24-hour activity day and assumes a vessel covers 70 kilometers (km) of survey tracks per activity day. A survey day might be the sum of 12-hour daylight only or multiple partial 24-hour operations (if less than 70 km is surveyed in 24 hours). Based on the planned 24-hours operations, the survey activities for all survey segments would require 1,302 vessel days if one vessel were surveying the entire survey line continuously. However, an estimated 5 vessels may be used simultaneously, with a maximum of no more than 9 vessels. Therefore, all the survey effort will be completed in one year. See Table 1 for the estimated number of vessel days for each survey segment. The estimated durations to complete survey activities do not include weather downtime.
Ørsted's survey activities would occur in the Lease Area (including OCS-A 0486/0517, OCS-A 0487, and OCS-A 0500), located approximately 14 miles (mi) south of Martha's Vineyard, Massachusetts at its closest point, as well as within potential export cable route corridors off the coast of New York, Connecticut, Rhode Island, and Massachusetts (shown in Figure 1 of the IHA application). In January 2020, Deepwater Wind New England, LLC requested that BOEM assign a portion of Lease Area OCS-A 0486 to Deepwater Wind South Fork, designated OCS-A 0517; the Lease split was approved in April 2020. Water depth in the Lease Area is 25-62 meters (m) and ranges from 1-90 m along potential ECRs to shoreline locations between New York and Massachusetts.
The HRG survey activities would be supported by vessels of sufficient size to accomplish the survey goals in each of the specified survey areas. Surveys within the ECR Area will include 24-hour and 12-hour (daylight only) surveys. Up to nine (24-hour plus 12-hour) vessels may work concurrently throughout the Survey Area considered in this proposal; however, no more than 3 vessels are expected to work concurrently within any single lease area, with an estimated four offshore (24-hour) vessels and two nearshore (12-hour) vessels expected to work concurrently in the ECR Area. Seasonal vessel restrictions are detailed in the Proposed Mitigation section below. HRG equipment will either be deployed from remotely operated vehicles (ROVs) or mounted to or towed behind the survey vessel at a typical survey speed of approximately 4.0 kn (7.4 km) per hour. The geophysical survey activities proposed by Ørsted would include the following:
• Shallow Penetration Sub-bottom Profilers (SBPs; CHIRPs) to map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft) of sediment below seabed). A CHIRP system emits sonar pulses that increase in frequency over time. The pulse length frequency range can be adjusted to meet project variables. These are typically mounted on the hull of the vessel or from a side pole.
• Medium penetration SBPs (Boomers) to map deeper subsurface stratigraphy as needed. A boomer is a broad-band sound source operating in the 3.5 Hz to 10 kHz frequency range. This system is typically mounted on a sled and towed behind the vessel.
• Medium penetration SBPs (Sparkers) to map deeper subsurface stratigraphy as needed. A sparker
• Parametric SBPs, also called sediment echosounders, for providing high density data in sub-bottom profiles that are typically required for cable routes, very shallow water, and archaeological surveys. These are typically mounted on the hull of the vessel or from a side pole.
• Ultra-short Baseline (USBL) Positioning and Global Acoustic Positioning System (GAPS) to provide high accuracy ranges to track the positions of other HRG equipment by measuring the time between the acoustic pulses transmitted by the vessel transceiver and the equipment transponder necessary to produce the acoustic profile. It is a two-component system with a hull or pole mounted transceiver and one to several transponders either on the seabed or on the equipment.
• Multibeam echosounder (MBES) to determine water depths and general bottom topography. MBES sonar systems project sonar pulses in several angled beams from a transducer mounted to a ship's hull. The beams radiate out from the transducer in a fan-shaped pattern orthogonally to the ship's direction.
• Seafloor imaging (sidescan sonar) for seabed sediment classification purposes, to identify natural and man-made acoustic targets resting on the bottom as well as any anomalous features. The sonar device emits conical or fan-shaped pulses down toward the seafloor in multiple beams at a wide angle, perpendicular to the path of the sensor through the water. The acoustic return of the pulses is recorded in a series of cross-track slices, which can be joined to form an image of the sea bottom within the swath of the beam. They are typically towed beside or behind the vessel or from an autonomous vehicle.
Table 2 identifies all the representative survey equipment that operate below 180 kHz that may be used in support of planned geophysical survey activities, some of which have the potential to be detected by marine mammals. The make and model of the listed geophysical equipment may vary depending on availability and the final equipment choices will vary depending upon the final survey design, vessel availability, and survey contractor selection. Geophysical surveys are expected to use several equipment types concurrently in order to collect multiple aspects of geophysical data along one transect, thereby reducing the duration of total survey activities. Selection of equipment combinations is based on specific survey objectives.
The operational frequencies for MBES and Sidescan Sonar that would be used for these surveys are greater than 180 kHz, outside the general hearing range of marine mammals likely to occur in the Survey Area. These equipment types are, therefore, not considered further in this notice.
Sparker and boomer systems, which produce the largest estimated Level B harassment isopleths (see Estimated Take section, Table 5), would be used for only a portion of the surveys days within the Survey Area. Surveys days that do not utilize sparkers or boomers would use Innomar parametric sonar systems combined with a USBL system or other intermittent non-impulsive sources, which produce smaller estimated Level B harassment zones (Table 5). A conservative estimate of the number of days using sparkers or boomers is provided in Table 1.
The deployment of certain types of HRG survey equipment, including some of the equipment planned for use during Ørsted's proposed activity, produces sound in the marine environment that has the potential to result in harassment of marine mammals. Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the IHA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
All species that could potentially occur in the proposed survey areas are included in Table 6 of the IHA application. However, the temporal and/or spatial occurrence of several species listed in Table 6 of the IHA application is such that take of these species is not expected to occur, either because they have very low densities in the Survey Area or are known to occur further offshore than the Survey Area. These are: the blue whale (
Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or proposed for authorization, PBR and serious injury or mortality from anthropogenic sources are included here as a gross indicator of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' Atlantic SARs (
As indicated below, 15 species (with 15 managed stocks) temporally and spatially co-occur with the survey activities to the degree that take is reasonably likely to occur, and we have proposed authorizing it. The following subsections provide additional information on the biology, habitat use, abundance, distribution, and the existing threats to the non-ESA-listed and ESA-listed marine mammals that are both common in the waters of the outer continental shelf (OCS) of Southern New England, and have the likelihood of occurring, at least seasonally, in the Survey Area. These species include the North Atlantic right, humpback, fin, sei, minke, sperm, and long-finned pilot whale, bottlenose, common, Atlantic white-sided, Atlantic spotted, and Risso's dolphins, harbor porpoise, and gray and harbor seals. Although the potential for interactions with long-finned pilot whales and Atlantic spotted and Risso's dolphins is minimal, small numbers of these species may transit the Survey Area and are included in this analysis.
The North Atlantic right whale ranges from calving grounds in the southeastern United States to feeding grounds in New England waters and into Canadian waters (Waring
In the late fall months (
NMFS' regulations at 50 CFR part 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs were developed to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds. A portion of one SMA overlaps spatially with a section of the proposed Survey Area. The SMA is active from November 1 through April 30 of each year.
The western North Atlantic population demonstrated overall growth of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 and no growth between 1997 and 2000 (Pace
Humpback whales are found worldwide in all oceans. Humpback whales were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks continued to be listed as endangered. On September 8, 2016, NMFS divided the species into 14 distinct population segments (DPS), removed the current species-level listing, and in its place listed four DPSs as endangered and one DPS as threatened (81 FR 62259; September 8, 2016). The remaining nine DPSs were not listed. The West Indies DPS, which is not listed under the ESA, is the only DPS of humpback whale that is expected to occur in the Survey Area. The best estimate of population abundance for the West Indies DPS is 12,312 individuals, as described in the NMFS Status Review of the Humpback Whale under the Endangered Species Act (Bettridge
In New England waters, feeding is the principal activity of humpback whales, and their distribution in this region has been largely correlated to abundance of prey species, although behavior and bathymetry are factors influencing foraging strategy (Payne
Kraus
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. The event has been declared a UME. As of July 2020, partial or full necropsy examinations have been conducted on approximately half of the 126 known cases. Of the whales examined, about 50 percent had evidence of human interaction, either ship strike or entanglement. While a portion of the whales have shown evidence of pre-mortem vessel strike, this finding is not consistent across all whales examined and more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. Three previous UMEs involving humpback whales have occurred since 2000 (in 2003, 2005, and 2006). More information is available at:
Fin whales are common in waters of the U.S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward (Waring
The Nova Scotia stock of sei whales can be found in deeper waters of the continental shelf edge waters of the northeastern U.S. and northeastward to south of Newfoundland. The southern portion of the stock's range during spring and summer includes the Gulf of Maine and Georges Bank. Spring is the period of greatest abundance in U.S. waters, with sightings concentrated along the eastern margin of Georges Bank and into the Northeast Channel area, and along the southwestern edge of Georges Bank in the area of Hydrographer Canyon (Waring
Minke whales can be found in temperate, tropical, and high-latitude waters. The Canadian East Coast stock can be found in the area from the western half of the Davis Strait (45°W) to the Gulf of Mexico (Waring
Since January 2017, elevated minke whale mortalities have occurred along the Atlantic coast from Maine through South Carolina. This event has been declared a UME. As of July 2020, partial or full necropsy examinations have been conducted on approximately 60 percent of the 92 known cases. Preliminary findings in several of the whales have shown evidence of human interactions or infectious disease, but these findings are not consistent across all the whales examined, so more research is needed. More information is available at:
The distribution of the sperm whale in the U.S. EEZ occurs on the continental shelf edge, over the continental slope, and into mid-ocean regions (Waring
Long-finned pilot whales are found from North Carolina north to Iceland, Greenland, and the Barents Sea (Waring
White-sided dolphins are found in temperate and sub-polar waters of the North Atlantic, primarily in continental shelf waters to the 100-m depth contour from central West Greenland to North Carolina (Waring
Atlantic spotted dolphins are found in tropical and warm temperate waters ranging from southern New England south to Gulf of Mexico and the Caribbean to Venezuela (Waring
The common dolphin is found world-wide in temperate to subtropical seas. In the North Atlantic, common dolphins are commonly found over the continental shelf between the 100 m and 2,000 m isobaths and over prominent underwater topography and east to the mid-Atlantic Ridge (Waring
There are two distinct bottlenose dolphin morphotypes in the western North Atlantic: The coastal and offshore forms (Waring
In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be present. This stock is found in U.S. and Canadian Atlantic waters and is concentrated in the northern Gulf of Maine and southern Bay of Fundy region, generally in waters less than 150 m deep (Waring
The harbor seal is found in all nearshore waters of the North Atlantic and North Pacific Oceans and adjoining seas above about 30° N (Burns, 2009). In the western North Atlantic, harbor seals are distributed from the eastern Canadian Arctic and Greenland south to southern New England and New York, and occasionally to the Carolinas (Waring
Since July 2018, elevated numbers of harbor seal and gray seal mortalities have occurred across Maine, New Hampshire, and Massachusetts. This event has been declared a UME. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers; therefore, the UME investigation now encompasses all seal strandings from Maine to Virginia. Lastly, ice seals (harp and hooded seals) have also started stranding with clinical signs, again not in elevated numbers, and those two seal species have also been added to the UME investigation. As of March 2020, a total of 3,152 reported strandings (of all species) had occurred. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME. Information on this UME is available online at:
There are three major populations of gray seals found in the world: eastern Canada (western North Atlantic stock),
As described above, elevated seal mortalities, including gray seals, have occurred from Maine to Virginia since July 2018. This event has been declared a UME, with phocine distemper virus identified as the main pathogen found in the seals. NMFS is performing additional testing to identify any other factors that may be involved in this UME. Information on this UME is available online at:
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
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The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS Technical Guidance (2018) for a review of available information. Fifteen marine mammal species (thirteen cetacean and two pinnipeds (both phocid) species) have the reasonable potential to co-occur with the proposed survey activities (see Table 3). Of the cetacean species that may be present, five are classified as low-frequency cetaceans (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in Hz or kHz, while sound level describes the sound's intensity and is measured in dB. Sound level increases or decreases exponentially with each dB of change. The logarithmic nature of the scale means that each 10-dB increase is a 10-fold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power). A 10-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder, however. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 micro Pascals (µPa)” and “re: 1 µPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.
When sound travels (propagates) from its source, its loudness decreases as the distance traveled by the sound increases. Thus, the loudness of a sound at its source is higher than the loudness of that same sound one km away. Acousticians often refer to the loudness of a sound at its source (typically referenced to one meter from the source) as the source level and the loudness of sound elsewhere as the received level (
As sound travels from a source, its propagation in water is influenced by various physical characteristics, including water temperature, depth, salinity, and surface and bottom properties that cause refraction, reflection, absorption, and scattering of sound waves. Oceans are not homogeneous and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine the sound's speed through the water will change with depth, season, geographic location, and with time of day (as a result, in actual active sonar operations, crews will measure oceanic conditions, such as sea water temperature and depth, to calibrate models that determine the path the sonar signal will take as it travels through the ocean and how strong the sound signal will be at a given range along a particular transmission path). As sound travels through the ocean, the intensity associated with the wavefront diminishes, or attenuates. This decrease in intensity is referred to as propagation loss, also commonly called transmission loss.
Geophysical surveys may temporarily impact marine mammals in the area due to elevated in-water sound levels. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson
Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). PTS is considered auditory injury (Southall
TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be louder in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days, can be limited to a particular frequency range, and can occur to varying degrees (
Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Scientific literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney
Animals in the Survey Area during the HRG survey are unlikely to incur TTS hearing impairment due to the characteristics of the sound sources, which include relatively low source levels (176 to 232 dB re 1 µPa-m) and generally very short pulses and duration of the sound. Even for high-frequency cetacean species (
Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey (Tyack 2000). Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson
Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (
Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson
Marine mammal communications would not likely be masked appreciably by the sub-bottom profiler signals given the directionality of the signals for most geophysical survey equipment types planned for use (Table 2) and the brief period when an individual mammal is likely to be within its beam.
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's central nervous system perceives a threat, it mounts a biological response or defense that consists of a combination of the four general biological defense responses: behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses.
In the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg 1987; Rivier 1995), reduced immune competence (Blecha 2000), and behavioral disturbance. Increases in the circulation of glucocorticosteroids (cortisol, corticosterone, and aldosterone in marine mammals; see Romano
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic function, which impairs those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle 1950) or “allostatic loading” (McEwen and Wingfield 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
Studies of other marine animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to high frequency, mid-frequency, and low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (
Hearing is one of the primary senses marine mammals use to gather information about their environment and to communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, it seems reasonable to assume that reducing an animal's ability to gather information about its environment and to communicate with other members of its species would be stressful for animals that use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses because terrestrial animals exhibit those responses under similar conditions (NRC 2003). More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg 2000), we also assume that stress responses are likely to persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.
In general, there are few data on the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
Behavioral disturbance may include a variety of effects, including subtle changes in behavior (
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their vocalizations (Miller
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressor and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruptions of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Marine mammals are likely to avoid the HRG survey activity, especially the naturally shy harbor porpoise, while harbor seals might be attracted to survey vessels out of curiosity. However, because the sub-bottom profilers and other HRG survey equipment operate from a moving vessel, and the maximum radius to the Level B harassment threshold is relatively small, the area and time that this equipment would be affecting a given location is very small. Further, once an area has been surveyed, it is not likely that it will be surveyed again, thereby reducing the likelihood of repeated HRG-related impacts within the survey area.
We have also considered the potential for severe behavioral responses such as stranding and associated indirect injury or mortality from Ørsted's use of HRG survey equipment, on the basis of a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system. An investigation of the event indicated that use of a high-frequency mapping system (12-kHz multibeam echosounder) was the most plausible and likely initial behavioral trigger of the event, while providing the caveat that there is no unequivocal and easily identifiable single cause (Southall
Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many km. However, other studies have shown that marine mammals at distances more than a few km away often show no apparent response to industrial activities of various types (Miller
Ship strikes of marine mammals can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus 2001; Laist
The HRG survey equipment will not contact the seafloor and does not represent a source of pollution. We are not aware of any available literature on impacts to marine mammal prey from sound produced by HRG survey equipment. However, as the HRG survey equipment introduces noise to the marine environment, there is the potential for it to result in avoidance of the area around the HRG survey activities on the part of marine mammal prey. Any avoidance of the area on the part of marine mammal prey would be expected to be short term and temporary.
Because of the temporary nature of the disturbance, and the availability of similar habitat and resources (
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment), or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise from certain HRG sources. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
Generally speaking, we estimate take by considering: (1) Acoustic thresholds recommended by NMFS for use in evaluating when marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment, (2) the area or volume of water that will be ensonified above these levels in a day, (3) the density or occurrence of marine mammals within these ensonified area, and (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
These thresholds are provided in Table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include sources levels and transmission loss coefficient.
NMFS has developed a user-friendly methodology for determining the rms sound pressure level (SPL
NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate isopleth distances to the Level A and Level B harassment thresholds. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Table 2 shows the HRG equipment types that may be used during the proposed surveys and the sound levels associated with those HRG equipment types.
Results of modeling using the methodology described above indicated that, of the HRG survey equipment planned for use by Ørsted that has the potential to result in Level B harassment of marine mammals, sound produced by the Applied Acoustics Dura-Spark UHD sparkers and GeoMarine Geo-Source sparker would propagate furthest to the Level B harassment threshold (141 m; Table 5). As described above, only a portion of Ørsted's survey activity days will employ sparkers or boomers; therefore, for the purposes of the exposure analysis, it was assumed that sparkers would be the dominant acoustic source for approximately 701 of the total 1,302 survey activity days. For the remaining 601 survey days, the TB Chirp III (54 m; Table 5) was assumed to be the dominant source. Thus, the distances to the isopleths corresponding to the threshold for Level B harassment for sparkers (141 m) and the TB Chirp III (54 m) were used as the basis of the take calculation for all marine mammals for 54% and 46% of survey activity days, respectively.
Isopleth distances to Level A harassment thresholds for all types of HRG equipment and all marine mammal functional hearing groups were modeled using the NMFS User Spreadsheet and NMFS Technical Guidance (2018). The dual criteria (peak SPL and SEL
Distances to the Level A harassment threshold for Innomar were calculated using a Matlab-based numerical model. Cumulative sound exposure level from a moving source to an assumed stationary marine mammal was calculated based on the safe distance method described in Sivle et al. (2015), with modifications to include absorption loss and beamwidth. The cumulative received level was then frequency weighted using the NMFS (2018) frequency weighting function for each marine mammal functional hearing group. Finally, the safe horizontal distance (
Modeled distances to isopleths corresponding to the Level A harassment threshold are very small (<1 m) for three of the four marine mammal functional hearing groups that may be impacted by the proposed activities (
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
The habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts
For the exposure analysis, density data from Roberts
For bottlenose dolphin densities, Roberts
Here we describe how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to Level B harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and the estimated trackline distance traveled per day by the survey vessel. The daily area is multiplied by the mean annual density of a given marine mammal species. This value is then multiplied by the number of proposed vessel days.
As noted previously, not all noise producing survey equipment/sources will be operated concurrently by each survey vessel on every vessel day. The greatest distance to the Level B harassment threshold for impulsive sources (sparkers or boomers) is 141 m, while the greatest distance to the Level B harassment threshold for other intermittent sources (
Ørsted estimates that the proposed surveys will achieve a maximum daily track line distance of 70 km per 24-hour day during the proposed HRG survey activity days; this distance accounts for the vessel traveling at approximately 4.0 kn, during active survey periods only. Estimates of incidental take by Level B harassment for impulsive and non-impulsive HRG equipment were calculated using the 141 m and 54 m Level B harassment isopleths, respectively, to determine the daily ensonified areas for 24-hour operations
For the North Atlantic right whale, NMFS proposes to establish a 500-m exclusion zone which substantially exceeds the distance to the Level B harassment isopleth for both survey days using impulsive sources (141 m) and survey days using non-impulsive sources (54 m). However, Ørsted will be operating 24 hours per day for a majority of the total of 1,302 vessel days. Even with the implementation of mitigation measures (including visual monitoring at night with use of night vision devices), it is reasonable to assume that night time operations for an extended period could result in a limited number of right whales being exposed to underwater sound exceeding Level B harassment levels. Take has been conservatively calculated based on the largest isopleth for both types of survey days (
As described above, NMFS has determined that the likelihood of take of any marine mammals in the form of Level A harassment occurring as a result of the proposed surveys is so low as to be discountable; therefore, we do not propose to authorize take of any marine mammals by Level A harassment.
Orsted has requested additional take authorizations beyond the modelled takes for humpback and minke whales and common dolphins, based on increased detection of these species during its 2019 survey. Orsted's justification for this request can be found in its application, which is available here:
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
NMFS proposes the following mitigation measures be implemented during Ørsted's proposed marine site characterization surveys.
Marine mammal exclusion zones (EZ) would be established around the HRG survey equipment and monitored by protected species observers (PSOs):
• 500 m EZ for North Atlantic right whales;
• 100 m EZ for all marine mammals, with the exception of certain small delphinids specified below, for survey days operating impulsive acoustic sources (boomer and/or sparker).
If a marine mammal is detected approaching or entering the EZs during the HRG survey, the vessel operator would adhere to the shutdown procedures described below to minimize noise impacts on the animals. These stated requirements will be included in the site-specific training to be provided to the survey team.
Ørsted would implement a 30-minute pre-clearance period of the exclusion zones prior to the initiation of ramp-up of HRG equipment. During this period, the exclusion zone will be monitored by the PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is within its respective exclusion zone. If a marine mammal is observed within an exclusion zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting (
When technically feasible, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the Survey Area by allowing them to vacate the area prior to the commencement of survey equipment operation at full power.
A ramp-up would begin with the powering up of the smallest acoustic HRG equipment at its lowest practical power output appropriate for the survey. When technically feasible, the power would then be gradually turned up and other acoustic sources would be added.
Ramp-up activities will be delayed if a marine mammal(s) enters its respective exclusion zone. Ramp-up will continue if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting (
Activation of survey equipment through ramp-up procedures may not occur when visual observation of the pre-clearance zone is not expected to be
An immediate shutdown of the impulsive HRG survey equipment would be required if a marine mammal is sighted entering or within its respective exclusion zone. No shutdown is required for surveys operating only non-impulsive acoustic sources. The vessel operator must comply immediately with any call for shutdown by the Lead PSO. Any disagreement between the Lead PSO and vessel operator should be discussed only after shutdown has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed
If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the Level B harassment zone (54 m, non-impulsive; 141 m impulsive), shutdown would occur.
If the acoustic source is shut down for reasons other then mitigation (
The shutdown requirement would be waived for small delphinids of the following genera:
Ørsted will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds and slow down or stop their vessels to avoid striking these species. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammals and sea turtle sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures would include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:
• Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be third-party observers (
• All vessels (
• Vessel speeds must also be reduced to 10 knots or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
• All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action.
• All vessels must maintain a minimum separation distance of 100 m from sperm whales and all other baleen whales.
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible (
• When protected species are sighted while a vessel is underway, the vessel shall take action as necessary to avoid violating the relevant separation distance (
• These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
Ørsted will limit to three the number of survey vessels that will operate concurrently from March through June within the Lease Areas (OSC-A 0486/0517, OCS-A 0487, and OCS-A 500) and ECR Area north of the Lease Areas up to, but not including, coastal and bay waters. Ørsted would operate either a single vessel, two vessels concurrently or, for short periods, no more than three survey vessels concurrently in the areas described above during the March-June timeframe when right whale densities are greatest. This practice will help to reduce the number of right whale takes and to minimize the number of times that right whales may be exposed to project noise in a day.
Between watch shifts, members of the monitoring team will consult NOAA Fisheries North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. The Survey Area occurs near the SMAs located off the coast of Rhode Island (Block Island Sounds SMA) and at the entrance to New York Harbor (New York Bight SMA). If survey vessels transit through these SMAs, they must adhere to the
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Visual monitoring will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Ørsted would employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task. On a case-by-case basis, non-independent observers may be approved by NMFS for limited, specific duties in support of approved, independent PSOs on smaller vessels with limited crew capacity operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including exclusion zones, during all HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established exclusion zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.
During all HRG survey operations (
PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detected marine mammals, particularly in proximity to exclusion zones. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggle with thermal clip-ons and infrared technology would be used. Position data would be recorded using hand-held or vessel GPS units for each sighting.
During good conditions (
Data on all PSO observations would be recorded based on standard PSO collection requirements. This would include dates, times, and locations of survey operations; dates and times of observations, location and weather; details of marine mammal sightings (
Within 90 days after completion of survey activities, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys (including what type of mitigation and
In addition to the final technical report, Ørsted will provide the reports described below as necessary during survey activities.
In the event that Ørsted personnel discover an injured or dead marine mammal, Ørsted would report the incident to the NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by any vessel involved in the activities covered by the IHA, Ørsted would report the incident to the NMFS OPR and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, our analysis applies to all the species listed in Table 3, given that NMFS expects the anticipated effects of the proposed survey to be similar in nature. NMFS does not anticipate that serious injury or mortality would occur as a result from HRG surveys, even in the absence of mitigation, and no serious injury or mortality is proposed to be authorized. As discussed in the Potential Effects section, non-auditory physical effects and vessel strike are not expected to occur. We expect that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), reactions that are considered to be of low severity and with no lasting biological consequences (
In addition to being temporary, the maximum expected harassment zone around a survey vessel is 141 m; almost half of survey days would include activity with a reduced acoustic harassment zone of 54 m per vessel, producing expected effects of particularly low severity. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and their use of the habitat. Feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the Survey Area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
ESA-listed species for which takes are proposed are North Atlantic right, fin, sei, and sperm whales; impacts on these species are anticipated to be limited to lower level behavioral effects. NMFS does not anticipate that serious injury or mortality would occur to ESA-listed species, even in the absence of proposed mitigation, and the proposed authorization does not authorize any serious injury or mortality. The proposed survey activities are not anticipated to affect the fitness or reproductive success of individual animals. Since impacts to individual survivorship and fecundity are unlikely, the proposed survey is not expected to result in population-level effects for any
The status of the North Atlantic right whale population is of heightened concern and, therefore, merits additional analysis. Elevated North Atlantic right whale mortalities began in June 2017, primarily in Canada. Overall, preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. The proposed survey area includes a biologically important migratory route for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LeBrecque
The proposed Survey Area includes a fin whale feeding BIA effective between March and October. The fin whale feeding area is sufficiently large (2,933 km
As noted previously, there are several active UMEs occurring in the vicinity of Ørsted's proposed Survey Area. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or distinct population segment (DPS)) remains stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales.
Elevated numbers of harbor seal and gray seal mortalities were first observed in July 2018 and have occurred across Maine, New Hampshire, and Massachusetts. Based on tests conducted so far, the main pathogen found in the seals is phocine distemper virus, although additional testing to identify other factors that may be involved in this UME are underway. The UME does not yet provide cause for concern regarding population-level impacts to any of these stocks. For harbor seals, the population abundance is over 75,000 and annual M/SI (350) is well below PBR (2,006) (Hayes
The required mitigation measures are expected to reduce the number and/or severity of takes by providing animals the opportunity to move away from the sound source throughout the Survey Area before HRG survey equipment reaches full energy, thus preventing animals from being exposed to sound levels that have the potential to cause injury (Level A harassment) or more severe Level B harassment. No Level A harassment is anticipated or authorized.
NMFS expects that takes would be in the form of short-term Level B behavioral harassment by way of brief startling reactions and/or temporary vacating of the area, or decreased foraging (if such activity was occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals would only be exposed briefly to a small ensonified area that might result in take. Additionally, required mitigation measures would further reduce exposure to sound that could result in more severe behavioral harassment.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• No Level A harassment (PTS) is anticipated or authorized;
• Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the planned survey to avoid exposure to sounds from the activity;
• Take is anticipated to be primarily Level B behavioral harassment consisting of brief startling reactions and/or temporary avoidance of the Survey Area;
• While the Survey Area is within areas noted as biologically important for North Atlantic right whale migration, the activities would occur in such a comparatively small area such that any avoidance of the Survey Area due to activities would not affect migration. In addition, mitigation measures to shutdown at 500 m to minimize potential for Level B behavioral harassment would limit any take of the species. Similarly, due to the small footprint of the survey activities in relation to the size of a biologically important area for fin whales' foraging, the survey activities would not affect foraging behavior of this species; and
• The proposed mitigation measures, including visual monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The numbers of marine mammals that we propose for authorization to be taken, for all species and stocks, would be small relative to the relevant stocks or populations (less than 6 percent for all species and stocks) as shown in Table 8. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of all affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Ørsted for HRG survey activities effective one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA itself is available for review in conjunction with this notice at:
We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for Ørsted's proposed activity. We also request at this time comment on the potential Renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for this IHA or a subsequent Renewal IHA.
On a case-by-case basis, NMFS may issue a one-time one-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical, or nearly identical, activities as described in the Specified Activities section of this notice is planned or (2) the activities as described in the Specified Activities section of this notice would not be completed by the time the IHA expires and a Renewal would allow for completion of the activities beyond that described in the
• A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
• Upon review of the request for Renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public meetings.
This notice sets forth the schedule and proposed agenda of two meetings of the Science Advisory Board
There are two meetings: the first meeting is scheduled for August 27, 2020, from 3:00 p.m. to 3:45 p.m. Eastern Daylight Time (EDT). The second meeting is scheduled for September 22, 2020, from 3:00 p.m. to 5:00 p.m. Eastern Daylight Time (EDT). These times and the agenda topics described below are subject to change. For the latest agenda please refer to the SAB website:
Due to the current Pandemic both meetings will be held virtually. The link for the webinar registration for the August 27, 2020 meeting may be found here:
Dr. Cynthia Decker, Executive Director, SSMC3, Room 11230, 1315 East-West Hwy., Silver Spring, MD 20910; Phone Number: 301-734-1156;
The NOAA Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Tuesday, August 25, 2020 at 9.30 a.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will review results of the 2020 management track assessment for Atlantic herring. They will also continue development of Framework 8 to the Atlantic Herring Fishery Management Plan and review preliminary analyses. Framework 8 is considering fishery specifications for fishing years 2021-23 and adjusting measures in the herring plan that potentially inhibit the mackerel fishery from achieving optimum yield. Other business will be discussed as necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an Environmental Impact Statement; announcement of public scoping period and request for comments.
NMFS announces its intent to prepare an Environmental Impact Statement (EIS), in accordance with the National Environmental Policy Act (NEPA) of 1969, to analyze the potential short- and long-term impacts of the proposed action to issue an Exempted Fishing Permit (EFP), on the human (biological, physical, social, and economic) environment. This notice of intent to prepare an EIS invites interested parties to provide comments on alternatives to be considered in an EIS, potential terms and conditions to minimize adverse effects to the environment, and to identify potential issues, concerns, and any reasonable additional alternatives that should be considered.
Written comments on the scope of the analysis will be accepted through September 9, 2020. Comments must be received by 5 p.m. Pacific Daylight Time (PDT) on September 9, 2020. Public comments will also be accepted during a webinar scheduled for 10 a.m. to 12 p.m. PDT, August 27, 2020. Please notify Amber Rhodes (see
You may submit comments on the scope of this EIS by any of the following methods: Submit electronic public comments via the Federal e-Rulemaking Portal.
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
Email written comments to
Amber Rhodes, NMFS, 562-980-3231,
In 2015, the Pacific Fishery Management Council (hereafter, the Council) recommended that NMFS issue an EFP authorizing the applicants to engage fish with longline gear within the Exclusive Economic Zone (EEZ). When soliciting requests for EFP proposals, the Council's objective was to test gear types or methods that could serve as an alternative to using drift gillnet (DGN) gear to catch swordfish in the U.S. West Coast EEZ, or to test different approaches to contemporary DGN fishing practices. DGN and harpoon are the only two gear types currently authorized under the Fishery Management Plan (FMP) for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP); of the two, DGN contributes the majority of the landings to the West Coast. Since 1985, U.S. West Coast swordfish catch has dramatically declined. This is in large part due to attrition in the DGN fleet. Additionally, the state of California has developed a DGN “permit transition program” that is expected to further reduce participation in this fleet and is designed to limit the duration of current participants' DGN fishing practices. Without other lawful, economically viable gear types, the U.S. West Coast swordfish fishery is unlikely to operate at optimum yield into the foreseeable future.
According to applicable Federal regulations, a NMFS Regional Administrator may authorize “for limited testing, public display, data collection, exploratory, health and safety, environmental cleanup, and/or hazard removal purposes, the target or incidental harvest of species managed under an FMP or fishery regulations that would otherwise be prohibited” (50 CFR 600.745(b)). Issuance of an EFP provides such authorization.
On April 29, 2019, NMFS issued an EFP, which was signed by the applicants and became valid in June of 2019 (84 FR 20108, May 8, 2019), for two vessels to target swordfish and other HMS using shallow-set longline (SSLL) and deep-set longline (DSLL) gear in the West Coast EEZ off California and Oregon. NMFS had completed a final Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) on April 19, 2019, which found that the impacts of this EFP on the human environment were not significant under the terms of NEPA. Also, on July 11, 2018, NMFS had completed an Endangered Species Act (ESA) Section 7 consultation which had concluded that the fishing activities authorized under the EFP were not likely to jeopardize the continued existence of ESA-listed species, or result in the destruction or adverse modification of critical habitat. Issuance of this EFP was followed by litigation in the United States District Court for the Northern District of California, in which the plaintiffs alleged, among other claims, that NMFS had not used the best scientific information available (BSIA) in its NEPA analysis or ESA Section 7 consultation, and that as a result, NMFS' issuance of the EFP violated both NEPA and the ESA.
NMFS is reviewing options and additional data for re-analyzing the impacts of this EFP with respect to ESA and NEPA. Other than acquiring gear and landings permits and fishing licenses to fish waters off California and Oregon, there are no other permits, licenses, or entitlements needed to conduct the proposed action.
The purpose of EFPs is to allow fishing practices that are new to a
The proposed action is needed because fishing with longline gear is currently prohibited in the West Coast EEZ under 50 CFR 660.712(a)(1) .This prohibition pre-dates gear and operational modifications in U.S. longline fisheries that have proven effective elsewhere for reducing protected species interactions, injuries, and mortalities (50 CFR 665.812 and 665.815). Without testing potentially viable alternatives to fishing with DGN, the U.S. West Coast swordfish fishery is unlikely to operate at optimum yield into the foreseeable future.
Longline gear is an umbrella term referring to two distinct gear configurations. These configurations include deep-set and shallow-set. DSLL is typically fished at depths of ~984 to 1,312 feet (~300 to 400 meters (m) or deeper) and more commonly used to target tunas. SSLL is typically fished at less than 328 feet (<100 m depth) and more commonly used to target swordfish. The proposed action area for this EFP is the United States EEZ off California and Oregon.
The range of alternatives includes a No Action alternative and reasonable action alternatives that meet the purpose and need. These action alternatives may differ in the limits set on sea turtles observed hooked, entangled, or killed during fishing under the EFP. Additionally, the action alternatives may differ in limits set on fishing activity (
In addition to the loggerhead and leatherback sea turtle limits, the action alternatives will include terms and conditions to facilitate data collection and mitigate potential impacts of the EFP activities on the environment. The list of measures below includes a menu of terms and conditions that could apply to the action alternatives in the EIS.
1. 100 percent observer coverage.
2. EFP fishing trips limited to Federal waters only, and cannot co-occur on trips that include fishing under alternative authorizations.
3. Vessel monitoring systems installed and operating for all EFP activities.
4. No transfer of fish to or from vessels operating under the EFP while at sea.
5. No fishing within 50 nautical miles of the mainland shore and islands.
6. No fishing within the Leatherback Critical Habitat area (77 FR 4170, January 26, 2012).
7. No fishing within the Southern California Bight.
8. Restrictions on setting gear within the boundaries of the Pacific leatherback conservation area from August 15 through November 15.
9. Restrictions on EFP fishing in waters north of the Oregon/California border.
10. Gear and bait requirements (
11. Limits on bycatch (
12. Requirement for setting SSLL at night.
13. Seabird avoidance, protection, and handling measures (50 CFR 660.712(c) and 50 CFR 660.21).
14. Prior to making fishing sets, EFP operators will be required to consult the dynamic ocean modeling tool, EcoCast.
15. Operators must participate in a NMFS-hosted workshop focused on compliance with terms and conditions of the EFP, including training on the use of EcoCast.
16. Operators must possess on board a valid Pacific HMS permit (50 CFR 666.707(a)).
The primary purpose of the scoping process is for the public to assist NMFS in developing the EIS. NMFS requests that the comments be specific. In particular, we request information regarding: Important issues; possible alternatives that meet the purpose and need; direct, indirect, and cumulative environmental impacts; and potential terms and conditions that may minimize adverse effects, including time or area restrictions or both to reduce environmental impacts. In addition to written public comments received during this scoping period and the comments received during the proposed webinar, NMFS will consider public comments and recommendations of the Council's advisory bodies related to the Council's recommendations to NMFS to approve the EFP between 2015 and 2019. In addition to those opportunities for public comment and the opportunities being provided with this notice, NMFS will also make a draft EIS for the proposed action available for public comment.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal.
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the Transit Protection Program Pier and Support Facilities Project at Naval Base Kitsap Bangor in Silverdale, Washington over two years. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two incidental harassment authorizations (IHAs) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on possible one-time, one-year renewals that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than September 9, 2020.
Comments should be addressed to Jolie Harrison, Chief,
Leah Davis, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On January 14, 2020, NMFS received a request from the Navy for an IHA to take marine mammals incidental to the Transit Protection Program Pier and Support Facilities Project at Naval Base Kitsap Bangor in Silverdale, Washington over two years. The Navy submitted a revised application on March 23, 2020, which was deemed adequate and complete on June 10, 2020. The Navy's request is for take of a small number of five species of marine mammals, by Level B harassment and Level A harassment. Neither the Navy nor NMFS expects serious injury or mortality to result from this activity and, therefore, IHAs are appropriate.
The IHAs, if issued, will be effective from July 16, 2021 to January 15, 2022 for Year 1 activities, and July 16, 2022 to January 15, 2023 for Year 2 activities.
The Navy is proposing to construct and operate a pier for berthing of Transit Protection Program (TPP) blocking vessels, which provide security escort to Fleet Ballistic Missile Submarines between Naval Base Kitsap Bangor and the Strait of Juan de Fuca. These vessels are currently berthed on a space-available basis at various locations at Kitsap Bangor. Kitsap Bangor is located on Hood Canal approximately 20 miles (mi) (32 kilometers (km)) west of Seattle, Washington. Construction activities include vibratory and impact pile driving and vibratory pile removal, over approximately 80 days in year 1 and 10 days in year 2.
The Navy anticipates that construction for the TPP project will occur over two years. The proposed IHAs would be effective from July 16, 2021 to January 15, 2022 for Year 1 activities, and July 16, 2022 to January 15, 2023 for Year 2 activities. The Navy expects that pile driving will require a maximum of 90 in-water pile-driving days over the two-year period. They anticipate completing the majority of the proposed construction during Year 1 on approximately 80 in-water workdays. Year 2 activities will include fender pile and guide pile installation only on approximately 10 in-water workdays. Pile driving and removal are expected to occur up to five hours per day during daylight hours. Each year, pile driving will occur during the in-water work window (IWWW) at Kitsap Bangor from July 16 to January 15. This IWWW is typically imposed by the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service (USFWS), and the NMFS in an effort to avoid in-water construction when Endangered Species Act (ESA)-listed juvenile salmonids are most likely to be present.
Naval Base Kitsap Bangor is located north of the community of Silverdale in Kitsap County on the Hood Canal. Hood Canal is a long, narrow, fjord-like basin of western Puget Sound, characterized by relatively steep sides and irregular seafloor topography. In the entrance to Hood Canal, water depths in the center of the waterway near Admiralty Inlet vary between 300 and 420 feet (ft) (91 and 128 m). As the canal extends southwestward toward the Olympic Mountain Range and Thorndyke Bay, water depth decreases to approximately 160 ft (49 m). The proposed location for the TPP Pier is at the tip of the Keyport/
Human-generated sound is a significant contributor to the ambient acoustic environment at Kitsap Bangor. Normal port activities include vessel traffic from large ships, support vessels and security boats, and loading and maintenance operations, which all generate underwater sound (Urick, 1983). Other sources of human-generated underwater sound not specific to naval installations include sounds from echo sounders on commercial and recreational vessels, industrial ship noise, and noise from recreational boat engines.
The Navy plans to construct a pier for berthing TPP blocking vessels. The TPP pier will consist of an L-shaped, pile-supported trestle from shore connecting to a pile-supported main pier section. The Navy will also install two dolphins, one south and one north of the pier which will be used solely for mooring support. Additionally, the contractor will construct a temporary work trestle (falsework piles and timber decking) for use during construction.
The proposed TPP pier will consist of an L-shaped pile-supported trestle from shore connecting to a pile-supported main pier section. The trestle will be concrete and approximately 114 ft (34.7 m) long and 39 ft (11.9 m) wide, including a pedestrian walkway. The main pier section will also be concrete and approximately 299 ft (91.1 m) long and 69 ft (21 m) wide.
The contractor will need to construct a 140-ft (42.6 m) by 20-ft (6.1 m) temporary work trestle (falsework piles and timber decking). The permanent trestle piles in the intertidal area will be driven from the deck of the temporary work trestle; the temporary trestle will subsequently be removed using a vibratory hammer.
Pier and trestle construction will require one derrick barge with a crane and one support/material barge.
The Navy plans to install a fender system along the west face of the pier with two berthing camels where the blocking vessels will tie up to the pier. Each camel will be 65 ft (19.8 m) long by 12 ft (3.7 m) wide and constructed of grated material. The camels will serve as both a standoff for the blocking vessels and a platform for boarding the blocking vessels. The camels will be accessed via brows down from the main pier deck. The brow platforms and brows will also be constructed of grated material. NMFS does not expect camel or brow platform installation to result in the take of marine mammals, and we do not discuss their installation further in this notice.
The fender piles will be installed on the outer side of the pier to protect it from accidental damage by vessels. Where geotechnical conditions do not allow piles to be driven to the required depth using vibratory methods, an
The Navy plans to construct two dolphins, one south of the pier, and one north of the pier for mooring support. The dolphins will support mooring hardware for the bow and stern lines of the blocking vessels. The structural system for the mooring dolphins will consist of a 12 ft by 12 ft (3.7 m by 3.7 m) cast-in-place concrete pile cap and four 36-inch battered steel pipe piles. The Navy plans to construct a shoreline abutment under the pier trestle. The shoreline abutment will be constructed from sheet piles and will be constructed landward of mean higher high water (MHHW). Therefore, we do not expect the shoreline abutment to result in take of marine mammals, and it is not discussed further in this notice.
The trestle, pier, and dolphins will require in-water installation of a total of 120 permanent steel piles that are 24, 30, or 36 inches in diameter, and 40 temporary steel falsework piles that are 36 inches in diameter.
An additional four 36-inch trestle support piles and 20 36-inch falsework piles will be located above MHHW, however, we do not expect installation of piles above MHHW to result in take of marine mammals, and these piles are not discussed further.
The Navy will primarily install piles using a vibratory hammer, but may use an impact hammer to install steel support piles. Steel support piles will be advanced to the extent practicable with a vibratory driver. For load-bearing structures, an impact hammer is typically required to strike a pile a number of times to ensure it has met the load-bearing specifications, a process referred to as “proofing.” Piles will only be impact driven when required for proofing or when a pile cannot be advanced with a vibratory driver due to hard substrate conditions. The Navy does not plan to conduct pile driving with multiple hammers concurrently.
Navy will also conduct several construction activities in upland areas, including installation of diesel fuel tanks, installation of a paved parking area, construction of a vessel maintenance facility, among other activities. Given their location, we do not expect any of these upland construction activities to result in the take of marine mammals, and they are not discussed further in this notice. Please refer to the Navy's application for additional detail on these project components.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Pacific and Alaska SARs (
As indicated above, all five species (with five managed stocks) in Table 3 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. While humpback whale, gray whale, Southern Resident killer whale, Dall's porpoise, and bottlenose dolphin have been sighted in the area, the temporal and spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Humpback whales (
Killer whales in the project area are expected to be from the West Coast Transient stock, which occurs from California through southeastern Alaska with a preference for coastal waters of southern Alaska and British Columbia (Krahn
Transients may occur in inland waters in any month (Orca Network, 2015). However, Morton (1990) found bimodal peaks in spring (March) and fall (September to November) for transients on the northeastern coast of British Columbia, and Baird and Dill (1995) found some transient groups frequenting the vicinity of harbor seal haulouts around southern Vancouver Island during August and September, which is the peak period for pupping through post-weaning of harbor seal pups. Not all transient groups were seasonal in these studies, and their movements appeared to be unpredictable. From 2004-2010, transient killer whales occurred in Washington inland waters most frequently in August-September with a strong second peak in April-May (Houghton
The number of West Coast Transient killer whales in Washington inland waters at any one time was previously considered likely to be fewer than 20 individuals (Wiles, 2004). Recent research suggests that the transient killer whales use of inland waters increased from 2004 through 2010, with the trend likely due to increasing prey abundance (Houghton
Transient killer whales were observed for lengthy periods in Hood Canal in 2003 (59 days) and 2005 (172 days) between the months of January and July (London, 2006), but were not observed again until March 2016 (Orca Network, 2016). Transient killer whales were observed in Hood Canal on two days in
Harbor porpoise in Puget Sound are expected to be from the Washington Inland Waters stock. In Washington inland waters, harbor porpoise are known to occur in the Strait of Juan de Fuca and the San Juan Island area year-round (Calambokidis & Baird, 1994; Osmek
Sightings in Hood Canal, north of the Hood Canal Bridge, have increased in recent years (Calambokidis, 2010). During line-transect vessel surveys conducted in the Hood Canal in 2011 for the Test Pile Program near Naval Base Kitsap Bangor and Dabob Bay (HDR, 2012), an average of six harbor porpoises were sighted per day in the deeper waters.
Steller sea lions in the project area are expected to be from the Eastern U.S. stock. The Eastern U.S. stock of Steller sea lions is found along the coasts of southeast Alaska to northern California where they occur at rookeries and numerous haulout locations along the coastline (Jeffries
In Washington, Steller sea lions use haulout sites primarily along the outer coast from the Columbia River to Cape Flattery, as well as along the Vancouver Island side of the Strait of Juan de Fuca (Jeffries
Steller sea lions have been seasonally documented in shore-based surveys at Naval Base Kitsap Bangor in Hood Canal since 2008 with up to 15 individuals observed hauled out on submarines at Delta Pier (Navy, 2016, 2019). Navy surveys at Naval Base Kitsap Bangor indicate Steller sea lions begin arriving in September and depart by the end of May (Navy, 2016, 2019). Survey methods and frequency are detailed Appendix A of the Navy's application.
Jeffries
Harbor seals are a coastal species, rarely found more than 12 mi (19.3 km) from shore. They frequently occupy bays, estuaries, and inlets. Individual seals have been observed several miles upstream in coastal rivers (Baird, 2001). Ideal harbor seal habitat includes haulout sites, areas providing shelter during breeding periods, and areas with sufficient food (Bjørge, 2002). Haulout areas can include intertidal and subtidal rock outcrops, sandbars, sandy beaches, peat banks in salt marshes, and man-
Harbor seals are the most common, widely distributed marine mammal found in Washington marine waters and are frequently observed in the nearshore marine environment. They occur year-round and breed in Washington. Numerous harbor seal haulouts occur in Washington inland waters. Haulouts include intertidal and subtidal rock outcrops, beaches, reefs, sandbars, log booms, and floats. Numbers of individuals at haulouts range from a few to between 100 and 500 individuals (Jeffries
Harbor seals are expected to occur year-round at Naval Base Kitsap Bangor. In Hood Canal, where Kitsap Bangor is located, known haulouts occur on the west side of Hood Canal at the mouth of the Dosewallips River and on the western and northern shorelines in Dabob Bay located approximately 8 mi (13 km) away from the Navy's installation. Vessel-based surveys conducted from 2007 to 2010 at Kitsap Bangor, observed harbor seals in every month of surveys (Agness & Tannenbaum, 2009; Tannenbaum
The Navy identified a few observations of harbor seal births or neonates. In 2014, the Navy's knowledge of harbor seal births increased due to increased pinniped surveys on the waterfront and increased contact with waterfront personnel who have had lengthy careers at Bangor (Navy, 2016). Known harbor seal births include one on the Carderock wave screen in August 2011 and at least one on a small 10 by 10 ft (3 by 3 m) floating dock at EHW-2 in fall 2013, as reported by EHW-2 construction crews, and afterbirth observed on a float at Magnetic Silencing Facility with an unknown date. In addition, Navy biologists learned that harbor seal pupping has occurred on a section of the Service Pier since approximately 2001, according to the Port Operations vessel crews. Harbor seal mother and pup sets were observed in 2014 hauled out on the Carderock wavescreen and swimming in nearby waters, and swimming near Delta Pier (Navy, 2016).
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (two cetacean and two pinniped (two otariid and one phocid) species) have the reasonable potential to co-occur with the proposed construction (Table 4). Of the cetacean species that may be present, one is classified as a mid-frequency cetacean (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Acoustic effects on marine mammals during the specified activity can occur from vibratory and impact pile driving. The effects of underwater noise from the Navy's proposed activities have the potential to result in Level A and Level B harassment of marine mammals in the action area.
The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far. The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
In-water construction activities associated with the project would include impact pile driving, vibratory pile driving, and vibratory pile removal. The sounds produced by these activities fall into one of two general sound types: Impulsive and non-impulsive. Impulsive sounds (
Two types of pile hammers would be used on this project: Impact and vibratory. Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak sound pressure levels (SPLs) may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman
The likely or possible impacts of the Navy's proposed activity on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel; however, any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors include effects of heavy equipment operation during pile installation and removal.
The introduction of anthropogenic noise into the aquatic environment from pile driving and removal is the primary means by which marine mammals may be harassed from the Navy's specified activity. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall
NMFS defines a noise-induced threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). The amount of threshold shift is customarily expressed in dB. A TS can be permanent or temporary. As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Airborne noise would primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels exceeding the acoustic thresholds. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' because of exposure to underwater sound above the behavioral harassment thresholds, which are, in all cases, larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Therefore, authorization of incidental take resulting from airborne sound for pinnipeds is not warranted, and airborne sound is not discussed further here.
The Navy's construction activities could have localized, temporary impacts on marine mammal habitat by increasing in-water sound pressure levels and slightly decreasing water quality. Construction activities are of short duration and would likely have temporary impacts on marine mammal habitat through increases in underwater sound. Increased noise levels may affect acoustic habitat (see masking discussion above) and adversely affect marine mammal prey in the vicinity of the project area (see discussion below). During impact and vibratory pile driving, elevated levels of underwater noise would ensonify Hood Canal where both fish and mammals may occur and could affect foraging success. Additionally, marine mammals may
A temporary and localized increase in turbidity near the seafloor would occur in the immediate area surrounding the area where piles are installed (and removed in the case of the temporary piles). The sediments on the sea floor will be disturbed during pile driving; however, suspension will be brief and localized and is unlikely to measurably affect marine mammals or their prey in the area. In general, turbidity associated with pile installation is localized to about a 25-foot (7.6-meter) radius around the pile (Everitt
The proposed activities would not result in permanent impacts to habitats used directly by marine mammals except for the actual footprint of the project. The total seafloor area affected by pile installation and removal is a very small area compared to the vast foraging area available to marine mammals in Hood Canal.
Avoidance by potential prey (
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to noise depends on the physiological state of the fish, past exposures, motivation (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality. However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen
The most likely impact to fish from pile driving activities at the project areas would be temporary behavioral avoidance of the area. The duration of fish avoidance of an area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated.
The area impacted by the project is relatively small compared to the available habitat in the remainder of Hood Canal. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity. Additionally, as noted previously, the Navy will adhere to the IWWW for pile extraction and installation (July 16 to January 15) to reduce potential effects to salmonids, including juvenile ESA-listed salmonids. As described in the preceding, the potential for the Navy's construction to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS's consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of the acoustic sources (
As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Navy's proposed activity includes the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project (
The source levels were derived from the Navy's document titled “Proxy Source Sound Levels and Potential Bubble Curtain Attenuation for Acoustic Modeling of Nearshore Marine Pile Driving at Navy Installations in Puget Sound” (Navy 2015a). In that document, the Navy reviewed relevant data available for various types and sizes of piles typically used for pile driving and recommend proxy source values for Navy installations in Puget Sound. This document is included as Appendix B in the Navy's application. Source levels for each pile size and activity are presented in Table 6.
The Navy will implement bubble curtains (
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
Absent site-specific acoustical monitoring with differing measured transmission loss, a practical spreading value of 15 is used as the transmission loss coefficient in the above formula. Site-specific transmission loss data for the TPP pier site are not available, therefore the default coefficient of 15 is used to determine the distances to the Level A and Level B harassment thresholds.
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving, NMFS User Spreadsheet predicts the distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. We describe how the information provided above is brought together to produce a quantitative take estimate.
Transient killer whales occasionally occur throughout Puget Sound but are rare in Hood Canal. In Puget Sound, they are typically observed in small groups with an average group size of six individuals (Houghton, 2012). Based on this Puget Sound average, the Navy estimated that two groups of six whales may occur within the Level B harassment zone during construction each year, and has requested 12 Level B harassment takes of killer whale for Year 1 and Year 2. NMFS concurs with this estimate, and proposes to authorize 12 Level B harassment takes of killer whale in each year. Given the estimated number of construction days in Year 2 (10 days), NMFS expects that 12 Level B harassment takes is a conservative estimate for Year 2, but is appropriate given that it accounts for the occurrence of just two groups.
The largest Level A harassment zone for mid-frequency cetaceans extends 11 m from the source during impact pile driving of 36-inch steel piles (Table 8). Given the small size of the Level A harassment zones, we would not expect Level A harassment take of killer whales to occur. Additionally, the Navy is planning to implement a 355 m shutdown zone for all cetaceans during that activity (Table 10). These shutdown zones are expected to eliminate the potential for Level A harassment take of killer whale. Therefore, NMFS does not propose to authorize Level A harassment take of killer whale in Year 1 or Year 2.
Harbor porpoises may be present in all major regions of Puget Sound throughout the year. Aerial surveys conducted throughout 2013 to 2015 in Puget Sound indicated density in Puget Sound was 0.91 individuals/sq km) (95 percent CI = 0.72-1.10, all seasons pooled) and density in Hood Canal was 0.44/sq km (95 percent CI = 0.29-0.75, all seasons pooled) (Smultea
In consideration of the harbor porpoise take estimate, the Navy conservatively assumed that vibratory installation of 36-inch piles would occur on every in-water work day, given that that activity resulted in the largest Level B harassment zone. The Navy estimated Level B harassment takes of harbor porpoise by multiplying the 0.44 animals/km
The largest Level A harassment zone for high-frequency cetaceans extends 351 m from the source during impact pile driving of 36-inch steel piles (Table 8). The Navy is planning to implement a 355 m shutdown zone for all cetaceans during that activity (Table 10), which incorporates the entire Level A harassment zone, and the 14 m peak PTS isopleth (Table 8). Therefore, the shutdown zones are expected to eliminate the potential for Level A harassment take of harbor porpoise, and NMFS does not propose to authorize Level A harassment take of harbor porpoise.
Steller sea lions are routinely seen hauled out from mid-September through May on submarines at Naval Base Kitsap Bangor, with a maximum haulout count of 15 individuals in November 2018. Because the daily average number of Steller sea lions hauled out at Kitsap Bangor has increased since 2013 compared to prior years, the Navy relied on monitoring data from July 2012 through February 2019 to determine the average of the maximum count of hauled out Steller sea lions for each month in the IWWW (Navy, 2016, 2019). While pinnipeds may haul out longer than the period required for pile driving, therefore not being exposed to underwater sound, the Navy conservatively assumed that any Steller sea lion that hauls out at Kitsap Bangor may enter the Level B harassment zone each day during pile driving.
For each in-water work month, the Navy averaged the maximum number of hauled out Steller sea lions observed in a single survey at Kitsap Bangor during that month for each year (2008 to 2019; see Appendix A of the Navy's application). The Navy then averaged these monthly averages across the entire in-water work period, resulting in a maximum average of four Steller sea lions hauled out per day. The Navy assumed that each of these animals may enter the Level B harassment zone on each in-water work day. Therefore, the Navy requested 320 Level B harassment takes of Steller sea lion in Year 1 (4 Steller sea lions × 80 in-water work days), and 40 Level B harassment takes of Steller sea lions during Year 2 (4 Steller sea lions × 10 in-water work days). NMFS concurs with this approach and proposes to authorize 320 Level B harassment takes of Steller sea lion during Year 1, and 40 Level B harassment takes of Steller sea lion during Year 2.
The largest Level A harassment zone for otariids extends 11 m from the source during impact pile driving of 36-inch steel piles (Table 8). Given the small size of the Level A harassment zones, we would not expect Level A harassment take of Steller sea lion to occur. Additionally, the Navy is planning to implement a 15m shutdown zone during that activity (Table 10). The Navy's shutdown zones are expected to eliminate the potential for Level A
From August through June, California sea lions routinely haul out on the PSB floats and submarines at Kitsap Bangor. For each in-water work month, the Navy averaged the maximum number of hauled out California sea lions observed in a single survey at Kitsap Bangor during that month for each year (2008 to 2019; see Appendix A of the Navy's application). The Navy then averaged these monthly averages across the entire in-water work period, resulting in a maximum average of 54 California sea lions hauled out per day. The daily average number of California sea lions hauled out at Kitsap Bangor has increased since 2013 compared to prior years. Therefore, the Navy relied on monitoring data from July 2012 through February 2019 to determine the average of the maximum count (Navy, 2016, 2019).
While pinnipeds may haul out longer than the period required for pile driving, therefore not being exposed to underwater sound, the Navy conservatively assumed that any California sea lion hauled out at Kitsap Bangor may swim into the Level B harassment zone on each pile driving day. Therefore, the Navy requested 4,320 Level B harassment takes of California sea lion in Year 1 (54 California sea lions × 80 in-water work days), and 540 Level B harassment takes of California sea lions during Year 2 (54 California sea lions × 10 in-water work days). NMFS concurs with this approach and proposes to authorize 4,320 Level B harassment takes of California sea lion during Year 1, and 540 Level B harassment takes of California sea lion during Year 2.
The largest Level A harassment zone for otariids extends 11 m from the source during impact pile driving of 36-inch steel piles (Table 8). Given the small size of the Level A harassment zones, we would not expect Level A harassment take of California sea lion to occur. Additionally, the Navy is planning to implement a 15 m shutdown zone during that activity (Table 10). The Navy's shutdown zones are expected to eliminate the potential for Level A harassment take of California sea lion. Therefore, NMFS does not propose to authorize Level A harassment take of California sea lion.
The harbor seal is the only species of marine mammal that is consistently abundant and considered resident in Hood Canal (Jeffries
The Navy conservatively assumed that each of the estimated 35 harbor seals may occur within the Level B harassment zone on each pile driving day. Therefore, the Navy requested 2,800 Level B harassment takes of harbor seal in Year 1 (35 harbor seals × 80 in-water work days), and 350 Level B harassment takes of harbor seal during Year 2 (35 harbor seals × 10 in-water work days). NMFS concurs with this approach and proposes to authorize 2,800 Level B harassment takes of harbor seal during Year 1, and 350 Level B harassment takes of harbor seal during Year 2.
The largest Level A harassment zone for phocids during Year 1 extends 158 m during impact installation of 36-inch steel piles (Table 8). The Navy is planning to implement a 160 m shutdown zone during that activity (Table 10), which incorporates the entire Level A harassment zone, and the 1 m peak PTS isopleth (Table 8). However, the Navy estimates that some harbor seals may enter, and remain inside the Level A harassment zone undetected by PSOs for a period long enough to be taken by Level A harassment during Year 1. NMFS concurs, and proposes to authorize 20 Level A harassment takes of harbor seal in Year 1 (1 harbor seal for every 4 in-water work days).
During Year 2, the largest Level A harassment zone for phocids extends 26 m from the source during vibratory pile driving of 30 and 36-inch steel piles, as no impact pile driving is planned for Year 2. The Navy expects to be able to effectively monitor this zone and implement a 30 m shutdown zone. Therefore, the Navy does not expect Level A harassment take to occur during Year 2. NMFS concurs that the Navy's shutdown zones are expected to eliminate the potential for Level A harassment take of harbor seal in Year 2, and does not propose to authorize Level A harassment take of harbor seal in Year 2.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In addition to the measures described later in this section, the Navy will employ the following mitigation measures:
• For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions;
• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;
• For those marine mammals for which Level B harassment take has not been requested, in-water pile installation/removal will shut down immediately if such species are observed within or entering the Level B harassment zone; and
• If take reaches the authorized limit for an authorized species, pile installation/removal will shut down immediately if these species approach the Level B harassment zone to avoid additional take.
The following mitigation measures apply to the Navy's in-water construction activities.
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○ The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column.
○ The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline contact. No parts of the ring or other objects shall prevent full mudline contact.
○ The bubble curtain shall be operated such that there is proper (equal) balancing of air flow to all bubblers.
Based on our evaluation of the Navy's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Marine mammal monitoring must be conducted in accordance with the Marine Mammal Monitoring Plan. Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
• Independent PSOs (
• Where a team of three or more PSOs are required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience working as a marine mammal observer during construction;
• Other PSOs may substitute education (degree in biological science or related field) or training for experience; and
• The Navy must submit PSO curriculum vitae for approval by NMFS prior to the onset of pile driving.
PSOs must have the following additional qualifications:
• Ability to conduct field observations and collect data according to assigned protocols.
• Experience or training in the field identification of marine mammals, including the identification of behaviors.
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior.
• Ability to communicate orally, by radio or in person, with project
At least two PSOs will monitor for marine mammals during all pile driving and removal activities. PSO locations will provide a view of the entire shutdown zone for all activities, other than areas where structures may potentially block limited portions of the zone, and as much of the Level B harassment zones as possible. PSO locations are as follows:
i. During vibratory pile driving, two PSOs will be stationed on the pier or shore.
ii. During impact pile driving, two PSOs will be stationed on the pier, and one additional PSO will observe from a vessel positioned approximately 200 m from shore.
Monitoring will be conducted 30 minutes before, during, and 30 minutes after pile driving/removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.
A draft marine mammal monitoring report will be submitted to NMFS within 90 days after the completion of pile driving and removal activities. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Dates and times (begin and end) of all marine mammal monitoring.
• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (
• Weather parameters and water conditions during each monitoring period (
• The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting.
• Age and sex class, if possible, of all marine mammals observed.
• PSO locations during marine mammal monitoring.
• Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting).
• Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active.
• Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate).
• Detailed information about any implementation of any mitigation triggered (
• Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals.
If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the IHA-holder shall report the incident to the Office of Protected Resources (OPR) (301-427-8401), NMFS and to the West Coast Region Stranding Hotline (866-767-6114) as soon as feasible. If the death or injury was clearly caused by the specified activity, the IHA-holder must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the IHA. The IHA-holder must not resume their activities until notified by NMFS.
The report must include the following information:
i. Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
ii. Species identification (if known) or description of the animal(s) involved;
iii. Condition of the animal(s) (including carcass condition if the animal is dead);
iv. Observed behaviors of the animal(s), if alive;
v. If available, photographs or video footage of the animal(s); and
vi. General circumstances under which the animal was discovered.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all of the species listed in Table 9, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below. The analysis below applies to both the Year 1 and Year 2 proposed IHAs, except where noted otherwise.
Pile driving and removal activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A harassment and Level B harassment from underwater sounds generated by pile driving and removal. Potential takes
The nature of the pile driving project precludes the likelihood of serious injury or mortality. The mitigation is expected to ensure that no Level A harassment occurs to any species except harbor seal, which may be taken by Level A harassment during Year 1 activities. The nature of the estimated takes anticipated to occur are similar among all species and similar in Year 1 and Year 2, other than the potential Level A harassment take of harbor seal in Year 1, described further below.
For all species and stocks, take will occur within a limited portion of Hood Canal, and for the Hood Canal stock of harbor seals, the project site is approximately 13.2 km (8.2 mi) away from the nearest major haulout at the mouth of the Dosewallips River. For all species other than harbor seal, take would be limited to Level B harassment only due to potential behavioral disturbance and TTS. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In addition to the expected effects resulting from proposed Level B harassment, we anticipate that harbor seals may sustain some Level A harassment in the form of auditory injury in Year 1 only. However, animals that experience PTS would likely only receive slight PTS,
As noted above in the Description of Marine Mammals in the Area of Specified Activities, the Navy has identified a few observations of harbor seal births at Kitsap Bangor. However, Kitsap Bangor is not a significant rookery area; observation of these births are very rare, and only a few have been reported. The closest major haulouts to Kitsap Bangor that are regularly used by harbor seals are at the mouth of the Dosewallips River, located approximately 13.2 km (8.2 mi) away. Given the rarity of harbor seal births at Kitsap Bangor and the maximum of five hours of pile driving anticipated in a day, we do not expect harbor seals to give birth in the TPP project area while the project is underway.
The project is also not expected to have significant adverse effects on affected marine mammals' habitats. The project activities will not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized.
• For all species except harbor seal, no Level A harassment is anticipated or proposed for authorization.
• The Level A harassment exposures are anticipated to result only in slight PTS, within the lower frequencies associated with pile driving for harbor seals only;
• The intensity of anticipated takes by Level B harassment is relatively low for all stocks.
• Pile driving is only expected to occur for a maximum of five hours in a day.
• We do not expect significant or long-term negative effects to marine mammal habitat.
As noted above, only small numbers of incidental take may be authorized under Sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
For the Washington Inland Waters, Hood Canal stock of harbor seal, no
We anticipate that estimated takes of harbor seals are likely to occur only within some portion of the relevant population, rather than to animals from the stock as a whole. For example, takes anticipated to occur at Kitsap Bangor would be expected to accrue to the same individual seals that routinely occur on haulouts at these locations, rather than occurring to new seals on each construction day. In summary, harbor seals taken as a result of the specified activities are expected to comprise only a limited portion of individuals comprising the overall relevant stock abundance. Therefore, we find that small numbers of harbor seals will be taken relative to the population size of the Hood Canal stock of harbor seal in Year 1 and Year 2.
For all other species and stocks, our analysis shows that, in Year 1 and Year 2, take of all species or stocks is below one third of the estimated stock abundance. The number of animals authorized to be taken for the killer whale West Coast Transient stock, harbor porpoise Washington Inland Waters stock, Steller sea lion Eastern U.S. stock, and California sea lion United States stock, would be considered small relative to the relevant stock's abundances even if each estimated taking occurred to a new individual, which is an unlikely scenario.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Navy for conducting the Transit Protection Program Pier and Support Facilities Project at Naval Base Kitsap Bangor in Silverdale, Washington over two years, beginning July 2021 and July 2022, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Drafts of the proposed IHAs can be found at
We request comment on our analyses, the proposed authorizations, and any other aspect of this notice of proposed IHAs for the proposed Transit Protection Program Pier and Support Facilities Project. We also request at this time comment on the potential Renewal of these proposed IHAs as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for these IHAs or subsequent Renewal IHAs.
On a case-by-case basis, NMFS may issue a one-time, one-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical activities, as described in the Description of Proposed Activity section of this notice, is planned or (2) the activities as described in the Description of Proposed Activity section of this notice would not be completed by the time the IHA expires and a Renewal would allow for completion of the activities beyond that described in the
• A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
• Upon review of the request for Renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Pacific Council) Groundfish Management Team (GMT) will hold an online meeting to discuss items on the Pacific Council's September 2020 meeting agenda. The meeting is open to the public.
The online meeting will be held Tuesday, August 25, 2020, from 1 p.m. to 3 p.m., Pacific Daylight Time, or until business for the day has been completed.
This meeting will be held online. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
Todd Phillips, Staff Officer; telephone: (503) 820-2426; email:
The primary purpose of the GMT online meeting is to prepare for the Pacific Council's September 2020 meeting. The GMT will discuss items related to groundfish management and administrative Pacific Council agenda items. A detailed agenda for the online meeting will be available on the Pacific Council's website prior to the meeting. The GMT may also address other assignments relating to groundfish management. No management actions will be decided by the GMT.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; nominations for shark stock assessment Advisory Panel.
NMFS solicits nominations for the “SEDAR Pool,” also known as the Atlantic Highly Migratory Species (HMS) Southeast Data, Assessment, and Review (SEDAR) Workshops Advisory Panel. The SEDAR Pool is comprised of a group of individuals who may be selected to consider data and advise NMFS regarding the scientific information, including but not limited to data and models, used in stock assessments for oceanic sharks in the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Nominations are being sought for a 5-year appointment (2021-2026). Individuals with definable interests in the recreational and commercial fishing and related industries, environmental community, academia, and non-governmental organizations will be considered for membership on the SEDAR Pool.
Nominations must be received on or before September 9, 2020.
You may submit nominations and request the SEDAR Pool Statement of Organization, Practices, and Procedures electronically via email to
Additional information on SEDAR and the SEDAR guidelines can be found at
Karyl Brewster-Geisz, (301) 425-8503.
Section 302(g)(2) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
The primary purpose of the individuals in the SEDAR Pool is to review, at SEDAR workshops, the scientific information (including but not limited to data and models) used in stock assessments that are used to advise NMFS, as a delegate to the Secretary of Commerce (Secretary), about the conservation and management of Atlantic HMS, specifically but not limited to, Atlantic sharks. Individuals in the SEDAR Pool, if selected, may participate in the various data, assessment, and review workshops during the SEDAR process of any HMS stock assessment. In order to ensure that the peer review is unbiased, individuals who participated in a data and/or assessment workshop for a particular stock assessment will not be allowed to serve as reviewers for the same stock assessment. However, these individuals may be asked to attend the review
The SEDAR Pool is comprised of individuals representing the commercial and recreational fishing communities for Atlantic sharks, the environmental community active in the conservation and management of Atlantic sharks, and the academic community that have relevant expertise either with sharks and/or stock assessment methodologies for marine fish species. In addition, individuals who may not necessarily work directly with sharks, but who are involved in fisheries with similar life history, biology, and fishery issues may be part of the SEDAR Pool. Members of the SEDAR Pool must have demonstrated experience in the fisheries, related industries, research, teaching, writing, conservation, or management of marine organisms. The distribution of representation among the interested parties is not defined or limited.
Additional members of the SEDAR Pool may also include representatives from each of the five Atlantic Regional Fishery Management Councils, each of the 18 Atlantic states, both the U.S. Virgin Islands and Puerto Rico, and each of the interstate commissions: The Atlantic States Marine Fisheries Commission and the Gulf States Marine Fisheries Commission.
If NMFS requires additional members to ensure a diverse pool of individuals for data or assessment workshops, NMFS may request individuals to become members of the SEDAR Pool outside of the annual nomination period.
SEDAR Pool members serve at the discretion of the Secretary. Not all members will attend each SEDAR workshop. Rather, NMFS will invite certain members to participate at specific stock assessment workshops dependent on their ability to participate, discuss, and recommend scientific decisions regarding the species being assessed.
NMFS is not obligated to fulfill any requests (
Member tenure will be for 5 years. Nominations are sought for terms beginning early in 2021 and expiring in 2026. Nomination packages should include:
1. The name, address, phone number, and email of the applicant or nominee;
2. A description of the applicant's or nominee's interest in Atlantic shark stock assessments or the Atlantic shark fishery;
3. A statement of the applicant's or nominee's background and/or qualifications; and
4. A written commitment that the applicant or nominee shall participate actively and in good faith in the tasks of the SEDAR Pool, as requested.
Individual members of the SEDAR Pool meet to participate in stock assessments at the discretion of the Office of Sustainable Fisheries, NMFS. Stock assessment timing, frequency, and relevant species will vary depending on the needs determined by NMFS and SEDAR staff. In 2021 and continuing through 2022, NMFS intends to conduct a research track assessment for the hammerhead shark species in the hammerhead shark management group. During an assessment year, meetings and meeting logistics will be determined according to the SEDAR Guidelines. All meetings are open for observation by the public.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a Dolphinfish Tagging Research presentation.
The South Atlantic Fishery Management Council (Council) will host a presentation on dolphinfish tagging research via webinar on August 26, 2020.
The webinar presentation will be held on Wednesday, August 26, 2020, from 1 p.m. until 2:30 p.m.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8439 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Council will host a presentation from the Dolphinfish Research Program on recent tagging efforts for dolphin and wahoo and ongoing research. A question and answer session will follow the presentation. Members of the public will have the opportunity to participate and provide comments relative to the presentation. The presentation is for informational purposes only and no management actions will be taken.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of public meeting.
The South Atlantic Fishery Management Council (Council) will convene a meeting of the South Atlantic Selectivity Workgroup via webinar to address gear selectivity for fishery stock assessments for species managed by the Council.
The South Atlantic Selectivity Workgroup meeting will be held via webinar on Tuesday, August 25, 2020, from 1 p.m. until 4:30 p.m.
Chip Collier, Deputy Director for Science, SAFMC; phone: (843) 302-8444 or toll free: (866) SAFMC-10; fax: (843)769-4520; email:
The South Atlantic Selectivity Workgroup consists of scientists with expertise in selectivity or gears used in fisheries in the South Atlantic region including members of the Council's Scientific and Statistical Committee chosen to participate. The Workgroup will provide recommendations on selectivity for species managed by the Council for consideration in upcoming stock assessments.
Agenda items include:
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before September 9, 2020.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Timothy Duvall, 202-453-7521.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Centers for International Business Education (CIBEs) offer consulting services on international business and marketing to businesses in their areas, develop business language curriculum, and teach international business topics to undergraduate and graduate students. They also partner with businesses and professional associations to offer internships and other real-world experience to prepare career-ready international business students. CIBEs serve to strengthen the American economy in our increasingly interconnected world by enabling U.S. citizens and companies to compete in the international business arena.
The CIBE program provides grants for up to 48 months to pay the Federal share of the cost of planning, establishing, and operating Centers for International Business Education. Eligible applicants are U.S. institutions
This program responds to the ongoing national need for individuals with expertise and competence in world languages, international business, and U.S. global economic competitiveness; advance national security by developing a pipeline of highly proficient linguists and experts in critical world regions; and contribute to developing a globally competent workforce able to engage with a multilingual/multicultural clientele at home and abroad. Approval of this collection is necessary in order to conduct fiscal year (FY) 2022 program competitions.
Federal Student Aid, Department of Education.
Notice.
The Chief Operating Officer for Federal Student Aid announces the interest rates for Federal Direct Stafford/Ford Loans (Direct Subsidized Loans), Federal Direct Unsubsidized Stafford/Ford Loans (Direct Unsubsidized Loans), and Federal Direct PLUS Loans (Direct PLUS Loans) made under the William D. Ford Federal Direct Loan (Direct Loan) Program with first disbursement dates on or after July 1, 2020, and before July 1, 2021.
Travis Sturlaugson, U.S. Department of Education, 830 First Street NE, 11th Floor, Washington, DC 20202. Telephone: (202) 377-4174. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Direct Subsidized Loans, Direct Unsubsidized Loans, Direct PLUS Loans, and Direct Consolidation Loans (collectively referred to as “Direct Loans”) may have either fixed or variable interest rates, depending on when the loan was first disbursed or, in the case of a Direct Consolidation Loan, when the application for the loan was received. Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2006, and Direct Consolidation Loans for which the application was received on or after February 1, 1999, have fixed interest rates that apply for the life of the loan. Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed before July 1, 2006, and Direct Consolidation Loans for which the application was received before February 1, 1999, have variable interest rates that are determined annually and are in effect during the period from July 1 of one year through June 30 of the following year.
This notice announces the fixed interest rates for Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans with first disbursement dates on or after July 1, 2020, and before July 1, 2021, and provides interest rate information for other fixed-rate Direct Loans. Interest rate information for variable-rate Direct Loans is announced in a separate
Section 455(b) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1087e(b)), includes formulas for determining the interest rates for all Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2013. The interest rate for these loans is a fixed rate that is determined annually for all loans first disbursed during any 12-month period beginning on July 1 and ending on June 30. The rate is equal to the high yield of the 10-year Treasury notes auctioned at the final auction held before June 1 of that 12-month period, plus a statutory add-on percentage that varies depending on the loan type and, for Direct Unsubsidized Loans, whether the loan was made to an undergraduate or graduate student. The calculated interest rate may not exceed a maximum rate specified in the HEA. If the interest rate formula results in a rate that exceeds the statutory maximum rate, the rate is the statutory maximum rate. Loans first disbursed during different 12-month periods that begin on July 1 and end on June 30 may have different interest rates, but the rate determined for any loan is a fixed interest rate for the life of the loan.
On May 12, 2020, the United States Treasury Department held a 10-year Treasury note auction that resulted in a high yield of 0.700 percent.
Chart 1 shows the fixed interest rates for Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2020, and before July 1, 2021.
For reference, Chart 2 compares the fixed interest rates for Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed during the period July 1, 2020, through June 30, 2021, with the fixed interest rates for loans first disbursed during each previous 12-month period from July 1, 2013, through June 30, 2019.
Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2006, and before July 1, 2013, have fixed interest rates that are specified in section 455(b) of the HEA (20 U.S.C. 1087e(b)). Chart 3 shows the interest rates for these loans.
Section 455(b) of the HEA specifies that all Direct Consolidation Loans for which the application was received on or after February 1, 1999, have a fixed interest rate that is equal to the weighted average of the interest rates on the loans consolidated, rounded to the nearest higher one-eighth of one percent. For Direct Consolidation Loans for which the application was received on or after February 1, 1999, and before July 1, 2013, the interest rate may not exceed 8.25 percent. However, under section 455(b) of the HEA the 8.25 percent interest rate cap does not apply to Direct Consolidation Loans made based on applications received on or after July 1, 2013. Chart 4 shows the interest rates for fixed-rate Direct Consolidation Loans.
You may also access documents of the Department published in the
20 U.S.C. 1087,
Federal Student Aid, Department of Education.
Notice.
The Chief Operating Officer for Federal Student Aid announces the interest rates for Federal Direct Stafford/Ford Loans (Direct Subsidized Loans), Federal Direct Unsubsidized Stafford/Ford Loans (Direct Unsubsidized Loans), and Federal Direct PLUS Loans (Direct PLUS Loan) with first disbursement dates before July 1, 2006, and for Federal Direct Consolidation Loans (Direct Consolidation Loans) for which the application was received before February 1, 1999. The rates announced in this notice are in effect for the period July 1, 2020, through June 30, 2021.
Travis Sturlaugson, U.S. Department of Education, 830 First Street NE, 11th Floor, Washington, DC 20202. Telephone: (202) 377-4174. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Direct Subsidized Loans, Direct Unsubsidized Loans, Direct PLUS Loans, and Direct Consolidation Loans (collectively referred to as “Direct Loans”) may have either fixed or variable interest rates, depending on when the loan was first disbursed or, in the case of a Direct Consolidation Loan, when the application for the loan was received. Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed before July 1, 2006, and Direct Consolidation Loans for which the application was received before February 1, 1999, have variable interest rates. For these loans, a new rate is determined annually and is in effect during the period from July 1 of one year through June 30 of the following year.
Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2006, and Direct Consolidation Loans for which the application was received on or after February 1, 1999, have fixed interest rates that apply for the life of the loan.
This notice announces the interest rates for variable-rate Direct Loans that will apply during the period from July 1, 2020, through June 30, 2021. Interest rate information for fixed-rate Direct Loans is announced in a separate notice published in the
Interest rates for variable-rate Direct Loans are determined in accordance with formulas specified in section 455(b) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1087e(b)). The formulas vary depending on loan type and when the loan was first disbursed or, for certain Direct Consolidation Loans, when the application for the loan was received. The HEA specifies a maximum interest rate for these loan types. If the interest rate formula results in a rate that exceeds the statutory maximum rate, the rate is the statutory maximum rate.
For Direct Subsidized Loans and Direct Unsubsidized Loans with first disbursement dates before July 1, 2006, and for Direct PLUS Loans with first disbursement dates on or after July 1, 1998, and before July 1, 2006, the interest rate is equal to the lesser of—
(1) The bond equivalent rate of 91-day Treasury bills auctioned at the final auction held before the June 1 immediately preceding the 12-month period to which the interest rate applies, plus a statutory add-on percentage; or
(2) 8.25 percent (for Direct Subsidized Loans and Direct Unsubsidized Loans) or 9.00 percent (for Direct PLUS Loans).
For Direct Subsidized Loans and Direct Unsubsidized Loans with first disbursement dates on or after July 1, 1995, and before July 1, 2006, the statutory add-on percentage varies depending on whether the loan is in an in-school, grace, or deferment status, or in any other status. For all other loans, the statutory add-on percentage is the same during any status.
The bond equivalent rate of 91-day Treasury bills auctioned on May 26, 2020, is 0.132 percent, rounded to 0.13 percent.
For Direct PLUS Loans with first disbursement dates before July 1, 1998, the interest rate is equal to the lesser of—
(1) The weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the last calendar week ending on or before the June 26 preceding the 12-month period to which the interest rate applies, plus a statutory add-on percentage; or
(2) 9.00 percent.
The weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of
A Direct Consolidation Loan may have up to three components, depending on the types of loans that were repaid by the consolidation loan and when the application for the consolidation loan was received. The three components are called Direct Subsidized Consolidation Loans, Direct Unsubsidized Consolidation Loans, and (only for Direct Consolidation Loans made based on applications received before July 1, 2006) Direct PLUS Consolidation Loans. In most cases the interest rates for variable-rate Direct Subsidized Consolidation Loans, Direct Unsubsidized Consolidation Loans, and Direct PLUS Consolidation Loans are determined in accordance with the same formulas that apply to Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans, respectively.
Charts 1 and 2 show the interest rate formulas used to determine the interest rates for all variable-rate Direct Loans and the rates that are in effect during the 12-month period from July 1, 2020, through June 30, 2021.
Chart 1 shows the interest rates for loans with rates based on the 91-day Treasury bill rate. Chart 2 shows the interest rates for loans with rates based on the weekly average of the one-year constant maturity Treasury yield.
You may also access documents of the Department published in the
Federal Student Aid, Department of Education.
Notice.
The Chief Operating Officer for Federal Student Aid announces the interest rates for loans made under the Federal Family Education Loan (FFEL) Program that have variable interest rates. The rates announced in this notice are in effect for the period July 1, 2020, through June 30, 2021.
Travis Sturlaugson, U.S. Department of Education, 830 First Street NE, 11th Floor, Washington, DC 20202. Telephone: (202) 377-4174. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Section 427A of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1077a), provides formulas for determining the interest rates charged to borrowers on loans made under the FFEL Program, including Federal Subsidized and Unsubsidized Stafford Loans (Stafford Loans), Federal PLUS Loans (PLUS Loans), Federal Consolidation Loans (Consolidation Loans), and Federal Supplemental Loans for Students (SLS Loans). No new loans have been made under the FFEL Program since June 30, 2010.
The FFEL Program includes loans with variable interest rates that change each year and loans with fixed interest rates that remain the same for the life of the loan. For loans with a variable interest rate, the specific interest rate formula that applies to a particular loan depends on the date of the first disbursement of the loan or, in the case of a Consolidation Loan, the date the application for the loan was received. If a loan has a variable interest rate, a new rate is determined annually and is in effect during the period from July 1 of one year through June 30 of the following year.
This notice announces the interest rates for variable-rate FFEL Program loans that will be in effect during the period from July 1, 2020, through June 30, 2021. Interest rates for fixed-rate FFEL Program loans may be found in a
For the majority of variable-rate FFEL Program loans, the annual interest rate is equal to the lesser of—
(1) The bond equivalent rate of the 91-day Treasury bills auctioned at the final auction held before June 1 of each year, plus a statutory add-on percentage; or
(2) A statutorily established maximum interest rate.
The bond equivalent rate of the 91-day Treasury bills auctioned on May 26, 2020, is 0.132 percent, rounded to 0.13 percent.
For PLUS Loans first disbursed before July 1, 1998, and for all SLS Loans, the annual interest rate is equal to the lesser of—
(1) The weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the last calendar week ending on or before June 26 of each year, plus a statutory add-on percentage; or
(2) A statutorily established maximum interest rate.
The weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the last calendar week ending on or before June 26, 2020, is 0.17 percent.
For Consolidation Loans that have a variable interest rate, the annual interest rate for the portion of a Consolidation Loan that repaid loans other than loans made under the Health Education Assistance Loans (HEAL) Program is equal to—
(1) The bond equivalent rate of the 91-day Treasury bill auctioned at the final auction held before June 1 of each year, plus a statutory add-on percentage; or
(2) A statutorily established maximum interest rate.
If a Consolidation Loan (whether a variable-rate loan or a fixed-rate loan) repaid loans made under the HEAL Program, the interest rate on the portion of the Consolidation Loan that repaid
The average of the bond equivalent rates of the 91-day Treasury bills auctioned for the quarter ending on June 30, 2020, is 0.15 percent.
The statutory add-on percentages and maximum interest rates vary depending on loan type and when the loan was first disbursed. In addition, the add-on percentage for certain Stafford Loans is different depending on whether the loan is in an in-school, grace, or deferment status, or in any other status. If the interest rate calculated in accordance with the applicable formula exceeds the statutory maximum interest rate, the statutory maximum rate applies.
Charts 1 through 4 show the interest rate formulas that are used to determine the interest rates for all variable-rate FFEL Program loans and the interest rates that are in effect during the 12-month period from July 1, 2020, through June 30, 2021. Unless otherwise indicated, the cohorts shown in each chart include all borrowers, regardless of prior borrowing.
Chart 1 shows the interest rates for loans with rates based on the 91-day Treasury bill, with the exception of “converted” variable-rate Federal Stafford Loans and certain Federal Consolidation Loans.
Chart 2 shows the interest rates for loans with rates based on the weekly average of the one-year constant maturity Treasury yield.
Chart 3 shows the interest rates for “converted” variable-rate Federal Stafford Loans. These are loans that originally had varying fixed interest rates.
Finally, Chart 4 shows the interest rates for variable-rate Federal Consolidation Loans, and for the portion of any Federal Consolidation Loan that repaid loans made under the HEAL Program.
You may also access documents of the Department published in the
20 U.S.C. 1071
Office of Environmental Management, Department of Energy.
Finding of No Significant Impact.
The Department of Energy (DOE) has completed the
This Finding of No Significant Impact and the Final EA are available on the DOE National Environmental Policy Act (NEPA) website at:
James Joyce and/or Theresa Kliczewski, U.S. Department of Energy, Office of Environmental Management, Office of Waste and Materials Management (EM-4.2), 1000 Independence Avenue SW, Washington, DC 20585. Emails:
DOE prepared the Final EA in accordance with Council on Environmental Quality (CEQ) regulations and DOE NEPA implementing procedures at 40 CFR parts 1500 through 1508 and 10 CFR part 1021, respectively. In the Final EA, the proposed action is the disposal of up to 10,000 gallons of stabilized (grouted) DWPF recycle wastewater from the SRS H-Area Tank Farm at a commercial LLW disposal facility located outside of South Carolina and licensed by either the NRC or an Agreement State under 10 CFR part 61. Treatment and disposal alternatives for this waste are discussed under the “Proposed Action and Alternatives” section. Any proposal to dispose of more than 10,000 gallons of DWPF recycle wastewater would be evaluated in a separate NEPA review.
The proposed action would be implemented starting within 12 months
SRS generated large quantities of liquid radioactive waste as a result of its nuclear materials production mission. This liquid radioactive waste has historically been managed as high-level radioactive waste (HLW). The waste was placed into underground storage tanks at SRS and consists primarily of three physical forms: Sludge, saltcake, and liquid supernatant. The sludge portion in the underground tanks is being transferred on-site to the DWPF for vitrification in borosilicate glass to immobilize the radioactive constituents. The resulting vitrified waste form is poured as molten glass into production canisters where it cools into a solid
On October 10, 2018, DOE published a notice in the
1. Does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations, and meets the performance objectives of a disposal facility; or
2. does not require disposal in a deep geologic repository and meets the performance objectives of a disposal facility as demonstrated through a performance assessment conducted in accordance with applicable requirements.
NRC's performance objectives for commercial LLW disposal facilities are specified in 10 CFR part 61, subpart C, “Performance Objectives.”
As stated in the Supplemental Notice, DOE will continue its current practice of managing all of its defense reprocessing wastes as if they were HLW unless and until a specific waste is determined to be another category of waste based on detailed technical assessments of its characteristics and an evaluation of potential disposal pathways.
As discussed in the Final EA, DOE has evaluated representative samples of the DWPF recycle wastewater (see Final EA, Appendix A) and prepared a technical evaluation and an official determination for up to 8 gallons of DWPF recycle wastewater that demonstrate and document, that the DWPF recycle wastewater would meet criterion 1 for non-HLW under DOE's interpretation of the NWPA definition of HLW. As part of this process, DOE would verify with the licensee of the disposal facility that the stabilized waste meets the facility's waste acceptance criteria and all other requirements of the disposal facility, including applicable regulatory requirements for treatment and disposal prior to disposal and applicable U.S. Department of Transportation (USDOT) requirements for packaging and transportation from SRS to the commercial treatment or disposal facility.
DOE announced in a June 10, 2019, notice in the
DOE's Proposed Action in the Final EA is the disposal of up to 10,000 gallons of stabilized (grouted) DWPF recycle wastewater from SRS H-Area Tank Farm at a commercial LLW disposal facility located outside of South Carolina and licensed by either NRC or an Agreement State under 10 CFR part 61. If implemented, this proposal would provide alternative treatment and disposal options for DWPF recycle wastewater through the use of existing, licensed, off-site commercial treatment and disposal facilities. DOE has developed three action alternatives for accomplishing this Proposed Action. The Final EA also evaluated the No Action alternative.
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Under the No Action alternative, up to 10,000 gallons of DWPF recycle wastewater would remain in the SRS liquid waste system until disposition occurs. This alternative would require another, as yet determined, process to handle the DWPF recycle wastewater during the final years of the DWPF mission (2031-2034), when DOE will no longer have the option of returning DWPF recycle wastewater to SWPF for processing.
The analyses in the Final EA demonstrates that the proposed action and alternatives entail minimal risk to human health or to the quality of the environment for all three action alternatives analyzed. All the proposed alternatives would have minor potential environmental impacts. Section 3 of the Final EA analyzed the following resource areas in detail: (1) Air quality, (2) human health (normal operations),
Air quality impacts would be negligible for all alternatives. The recycle wastewater would be transferred from Tank 22 to a temporary enclosure for on-site stabilization (Alternative 1 only) and packaging (Alternatives 2 and 3). Measures would be taken to prevent radiological air emissions during the on-site activities. These measures would include the use of air filters on containers, transfer hoses, and temporary structures. The estimated number of truck shipments (up to 30 shipments) would produce negligible air emissions, including greenhouse gas, and treatment and disposal actions at the commercial facilities would not cause any additional air emissions beyond those already expected from their ongoing, permitted and/or licensed operations.
Potential impacts to workers at SRS and the public from normal operations would be minimal for all three action alternatives. Potential doses to workers would be well within the administrative control level for SRS workers and would result in zero latent cancer fatalities (LCFs). In addition, DOE would implement measures (
An accident or intentional destructive act involving the release of DWPF recycle wastewater during on-site activities would result in minimal impacts to workers and the public, based on conservative accident scenario analysis. For example, the potential dose from an accident to a maximally exposed worker would be less than or equal to 30 to 38 millirems (mrem), which is significantly below DOE's administrative control level of 2,000 mrem per year for a worker, and below the SRS contractor's administrative control level of 500 mrem per year. This exposure would be expected to result in zero LCFs. The potential dose from an accident to an off-site maximally exposed individual would be less than or equal to 17 to 28 mrem, which is approximately 1,000 times below the DOE exposure guidelines of 25 rem for a member of the public at the nearest site boundary. This exposure would be expected to result in 0 zero LCFs. Treatment and/or disposal of the DWPF recycle wastewater at a permitted and/or licensed facility would not change the accident impacts at those sites compared to their ongoing operations.
Waste management impacts at SRS and the potential disposal sites would be minimal. The 10,000 gallons of DWPF recycle wastewater would represent about 10,000 gallons of stabilized waste, or about 0.002 percent of the Energy
The transportation of stabilized (solid form) or liquid DWPF recycle wastewater would involve approximately 9 truck shipments for Alternative 1 (solid form), 15 truck shipments for Alternative 2 (liquid form), and 30 truck shipments for Alternative 3 (15 shipments in liquid form and 15 shipments in solid form). The waste would be packaged and shipped in accordance with USDOT requirements. The potential radiological and non-radiological risks to the truck crew and the public along the transportation route would be negligible. In the event an accident did occur, the probability of a release of radiological material would be extremely unlikely.
Consistent with both CEQ and DOE NEPA regulations, the analysis in the Final EA focused on the subjects relevant to the proposed action and its impacts. Based on a screening analysis described in the Final EA, the following resource areas do not require additional detailed analysis: Land, visual, geology and soils, water resources (surface, groundwater, and wetlands), cultural and paleontological resources, ecological resources (biota, threatened and endangered species), noise, socioeconomics and environmental justice, infrastructure and utilities, and industrial safety.
Nineteen comment documents were received during the public comment period on the Draft EA. Commenters included federal and state agencies, environmental groups, advisory groups, and citizens. Appendix C of the Final EA includes responses to public comments received on the Draft EA. DOE considered all public comments received in preparing the Final EA.
In the Final EA, DOE evaluated the potential environmental impacts associated with retrieval, transportation, stabilization, and disposal of up to 10,000 gallons of DWPF recycle wastewater from SRS at a licensed commercial LLW disposal facility outside of the state of South Carolina. Implementation of any of the action alternatives analyzed in the Final EA would entail minor impacts and low risks, and does not constitute a major Federal action significantly affecting the quality of the human environment in accordance with DOE's NEPA implementing procedures, 10 CFR part 1021, and the regulations promulgated by the CEQ for implementing NEPA, 40 CFR 1508.27. Therefore, the preparation of an environmental impact statement is not required.
Based on the analysis in the Final EA, DOE intends to ship the DWPF recycle wastewater to WCS FWF, a licensed commercial disposal facility located in Andrews, Texas, for stabilization and disposal (Alternative 2). Current characterization analysis shows that the DWPF recycle wastewater is anticipated to be Class B LLW. Of the licensed commercial facilities analyzed in the Final EA, the WCS FWF is the only facility that can accept Class A, B, and C LLW for disposal. In addition, WCS has the capability to stabilize the DWPF recycle wastewater on-site prior to disposal.
Specifically, as soon as August 26, 2020, DOE intends to initiate removal of DWPF wastewater from Tank 22 to begin the disposition process and within the next 12 months,
This document of the Department of Energy was signed on August 4, 2020, by Elizabeth A. Connell, Associate Principal Deputy Assistant Secretary for Regulatory and Policy Affairs, Office of Environmental Management, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Office of Defense Programs, National Nuclear Security Administration, Department of Energy.
Notice of closed meeting.
This notice announces a closed meeting of the Defense Programs Advisory Committee (DPAC). The Federal Advisory Committee Act requires that public notice of meetings be announced in the
August 25, 2020; 11:00 a.m. to 7:00 p.m.
Cisco WebEx Secure Video Conferencing.
Rachel Barnhill, Office of RDT&E (NA-11), National Nuclear Security Administration, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585, (202) 586-7183;
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Docket Number: PR20-32-001.
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. In addition to publishing the full text of this document in the
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Modification of Secondary Treatment Requirements for Discharges into Marine Waters (Renewal)” (EPA ICR No. 0138.12, Office of Management and Budget (OMB) Control No. 2040-0088) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, EPA is soliciting public comment on specific aspects of the proposed information collection as described below. This is a “proposed extension of the Information Collection Request (ICR), which is currently approved through April 30, 2021.” An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 9, 2020.
You may send comments, identified by Docket ID No. EPA-HQ-2003-0033, by any of the following methods:
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Virginia Fox-Norse, Oceans, Wetlands
Submit your comments, identified by Docket ID No. EPA-HQ-2003-0033, at
EPA is temporarily suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Supporting documents which explain in detail the information that EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the Paperwork Reduction Act, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
There are four situations where information will be required under the CWA section 301(h) program:
(1) A POTW reapplying for a CWA section 301(h) waiver. As the permits with section 301(h) waivers reach their expiration dates, EPA must have updated information on the discharge to determine whether the CWA section 301(h) criteria are still being met and whether the CWA section 301(h) waiver should be reissued. Under 40 CFR 125.59(f), each CWA section 301(h) permittee is required to submit an application for a new section 301(h) modified permit within 180 days of the existing permit's expiration date. 40 CFR 125.59(c) lists the information required for a modified permit. The information that EPA needs to determine whether the POTW's reapplication meets the CWA section 301(h) criteria is outlined in the questionnaire attached to 40 CFR part 125, subpart G.
(2) Monitoring and toxic control program information: Once a waiver has been granted, EPA must continue to assess whether the discharge is meeting CWA section 301(h) criteria, and that the receiving water quality, biological habitats, and beneficial uses of the receiving waters are protected. To do this, EPA needs monitoring information furnished by the permittee. According to 40 CFR 125.68(d), any permit issued with a section 301(h) waiver must contain the monitoring requirements of 40 CFR 125.63(b), (c), and (d) for biomonitoring, water quality criteria and standards monitoring, and effluent monitoring, respectively. In addition, 40 CFR 125.68(d) requires reporting at the frequency specified in the monitoring program. In addition to monitoring information, EPA needs information on the toxics control program required by 40 CFR 125.66 to ensure that the permittee is effectively minimizing industrial and nonindustrial toxic pollutant and pesticide discharges into the treatment works.
(3) Application revision information: 40 CFR 125.59(d) allows a POTW to revise its application one time only, following a tentative decision by EPA to deny the waiver request. In its application revision, the POTW usually corrects deficiencies and changes proposed treatment levels as well as outfall and diffuser locations. The application revision is a voluntary submission for the applicant, and a letter of intent to revise the application must be submitted within 45 days of EPA's tentative decision (40 CFR 125.59(f)). EPA needs this information to evaluate revised applications to determine whether the modified
(4) State determination and state certification information: For revised or renewal applications for CWA section 301(h) waivers, EPA needs a state determination. The state determines whether all state laws (including water quality standards) are satisfied. This helps ensure that water quality, biological habitats, and beneficial uses of receiving waters are protected. Additionally, the state must determine if the applicant's discharge will result in additional treatment, pollution control, or any other requirement for any other point or nonpoint sources. This process allows the state's views to be taken into account when EPA reviews the CWA section 301(h) application and develops permit conditions. For revised and renewed CWA section 301(h) waiver applications, EPA also needs the CWA section 401(a)(1) certification information to ensure that all state water quality laws are met by any permit it issues with a CWA section 301(h) modification, and the state accepts all the permit conditions. This information is the means by which the state can exercise its authority to concur with or deny a CWA section 301(h) decision made by the EPA regional office.
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the Environmental Protection Agency (EPA) has tentatively approved a revision to the State of Ohio's Public Water System Supervision Program under the federal Safe Drinking Water Act (SDWA) by adopting the Arsenic Rule. The EPA has determined this revision is no less stringent than the corresponding federal regulation. Therefore, EPA intends to approve this revision to the State of Ohio's Public Water System Supervision Program, thereby giving the Ohio Environmental Protection Agency primary enforcement responsibility for this regulation.
Any interested party may request a public hearing on this determination. A request for a public hearing must be submitted by September 9, 2020. The EPA Region 5 Administrator may deny frivolous or insubstantial requests for a hearing. However, if a substantial request for a public hearing is made by September 9, 2020, EPA Region 5 will hold a public hearing, and a notice of such hearing will be published in the
If EPA Region 5 does not receive a timely and appropriate request for a hearing and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on September 9, 2020 and no further public notice will be issued.
All documents relating to this determination are available for inspection at the following offices between the hours of 9 a.m. and 4 p.m., Monday through Friday, except for official holidays and unless the offices are inaccessible due to COVID-19: Ohio Environmental Protection Agency, Division of Drinking and Ground Waters, 50 West Town Street, Suite 700, Columbus, Ohio 43215; and the U.S. Environmental Protection Agency Region 5, Ground Water and Drinking Water Branch (WG-15J), 77 W. Jackson Blvd., Chicago, Illinois 60604. Requestors can email Wendy Drake,
Wendy Drake, EPA Region 5, Ground Water and Drinking Water Branch, at the address given above, by telephone at (312) 886-6705, or at
Section 1413 of the Safe Drinking Water Act, 42 U.S.C. 300g-2, and the federal regulations implementing Section 1413 of the Act set forth at 40 CFR part 142.
Environmental Protection Agency (EPA).
Notice of public meeting.
The Environmental Protection Agency (EPA), Office of Research and Development (ORD), gives notice of a virtual meeting of the Board of Scientific Counselors (BOSC) Homeland Security (HS) Subcommittee to review the initial progress on implementation of the FY 19-22 HS Strategic Research Action Plan (StRAP).
1. The initial meeting will be held over two days via videoconference:
a. Thursday, August 20, 2020, from 12:00 p.m. to 5:00 p.m. (EDT); and
b. Friday, August 21, 2020, from 12:00 p.m. to 5:00 p.m. (EDT). Attendees must register by August 19, 2020.
2. A BOSC deliberation will be held on Wednesday, September 9, 2020, from 2:00 p.m. to 5:00 p.m. (EDT). Attendees must register by September 8, 2020.
3. A final summary teleconference will be held on Thursday, September 24, 2020, from 2:00 p.m. to 5:00 p.m. (EDT). Attendees must register by September 23, 2020. Meeting times are subject to change. These series of meetings are open to the public. Comments must be received by August 19, 2020 to be considered by the subcommittee. Requests for the draft agenda or making a presentation at the meeting will be accepted until August 19, 2020.
Instructions on how to connect to the videoconference will be provided upon registration at
Submit your comments to Docket ID No. EPA-HQ-ORD-2015-0765 by one of the following methods:
•
•
Copyrighted materials in the docket are only available via hard copy. The telephone number for the ORD Docket Center is (202) 566-1752.
The Designated Federal Officer (DFO), Tom Tracy, via phone/voicemail at: (202) 564-6518; or via email at:
The Board of Scientific Counselors (BOSC) is a Federal advisory committee that provides advice and recommendations to EPA's Office of Research and Development on technical and management issues of its research programs. The meeting agenda and materials will be posted to
Pub. L. 92-463, 1, Oct. 6, 1972, 86 Stat. 770.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC or Commission) Communications Security, Reliability, and Interoperability Council (CSRIC) VII will hold its sixth meeting via live internet link.
September 16, 2020.
The Meeting will be held via conference call and available to the public via WebEx at
Suzon Cameron, Designated Federal Officer, (202) 418-1916 (voice) or
The meeting on September 16, 2020, from 2:00 p.m. EDT to 5:00 p.m. EDT will be held electronically only and may be viewed live, by the public, at
The CSRIC is a Federal Advisory Committee that will provide recommendations to the FCC to improve the security, reliability, and interoperability of communications systems. On March 15, 2019, the FCC, pursuant to the Federal Advisory Committee Act, renewed the charter for CSRIC VII for a period of two years through March 14, 2021. The meeting on September 16, 2020, will be the sixth meeting of CSRIC VII under the current charter.
The Commission will provide audio and/or video coverage of the meeting over the internet from the FCC's web page at
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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 ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written comments should be submitted on or before October 9, 2020. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number. As part of its continuing effort to reduce paperwork burdens, and as required by the PRA of 1995 (44 U.S.C. 3501-3520), the FCC invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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 ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Privacy Impact Assessment(s): No impact(s).
(1) A correction of the routing instructions and description of an AM station directional antenna system field monitoring point, when the point itself is not changed.
(2) A change in the type of AM station directional antenna monitor. See Sec. 73.69.
(3) A change in the location of the station main studio when prior authority to move the main studio location is not required.
(4) The location of a remote control point of an AM or FM station when prior authority to operate by remote control is not required.
Also, information collection requirements are contained in 47 CFR 73.3544(c) which requires a change in the name of the licensee where no change in ownership or control is involved may be accomplished by written notification by the licensee to the Commission.
Privacy Impact Assessment(s): No impact(s).
47 CFR 73.1230 requires that the station license and any other instrument of station authorization for an AM, FM or TV station be posted in a conspicuous place at the place the licensee considers to be the principal control point of the transmitter.
47 CFR 74.165 requires that the instrument of authorization for an experimental broadcast station be available at the transmitter site.
47 CFR 74.432(j) (remote pickup broadcast station) and 47 CFR 74.832(j) (low power auxiliary station) require that the license of a remote pickup broadcast/low power auxiliary station shall be retained in the licensee's files, posted at the transmitter, or posted at the control point of the station. These sections also require the licensee to forward the station license to the FCC in the case of permanent discontinuance of the station.
47 CFR 74.564 (aural broadcast auxiliary stations) requires that the station license and any other instrument of authorization be posted in the room where the transmitter is located, or if operated by remote control, at the operating position.
47 CFR 74.664 (television broadcast auxiliary stations) requires that the station license and any other instrument of authorization be posted in the room where the transmitter is located.
47 CFR Sections 74.765 (low power TV, TV translator and TV booster) and 47 CFR 74.1265 (FM translator stations and FM booster stations) require that the station license and any other instrument of authorization be retained in the station's files. In addition, the call sign of the station, together with the name, address and telephone number of the licensee or the local representative of the licensee, and the name and address of the person and place where the station records are maintained, shall be displayed at the transmitter site on the structure supporting the transmitting antenna.
47 CFR 74.832(j) (low power auxiliary stations) requires that the license shall be retained in the licensee's files at the address shown on the authorization, posted at the transmitter, or posted at the control point of the station.
Federal Communications Commission.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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 ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written comments should be submitted on or before October 9, 2020. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, and as required by the PRA of 1995 (44 U.S.C. 3501-3520), the FCC invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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 ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
47 CFR 1.221(h) requires that, in a program carriage complaint proceeding filed pursuant to § 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, each party, in person or by attorney, shall file a written appearance within five calendar days after the party informs the Chief Administrative Law Judge that it elects not to pursue alternative dispute resolution pursuant to § 76.7(g)(2) or, if the parties have mutually elected to pursue alternative dispute resolution pursuant to § 76.7(g)(2), within five calendar days after the parties inform the Chief Administrative Law Judge that they have failed to resolve their dispute through alternative dispute resolution. The written appearance shall state that the party will appear on the date fixed for hearing and present evidence on the issues specified in the hearing designation order.
47 CFR 1.229(b)(2) requires that, in a program carriage complaint proceeding filed pursuant to § 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, a motion to enlarge, change, or delete issues shall be filed within 15 calendar days after the deadline for submitting written appearances pursuant to § 1.221(h), except that persons not named as parties to the proceeding in the designation order may file such motions with their petitions to intervene up to 30 days after publication
47 CFR 1.229(b)(3) provides that any person desiring to file a motion to modify the issues after the expiration of periods specified in paragraphs (a), (b)(1), and (b)(2) of § 1.229, shall set forth the reason why it was not possible to file the motion within the prescribed period.
47 CFR 1.248(a) provides that the initial prehearing conference as directed by the Commission shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date, except that for program carriage complaints filed pursuant to § 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, the initial prehearing conference shall be held no later than 10 calendar days after the deadline for submitting written appearances pursuant to § 1.221(h) or within such shorter or longer period as the Commission may allow on motion or notice consistent with the public interest.
47 CFR 1.248(b) provides that the initial prehearing conference as directed by the presiding officer shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date, except that for program carriage complaints filed pursuant to § 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, the initial prehearing conference shall be held no later than 10 calendar days after the deadline for submitting written appearances pursuant to § 1.221(h) or within such shorter or longer period as the presiding officer may allow on motion or notice consistent with the public interest.
47 CFR 76.7. Pleadings seeking to initiate FCC action must adhere to the requirements of Section 76.6 (general pleading requirements) and Section 76.7 (initiating pleading requirements). Section 76.7 is used for numerous types of petitions and special relief petitions, including general petitions seeking special relief, waivers, enforcement, show cause, forfeiture and declaratory ruling procedures.
47 CFR 76.7(g)(2) provides that, in a proceeding initiated pursuant to § 76.7 that is referred to an administrative law judge, the parties may elect to resolve the dispute through alternative dispute resolution procedures, or may proceed with an adjudicatory hearing, provided that the election shall be submitted in writing to the Commission and the Chief Administrative Law Judge.
47 CFR 76.9. A party that wishes to have confidentiality for proprietary information with respect to a submission it is making to the FCC must file a petition pursuant to the pleading requirements in Section 76.7 and use the method described in Sections 0.459 and 76.9 to demonstrate that confidentiality is warranted. The petitions filed pursuant to this provision are contained in the existing information collection requirement and are not changed by the rule changes.
47 CFR 76.61(a) permits a local commercial television station or qualified low power television station that is denied carriage or channel positioning or repositioning in accordance with the must-carry rules by a cable operator to file a complaint with the FCC in accordance with the procedures set forth in Section 76.7. Section 76.61(b) permits a qualified local noncommercial educational television station that believes a cable operator has failed to comply with the FCC's signal carriage or channel positioning requirements (Sections 76.56 through 76.57) to file a complaint with the FCC in accordance with the procedures set forth in Section 76.7.
47 CFR 76.61(a)(1) states that whenever a local commercial television station or a qualified low power television station believes that a cable operator has failed to meet its carriage or channel positioning obligations, pursuant to Sections 76.56 and 76.57, such station shall notify the operator, in writing, of the alleged failure and identify its reasons for believing that the cable operator is obligated to carry the signal of such station or position such signal on a particular channel.
47 CFR 76.61(a)(2) states that the cable operator shall, within 30 days of receipt of such written notification, respond in writing to such notification and either commence to carry the signal of such station in accordance with the terms requested or state its reasons for believing that it is not obligated to carry such signal or is in compliance with the channel positioning and repositioning and other requirements of the must-carry rules. If a refusal for carriage is based on the station's distance from the cable system's principal headend, the operator's response shall include the location of such headend. If a cable operator denies carriage on the basis of the failure of the station to deliver a good quality signal at the cable system's principal headend, the cable operator must provide a list of equipment used to make the measurements, the point of measurement and a list and detailed description of the reception and over-the-air signal processing equipment used, including sketches such as block diagrams and a description of the methodology used for processing the signal at issue, in its response.
47 CFR 76.914(c) permits a cable operator seeking revocation of a franchising authority's certification to file a petition with the FCC in accordance with the procedures set forth in Section 76.7.
47 CFR 76.1003(a) permits any multichannel video programming distributor (MVPD) aggrieved by conduct that it believes constitute a violation of the FCC's competitive access to cable programming rules to commence an adjudicatory proceeding at the FCC to obtain enforcement of the rules through the filing of a complaint, which must be filed and responded to in accordance with the procedures specified in Section 76.7, except to the extent such procedures are modified by Section 76.1003.
47 CFR 76.1001(b)(2) permits any multichannel video programming distributor to commence an adjudicatory proceeding by filing a complaint with the Commission alleging that a cable operator, a satellite cable programming vendor in which a cable operator has an attributable interest, or a satellite broadcast programming vendor, has engaged in an unfair act involving terrestrially delivered, cable-affiliated programming, which must be filed and responded to in accordance with the procedures specified in § 76.7, except to the extent such procedures are modified by §§ 76.1001(b)(2) and 76.1003. In program access cases involving terrestrially delivered, cable-affiliated programming, the defendant has 45 days from the date of service of the complaint to file an answer, unless otherwise directed by the Commission. A complainant shall have the burden of proof that the defendant's alleged conduct has the purpose or effect of hindering significantly or preventing the complainant from providing satellite cable programming or satellite broadcast programming to subscribers or consumers; an answer to such a complaint shall set forth the defendant's reasons to support a finding that the complainant has not carried this burden. In addition, a complainant alleging that a terrestrial cable programming vendor has engaged in discrimination shall have the burden of proof that the terrestrial cable programming vendor is wholly owned by, controlled by, or under common control with a cable operator or cable operators, satellite cable programming vendor or vendors in which a cable
47 CFR 76.1003(b) requires any aggrieved MVPD intending to file a complaint under this section to first notify the potential defendant cable operator, and/or the potential defendant satellite cable programming vendor or satellite broadcast programming vendor, that it intends to file a complaint with the Commission based on actions alleged to violate one or more of the provisions contained in Sections 76.1001 or 76.1002 of this part. The notice must be sufficiently detailed so that its recipient(s) can determine the nature of the potential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission.
47 CFR 76.1003(c) describes the required contents of a program access complaint, in addition to the requirements of Section 76.7 of this part.
47 CFR 76.1003(c)(3) requires a program access complaint to contain evidence that the complainant competes with the defendant cable operator, or with a multichannel video programming distributor that is a customer of the defendant satellite cable programming or satellite broadcast programming vendor or a terrestrial cable programming vendor alleged to have engaged in conduct described in § 76.1001(b)(1).
47 CFR 76.1003(d) states that, in a case where recovery of damages is sought, the complaint shall contain a clear and unequivocal request for damages and appropriate allegations in support of such claim.
47 CFR 76.1003(e)(1) requires cable operators, satellite cable programming vendors, or satellite broadcast programming vendors whom expressly reference and rely upon a document in asserting a defense to a program access complaint filed or in responding to a material allegation in a program access complaint filed pursuant to Section 76.1003, to include such document or documents, such as contracts for carriage of programming referenced and relied on, as part of the answer. Except as otherwise provided or directed by the Commission, any cable operator, satellite cable programming vendor or satellite broadcast programming vendor upon which a program access complaint is served under this section shall answer within twenty (20) days of service of the complaint, provided that the answer shall be filed within forty-five (45) days of service of the complaint if the complaint alleges a violation of Section 628(b) of the Communications Act of 1934, as amended, or Section 76.1001(a).
47 CFR 76.1003(e)(2) requires an answer to an exclusivity complaint to provide the defendant's reasons for refusing to sell the subject programming to the complainant. In addition, the defendant may submit its programming contracts covering the area specified in the complaint with its answer to refute allegations concerning the existence of an impermissible exclusive contract. If there are no contracts governing the specified area, the defendant shall so certify in its answer. Any contracts submitted pursuant to this provision may be protected as proprietary pursuant to Section 76.9 of this part.
47 CFR 76.1003(e)(3) requires an answer to a discrimination complaint to state the reasons for any differential in prices, terms or conditions between the complainant and its competitor, and to specify the particular justification set forth in Section 76.1002(b) of this part relied upon in support of the differential.
47 CFR 76.1003(e)(4) requires an answer to a complaint alleging an unreasonable refusal to sell programming to state the defendant's reasons for refusing to sell to the complainant, or for refusing to sell to the complainant on the same terms and conditions as complainant's competitor, and to specify why the defendant's actions are not discriminatory.
47 CFR 76.1003(f) provides that, within fifteen (15) days after service of an answer, unless otherwise directed by the Commission, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.
47 CFR 76.1003(g) states that any complaint filed pursuant to this subsection must be filed within one year of the date on which one of three specified events occurs.
47 CFR 76.1003(h) sets forth the remedies that are available for violations of the program access rules, which include the imposition of damages, and/or the establishment of prices, terms, and conditions for the sale of programming to the aggrieved multichannel video programming distributor, as well as sanctions available under title V or any other provision of the Communications Act.
47 CFR 76.1003(j) states in addition to the general pleading and discovery rules contained in § 76.7 of this part, parties to a program access complaint may serve requests for discovery directly on opposing parties, and file a copy of the request with the Commission. The respondent shall have the opportunity to object to any request for documents that are not in its control or relevant to the dispute. Such request shall be heard, and determination made, by the Commission. Until the objection is ruled upon, the obligation to produce the disputed material is suspended. Any party who fails to timely provide discovery requested by the opposing party to which it has not raised an objection as described above, or who fails to respond to a Commission order for discovery material, may be deemed in default and an order may be entered in accordance with the allegations contained in the complaint, or the complaint may be dismissed with prejudice.
47 CFR 76.1003(l) permits a program access complainant seeking renewal of an existing programming contract to file a petition along with its complaint requesting a temporary standstill of the price, terms, and other conditions of the existing programming contract pending resolution of the complaint, to which the defendant will have the opportunity to respond within 10 days of service of the petition, unless otherwise directed by the Commission.
47 CFR 76.1302(a) states that any video programming vendor or multichannel video programming distributor aggrieved by conduct that it believes constitute a violation of the regulations set forth in this subpart may commence an adjudicatory proceeding at the Commission to obtain enforcement of the rules through the filing of a complaint. The complaint shall be filed and responded to in accordance with the procedures specified in Section 76.7, except to the extent such procedures are modified by Section 76.1302.
47 CFR 76.1302(b) states that any aggrieved video programming vendor or multichannel video programming distributor intending to file a complaint under this section must first notify the potential defendant multichannel video programming distributor that it intends to file a complaint with the Commission based on actions alleged to violate one or more of the provisions contained in Section 76.1301 of this part. The notice must be sufficiently detailed so that its recipient(s) can determine the specific nature of the potential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission.
47 CFR 76.1302(c) specifies the content of carriage agreement complaints, in addition to the requirements of Section 76.7 of this part.
47 CFR 76.1302(c)(1) provides that a program carriage complaint filed pursuant to § 76.1302 must contain the following: Whether the complainant is a multichannel video programming distributor or video programming vendor, and, in the case of a multichannel video programming distributor, identify the type of multichannel video programming distributor, the address and telephone number of the complainant, what type of multichannel video programming distributor the defendant is, and the address and telephone number of each defendant.
47 CFR 76.1302(d) sets forth the evidence that a program carriage complaint filed pursuant to § 76.1302 must contain in order to establish a prima facie case of a violation of § 76.1301.
47 CFR 76.1302(e)(1) provides that a multichannel video programming distributor upon whom a program carriage complaint filed pursuant to § 76.1302 is served shall answer within sixty (60) days of service of the complaint, unless otherwise directed by the Commission.
47 CFR 76.1302(e)(2) states that an answer to a program carriage complaint shall address the relief requested in the complaint, including legal and documentary support, for such response, and may include an alternative relief proposal without any prejudice to any denials or defenses raised.
47 CFR 76.1302(f) states that within twenty (20) days after service of an answer, unless otherwise directed by the Commission, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.
47 CFR 76.1302(h) states that any complaint filed pursuant to this subsection must be filed within one year of the date on which one of three events occurs.
47 CFR 76.1302(j)(1) states that upon completion of such adjudicatory proceeding, the Commission shall order appropriate remedies, including, if necessary, mandatory carriage of a video programming vendor's programming on defendant's video distribution system, or the establishment of prices, terms, and conditions for the carriage of a video programming vendor's programming.
47 CFR 76.1302(k) permits a program carriage complainant seeking renewal of an existing programming contract to file a petition along with its complaint requesting a temporary standstill of the price, terms, and other conditions of the existing programming contract pending resolution of the complaint, to which the defendant will have the opportunity to respond within 10 days of service of the petition, unless otherwise directed by the Commission. To allow for sufficient time to consider the petition for temporary standstill prior to the expiration of the existing programming contract, the petition for temporary standstill and complaint shall be filed no later than thirty (30) days prior to the expiration of the existing programming contract.
47 CFR 76.1513(a) permits any party aggrieved by conduct that it believes constitute a violation of the FCC's regulations or in section 653 of the Communications Act (47 U.S.C. 573) to commence an adjudicatory proceeding at the Commission to obtain enforcement of the rules through the filing of a complaint, which must be filed and responded to in accordance with the procedures specified in Section 76.7, except to the extent such procedures are modified by Section 76.1513.
47 CFR 76.1513(b) provides that an open video system operator may not provide in its carriage contracts with programming providers that any dispute must be submitted to arbitration, mediation, or any other alternative method for dispute resolution prior to submission of a complaint to the Commission.
47 CFR 76.1513(c) requires that any aggrieved party intending to file a complaint under this section must first notify the potential defendant open video system operator that it intends to file a complaint with the Commission based on actions alleged to violate one or more of the provisions contained in this part or in Section 653 of the Communications Act. The notice must be in writing and must be sufficiently detailed so that its recipient(s) can determine the specific nature of the potential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission.
47 CFR 76.1513(d) describes the contents of an open video system complaint.
47 CFR 76.1513(e) addresses answers to open video system complaints.
47 CFR 76.1513(f) states within twenty (20) days after service of an answer, the complainant may file and serve a reply which shall be responsive to matters contained in the answer and shall not contain new matters.
47 CFR 76.1513(g) requires that any complaint filed pursuant to this subsection must be filed within one year of the date on which one of three events occurs.
47 CFR 76.1513(h) states that upon completion of the adjudicatory proceeding, the Commission shall order appropriate remedies, including, if necessary, the requiring carriage, awarding damages to any person denied carriage, or any combination of such sanctions. Such order shall set forth a timetable for compliance, and shall become effective upon release.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it can further reduce the information collection burden for small business concerns with fewer than 25 employees.
Written comments and recommendations for the proposed information collection should be submitted on or before September 9, 2020.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (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; and (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. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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 ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written comments should be submitted on or before October 9, 2020. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number. As part of its continuing effort to reduce paperwork burdens, and as required by the PRA of 1995 (44 U.S.C. 3501-3520), the FCC invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize
Privacy Impact Assessment(s): No impact(s).
47 CFR 74.781 information collection requirements include the following: (a) The licensee of a low power TV, TV translator, or TV booster station shall maintain adequate station records, including the current instrument of authorization, official correspondence with the FCC, contracts, permission for rebroadcasts, and other pertinent documents.
(b) Entries required by § 17.49 of this Chapter concerning any observed or otherwise known extinguishment or improper functioning of a tower light: (1) The nature of such extinguishment or improper functioning. (2) The date and time the extinguishment or improper operation was observed or otherwise noted. (3) The date, time and nature of adjustments, repairs or replacements made.
(c) The station records shall be maintained for inspection at a residence, office, or public building, place of business, or other suitable place, in one of the communities of license of the translator or booster, except that the station records of a booster or translator licensed to the licensee of the primary station may be kept at the same place where the primary station records are kept. The name of the person keeping station records, together with the address of the place where the records are kept, shall be posted in accordance with § 74.765(c) of the rules. The station records shall be made available upon request to any authorized representative of the Commission.
(d) Station logs and records shall be retained for a period of two years.
47 CFR 74.1281 information collection requirements include the following: (a) The licensee of a station authorized under this Subpart shall maintain adequate station records, including the current instrument of authorization, official correspondence with the FCC, maintenance records, contracts, permission for rebroadcasts, and other pertinent documents.
(b) Entries required by § 17.49 of this chapter concerning any observed or otherwise known extinguishment or improper functioning of a tower light:
(1) The nature of such extinguishment or improper functioning.
(2) The date and time the extinguishment of improper operation was observed or otherwise noted.
(3) The date, time and nature of adjustments, repairs or replacements made.
(c) The station records shall be maintained for inspection at a residence, office, or public building, place of business, or other suitable place, in one of the communities of license of the translator or booster, except that the station records of a booster or translator licensed to the licensee of the primary station may be kept at the same place where the primary station records are kept. The name of the person keeping station records, together with the address of the place where the records are kept, shall be posted in accordance with § 74.1265(b) of the rules. The station records shall be made available upon request to any authorized representative of the Commission.
(d) Station logs and records shall be retained for a period of two years.
47 CFR 78.69 requires each licensee of a CARS station shall maintain records showing the following:
(a) For all attended or remotely controlled stations, the date and time of the beginning and end of each period of transmission of each channel;
(b) For all stations, the date and time of any unscheduled interruptions to the transmissions of the station, the duration of such interruptions, and the causes thereof;
(c) For all stations, the results and dates of the frequency measurements made pursuant to § 78.113 and the name of the person or persons making the measurements;
(d) For all stations, when service or maintenance duties are performed, which may affect a station's proper operation, the responsible operator shall sign and date an entry in the station's records, giving:
(1) Pertinent details of all transmitter adjustments performed by the operator or under the operator's supervision.
(e) When a station in this service has an antenna structure which is required to be illuminated, appropriate entries shall be made as follows:
(1) The time the tower lights are turned on and off each day, if manually controlled.
(2) The time the daily check of proper operation of the tower lights was made, if an automatic alarm system is not employed.
(3) In the event of any observed or otherwise known failure of a tower light:
(i) Nature of such failure.
(ii) Date and time the failure was observed or otherwise noted.
(iii) Date, time, and nature of the adjustments, repairs, or replacements made.
(iv) Identification of Flight Service Station (Federal Aviation Administration) notified of the failure of any code or rotating beacon light not corrected within 30 minutes, and the date and time such notice was given.
(v) Date and time notice was given to the Flight Service Station (Federal Aviation Administration) that the required illumination was resumed.
(4) Upon completion of the 3-month periodic inspection required by § 78.63(c):
(i) The date of the inspection and the condition of all tower lights and associated tower lighting control devices, indicators, and alarm systems.
(ii) Any adjustments, replacements, or repairs made to insure compliance with the lighting requirements and the date such adjustments, replacements, or repairs were made.
(f) For all stations, station record entries shall be made in an orderly and legible manner by the person or persons competent to do so, having actual knowledge of the facts required, who shall sign the station record when starting duty and again when going off duty.
(g) For all stations, no station record or portion thereof shall be erased, obliterated, or willfully destroyed within the period of retention required by rule. Any necessary correction may
(h) For all stations, station records shall be retained for a period of not less than 2 years. The Commission reserves the right to order retention of station records for a longer period of time. In cases where the licensee or permittee has notice of any claim or complaint, the station record shall be retained until such claim or complaint has been fully satisfied or until the same has been barred by statute limiting the time for filing of suits upon such claims.
Privacy Impact Assessment(s): No impact(s).
Federal Communications Commission.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments and recommendations for the proposed information collection should be submitted on or before September 9, 2020.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (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; and (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. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
Automated dispatchable location, if technically feasible; otherwise, either end-user manual provision of location information, or enhanced location information, which may be coordinate-based, consisting of the best available location that can be obtained from any
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than August 24, 2020.
1.
1.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
1. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
2. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
CMS has contracted with an outside vendor to assist in the administration of the RDS program; this effort is called the RDS Center. Plan Sponsors will apply on-line for the retiree drug subsidy by logging on to the RDS Secure website. 42 CFR 423.844 describes the requirement for qualified retiree prescription drug plans who want to receive the retiree drug subsidy. Once the Plan Sponsor submits the RDS application via the RDS Secure website (and a valid initial retiree list) CMS, through the use of its contractor, will analyze the application to determine whether the Plan Sponsor qualifies for the RDS. To qualify for the subsidy, the Plan Sponsor must show that its coverage is as generous as, or more generous than, the defined standard coverage under the Medicare Part D prescription drug benefit.
2.
3.
The Division of Ambulatory Services (DAS), will utilize the ASP data (ASP and number of units sold as specific in section 1847A of the Act) to determine the Medicare Part B drug payment amounts for CY 2005 and beyond. The manufacturers submit their ASP data for all of their NDCs for Part B drugs. DAS compiles the data, analyzes the data and runs the data through software to calculate the volume-weighted ASP for all of the NDCs that are grouped within a given HCPCS code. The formula to calculate the volume-weighted ASP is the Sum (ASP * units) for all NDCs/Sum (units * bill units per pkg) for all NDCs. DAS provides ASP payment amounts for several components within CMS that utilize 1847(A) payment methodologies to implement various payment policies including, but not limited to, ESRD, OPPS, OTP and payment models. The Department of Health and Human Services' Office of the Inspector General also uses the ASP data in conducting statutorily mandated studies.
4.
The QHP Enrollee Survey, which is based on the CAHPS® Health Plan Survey, will be used to (1) help consumers choose among competing health plans, (2) provide actionable information that the QHPs can use to improve performance, (3) provide information that regulatory and accreditation organizations can use to regulate and accredit plans, and (4) provide a longitudinal database for consumer research. Based on the requirements for the QHP Enrollee Survey, CMS developed this survey to capture information about enrollees' experience with QHPs offered through an Exchange. CMS conducted in-depth formative research including: a comprehensive literature review, review of existing CMS survey instruments, consumer focus groups, stakeholder discussions, and input from a Technical Expert Panel (TEP). CMS performed a psychometric test and beta test in 2014 and 2015, respectively. CMS began fielding the QHP Enrollee Survey nationwide in 2016 and this request is to continue nationwide collection and administration of the statutorily-required survey in 2021 through 2023. These activities are necessary to ensure that CMS fulfills legislative mandates established by section 1311(c)(4) of the Affordable Care Act to develop an “enrollee satisfaction survey system” and provide such information on Exchange websites.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces a virtual meeting of the Advisory Panel on Hospital Outpatient Payment (the Panel) for 2020. In addition, this notice announces four new membership appointments to the Panel. The purpose of the Panel is to advise the Secretary of the Department of Health and Human Services and the Administrator of the Centers for Medicare & Medicaid Services concerning the clinical integrity of the Ambulatory Payment Classification groups and their associated weights, and supervision of hospital outpatient therapeutic services. The advice provided by the Panel will be considered as we prepare the annual updates for the hospital outpatient prospective payment system.
Please note that form CMS-20017 must accompany each presentation or comment letter submission. Presentations and comment letters that are not received by the due date and time, or that do not include a completed form CMS-20017 are considered late or incomplete, and cannot be included on the agenda. In commenting, refer to file code CMS-1755-N.
The subject of the email should state “Agenda Speaker Registration for HOP Panel Meeting.” In the email, all of the following information must be submitted when registering:
• Speaker name.
• Speaker's organization or company name.
• Company or organization that the speaker is representing that submitted a presentation or comment letter that is on the agenda.
• Email addresses to which materials regarding meeting registration and instructions on connecting to the meeting should be sent.
• Registration details may not be revised once they are submitted. If registration details require changes, a new registration entry must be submitted by August 14, 2020. In addition, registration information must reflect individual-level content and not reflect an organization entry. Also, each individual may only register one person at a time. That is, one individual may not register multiple individuals at the same time.
• A confirmation email will be sent upon receipt of the registration. The email will provide information to the speaker in preparation for the meeting.
• Registration is only required for agenda speakers and alternates and must be submitted by the deadline specified above. We note that no registration is required for participants who plan to view the Panel meeting via webinar or listen via teleconference.
Elise Barringer, Designated Federal Official (DFO) (410) 786-9222, email at
The Secretary of the Department of Health and Human Services (the Secretary) is required by section 1833(t)(9)(A) of the Social Security Act and is allowed by section 222 of the Public Health Service Act to consult with an expert outside panel, such as the Advisory Panel on Hospital Outpatient Payment (the Panel), regarding the clinical integrity of the Ambulatory Payment Classification (APC) groups and relative payment weights. The Panel is governed by the provisions of the Federal Advisory Committee Act (Pub. L. 92-463), as amended (5 U.S.C. Appendix 2), to set forth standards for the formation and use of advisory panels. We consider the technical advice provided by the Panel as we prepare the proposed and final rules to update the Hospital Outpatient Prospective Payment System (OPPS) for the following calendar year.
The agenda for the August 31, 2020 Panel meeting will provide for discussion and comment on the following topics as designated in the Panel's Charter:
• Addressing whether procedures within an APC group are similar both clinically and in terms of resource use.
• Reconfiguring APCs.
• Evaluating APC group weights.
• Reviewing packaging the cost of items and services, including drugs and devices, into procedures and services, including the methodology for packaging and the impact of packaging the cost of those items and services on APC group structure and payment. Removing procedures from the inpatient list for payment under the OPPS.
• Using claims and cost report data for Centers for Medicare & Medicaid Services (CMS) determination of APC group costs.
• Addressing other technical issues concerning APC group structure.
• Evaluating the required level of supervision for hospital outpatient services.
• OPPS APC rates for covered Ambulatory Surgical Center (ASC) procedures.
The Agenda will be posted on our website at:
The actual meeting hours and days will be posted in the agenda. As information and updates regarding this webinar and listen-only teleconference, including the agenda, become available, they will be posted to our website at:
The subject matter of any presentation and comment letter must be within the scope of the Panel designated in the Charter. Any presentations or comments outside of the scope of the Panel will be returned or requested for amendment. Unrelated topics include, but are not limited to; the conversion factor, charge compression, revisions to the cost report, pass-through payments, correct coding, new technology applications (including supporting information/documentation), provider payment adjustments, supervision of hospital outpatient diagnostic services, and the types of practitioners that are permitted to supervise hospital outpatient services. The Panel may not recommend that services be designated as nonsurgical extended duration therapeutic services. Presentations or Comment Letters that address OPPS APC rates as they relate to covered ASC procedures are within the scope of the panel, however, ASC payment rates, ASC payment indicators, the ASC covered procedures list, or other ASC payment system matters will be considered out of scope.
The Panel may use data collected or developed by entities and organizations other than Department of Health and Human Services and CMS in conducting its review. We recommend organizations submit data for CMS staff and the Panel's review.
All presentations are limited to 5 minutes, regardless of the number of individuals or organizations represented by a single presentation. Presenters may use their 5 minutes to represent either one or more agenda items.
For this meeting, we are aiming to have all presentations and comment letters available on our website. Materials on our website must be Section 508 compliant to ensure access to federal employees and members of the public with and without disabilities. We encourage presenters and commenters to reference the guidance on making documents section 508 compliant as they draft their submissions, and, whenever possible, to submit their presentations and comment letters in a 508 compliant form. Such guidance is available at:
In order to consider presentations and/or comment letters, we will need to receive the following:
1.
2. Form
• The form is available through the CMS Forms website at:
• We encourage submitters to make efforts to ensure that their presentations and comment letters are 508 compliant.
In addition to formal presentations (limited to 5 minutes total per presentation), there will be an opportunity during the meeting for public comments as time permits (limited to 1 minute for each individual and a total of 3 minutes per organization).
The Panel's recommendations at any Panel meeting generally are not final until they have been reviewed and approved by the Panel on the last day of the meeting, before the final adjournment. These recommendations will be posted to our website after the meeting.
The Panel Charter provides that the Panel shall meet up to 3 times annually. We consider the technical advice provided by the Panel as we prepare the proposed and final rules to update the OPPS for the following calendar year.
The Panel shall consist of a chair and up to 15 members who are full-time employees of hospitals, hospital systems, or other Medicare providers that are subject to the OPPS. The panel may also include a representative of the provider with ASC expertise, who shall advise CMS only on OPPS APC rates, as appropriate, impacting ASC covered procedures within the context and purview of the panel's scope. The Secretary or a designee selects the Panel membership based upon either self-nominations or nominations submitted by Medicare providers and other interested organizations of candidates determined to have the required expertise. For supervision deliberations, the Panel shall also include members that represent the interests of Critical Access Hospitals, who advice CMS only regarding the level of supervision for hospital outpatient therapeutic services. New appointments are made in a manner that ensures a balanced membership under the Federal Advisory Committee Act guidelines.
This notice also announces four new membership appointments to the Panel. The four new members will each serve a 4-year period, with terms that begin in Calendar Year (CY) 2020 and end in CY 2024. The Secretary rechartered the Panel in 2018 for a 2-year period effective through November 20, 2020. The current charter is available on the CMS website at:
We published a notice in the
This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Seema Verma, having reviewed and approved this document, authorizes Lynette Wilson, who is the
Food and Drug Administration, Health and Human Services (HHS).
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Drug-Drug Interaction Assessment for Therapeutic Proteins.” The purpose of this guidance is to provide a systematic, risk-based approach to help sponsors of investigational new drug applications (INDs) and applicants of biologic license applications (BLAs) determine the need for drug-drug interaction (DDI) studies for a therapeutic protein (TP).
Submit either electronic or written comments on the draft guidance by November 9, 2020 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002 or the Office of Communication, Outreach, and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Elimika Pfuma Fletcher, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2162, Silver Spring, MD 20993, 301-796-3473; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a draft guidance for industry entitled “Drug-Drug Interaction Assessment for Therapeutic Proteins.” With the continued market growth and increased clinical use of TPs, it is important to understand the nature of and the potential for DDIs with these products. This guidance supplements the final FDA guidances for industry entitled “In Vitro Drug Interaction Studies—Cytochrome P450 Enzyme- and Transporter-Mediated Drug Interactions” and “Clinical Drug Interaction Studies—Cytochrome P450 Enzyme- and Transporter-Mediated Drug Interactions” (January 2020) by providing a systematic, risk-based approach to determining the need for DDI studies for TPs. This guidance discusses considerations for assessing DDIs for TPs, including situations where determining the DDI potential of a TP is warranted. The guidance also discusses various types of DDI assessments, considerations for study design, and recommendations for labeling.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Drug-Drug Interaction Assessment for Therapeutic Proteins.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This draft guidance refers to previously approved FDA collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information for submissions of investigational new drug applications, new drug applications, and biologic license applications in 21 CFR parts 312, 314, and 601 have been approved under OMB control numbers 0910-0014, 0910-0001, and 0910-0338, respectively. In addition, the submission of prescription drug labeling under 21 CFR 201.56 and 201.57 has been approved under OMB control number 0910-0572.
Persons with access to the internet may obtain the draft guidance at either
Bureau of Ocean Energy Management, Interior
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Ocean Energy Management (BOEM) is proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before October 9, 2020.
Send your comments on this information collection request (ICR) to the BOEM Information Collection Clearance Officer, Anna Atkinson, Bureau of Ocean Energy Management, 45600 Woodland Road, VAM-DIR, Sterling, Virginia 20166 (mail); or by email to
To request additional information about this ICR, contact Anna Atkinson, 703-787-1205, or by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
BOEM is soliciting comments on the proposed ICR that is described below. BOEM is especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of BOEM; (2) what can BOEM do to ensure this information will be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might BOEM enhance the quality, utility, and clarity of the information to be collected; and (5) how might BOEM minimize the burden of this collection on the respondents, including minimizing the burden through the use of information technology?
Comments that you submit in response to this notice are a matter of public record. BOEM will include or summarize each comment in our request to Office of Management and Budget (OMB) for approval of this ICR. Before including your address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. In order for BOEM to withhold from disclosure your personally identifiable information, you must identify any information contained in the submittal of your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences of the disclosure of information, such as embarrassment, injury, or other harm. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so.
Section 5(a)(8) of the OCS Lands Act (43 U.S.C. 1334(a)(8)) requires that regulations prescribed by the Secretary include provisions “for compliance with the national ambient air quality standards pursuant to the Clean Air Act (42 U.S.C. 7401
BOEM prepares an Emissions Inventory every three years to help ensure that its regulations comply with section 5(a)(8) of OCS Lands Act, 43 U.S.C. 1334(a)(8), and to implement the requirement at 30 CFR 550.303(k) and 550.304(g). BOEM begins this effort by issuing an NTL with instructions about how lessees can submit basic information about their operations that are subject to sec. 5(a)(8) regulations, from which BOEM's software calculates emissions information. BOEM is planning to issue the next such guidance in the Fall for a collection period in calendar year 2021. These emission inventories provide BOEM with the essential input needed to assess offshore OCS oil and gas activity impacts to the states as mandated by the OCSLA. They also provide the states the essential tools needed to perform their State Implementation Plan demonstrations to the U.S. Environmental Protection Agency (USEPA), and they provide the operators essential data for their mandatory reporting of greenhouse gases to the USEPA.
BOEM is developing and planning to implement a web-based solution that will allow operators to submit their platform and non-platform activity data electronically, instantaneously calculate monthly and annual emissions, quality assure and control data, and generate reports, such as emission inventory reports, and data graphics to the operators and to BOEM. To collect the necessary emissions data from companies, BOEM currently uses the Gulfwide Offshore Activity Data System (GOADS) software. This software is out of date and resides on a platform that BOEM is no longer able to utilize satisfactorily. Therefore, BOEM plans to implement a new web-based solution that would allow users to input their information directly into the system, which in turn will allow BOEM to access the data and create reports needed to assess oil and gas source impacts to States. Unlike the existing tool, the new solution will make it easy for users to enter activity data, calculate emissions data in real-time for users, and leverage built-in validation features to quality check the calculations prior to submission.
BOEM protects proprietary information according to the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department of the Interior's
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 2, 2020, under section 337 of the Tariff Act of 1930, as amended, on behalf of Nokia Technologies Oy of Finland and Nokia Corporation of Finland. Supplements to the complaint were filed on July 17, 20, and 22, 2020. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices, including computers, tablet computers, and components and modules thereof by reason of infringement of certain claims of U.S. Patent No. 8,144,764 (“the '764 patent”); U.S. Patent No. 7,532,808 (“the '808 patent”); U.S. Patent No. 6,950,469 (“the '469 patent”); U.S. Patent No. 7,724,818 (“the '818 patent”); and U.S. Patent No. 8,583,706 (“the '706 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2020).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on August 4, 2020,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 2, 5-7, 9-13, 15, 16, 18, 21-23, 25-29, 31, 32, 35-37, 39-47, 49, 52-54, and 56-62 of the '764 patent; claims 1-4, 6, 7, 9-13, 15-18, 20-30, 32-41, 43-49, 51-60, and 62-65 of the '808 patent; claims 1-7, 9, 15, 16, 18, 20-25, 27-30, and 50 of the '469 patent; claims 1-15 and 20-23 of the '818 patent; and claims 1-16 of the '706 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “laptop computers, notebook computers, desktop computers, tablets, smart home devices, and servers.”;
(3) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties or other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(4) For the purpose of the investigation so instituted, the following
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainants of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 6, 2020, under section 337 of the Tariff Act of 1930, as amended, on behalf of Overhead Door Corporation of Lewisville, Texas and GMI Holdings Inc. of Mount Hope, Ohio. A supplement to the complaint was filed on July 22, 2020. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain movable barrier operator systems and components thereof by reason of infringement of U.S. Patent No. 8,970,345 (“the '345 Patent”); U.S. Patent No. 9,483,935 (”the '935 Patent”); U.S. Patent No. 7,173,516 (“the '516 Patent”); U.S. Patent No. 7,180,260 (“the '260 Patent”); U.S. Patent No. 7,956,718 (“the '718 Patent”); and U.S. Patent No. 8,410,895 (“the '895 Patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and a cease and desist order.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2020).
Having considered the complaint, the U.S. International Trade Commission, on August 4, 2020,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 2, 16, and 17 of the '345 patent; claims 1, 4, 16, and 19 of the '935 patent; claims 10-12, 14-16, and 18 of the '516 patent; claims 1-3, 7, and 8 of the '260 patent; claims 18 and 24 of the '718 patent; and claim 17 of the '895 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “garage door systems and components thereof, remote controls, wireless transmitters, and software for operating the garage door systems”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On June 28, 2019, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Tommy L. Louisville, M.D. (hereinafter, Registrant) of Lakeland, Florida. OSC, at 1. The OSC proposed the revocation of Registrant's Certificate of Registration No. AL9587330.
Specifically, the OSC alleged that, “effective May 31, 2019, the [State of Florida] Board [of Medicine, (hereinafter FBM)] issued its Final Order whereby . . . [Registrant's] license to practice medicine (License No. ME0037525) was suspended for a period of two years.” OSC, at 1-2. The OSC further alleged that “[a]s of the date of this . . . [OSC], the suspension of . . . [Registrant's] Florida medical license has not been lifted” and “[a]s a result, . . . [he] currently lack[s] authority to handle controlled substances in Florida.”
The OSC notified Registrant of the right to request a hearing on the allegations or to submit a written statement, while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
In a sworn Declaration, dated August 13, 2019, a DEA Diversion Investigator assigned to the Tampa District Office of the Miami Division (hereinafter, TDDI) stated that she attempted personal service of the OSC on Registrant at the request of a DI assigned to the Miami Division (hereinafter, MDDI). Government's Submission Regarding Service of Order to Show Cause Upon Legal Counsel of Respondent and Motion for Termination of Proceedings Based Upon Respondent's Untimely Hearing Request, dated Aug. 15, 2019, filed
In a sworn Declaration, dated August 13, 2019, MDDI stated that he left the OSC with Registrant's attorney on July 8, 2019. Government Submission, Attachment 4 (hereinafter, MDDI Declaration), at 2-3. MDDI stated that later the same day, the attorney sent him written confirmation of receipt of the OSC and of the forwarding of the OSC to Registrant.
I agree with Administrative Law Judge Charles Wm. Dorman (hereinafter, ALJ) that service of the OSC was proper. Order Terminating Proceedings, dated Sept. 10, 2019 (hereinafter, OTP), at 6.
By letter, dated August 8, 2019, the same attorney who accepted service of the OSC for Registrant transmitted a hearing request (hereinafter, Hearing Request) to the Office of Administrative Law Judges (hereinafter, OALJ).
The Hearing Request states that “[a]ll notices to be sent pursuant to the proceeding in this matter should be addressed to” the attorney and, under “Contact Information for Proceeding,” provides a physical address.
According to the nine-page Hearing Request, Registrant acknowledged the suspension of his Florida medical license, advised that he appealed it, and stated that he “is in the process of filing a Motion to Stay the . . . [FBM] Final Order.”
I agree with the ALJ that the Hearing Request was not timely filed. OTP, at 7;
The Government forwarded its Request for Final Agency Action (hereinafter, RFAA), along with the evidentiary record, to my office on January 8, 2020. In its RFAA, the Government represented that “[a]ccording to the most recent information obtained by DEA, [Registrant's Florida medical license] suspension remains in place and has not been lifted.” RFAA, at 5. Accordingly, the Government requested that Registrant's registration be revoked.
I issue this Decision and Order based on the record submitted by the Government in its RFAA and on the content of Docket No. 2019-36, which constitute the entire record before me. 21 CFR 1301.43(e).
Registrant is the holder of DEA Certificate of Registration No. AL9587330 at the registered address of 1801 Crystal Lake Dr., Lakeland, FL 33801. RFAA, EX 2 (Facsimile of DEA Certificate of Registration Number AL9587330), at 1. Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitioner.
The Government submitted evidence that the FBM reprimanded Registrant and suspended his medical license for two years on May 30, 2019. Government's Motion for Summary Disposition and Argument in Support of Finding that Respondent Lacks State Authorization to Handle Controlled Substances, dated Aug. 23, 2019, filed
According to Florida's online records, of which I take official notice, Registrant's medical license remains suspended.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the CSA “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined the term “practitioner” to mean “a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . , to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the state in which he practices.
According to Florida statute, “A practitioner, in good faith and in the course of his or her professional practice only, may prescribe, administer, [or] dispense . . . a controlled substance.” Fla. Stat. Ann. § 893.05(1)(a) (West, current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through May 18, 2020). Further, “practitioner,” as defined by Florida statute, includes “a physician licensed under chapter 458.”
Here, the undisputed evidence in the record is that Registrant's license to practice medicine is currently suspended. As such, he is not a “practitioner” as that term is defined by Florida law. Further, as already discussed, a physician must be a practitioner to dispense a controlled substance in Florida. Thus, since Registrant lacks authority to practice medicine in Florida, he is also not authorized to handle controlled substances in Florida. Accordingly, I will order that Registrant's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. AL9587330 issued to Tommy L. Louisville, M.D. This Order is effective September 9, 2020.
Drug Enforcement Administration, Department of Justice.
30-Day Notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for additional 30 days until September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
Regulated persons include manufacturers, distributors, importers, and exporters of listed chemicals, tableting machines, or encapsulating machines, or persons who serve as brokers or traders for international transactions involving a listed chemical, tableting machine, or encapsulating machine. 21 CFR 1300.02(b).
5.
6.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Workers' Compensation Program (OWCP)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the
Crystal Rennie by telephone at 202-693-0456, or by email at
Form LS-265 is used to report funeral expenses payable under the Longshore and Harbor Workers' Compensation Act. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
Bureau of International Labor Affairs, Labor.
Meeting notice.
Notice of a Labor Advisory Committee for Trade Negotiations and Trade Policy meeting.
August 21, 2020, 11:00 a.m. to 12:30 p.m.; Virtual.
Anne M. Zollner, Designated Federal Official and Division Chief, Trade Policy and Negotiations, Office of Trade and Labor Affairs, Bureau of International Labor Affairs, Department of Labor, Frances Perkins Building, Room S-5317, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 693-4890,
The Labor Advisory Committee for Trade Negotiations and Trade Policy consults with and makes recommendations to the Secretary of Labor and the United States Trade Representative on general policy matters concerning labor and trade negotiations, operations of any trade agreement once entered into, and other matters arising in connection with the administration of the trade policy of the United States.
During the meeting, the Committee will review and discuss current issues that influence U.S. trade policy. The Committee will also discuss potential U.S. negotiating objectives and bargaining positions in current and anticipated trade negotiations. Pursuant to 19 U.S.C. 2155(f)(2)(A), the meeting will be concern matters the disclosure of which would seriously compromise the Government's negotiating objectives or bargaining positions. Therefore, the meeting is exempt from the requirements of subsections (a) and (b) of sections 10 and 11 of the Federal Advisory Committee Act (relating to open meetings, public notice, public participation, and public availability of documents). 5 U.S.C. app. Accordingly, the meeting will be closed to the public.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Wage and Hour Division (WHD)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before September 9, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Anthony May by telephone at 202-693-4129 (this is not a toll-free number) or by email at
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards migrant and seasonal agricultural workers in their interactions with Farm Labor Contractors, Agricultural Employers and Agricultural Associations, and providers of migrant farm worker housing. See Public Law 97-470. The MSPA requires
MSPA § 201(d) and § 301(c)—29 U.S.C. 1821(d), 1831(c) and regulations 29 CFR 500.80(a), require each Farm Labor Contractor, Agricultural Employer, and Agricultural Association that employs a migrant or seasonal worker to make, keep, and preserve records for three years for each such worker concerning the: (1) Basis on which wages are paid; (2) number of piece work units earned, if paid on a piece work basis; (3) number of hours worked; (4) total pay period earnings; (5) specific sums withheld and the purpose of each sum withheld; (6) net pay. Respondents are also required to provide an itemized written statement of this information to each migrant and seasonal agricultural worker each pay period. See 29 U.S.C. 1821(d), 1831(c), and 29 CFR 500.1-.80(d). Additionally, MSPA § 201(e) and § 301(d) require each Farm Labor Contractor provide copies of all the records noted above for the migrant and seasonal agricultural workers the contractor has furnished to other Farm Labor Contractors, Agricultural Employers, or Agricultural Associations who use the workers. Respondents must also make and keep certain records. § 201(c) of the MSPA requires all Farm Labor Contractors, Agricultural Employers, and Agricultural Associations providing housing to a migrant agricultural worker to post in a conspicuous place at the site of the housing, or present to the migrant worker, a written statement of any housing occupancy terms and conditions. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Weeks of August 10, 17, 24, 31, September 7, 14, 21, 28, October 5, 12, 19, 2020.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
There are no meetings scheduled for the week of August 10, 2020.
There are no meetings scheduled for the week of August 17, 2020.
There are no meetings scheduled for the week of August 24, 2020.
There are no meetings scheduled for the week of August 31, 2020.
There are no meetings scheduled for the week of September 7, 2020.
Tuesday, September 15, 2020
This meeting will be webcast live at the Web address—
Thursday, September 17, 2020
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of September 21, 2020.
Wednesday, September 30, 2020
This meeting will be webcast live at the Web address—
Thursday, October 8, 2020
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 12, 2020.
Wednesday, October 21, 2020
This meeting will be webcast live at the Web address—
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or by email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Office of Science & Technology Policy (OSTP).
Notice of request for information (RFI).
On behalf of the National Science and Technology Council's (NSTC) Subcommittee on Resilience Science and Technology (SRST), OSTP requests input from all interested parties on the development of a National Research and Development Plan for Positioning, Navigation, and Timing (PNT) Resilience. The plan will focus on the research and development (R&D) and pilot testing needed to develop additional PNT systems and services that are resilient to interference and manipulation and that are not dependent upon global navigation satellite systems (GNSS). The plan will also include approaches to integrate and use multiple PNT services for enhancing resilience. The input received on these topics will assist the Subcommittee in developing recommendations for prioritization of R&D activities.
Interested persons are invited to submit comments on or before 11:59 p.m. ET on September 9, 2020. Comments received after this date may not be considered.
Responses should be submitted via email to
In accordance with Federal Acquisition Regulation 15.201(e), “RFIs may be used when the Government does not presently intend to award a contract, but wants to obtain price, delivery, other market information, or capabilities for planning purposes. Responses to these notices are not offers and cannot be accepted by the Government to form a binding contract.” Additionally, the Federal Government will not pay for response preparation or the use of any information contained in the response. Submissions are subject to Freedom of Information Act (FOIA) disclosure and may be posted, without change, on a Federal website.
Please direct questions to Adam Balkcum, OSTP at
PNT has become an “invisible utility” that is integral to and enables a wide array of applications such as financial transactions, synchronization of power networks, and the precision landing approaches of aircraft. PNT services are currently provided or augmented by a number of terrestrial and space-based systems, with the most notable and widely used being the Global Positioning System (GPS). Satellite platforms, such as GPS, provide global coverage but at great distances and with low signal intensity, which can be more easily interfered with at the local level by natural phenomena and by technological means (both intentional and unintentional). On February 12, 2020, President Trump signed Executive Order (E.O.) 13905, “Strengthening National Resilience Through Responsible Use of Positioning, Navigation, and Timing Services,” with the goal of ensuring that the Nation's critical infrastructure can withstand disruption or manipulation of PNT services. E.O. 13905 directs the development of a national plan for the R&D and pilot testing of additional, robust, and secure PNT services that are not dependent on GNSS. These additional services may consist of multiple systems with varying functional specifications to satisfy one or more applications with differing requirements. To further enhance infrastructure resilience, the plan will also consider approaches to integrate and use multiple PNT services including GNSS services.
The SRST seeks a better understanding of current PNT efforts and challenges, how PNT services may be used in the future, and what R&D activities could be beneficial for improving overall system resilience. In responding to the questions below, please consider the priority PNT R&D needs specifically directed towards developing resilient, non-GNSS dependent services and equipment, and the role of the Federal government in executing or encouraging the appropriate R&D activities. Resilience is desired in the overall system, which includes sources of PNT, distribution means, augmentation methods, and user equipment. Resilient systems have protections, mitigations, and responses that allow for continued proper system functioning or recovery within an
1. (a) How will PNT services be used over the next ten years? (b) What values for precision and integrity for non-GNSS dependent systems over the same timeframe will support assured PNT services and why? (c) Similarly, what level of synchronization to Coordinated Universal Time (UTC) is anticipated to be needed?
2. What may affect or prevent the adoption, integration, and operation of resilient PNT services and equipment?
3. (a) What system architectures or concepts could be conducive for PNT system resilience? (b) What features or capabilities in equipment or systems could provide effective protections or mitigations against interference or manipulation? (c) Which principles of cybersecurity may be leveraged to achieve this? (d) What challenges may occur in integrating and using multiple PNT services within user equipment?
4. What R&D activities are currently being conducted, or planned, to develop non-GNSS dependent PNT services or equipment, or to improve the resilience of PNT services or equipment?
5. (a) What knowledge or capability gaps currently exist that, if filled, could contribute to improving resilience? (b) What R&D activities are best suited to help fill these gaps? (c) What role does the Federal government have to encourage and collaborate on these activities?
6. What additional information or suggestions could help inform the development of the R&D plan?
Thank you for taking the time to respond to this Request for Information. We appreciate your input.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 1, Section 1 (Definitions); Options 2, Section 4 (Obligations of Market Makers and Lead Market Makers); Options 2, Section 5 (Market Maker Quotations); Options 3, Section 5 (Entry and Display of Orders); Options 3, Section 7 (Types of Orders and Quote Protocols); Options 3, Section 10 (Order Book Allocation); Options 3, Section 13 (Price Improvement Auction (“PRISM”)); Options 3, Section 22 (Limitations on Order Entry); and Options 3, Section 23 (Data Feeds and Trade Information). The Exchange also proposes to adopt a new Options 3, Section 12 titled “Crossing Orders.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 1, Section 1 (Definitions); Options 2, Section 4 (Obligations of Market Makers and Lead Market Makers); Options 2, Section 5 (Market Maker Quotations); Options 3, Section 5 (Entry and Display of Orders); Options 3, Section 7 (Types of Orders and Quote Protocols); Options 3, Section 10 (Order Book Allocation); Options 3, Section 13 (Price Improvement Auction (“PRISM”)); Options 3, Section 22 (Limitations on Order Entry); and Options 3, Section 23 (Data Feeds and Trade Information) and adopt a new Options 3, Section 12 titled “Crossing Orders” in connection with a technology migration to an enhanced Nasdaq, Inc. (“Nasdaq”) functionality which results in higher performance, scalability, and more robust architecture. With this system migration, the Exchange intends to adopt certain trading functionality currently utilized at Nasdaq Exchanges.
The Exchange intends to begin implementation of the proposed rule change prior to October 30, 2020. The Exchange will issue an Options Trader Alert to Participants to provide notification of the symbols that will migrate, the relevant dates and operative dates for specific functionalities.
The Exchange proposes to amend the definition of “Public Customer” to conform to Nasdaq PHLX LLC's (“Phlx”) definition at Options 1, Section 1(b)(46). The Exchange believes that making clear that a Public Customer could be a person or entity and stating that a Public Customer is not a Professional, as defined within Options 1, Section 1(a)(48),
The Exchange also proposes to remove a sentence within Options 1, Section 1(a)(48) which provides, “A Participant or a Public Customers may, without limitation, be a Professional.” This sentence is confusing, unnecessary, and adds no information to this defined term. Phlx Options 1, Section 1(b)(46) does not contain a similar sentence. BX proposes removing this sentence.
The Exchange also proposes to remove sentences, within Options 3, Sections 10(a)(1)(C)(1)(a) and 10(a)(2)(i), Options 3, Section 13, in the introductory paragraph, and Options 3, Sections 13(ii)(E)(1) and (F)(1), which allocation and PRISM rules, respectively, provide that a Public Customer does not include a Professional. Today, the definition of a Public Customer does not explicitly exclude a Professional. The language that the Exchange proposes to delete currently indicates that Professionals would not be treated the same as a Public Customer in terms of priority and, therefore, would not receive the same allocation that is reserved for Public Customer orders. Since BX is amending the definition of a Public Customer to explicitly exclude Professionals, the language in the PRISM and allocation rules are no longer necessary to distinguish these two types of market participants.
Currently, BX Market Maker intra-day quoting requirements, within Options 2, Section 5(d)(2), provide,
Bid/ask Differentials (Quote Spread Parameters). Options on equities (including Exchange-Traded Fund Shares), and on index options must be quoted with a difference not to exceed $5 between the bid and offer regardless of the price of the bid, including before and during the opening. However, respecting in-the-money series where the market for the underlying security is wider than $5, the bid/ask differential may be as wide as the spread between the national best bid and offer in the underlying security. The Exchange may establish differences other than the above for one or more series or classes of options.
The Exchange also proposes to amend BX Rules at Options 2, Section 4(f)(4)-(6) (Obligations of Market Makers and Lead Market Makers), which specify quoting requirements for Lead Market Makers. Today, BX's Rules at Options 2, Section 4(f)(4)-(6) provides,
(4) Options traded on the Trading System may be quoted with a difference not to exceed $5 between the bid and offer regardless of the price of the bid.
(5) BX Regulation may establish quote width differences other than as provided in subparagraph (iv) for one or more options series.
(6) In the event the bid/ask differential in the underlying security is greater than the bid/ask differential set forth in subsections (f)(4) and (5), the permissible price differential for any in-the-money option series may be identical to those in the underlying security market. In the case of the at-the-money and out-of-the-money series, BX Regulation may waive the requirements of subsections (f)(4) and (5) on a case-by-case basis when the bid/ask differential for the underlying security is greater than .50. In such instances, the bid/ask differentials for the at-the-money series and the out-of-the-money series may be half as wide as the bid/ask differential in the underlying security in the primary market. Exemptions from subsections (f)(4) and (5) are subject to Exchange review. BX Regulation must file a report with BX operations setting forth the time and duration of such exemptive relief and the reasons therefore.
With this change, BX would continue to require Lead Market Makers to quote with a difference not to exceed $5 between the bid and offer regardless of the price of the bid. However, instead of requiring Lead Market Makers to quote a price differential for any in-the-money option series identical to those in the underlying security market, in the event the bid/ask differential in the underlying security is greater than the bid/ask differential set forth in subsections (f)(4) and (5), the Exchange would now permit the bid/ask differential to be as wide as the spread between the national best bid and offer in the underlying security when the market for the underlying security is wider than $5, as is the case today for BX Market Makers. This amendment would permit Lead Market Makers to quote as wide as Market Makers on BX quote today.
As proposed, the Exchange would remove the rule text which describes the additional allowance for at-the-money and out-of-the-money series, where BX Regulation may waive the requirements of subsections (f)(4) and (5) on a case-by-case basis when the bid/ask differential for the underlying security is greater than .50. In these cases, pursuant to paragraph (f)(6), the bid/ask differentials for the at-the-money series and the out-of-the-money series may be half as wide as the bid/ask differential in the underlying security in the primary market. Today, exemptions from subsections (f)(4) and (5) are subject to Exchange review.
The Exchange proposes to amend Options 3, Section 5(c) to add additional rule text similar to Phlx Options 3, Section 5(c). BX's current Options 3, Section 5(c) states, “The System automatically executes eligible orders using the Exchange's displayed best bid an offer (“BBO”).” The Exchange proposes to state, “The System automatically executes eligible orders using the Exchange's displayed best bid and offer (“BBO”) or the Exchange's non-displayed order book (“internal BBO”) if the best bid and/or offer on the Exchange has been repriced pursuant to subsection (d) below.” Today, BX re-prices certain orders to avoid locking and crossing away markets, consistent with its Trade-Through Compliance and Locked or Crossed Markets obligations.
The Exchange proposes to amend the Cancel-Replacement Order, within Options 3, Section 7(a)(1). By way of background with respect to cancelling and replacing an order, a Participant has the option of either submitting a cancel order and then separately submitting a new order, which serves as a replacement of the original order, in two separate messages, or submitting a single cancel and replace order in one message (“Cancel-Replacement Order”). Submitting a cancel order and then separately submitting a new order will not retain the priority of the original order.
Currently, the rule text for Cancel-Replacement Order provides, “Cancel-Replacement Order shall mean a single message for the immediate cancellation of a previously received order and the replacement of that order with a new order with new terms and conditions. If the previously placed order is already filled partially or in its entirety, the replacement order is automatically canceled or reduced by the number of contracts that were executed. The replacement order will not retain the priority of the cancelled order except when the replacement order reduces the size of the order and all other terms and conditions are retained.” The Exchange proposes to replace the words “shall mean” with “is” and remove the final sentence of the rule text.
The Exchange is not amending the current System functionality of a
The Exchange further proposes to provide, “If the replacement portion of a Cancel-Replacement Order does not satisfy the System's price or other reasonability checks (
The Exchange proposes to amend “Directed Order,” within Options 3, Section 7(a)(2). The Exchange proposes to remove the text, “Directed Order, The term” and replace “means” with “is.” These amendments are technical and non-substantive. The Exchange is otherwise not amending the Directed Order rule text.
The Exchange proposes to amend “Limit Order,” within Options 3, Section 7(a)(3). The Exchange proposes to style “Limit Orders” in the singular and change “are” to “is an” and “orders” to “order.” A Limit Order on BX operates in the same manner as a Limit Order on ISE, GEMX and MRX. The Exchange proposes to conform the rule text of BX's Limit Order to ISE, GEMX and MRX Options 3, Section 7(b) and add the sentence describing marketable limit orders. The Exchange proposes to state, “A marketable limit order is a limit order to buy (sell) at or above (below) the best offer (bid) on the Exchange.” The Exchange believes that the rule amendment more aptly describes a marketable limit order as compared to the current rule text, which is confusing, but was intended to convey the substance of the proposed text. The new sentence does not substantively amend the current rule text.
The Exchange proposes to amend “Market Orders,” within Options 3, Section 7(a)(5). The Exchange proposes to style “Market Orders” in the singular and change “are” to “is an” and “orders” to “order.” These amendments are technical and non-substantive. The Exchange also proposes to add a notation at the end of the rule to make clear that “Participants can designate that their Market Orders not executed after a pre-established period of time, as established by the Exchange, will be cancelled back to the Participant, once an option series has opened for trading.” Market Orders submitted during the opening may be executed, routed (depending on instructions from the market participant) or cancelled if the Market Order is priced through the opening price. The Exchange would only cancel those Market Orders that remained on the Order Book once an option series opened. The pre-established period of time would commence once the intra-day trading session begins for that options series and the order would be cancelled back to the Participant, provided the Participant elected to cancel back its Market Orders. The Exchange proposes to make clear that while the opening is on-going, and the intra-day trading session has not commenced, the pre-established period of time would not commence. Further, the Exchange proposes to note that “Market Orders on the Order Book would be immediately cancelled if an options series halted, provided the Participant designated the cancellation of Market Orders.” Once an options series halts for trading, the Exchange conducts another Opening Process. In the case where a Market Order was resting on the Order Book, and the Participant had designated the cancellation of Market Orders, in the event of a halt, the Market Orders resting on the Order Book would immediately cancel. The Exchange believes that this additional rule text brings greater clarity to the Market Order type.
The Exchange proposes to amend “Intermarket Sweep Order” or “ISO,” within Options 3, Section 7(a)(6). Today, the rule text provides,
(6) “Intermarket Sweep Order” or “ISO” are limit orders that are designated as ISOs in the manner prescribed by BX and are executed within the System by Participants at multiple price levels without respect to Protected Quotations of other Eligible Exchanges as defined in Options 5, Section 1. ISOs may have any time-in-force designation except WAIT, are handled within the System pursuant to Options 3, Section 10 and shall not be eligible for routing as set out in Options 3, Section 19. ISOs with a time-in-force designation of GTC are treated as having a time-in-force designation of Day.
(1) Simultaneously with the routing of an ISO to the System, one or more additional limit orders, as necessary, are routed by the entering party to execute against the full displayed size of any protected bid or offer (as defined in Options 5, Section 1) in the case of a limit order to sell or buy with a price that is superior to the limit price of the limit order identified as an intermarket
The Phlx rules do not have this restriction on ISO Orders.
The Exchange does propose to amend the current functionality of an ISO Order to require that ISOs have a time-in-force designation of Immediate-or-Cancel (“IOC”) within Options 3, Section 7(b)(2). Today, the rule provides that ISOs may have any time-in-force designation, except WAIT, and further requires that ISOs with a time-in-force designation of GTC are treated as having a time-in-force designation of Day.
The Exchange proposes to no longer offer the “One-Cancels-the-Other Order.” The Exchange will no longer permit this order type with the technology migration. This order type is not in demand on BX. The Exchange would file a rule change with the Commission if it decides to offer this order type in the future.
The Exchange proposes to amend the “All-or-None Order,” within Options 3, Section 7(a)(8). The Exchange proposes to renumber this rule text as Options 3, Section 7(a)(7) The Exchange proposes to replace “shall mean” with “is” and change “opening cross” to simply “opening.” These proposed amendments are technical and non-substantive.
The Exchange proposes to add a “PRISM Order” to the list of order types at proposed Options 3, Section 7(a)(10). The Exchange proposes to define this existing order type by cross-referencing Options 3, Section 13, which explains the order type.
The Exchange proposes to add a “Customer Cross Order” to the list of order types at proposed Options 3, Section 7(a)(11). The Exchange proposes to define this existing order type by cross-referencing Options 3, Section 12(a), which explains the order type.
The Exchange proposes to amend Options 3, Section 7(b) to define “Time in Force” as “TIF”.
The Exchange proposes to amend an “Immediate-Or-Cancel” Order or “IOC,” within Options 3, Section 7(b)(2) to add hyphens and make “Or” lowercase. The Exchange proposes to remove the current description which provides that an IOC Order, “shall mean for orders so designated, that if after entry into the System a marketable order (or unexecuted portion thereof) becomes non-marketable, the order (or unexecuted portion thereof) shall be canceled and returned to the entering participant. IOC Orders shall be available for entry from the time prior to market open specified by the Exchange on its website until market close and for potential execution from 9:30 a.m. until market close. IOC Orders entered between the time specified by the Exchange on its website and 9:30 a.m. Eastern Time will be held within the System until 9:30 a.m. at which time the System shall determine whether such orders are marketable.” The Exchange proposes to replace this description with rule text similar to Phlx Options 3, Section 7(c)(2) as these order types are identical. The Exchange proposes to state that an Immediate-or-Cancel Order or “IOC” Order is a Market Order or Limit Order to be executed in whole or in part upon receipt. Any portion not so executed is cancelled. Further, with respect to IOC Orders,
(A) Orders entered with a TIF of IOC are not eligible for routing.
(B) IOC orders may be entered through FIX or SQF, provided that an IOC Order entered by a Market Maker through SQF is not subject to the Limit Order Price Protection or the Market Order Spread Protection in Options 3, Section 15(a)(1) and (a)(2), respectively;
(C) Orders entered into the Price Improvement Auction (“PRISM”) Mechanism are considered to have a TIF of IOC. By their terms, these orders will be: (1) Executed after an exposure period, or (2) cancelled.
Options 5, Section 4(a) provides, that IOC Orders will be cancelled immediately if not executed, and will not be routed. The Exchange is proposing to memorialize this information within the description of an IOC Order. The Exchange also proposes to note that IOC Orders may be entered through FIX or SQF.
“Financial Information eXchange” or “FIX” is described in Options 3, Section 7(d)(1)(A) as an interface that allows Participants and their Sponsored Customers to connect, send, and receive messages related to orders and auction orders and responses to and from the Exchange. Features include the following: (1) Execution messages; (2) order messages; and (3) risk protection triggers and cancel notifications.
The Exchange proposes to add rule text to the SQF protocol, within proposed Options 3, Section 7(e)(1)(B), which provides, “Immediate-or-Cancel Orders entered into SQF are not subject to the Limit Order Price Protection or the Market Order Spread Protection in Options 3, Section 15(a)(1) and (a)(2), respectively.” Adding this exception to the SQF protocol as well as the TIF of “IOC” will make clear that these order protections shall not apply to IOC Orders entered through SQF.
Also, the proposed rule would also specify that orders entered into the PRISM Mechanism are considered to have a TIF of IOC. By their terms, these orders will be: (1) Executed after an exposure period, or (2) cancelled.
The Exchange proposes to amend the TIF of “DAY” at Options 5, Section 7(b)(3) to remove the words “shall mean for orders” and add “is an order” to conform the rule text to other text in this rule. The Exchange also proposes to conform the description of a TIF of “DAY” similar to Phlx Options 3, Section 7(c)(1).
The Exchange proposes to amend the TIF of “Good Til Cancelled” or “GTC” at Options 5, Section 7(b)(4). The Exchange proposes to remove the words “shall mean for orders” and add “is an order.” The Exchange also proposes to conform the rule text similar to Phlx Options 3, Section 7(c)(4),
The Exchange proposes to no longer offer a TIF of “WAIT.” The Exchange would remove the rule text at BX Options 3, Section 7(b)(5). If the Exchange desires to offer this TIF in the future, it would file a proposed rule change with the Commission pursuant to Section 19(b)(1) of the Act.
The Exchange proposes to note, within BX Options 3, Section 7(c), the various routing options which are available. The Exchange proposes to add rule text which provides, “Routing Strategies. Orders may be entered on the Exchange with a routing strategy of FIND, SRCH or Do-Not-Route (“DNR”) as provided in Options 5, Section 4 through FIX only.” These routing strategies are consistent with a recent rule change filed to amend routing strategies.
Finally, the Exchange proposes to re-letter current Options 3, Section 7(c) and (d).
The Exchange proposes to amend its Order Book allocation rule, within Options 3, Section 10, to amend the manner in which rounding occurs.
Today, BX rounds up or down to the nearest integer when it allocates and any residual contract after rounding, if rounding would result in an allocation of less than one contract, would be allocated to the Lead Market Maker. The Exchange is amending the rounding methodology to round up to the nearest integer. Options 3, Section 10 is being amended to reflect the new methodology. Each exchange has a different rounding methodology.
Today, the Exchange permits an Initiating Participant to enter a PRISM Order for the account of a Public Customer paired with an order for the account of a Public Customer and such paired orders will be automatically executed without a PRISM Auction.
The Exchange proposes to adopt the term “Crossing Orders” within Options 3, Section 12, which is currently reserved, to describe this process. Today, ISE, GEMX and MRX permit Customer Cross Orders as proposed herein.
Public Customer-to-Public Customer Cross Orders are automatically executed upon entry provided that the execution is at or between the best bid and offer on the Exchange and (i) is not at the same price as a Public Customer Order on the Exchange's limit order book and (ii) will not trade through the NBBO. Public Customer-to-Public Customer Cross Orders must be entered through FIX.
(1) Public Customer-to-Public Customer Cross Orders will be rejected if they cannot be executed.
(2) Public Customer-to-Public Customer Cross Orders may only be entered in the regular trading increments applicable to the options class under Options 3, Section 3.
(3) Options 3, Section 22(b)(1) applies to the entry and execution of Customer Cross Orders.
In particular, the Exchange proposes to add a definition of a Customer Cross Order specifying that a Customer Cross Order is comprised of a Public Customer Order to buy and a Public Customer Order to sell at the same price and for the same quantity. The Exchange proposes to adopt Options 3, Section 12(a) specifying that Public Customer-to-Public Customer Cross Orders are automatically executed upon entry provided that the execution is at or between the best bid and offer on the Exchange. Further, the execution would not be at the same price as a Public Customer Order on the Exchange's limit order book, nor trade through the NBBO. Public Customer-to-Public Customer Cross Orders must be entered through FIX for execution pursuant to proposed Options 3, Section 12(a). As noted below in the PRISM discussion, a Public Customer-to-Public Customer order submitted into PRISM directly would be subject to execution pursuant to Options 3, Section 13(i) and (ii). The Exchange is removing the current provisions within Options 3, Section 13(vi) with this proposed rule change. The proposed rule also specifies that Public Customer-to-Public Customer Cross Orders will be rejected if they cannot be executed and Public Customer-to-Public Customer Cross Orders may only be entered in the regular trading increments applicable to the options class under Options 3, Section 3.
Current BX Options 3, Section 13(vi) provides,
In lieu of the procedures in paragraphs (i)-(ii) above, an Initiating Participant may enter a PRISM Order for the account of a Public Customer paired with an order for the account of a Public Customer and such paired orders will be automatically executed without a PRISM Auction, provided there is not currently another auction in progress in the same series, in which case the orders will be cancelled. The execution price for such a PRISM Order must be expressed in the quoting increment applicable to the affected series. Such an execution may not trade through the NBBO or trade at the same price as any resting Public Customer order.
BX also proposes to add that Options 3, Section 22(a)(1),
Options 3, Section 22(a)(1) contains language similar to current BX Options 3, Section 13(vi)(A) and, therefore, would continue to prevent a Participant from executing agency orders to increase its economic gain from trading against the order without first giving other trading interests on the Exchange an opportunity to either trade with the agency order or to trade at the execution price when the Participant was already bidding or offering on the book. The Exchange proposes to add a sentence to the end of current BX Options 3, Section 22(a)(1), which currently exists within BX Options 3, Section 13(vi)(A).
The Exchange proposes to amend Options 3, Section 13, which describes the Price Improvement Auction or “PRISM.”
Similar to ISE, GEMX and MRX Options 3, Section 13, the Exchange proposes to amend its System functionality to better any limit order or quote on the limit order book on the same side of the market as the PRISM Order, within Options 3, Section 13(i)(A) and (B). Today, Options 3, Section 13 only considers orders. With the technology migration, the Exchange proposes, similar to ISE, GEMX and MRX's rules at Options 3, Section 13, to consider quotes as well. The Exchange is proposing to add “or quote,” within Options 3, Sections 13(i) and (A) and (B) and (ii)(A)(1). The addition of “quotes,” similar to ISE, GEMX and MRX at Options 3, Section 13, will enable the Exchange to consider additional interest on the Order Book at time a PRISM Auction is initiated. The Exchange believes expanding its consideration to both quotes and orders will consider a greater amount of interest present on BX's Order Book when initiating a PRISM.
In various places, within Options 3, Section 13, where the Exchange cites to the minimum increment rule at Options 3, Section 3, the Exchange proposes to instead simply state the minimum increment allowable directly within the rule. For example, BX proposes to amend Options 3, Section 13(i)(A) and (B) to remove the rule text which states, “at one minimum price improvement increment,” and “at least one minimum trading increment specified in Options 3, Section 3 (“Minimum Increment”)” and “the Minimum Increment,” respectively, and instead simply state “$0.01” within the rule text. This amendment does not amend the current System operation, rather it more simply states what that minimum increment is today. The Exchange proposes a similar change at Options 3, Section 13(ii)(A)(1) by proposing to remove “one Minimum Increment” and replace that text with “$0.01.” Finally, the Exchange proposes to amend Options 3, Section 13(ii)(A)(6) to replace a reference to “the minimum price improvement increment established pursuant to subparagraph (i)(A) above” with “$0.01.”
The Exchange also proposes technical amendments to capitalized the “if” within Options 3, Section 13(i)(A) and add an “If” before Options 3, Section 13(i)(B) to conform the rule text.
The final amendment proposed to Options 3, Section 13(ii)(A)(1) is to amend the System functionality with respect to Surrender. Today, a Surrender feature is available on BX, which permits the Initiating Participant to forfeit completely its priority and trade allocation privileges. The text related to Surrender, within Options 3, Section 13(ii)(A)(1), currently provides,
When starting an Auction, the Initiating Participant may submit the Initiating Order with a designation of “surrender” to the other PRISM Participants (“Surrender”), which will result in the Initiating Participant forfeiting the priority and trade allocation privileges which he is otherwise entitled to as per Section 9(ii)(E)(2)(a) and Section 9(ii)(F)(2)(a). If Surrender is specified the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price. The Surrender function will never result in more than the maximum allowable allocation percentage to the Initiating Participant than that which the Initiating Participant would have otherwise received in accordance with the allocation procedures set forth in this Rule. Surrender will not be applied if both the Initiating Order and PRISM Order are Public Customer orders. Surrender information will not be available to other market participants and may not be modified.
By way of example, an Initiating Participant may submit an Initiating Order with a “Surrender” percentage designation of up to forty percent (40%). If a surrender percentage designation of 40% is submitted, this would indicate no surrender.
The Exchange proposes to amend the current rule text, within Options 3, Section 13(ii)(A)(1), which provides, “. . .forfeiting the priority and trade allocation privileges which he is otherwise entitled to as per. . .”. This rule text is being removed in favor of simply citing directly to the allocation provisions (Section 13(ii)(E)(2)(a) and Section 13(ii)(F)(2)(a)). Also, the current rule text, “with a designation of “surrender” to the other PRISM Participants (“Surrender”)” is being removed because the proposed rule text defines “Surrender” as the percentage designation, which the Exchange believes more accurately defines “Surrender” within the rule text.
The Exchange is revising the second sentence of Options 3, Section 13(ii)(A)(1), which currently provides, “If Surrender is specified the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price.” The Exchange proposes to instead provide, “If zero (0%) is specified, the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price.” The Exchange believes that explaining if no percentage were elected for Surrender (0%) more clearly describes the remainder of the sentence which provides the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price, in light of the ability to configure the Surrender percentage with this proposal.
The Exchange proposes to amend Options 3, Section 13(ii)(A)(2) to add “price” as a detail which is specified today for a PRISM Auction Notification or “PAN.” Current Options 3, Section 13(ii)(A)(2) states, “When the Exchange receives a PRISM Order for Auction processing, a PAN detailing the side, size, and options series of the PRISM Order will be sent over the BX Depth feed and the Exchange's Specialized Quote Feed.” The Exchange is amending the current functionality of PRISM to disseminate “price” in addition to side, size, and options series similar to ISE, GEMX and MRX.
The Exchange proposes to amend Options 3, Section 13(ii)(A)(7), which currently provides, “A PAN response size at any given price point may not exceed the size of the PRISM Order. A PAN response with a size greater than the size of the PRISM Order will be immediately cancelled.” The Exchange is amending this rule in conjunction with the technology migration to conform the behavior of PAN responses to ISE, GEMX and MRX System behavior.
The Exchange proposes to amend Options 3, Section 13(ii)(A)(8) and (9) to replace the words “immediately cancelled” with “rejected.” These technical amendments are intended to
The Exchange proposes to amend Options 3, Section 13(ii)(C)
The Exchange proposes to amend Options 3, Section 13(ii)(E)(2)(a) to amend the System allocation to the Initiating Participant after Public Customer orders have been allocated. Today, the Exchange rule provides,
If the Initiating Participant selected the single stop price option of the PRISM Auction, PRISM executions will occur at prices that improve the stop price, and then at the stop price with up to 40% of the remaining contracts after Public Customer interest is satisfied being allocated to the Initiating Participant at the stop price. However, if only one other quote, order or PAN response matches the stop price, then the Initiating Participant may be allocated up to 50% of the contracts executed at such price. Remaining contracts shall be allocated, pursuant to Options 3, Section 13(ii)(E)(3) through (5) below, among remaining quotes, orders and PAN responses at the stop price. Thereafter, remaining contracts, if any, shall be allocated to the Initiating Participant. The allocation will account for Surrender, if applicable.
PRISM begins. During the PRISM Auction:
The Exchange proposes to amend rounding, within Options 3, Section 13(ii)(G). Today, BX PRISM rounds up or down to the nearest integer when it allocates. The Exchange is amending the rounding methodology to round up to the nearest integer. Options 3, Section 13(ii)(G) is being amended to reflect the new methodology. As a result of changing the rounding methodology, residual odd lots will no longer exist. If the result of an allocation is not a whole number, it will now be rounded up to the nearest whole number instead of down. Finally, with respect to rounding, because it is rounding up, the provisions which describe allocations for remainders of less than one contract cannot occur and, therefore, this rule text is being removed because such remainders would not be possible.
The Exchange proposes to amend Options 3, Section 13(ii)(H) to remove the phrase “then-existing.” Current Options 3, Section 13(ii)(H) provides, “If there are PAN responses that cross the then-existing NBBO (provided such NBBO is not crossed), such PAN responses will be executed, if possible, at their limit price(s).” The Exchange is not amending the current operation of the System, rather the Exchange is amending its rules to more accurately state, “If there are PAN responses that cross the NBBO at the time of execution (provided such NBBO is not crossed), such PAN responses will be executed, if possible, at their limit price(s).” The
The Exchange proposes to amend Options 3, Section 13(ii)(I), which currently provides:
If the price of the PRISM Auction is the same as that of an order on the limit order book on the same side of the market as the PRISM Order, the PRISM Order may only be executed at a price that is at least one minimum trading increment better than the resting order's limit price or, if such resting order's limit price is equal to or crosses the stop price, then the entire PRISM Order will trade at the stop price with all better priced interest being considered for execution at the stop price.
The Exchange proposes to amend Options 3, Section 13(ii)(K) to add the following introductory text which describes a PRISM ISO.
A PRISM ISO Order is the transmission of two orders for crossing pursuant to this Rule without regard for better priced Protected Bids or Protected Offers (as defined in Options 5, Section 1) because the Participant transmitting the PRISM ISO to the Exchange has, simultaneously with the routing of the PRISM ISO, routed one or more ISOs, as necessary, to execute against the full displayed size of any Protected Bid or Protected Offer that is superior to the starting PRISM Auction price and has swept all interest in the Exchange's Order Book priced better than the proposed auction starting price. Any execution(s) resulting from such sweeps shall accrue to the PRISM Order.
The Exchange proposes to correct Options 3, Section 13(ii)(K) to clearly describe the current System operation. The Exchange proposes to amend the first sentence of current Options 3, Section 13(ii)(K) to provide:
If a PRISM Auction is initiated for an order designated as a PRISM ISO Order, all executions which are at a price inferior to the Initial NBBO (on the contra-side of the PRISM Order) shall be allocated pursuant to the Size Pro-Rata execution algorithm, as described in Options 3, Section 10(a)(1)(C)(2), or Price/Time execution algorithm, as described in Options 3, Section 10 (a)(1)(C)(1), and the aforementioned priority in Options 3, Section 13(ii)(E) and (F) shall not apply, with the exception of allocating to the Initiating Participant which will be allocated in accordance with the priority as specified in Options 3, Section 13(ii)(E) and (F).
The Exchange states “on the contra-side of the PRISM Order” to distinguish the contra-side from the same side of the PRISM Order, which receives different treatment in allocation. This proposed amendment is intended to clarify the current System operation, not amend the System.
Finally, the Exchange proposes to renumber Options 3, Section 13(vi) to “(v).” This reflects the deletion of section “vi” which was described above in this proposal with respect to Public Customer-to-Public Customer orders. Public Customer-to-Public Customer orders submitted into PRISM would be subject to the procedures, within Options 3, Section 12(a).
The Exchange proposes to amend Options 3, Section 23, Data Feeds and Trade Information, to update its descriptions of the BX Depth of Market (BX Depth) and BX Top of Market (BX Top) data feeds. The Exchange proposes to amend the BX Depth data feed at Options 3, Section 23(a)(1) to more closely align with current System operation. The Exchange proposes a technical amendment to the first sentence to replace a comma with the word “and.” The Exchange also proposes to relocate rule text concerning order imbalances to the end of the description. The Exchange proposes to amend the first sentence to state “BX Depth of Market (BX Depth) is a data feed that provides full order and quote depth information for individual orders and quotes on the BX Options book, and last sale information for trades executed on BX Options.” The Exchange would amend and relocate the rule text that provides, “and Order Imbalance Information as set forth in BX Options Rules Options 3, Section 8” to the end of the first sentence. The Exchange proposes to add a sentence at the end of the description which states, “The feed also provides order imbalances on opening/re-opening (size of matched contracts and size of the imbalance), auction and exposure notifications.” This sentence makes clear that order imbalance information is provided for both an opening and re-opening process. Today, a re-opening process initiates after a trading halt has occurred intra-day. Also, the proposed rule provides the specific information that would be provided in the data feed, namely the size of matched contracts and size of the imbalance. Finally, auction
The Exchange also proposes to amend the description of the BX Top data feed, within Options 3, Section 23(a)(2). The Exchange proposes to amend the first sentence to provide that the BX Top “calculates and disseminates BX's best bid and offer and last sale information for trades executed on BX Options.” The current sentence provides that the BX Top, “is a data feed that provides the BX Options Best Bid and Offer and last sale information for trades executed on BX Options.” The Exchange believes that the amended description more clearly describes the BX Top data feed. Further, the Exchange proposes to amend the second sentence to provide, “The feed also provides last trade information and for each options series includes the symbols (series and underlying security), put or call indicator, expiration date, the strike price of the series, and whether the option series is available for trading on BX and identifies if the series is available for closing transactions only.” The current second sentence provides, “The data provided for each options series includes the symbols (series and underlying security), put or call indicator, expiration date, the strike price of the series, and whether the option series is available for trading on BX and identifies if the series is available for closing transactions only.” The Exchange believes noting that the last trade information is provided will make clear to market participants the data that is currently available on BX Top. This information is available today and the rule text is being amended to make clear what information is currently provided.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend the definition of “Public Customer” to conform to Phlx's definition is intended to provide greater specificity regarding what is meant by the term “Public Customer.” Specifically, the Exchange proposes to provide that a “Public Customer” could be a person or entity and is not a Professional as defined within Options 1, Section 1(a)(48).
The Exchange's proposal to remove a sentence within Options 1, Section 1(a)(48) which provides, “A Participant or a Public Customers may, without limitation, be a Professional,” is consistent with the Act. This sentence is confusing and not necessary. Phlx Options 1, Section 1(b)(46) does not contain a similar sentence. BX proposes removing this sentence because it does not add useful information to understanding who may qualify as a Professional.
The Exchange's proposal to remove sentences, within Options 3, Section 10(a)(1)(C)(1)(a), Options 3, Section 10(a)(2)(i), Options 3, Section 13, in the introductory paragraph, and Options 3, Section 13(ii)(E)(1) and (F)(1), which allocation and PRISM rules, respectively, provide that a Public Customer does not include a Professional, are consistent with the Act. Today, the definition of a Public Customer does not explicitly exclude a Professional. The language that the Exchange proposes to delete, today, indicates that Professionals would not be treated the same as a Public Customer in terms of priority and, therefore, would not receive the same allocation that is reserved for Public Customer orders. Because BX is amending the definition of a Public Customer to explicitly exclude Professionals, the language in the PRISM and allocation rules are no longer necessary to distinguish these two types of market participants.
The Exchange's proposal to amend BX Options 2, Section 5(d)(2) to add the words “Intra-Day” before the title “Bid/ask Differentials (Quote Spread Parameters)” and remove references to the opening, will make clear for Market Makers their intra-day requirements. The bid/ask differentials, within BX Options 2, Section 5(d)(2), will apply intra-day only. The bid/ask differentials applicable to the opening are noted within current BX Options 3, Section 8(a)(6).
The Exchange's proposal to amend BX Rules at Options 2, Section 4(f)(4)-(6) (Obligations of Market Makers and Lead Market Makers), which specifies quoting requirements for Lead Market Makers, to conform the rule to proposed BX Options 2, Section 5(d)(2), which applies to BX Market Makers, is consistent with the Act. The Exchange believes it is consistent with the Act to permit Lead Market Makers to quote as wide as Market Makers on BX.
Today, Lead Market Makers have higher quoting requirements and other obligations noted within Options 2, Section 3, than Market Makers, which accounts for their priority allocations, within Options 3, Section 10.
Replacing Options 2, Section 4(f)(4)—(6) with the rule text, within BX Options 2, Section 5(d)(2), would continue to require Lead Market Makers to quote with a difference not to exceed $5 between the bid and offer regardless of the price of the bid. However, instead of requiring Lead Market Makers to quote a price differential for any in-the-money option series identical to those in the underlying security market, in the event the bid/ask differential in the underlying security is greater than the bid/ask differential set forth in subsections (f)(4) and (5), the Exchange would now permit the bid/ask differential to be as wide as the spread between the national best bid and offer in the underlying security when the market for the underlying security is wider than $5. Further, replacing the exemptions from subsections (f)(4) and (5) and permitting BX to establish quote width differentials similar to BX Market Makers with this provision is consistent with the Act, because it would align the bid/ask differentials for BX Market Makers and BX Lead Market Makers with quoting requirements of other Nasdaq Affiliated Markets that have both Market Makers and Lead Market Makers.
The Exchange's proposal to amend Options 3, Section 5(c) to add additional rule text similar to Phlx Options 3, Section 5(c) is consistent with the Act. Today, BX re-prices certain orders to avoid locking and crossing away markets, consistent with its Trade-Through Compliance and Locked or Crossed Markets obligations.
The Exchange's proposal to amend the Cancel-Replacement Order, within Options 3, Section 7(a)(1), is consistent with the Act. The Exchange's proposal to amend its System functionality for Cancel-Replacement Orders that do not meet price or other reasonability checks, which consider the current market at the time of the Cancel-Replacement Order, is consistent with the Act, because, with this proposal, all Cancel-Replacement Orders would receive price or other reasonability checks as a result of being viewed as new orders. Price and size are the terms that will determine if the Cancel-Replacement Order retains its priority, as is the case today, other terms and conditions do not amend the priority of the Cancel-Replacement Order. The Exchange is not amending the current System functionality of a Cancel-Replacement Order with respect to the terms that will cause the order to lose priority. Today, the price of the order may not be changed when submitting a Cancel-Replacement Order, that would be a new order.
If a Cancel-Replacement Order does not pass a price or other reasonability check, the order will cancel, but it will not be replaced with a new order. The Limit Order Price Protection and Market Order Spread Protection are the only
The Exchange's proposal to amend “Directed Order,” within Options 3, Section 7(a)(2), is non-substantive and makes technical edits that do not change the meaning of the term.
The Exchange's proposal to amend “Limit Order,” within Options 3, Section 7(a)(3), to add the sentence for marketable limit orders currently within ISE, GEMX and MRX Options 3, Section 7(b)(1) is consistent with the Act. The Exchange believes that this description more aptly informs participants about a marketable limit order as compared to the current rule text, which may be confusing. The new sentence does not substantively amend the manner in which a Limit Order operates.
The Exchange's proposal to amend “Minimum Quantity Orders,” within Options 3, Section 7(a)(4), is non-substantive and makes technical edits that do not change the meaning of the term.
The Exchange's proposal to amend “Market Orders,” within Options 3, Section 7(a)(5), is consistent with the Act. The Exchange's proposes to style “Market Orders” in the singular and change “are” to “is an” and “orders” to “order” are technical and non-substantive amendments. The Exchange's proposal to add a notation at the end of the rule to provide that “Participants can designate that their Market Orders not executed after a pre-established period of time, as established by the Exchange, will be cancelled back to the Participant, once an option series has opened for trading” adds specificity regarding the opening. Market Orders submitted during the opening may be executed, routed (depending on instructions from the market participant) or cancelled if the Market Order is priced through the opening price. The Exchange would only cancel those Market Orders that remained on the Order Book once an option series opened. The pre-established period of time would commence once the intra-day trading session begins for that options series and the order would be cancelled back to the Participant, provided the Participant elected to cancel back its Market Orders. The Exchange's proposal differentiates when the opening is on-going, and the intra-day trading session has not commenced, the manner in which the pre-established period of time would commence.
The proposal to note that “Market Orders on the Order Book would be immediately cancelled if an options series halted, provided the Participant designated the cancellation of Market Orders” specifically addresses trading halts within the rule. Once an options series halts for trading, the Exchange conducts another Opening Process. In the case where a Market Order was resting on the Order Book, and the Participant had designated the cancellation of Market Orders, in the event of a halt, the Market Orders resting on the Order Book would immediately cancel. The Exchange believes that this text provides more detail for market participants to understand the manner in which the System handles Market Orders.
The Exchange's proposal to amend “Intermarket Sweep Order” or “ISO” Orders, within Options 3, Section 7(a)(6), is consistent with the Act. The Exchange is amending the current functionality of an ISO Order to require that ISOs have a time-in-force designation of Immediate-or-Cancel. Today, ISOs may have any time-in-force designation except WAIT, except that ISOs with a time-in-force designation of GTC are treated as having a time-in-force designation of “Day.” With this proposal, the Exchange would only continue to allow a time-in-force of IOC. A TIF designation of IOC that would cause an ISO Order to cancel in whole or in part upon receipt, in the event that the ISO Order does not execute or does not entirely execute, is consistent with the Act because an ISO is generally used when trying to sweep a price level across multiple exchanges in an effort to post the balance of an order without locking an away market.
The Exchange's proposal to remove the “One-Cancels-the-Other Order” is consistent with the Act because it will remove an order type that is not in demand on BX and simply the offerings provided by BX. The Exchange would file a proposed rule change with the Commission pursuant to Section 19b1 of the Act,
The Exchange's amendment to “All-or-None Order,” within Options 3, Section 7(a)(7), is non-substantive and does not change the meaning of the term. The amendment makes technical changes and replaces the words “opening cross” with “opening”.
The Exchange's proposal to include a “PRISM Order” and “Customer Cross Order” in the list of order types is consistent with the Act because the addition of these terms within the list of order types simply cross-references the existing order types and does not change the functionality of the order types. The Exchange's proposal defines this existing order type by cross-referencing Options 3, Section 13 and Options 3, Section 12(a), respectively, which explains these existing order types. The Exchange believes that adding these order types, within Options 7, Section 3, will bring greater clarity to the list of order types available on BX for the protection of investors and the general public.
The Exchange's proposal to amend an “Immediate-Or-Cancel” Order or “IOC,” within Options 3, Section 7(b)(2), is consistent with the Act. The Exchange's proposal replaces the current description with Phlx's description at Options 3, Section 7(c)(2) as these order types are identical. The Exchange's proposal to state that an Immediate-or-
Finally, orders entered into the PRISM Mechanism are considered to have a TIF of IOC; this is also true of the PIXL Mechanism on Phlx.
The Exchange's proposal to amend the TIF of “DAY” at Options 5, Section 7(b)(3) to conform the description of a TIF of “DAY” to Phlx Options 3, Section 7(c)(1)
The Exchange's proposal to amend the TIF of “Good Til Cancelled” or “GTC” at Options 5, Section 7(b)(4) is consistent with the Act. The Exchange proposes to conform the rule text to Phlx Options 3, Section 7(c)(4).
The Exchange's proposal to no longer offer a TIF of “WAIT” is consistent with the Act because it will remove an order type that is not in demand on BX and simply the offerings provided by BX. The Exchange would file a proposed rule change with the Commission pursuant to Section 19b1 of the Act,
The Exchange's proposal to note, within BX Options 3, Section 7(c), the various routing options which are available is consistent with the Act. These routing strategies are consistent with a recent rule change filed by BX to amend routing strategies.
The Exchange's proposal to amend its Order Book allocation rule, within Options 3, Section 10, to amend the manner in which rounding occurs is consistent with the Act because the Exchange is proposing to make transparent the manner in which rounding will occur once the technology migration occurs. Today, BX rounds up or down to the nearest integer. With this proposal, the Exchange would round up to the nearest integer. Also, corresponding changes are being made, within Options 3, Section 10, to update the rounding methodology. Removing unnecessary language regarding remainders is also consistent with the Act because remainders of less than one contract cannot occur with the new rounding method.
The Exchange believes that rounding up uniformly is consistent with the Act because it provides for the equitable allocation of contracts among the Exchange's market participants. The Exchange proposes to provide market participants with transparency as to the number of contracts that they are entitled to receive as the result of rounding. Further, the Exchange believes that this methodology produces an equitable outcome during allocation that is consistent with the protection of investors and the public interest because all market participants are aware of the methodology that will be utilized to calculate outcomes for allocation purposes.
The adoption of Customer Cross Orders is consistent with the Act because this proposal would permit Participants to enter and execute paired Public Customer-to-Public Customer Orders automatically outside of a PRISM Auction, while also protecting Public Customer Orders on the book at the same price. Today, the Exchange permits an Initiating Participant to enter a PRISM Order for the account of a Public Customer paired with an order
While the Exchange is limiting these orders to be entered through FIX, any market participant may utilize FIX. The Exchange believes that this proposal would allow all Participants the ability to continue automatically execute paired to enter Public Customer-to-Public Customer Orders as they do today, without the need to utilize PRISM. Public Customer-to-Public Customer Cross Orders will be rejected if they cannot be executed, as is the case today. Finally, Public Customer-to-Public Customer Cross Orders may only be entered in the regular trading increments applicable to the options class under Options 3, Section 3, as is the case today. Today, a Public Customer-to-Public Customer paired order could only be entered into PRISM to receive the treatment described within proposed Options 3, Section 13(vi). With this proposal, the manner in which Public Customer-to-Public Customer paired orders are being processed by the System is changing. With this proposal, Participants may enter Public Customer-to-Public Customer paired orders directly into FIX and receive the same treatment that these orders receive today when entered into PRISM. The only difference to a Participant is the manner in which the order must now be submitted directly into FIX to initiate a Customer Cross Order.
Further, the elimination of BX Options 3, Section 13(vi) is consistent with the Act because Public Customer-to-Public Customer Cross Orders would no longer be entered as PRISM Orders. With this proposal Public Customer-to-Public Customer Cross Orders would be entered through FIX as Customer Cross Order. The prohibition expressed within current BX Options 3, Section 13(vi) provided for only one PRISM Auction to be conducted at a time in any given series. Today, to initiate the Auction, the Initiating Participant must mark the PRISM Order for Auction processing. With this proposal, Public Customer-to-Public Customer Cross Orders would not be tagged as a PRISM Auction. The Public Customer-to-Public Customer Cross Orders would be entered as a separate order type and therefore would not potentially cause more than one PRISM Auction to occur in the same series.
In conjunction with this change, BX proposes to add the Customer Cross Order to Options 3, Section 22(a) and (c) as an exception to the rules for limitations on principal transactions and solicitation orders, which require Participants to expose trading interest to the market before executing agency orders as principal or before executing agency orders against orders that were solicited from other broker-dealers. Options 3, Section 22 contains language similar to current BX Options 3, Section 13(vi)(A). The Exchange believes that its proposal continue to protect customers and the general public by affirming that it is a violation of BX Options 3, Section 22(a)(1) for a Participant from executing agency orders to increase its economic gain from trading against the order without first giving other trading interests on the Exchange an opportunity to either trade with the agency order or to trade at the execution price when the Participant was already bidding or offering on the book.
The Exchange's proposal to amend the System functionality, within Options 3, Section 13, similar to ISE, GEMX and MRX Options 3, Section 13, to better any limit order or quote on the limit order book on the same side of the market as the PRISM Order, within Options 3, Section 13(i)(A) and (B), is consistent with the Act because expanding its consideration to both quotes and orders will consider a greater amount of interest present on BX's Order Book when initiating a PRISM. The addition of “quotes,” similar to ISE, GEMX and MRX at Options 3, Section 13, will enable the Exchange to consider additional interest in determining eligibility for PRISM. Today, BX Options 3, Section 13 only considers orders. With this System change, quotes and orders would be considered in determining the execution price of the PRISM order. This change will not impact the handling of orders and quotes and their respective priority on the limit order book. The Exchange is proposing to add “or quote,” within proposed Options 3, Sections 13(i) and (A) and (B) and (ii)(A)(1).
The Exchange's proposal to state the minimum increment allowable directly within the rule and not utilize references to Options 3, Section 3 is consistent with the Act because the Exchange will note the exact increment within the rule. This amendment does not amend the current System operation, rather it more simply states what that minimum increment is today. The Exchange proposes similar changes at Options 3, Section 13(ii)(A)(1), Options 3, Section 13(ii)(A)(6), Options 3, Section 13(ii)(C) and Options 3, Section 13(ii)(I).
The Exchange's proposal to amend the System functionality, within Options 3, Section 13(ii)(A)(1), for Surrender language is consistent with the Act because an Initiating Participant will be able to submit an Initiating Order with a configurable percentage designation of “Surrender” up to 40% or such lower percentage requested by the Participant. Today, the System permits an Initiating Participant to elect to receive either the full 40% allocation entitlement or no allocation at all. The Exchange believes that the proposed feature will provide an Initiating Participant with more flexibility to choose its priority allocation percentage, similar to functionality currently offered on ISE, GEMX and MRX at Options 3, Section 13(e)(5)(iii). Any Initiating Participant may elect to use the PRISM Surrender feature.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(1) to remove the following rule text, “. . . forfeiting the priority and trade allocation privileges which he is otherwise entitled to as per. . .”, is consistent with the Act, because the proposed text defines “Surrender” as the percentage designation, which the Exchange believes more accurately defines “Surrender.”
The Exchange's proposal to amend the second sentence of Options 3, Section 13(ii)(A)(1) to instead provide, “If zero (0%) is specified, the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price,” is consistent with the Act. The proposed text makes clear that if no percentage were elected for Surrender (0%) then the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(2) to add “price” to the PRISM Auction Notification or “PAN,” as part of the technology migration, is consistent with the Act because adding “price” to the list of details will provide Participants with greater transparency with respect to the PRISM and could encourage more competition in PRISM and greater opportunity for potential price improvement in PRISM. This rule change is similar to the behavior of PAN responses on ISE, GEMX and MRX.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(7) to conform the behavior of PAN responses to ISE, GEMX and MRX System behavior
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(8) and (9) to replace the words “immediately cancelled” with “rejected” is a non-substantive technical amendment. Non-eligible and non-compliant orders that are submitted into PRISM are rejected as those orders are reviewed for compliance with Exchange Rules, these orders are not immediately cancelled, as technically there is time, however miniscule, between the submission of the order and the rejection of the order. The Exchange believes this non-substantive change adds more clarity to the rule text.
The Exchange's proposal to amend Options 3, Section 13(ii)(E)(2)(a) to provide the Initiating Participant with a priority allocation based on the initial size of the Initiating Order after Public Customer interest has been satisfied is consistent with the Act. Allocating based on the “initial size of the Initiating Order” provides an expectation for Participants that respond to PRISM Orders, whether that allocation is price/time,
With this proposed change, the Exchange believes that Participants are better able to determine their allocation when responding with a PAN if the Initiating Participant's allocation is based on the initial size of the Initiating Order after Public Customer interest is satisfied, rather than the remaining contracts after Public Customer interest is satisfied. The Exchange's proposal provides greater transparency to market participants in that when they respond to the PRISM, they are aware of the initiating size, as compared to an undetermined remaining size which is unknown as responses are not visible to all market participants. The Exchange's proposal is similar to ISE, GEMX and MRX Options 3, Section 13(d)(3).
The Exchange's proposal to amend rounding, within Options 3, Section 13(ii)(G), is consistent with the Act. Today, BX PRISM rounds up or down to the nearest integer when it allocates. The Exchange is amending the rounding methodology to round up to the nearest integer. Options 3, Section 13(ii)(G) will reflect the new methodology and provide notice to Participants of this change to the methodology. The rounding methodology will be uniformly applied when allocating PRISM Orders.
The Exchange's proposal to amend Options 3, Section 13(ii)(H) to remove the phrase “then-existing” and instead note “at time of execution” to describe the NBBO is consistent with the Act. The Exchange is not amending the current operation of the System, rather the Exchange is amending its rules to more accurately state, “If there are PAN responses that cross the NBBO at the time of execution (provided such NBBO is not crossed), such PAN responses will be executed, if possible, at their limit price(s).” The current text appeared to state that the System was utilizing the NBBO upon execution to check if the PAN responses crossed the NBBO, however, the System utilizes the NBBO at the time of arrival to check of the PAN responses cross the NBBO. This amendment promotes just and equitable principles of trade, because it will ensure the execution price does not cross the Initial NBBO in accordance with linkage rules. This proposed clarification is not changing current functionality, and this functionality applies in the same manner to the responses of all Participants.
The Exchange's proposal to amend Options 3, Section 13(ii)(I) is consistent with the Act, because the Exchange seeks to make clear the current text contained in this section. The Exchange's proposal to add context to the rule to better reflect the current System operation is consistent with the Act because without the word
The Exchange's proposal to amend Options 3, Section 13(ii)(K) to add introductory text which defines a PRISM ISO is consistent with the Act. Phlx similarly describes a PIXL ISO in its rule text at Options 3, Section 13(b)(11).
The Exchange's proposal to correct Options 3, Section 13(ii)(K) to add “on the contra-side of the PRISM Order” is consistent with the Act, because this rule text clearly describes the current System operation. The Exchange states “on the contra-side of the PRISM Order” to distinguish the contra-side from the same side of the order, which receives different treatment in allocation. This proposed amendment is intended to clarify the current System operation, not amend the System.
Finally, the Exchange's proposal to renumber Options 3, Section 13(vii) to “(vi)” is a technical non-substantive amendment.
The Exchange's proposal to amend Options 3, Section 23, Data Feeds and Trade Information, to update its descriptions of the BX Depth of Market (BX Depth) and BX Top of Market (BX Top) data feeds is consistent with the Act, because the updated descriptions will bring greater transparency to the Exchange's rules.
The Exchange's proposal will make clear that order imbalance information is provided for both an opening and re-opening process within BX Depth. Today, a re-opening process initiates after a trading halt has occurred intra-day. Also, the Exchange's proposal notes the specific information that would be provided in the data feed, namely the size of matched contracts and size of the imbalance. Finally the auction and exposure notifications are also provided in the data feed. The Exchange believes that this additional context to imbalance messages as well as also noting that auction and exposure notifications are provided will provide market participants with more complete information about what is contained in the data feed. This information is available today within the data feed. The proposed rule text is being amended to make clear what information is currently provided.
With respect to the BX Top data feed, within Options 3, Section 23(a)(2), the amended description more clearly describes the BX Top data feed. Further, the Exchange believes noting that the last trade information is provided will make clear to market participants the data that is currently available on BX Top. This information is available in the data feed today and the rule text is being amended to make clear what information is currently provided.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to amend the definition of “Public Customer” to conform to Phlx's definition does not impose an undue burden on competition because it will make clear that a Public Customer could be a person or entity and clarifying that a Public Customer is not a Professional, as defined within Options 1, Section 1(a)(48),
Further, the Exchange's proposal to remove a sentence within Options 1, Section 1(a)(48) which provides, “A Participant or a Public Customers may, without limitation, be a Professional,” does not impose an undue burden on competition. This sentence is confusing and not necessary. Phlx Options 1, Section 1(b)(46) does not contain a similar sentence. BX proposes removing this sentence because it does not add useful information to understanding who may qualify as a Professional.
The Exchange's proposal to amend BX's Lead Market Maker quotation rules to conform to those of other BX Market Makers does not impose an undue burden on competition. This proposal conforms the requirements for all Market Makers. Today, Lead Market Makers have higher quoting requirements and other obligations noted within Options 2, Section 3, than Market Makers, which accounts for their priority allocations, within Options 3, Section 10.
Replacing Options 2, Section 4(f)(4)-(6) with the rule text, within BX Options 2, Section 5(d)(2), would continue to require Lead Market Makers to quoted with a difference not to exceed $5 between the bid and offer regardless of the price of the bid. However, instead of requiring Lead Market Makers to quote a price differential for any in-the-money option series identical to those in the underlying security market, in the event the bid/ask differential in the underlying security is greater than the bid/ask differential set forth in subsections (f)(4) and (5), the Exchange would now permit the bid/ask differential to be as wide as the spread between the national best bid and offer in the underlying security when the market for the underlying security is wider than $5.
Further, the additional allowance and exemptions are no longer necessary because the Exchange proposes to add rule text, similar to BX Options 2, Section 4(f)(5) and BX Options 5, Section 5(d)(2), which permits BX to establish differences other than the stated bid/ask differentials, for one or more series or classes of options. The ability to establish differences, other than the stated bid/ask differentials, for one or more series or classes of options already exists today for BX Lead Market Maker quoting requirements, however this discretion is limited by BX Options 2, Section 4(f)(6).
The Exchange's proposal to amend Options 3, Section 5(c) to add additional rule text similar to Phlx Options 3, Section 5(c) does not impose an undue burden on competition. Today, BX re-prices certain orders to avoid locking and crossing away markets, consistent with its Trade-Through Compliance and Locked or Crossed Markets obligations.
The Exchange's proposal to amend the Cancel-Replacement Order, within Options 3, Section 7(a)(1), does not impose an undue burden on competition. Price and size are the terms that will determine if the Cancel-Replacement Order retains its priority, as is the case today, other terms and conditions do not amend the priority of the Cancel-Replacement Order. The Exchange is not amending the current System functionality of a Cancel-Replacement Order with respect to the terms that will cause the order to lose priority. Today, the price of the order may not be changed when submitting a Cancel-Replacement Order, that would be a new order.
With this proposal, all Cancel-Replacement Orders would receive price or other reasonability checks as a result of being viewed as new orders. If a Cancel-Replacement Order does not pass a price or other reasonability check, the order will cancel, but it will not be replaced with a new order. The Limit Order Price Protection and Market Order Spread Protection are the only risk protections within Options 3, Section 15 (Risk Protections) that are applicable. Price or other reasonability checks consider the current market at the time the Cancel-Replacement Order is entered. The Exchange proposes to begin applying price or other reasonability checks to all Cancel-Replacement Orders, similar to ISE, GEMX and MRX, to provide market participants with additional risk protection checks with the re-entry of the Cancel-Replacement Order. This proposed rule is similar to ISE, GEMX and MRX Rules at Options 3, Section 7 at Supplementary Material .02, except that ISE, GEMX and MRX discuss Reserve Orders, which are not available on BX.
The Exchange's proposal to amend “Market Orders,” within Options 3, Section 7(a)(5) does not amend the manner in which a Market Order operates today on BX. The Exchange's proposal to add a notation at the end of the rule to provide that “Participants can designate that their Market Orders not executed after a pre-established period of time, as established by the Exchange, will be cancelled back to the Participant, once an option series has opened for trading” adds specificity regarding the opening. Market Orders submitted during the opening may be executed, routed (depending on instructions from the market participant) or cancelled if the Market Order is priced through the opening price. The Exchange would only cancel those Market Orders that remained on the Order Book once an option series opened. The pre-established period of time would commence once the intra-
The proposal to note that “Market Orders on the Order Book would be immediately cancelled if an options series halted, provided the Participant designated the cancellation of Market Orders” specifically addresses trading halts within the rule. Once an options series halts for trading, the Exchange conducts another Opening Process. In the case where a Market Order was resting on the Order Book, and the Participant had designated the cancellation of Market Orders, in the event of a halt, the Market Orders resting on the Order Book would immediately cancel. Market Orders would apply uniformly to all market participants.
The Exchange's proposal to amend “Intermarket Sweep Order” Order or “ISO,” within Options 3, Section 7(a)(6), does no impose an undue burden on competition. The Exchange is amending the current functionality of an ISO Order to require that ISOs have a time-in-force designation of Immediate-or-Cancel. Today, ISOs with a time-in-force designation of GTC are treated as having a time-in-force designation of Day. All ISO Orders would be treated in a uniform manner.
The Exchange's proposal to remove the “One-Cancels-the-Other Order” and “WAIT” TIF do not impose an undue burden on competition. The Exchange will no longer permit this order type and TIF for any market participant with the technology migration. Further, it will remove an order type that is not in demand on BX and simply the offerings provided by BX.
The Exchange's proposal to include a “PRISM Order” and “Customer Cross Order” in the list of order types does not impose an undue burden on competition because the addition of these terms within the list of order types simply cross-references the existing order types and does not change the functionality of the order types.
The Exchange's proposal to amend an “Immediate-Or-Cancel” Order or “IOC,” within Options 3, Section 7(b)(2), does not impose an undue burden on competition. The Exchange is adding additional context, similar to Phlx, with respect to routing, submission through FIX or SQF and the price protections that apply when utilizing SQF, which will provide market participants with greater information for the protection of investors and the general public. Market Makers utilize IOC Orders to trade out of accumulated positions and manage their risk when providing liquidity on the Exchange. Proper risk management, including using these IOC Orders to offload risk, is vital for Market Makers, and allows them to maintain tight markets and meet their quoting and other obligations to the market. The Exchange believes that allowing Market Makers to submit IOC Orders though their preferred protocol increases their efficiency in submitting such orders and thereby allow them to maintain quality markets to the benefit of all market participants that trade on the Exchange. Further, unlike other market participants, Market Makers provide liquidity to the market place and have obligations.
The remainder of the amendments, within Options 3, Section 7, are technical in nature or non-substantive.
The Exchange's proposal to amend its Order Book allocation rule, within Options 3, Section 10, to amend the manner in which rounding occurs does not create a burden on competition because the Exchange is proposing to make transparent the manner in which rounding will occur once the technology migration occurs. All Participants will be subject to the rounding methodology when PRISM Orders allocate.
The adoption of Customer Cross Orders does not impose an undue burden on competition. This proposal would continue to permit any Participant to enter and execute paired Public Customer-to-Public Customer Orders automatically outside of a PRISM Auction, while also protecting Public Customer Orders on the book at the same price. Today, the Exchange permits an Initiating Participant to enter a PRISM Order for the account of a Public Customer paired with an order for the account of a Public Customer and such paired orders will be automatically executed without a PRISM Auction.
The Exchange's proposal to amend the System functionality, within Options 3, Section 13, similar to ISE, GEMX and MRX Options 3, Section 13, to better any limit order or quote on the limit order book on the same side of the market as the PRISM Order, within Options 3, Section 13(i)(A) and (B), does not impose an undue burden on competition. The addition of “quotes,” similar to ISE, GEMX and MRX at Options 3, Section 13, will enable the Exchange to consider additional interest in determining eligibility for PRISM.
The Exchange's proposal to state the minimum increment allowable directly within the rule and not utilize references to Options 3, Section 3 does not impose an undue burden on competition as these amendments merely restate the current increment.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(1), for Surrender language does not impose an undue burden on competition because, with this proposal, all Participants will be able to submit an Initiating Order
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(1) to remove the following rule text, “. . .forfeiting the priority and trade allocation privileges which he is otherwise entitled to as per. . .”, does not impose a burden on competition because the proposed text defines “Surrender” as the percentage designation, which the Exchange believes more accurately defines “Surrender”.
The Exchange's proposal to amend the second sentence of Options 3, Section 13(ii)(A)(1) to instead provide, “If zero (0%) is specified, the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price,” does not impose a burden on competition. The proposed text makes clear that if no percentage were elected for Surrender (0%) then the Initiating Order will only trade if there is not enough interest available to fully execute the PRISM Order at prices which are equal to or improve upon the stop price.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(2) to add “price” as a detail, which is specified today for a PRISM Auction Notification or “PAN,” does not impose a burden on competition because adding “price” to a PAN will be greater transparency with respect to the PRISM and could encourage more competition in PRISM and greater opportunity for potential price improvement in PRISM.
The Exchange's proposal to amend Options 3, Section 13(ii)(A)(7) to conform the behavior of PAN responses to ISE, GEMX and MRX System behavior
The Exchange's proposal amend Options 3, Section 13(ii)(A)(8) and (9) to replace the words “immediately cancelled” with “rejected” is a non-substantive technical amendment.
The Exchange's proposal to amend Options 3, Section 13(ii)(E)(2)(a) to provide the Initiating Participant with a priority allocation based on the initial size of the Initiating Order after Public Customer interest has been satisfied does not impose a burden on competition. With this proposed amendment, all Participants would be allocated based on the initial size of the Initiating Order after Public Customer interest has been satisfied. The Exchange's proposal is similar to ISE, GEMX and MRX Options 3, Section 13(d)(3).
The Exchange's proposal to amend rounding, within Options 3, Section 13(ii)(G), does not impose a burden on competition. The rounding methodology will be uniformly applied when allocating PRISM Orders.
The Exchange's proposal to amend Options 3, Section 13(ii)(H) to remove the phrase “then-existing” and instead note “at time of execution” to describe the NBBO does not impose a burden on competition. The Exchange is not amending the current operation of the System. The Exchange will uniformly check if the PAN responses crossed the NBBO at the time of execution.
The Exchange's proposal to amend Options 3, Section 13(ii)(I) does not impose an undue burden on competition. Without the word “execution” in this sentence, a comparison of the “price of the PRISM auction” does not clearly differentiate the price in question as the execution price of the PRISM Auction or the original stop price of the PRISM Order. Without this clear differentiation, Options 3, Section 13(ii)(I) can be interpreted to describe scenarios that cannot happen. The Exchange's proposed addition of the word “execution” in the first sentence of Options 3, Section 13(ii)(I) reflects current System handling. The execution price of the PRISM Auction is utilized to compare to the price of an order on the limit Order Book. Adding the word “execution” makes clear to Participants that the initial PRISM stop price is not utilized to compare the same side of the market transactions. While “or better” is not clearly specified, it is the case today and its inclusion is meant to capture cases where PAN responses provide price improvement for the PRISM Order at prices that are crossed with the same side interest mentioned above. The proposed wording is intended to provide greater clarity to Participants for System handling with respect to same side of the market executions against the Order Book. The proposed amendments reflect current System handling are would not result in changes to the System. The remaining amendments are technical and non-substantive.
The Exchange's proposal to amend Options 3, Section 13(ii)(K) to add introductory text which defines a PRISM ISO does not impose a burden on competition. Phlx similarly describes a PIXL ISO in its rule text at Options 3, Section 13(b)(11).
The Exchange's proposal to correct Options 3, Section 13(ii)(K) to add “on the contra-side of the PRISM Order” does not impose a burden on competition because this rule text clearly describes the current System operation. The Exchange provides that “on the contra-side of the PRISM Order” to distinguish the contra-side from the same side of the order, which receives different treatment in allocation. This proposed amendment is intended to clarify the current System operation, not amend the System.
Finally, the Exchange's proposal to renumber Options 3, Section 13(vi) to “(v)” is technical and non-substantive.
The Exchange's proposal to amend Options 3, Section 23, Data Feeds and Trade Information, to update its descriptions of the BX Depth of Market (BX Depth) and BX Top of Market (BX Top) data feeds does not impose an undue burden on competition because the updated descriptions will bring greater transparency to the Exchange's rules.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
LCH SA, a registered clearing agency and self-regulatory organization, is a majority-owned subsidiary of LCH Group Holdings Limited (“LCH Group”).
In its filing with the Commission, LCH SA included statements concerning the purpose of and basis for the Proposed Rule Change and discussed any comments it received on the Proposed Rule Change. The text of these statements may be examined at the places specified in Item IV below. LCH SA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Proposed Rule Change is being adopted in significant part to conform LCH SA's Governance Documents to actions taken by LCH Group to simplify its governing arrangements and to eliminate provisions in LCH Group's governance documents that they have determined are unnecessary and outdated. These changes will allow the LCH group as a whole to operate more efficiently and effectively. Although LCH SA's Governance Documents will be revised to reflect the changes to the LCH Group's governing arrangements described below, in practice, these revisions will not result in any substantive changes in LCH SA's current governance.
In connection with its purchase of approximately 58 percent of LCH Group
The Relationship Agreement also provided for certain minority protection reserved matters, which would require the approval of 80 percent of votes cast on a resolution, including: (i) Altering the constitutional documents of LCH Group; (ii) making material changes to the Core Operating Principles; (iii) proposals to wind-up LCH Group or any material LCG Group company; and (iv) material amendments to the Relationship Agreement.
In addition, the Relationship Agreement contained customary consent rights for LSEG as a majority shareholder, including: (i) Approval of business and budget plans; (ii) matters representing changes from the Core Operating Principles; (iii) material changes to regulatory obligations and risk profile; (iv) material acquisitions/disposals; and (v) settlement of material litigation (collectively, “Consent Matters”). The Relationship Agreement also reserved for LSEG the right to put certain matters to shareholder vote where LCH Group either failed to consider the matter or considered it and voted it down (“Push Matters”).
As noted above, LCH Group has determined to simplify its governing arrangements and to eliminate provisions in LCH Group's governance documents that are unnecessary and outdated. In this regard, LCH Group and LSEG have decided to terminate the Relationship Agreement and to remove duplication in board decision-making between LCH Group and the CCP Boards by making the LCH Group Board an internal only board,
The Relationship Agreement is no longer necessary because certain contractual provisions are provided for in law of regulation and other provisions are historic and no longer relevant. Importantly, since 2013, LSEG has added to its shareholdings in LCH Group and now owns approximately 83 percent of LCH Group. Therefore, the minority protection provisions noted above are no longer relevant as LSEG alone could approve such matters by voting its shares. As explained below, however, certain protections in the Relationship Agreement will be incorporated into the revised ToR of the Board of Directors.
As noted earlier, the Proposed Rule Change is being adopted in significant part to conform LCH SA's Governance Documents to actions taken by LCH Group to simplify its governing arrangements. These changes will allow the LCH group as a whole to operate more efficiently and effectively. Importantly, there will be no change in the proportion of independent directors
The ToR of the Board will be amended as necessary to remove those provisions that are no longer required as a result of the termination of the Relationship Agreement and the amendment of the LCH Group Articles of Association:
• Article 2, Definitions, will be amended to remove those definitions arising from the Relationship Agreement, including: (i) Core Operating Principles; (ii) Customer; (iii) Customer Director; (iv) Group Nomination Committee (which is being disbanded); (v) LSEG Audit Representative; (vi) LSEG Consent Matters; (vii) LSEG NomCom Representative; (viii) Material Interest; (ix) Minority Protection Reserved
• Article 3, Composition of the Board, will be amended (i) to remove the requirement that the Chairman of LCH Group will be a non-executive director of the Board, (ii) to confirm that LSEG is entitled to a representative on the Board unconditionally,
• Article 4, Rules applicable to Directors, will be amended to remove references to the Relationship Agreement (and Consent Matters, Minority Protection Reserved Matters and Push Matters therein) and refer only to rights of consent that LSEG may have under this ToR.
• Article 6, Quorum, will be amended to make a technical correction to the first sentence of the article. The sentence currently provides that the Board “may validly deliberate only if half of the Directors are present.” This sentence could be interpreted to mean that the Board could not deliberate if more than half of the Directors are present, which clearly is not intended. As proposed to be revised, this sentence will confirm that the Board “may validly deliberate only if at least half of the Directors are present.”
• Article 12, Powers of the Board, will be amended to remove references to the Relationship Agreement, including the Core Operating Principles. However, the amendments to Article 12 will also confirm that the Board's authority with respect to certain matters remains subject to LSEG's consent. These matters, previously included in the Relationship Agreement, include: (i) Approval of LCH SA's annual operating and capital expenditure budget; (ii) approval of any material changes to LCH SA's budget; (iii) approval of the terms and conditions of any merger agreement between the LCH SA and a third party; and (iv) approval of a decision of LCH SA to issue new shares. LSEG's consent will also be required with regard to any matter that constitutes a material increase in the risk profile of LCH SA's investment policy or capital management policy that would result in a material decrease in LCH SA's available liquidity resources (subject to certain exceptions). In addition, LSEG's consent will be required with respect to (a) any recommended changes to the structure, size and composition of the Board that the Board, upon recommendations from the Nomination Committee, may recommend for approval by a general meeting of the shareholders, and (b) the ToR of any Board committees and any changes thereto, to the extent provided for in the ToR of the Board or the ToR of the affected committee.
Article 12 will also be amended to reflect the existing group dividend policy including the factors to be taken into account when determining the dividend (as currently set out in the Relationship Agreement and the Euronext shareholders' agreement). Dividends are subject to the vote of the shareholders, having regard for: (i) Applicable regulatory and regulatory capital requirements; (ii) restrictions in any finance documents; (iii) investment to support capital expenditure contemplated by the business plan and budget from time to time, including technology, taking into account future expected cash flows; and (iv) applicable laws.
Moreover, Article 12 will be amended to clarify that the Board will approve at least annually the LCH Group Risk Governance Framework and LCH SA's various policies, including LCH SA's: (i) Financial Resource Adequacy Policy; (ii) Default Management Policy; (iii) Collateral Risk Policy; (iv) Investment Risk Policy; (v) Liquidity Risk Policy; (vi) Settlement, Payment & Custody Risk Policy; (vii) Counterparty Credit Risk Policy; (viii) Contract and Market Acceptability Policy; (ix) Model Governance, Validation & Review Policy; (x) Operational Risk Policy; (xi) and Procyclicality Policy and any significant changes to those policies upon recommendations from the Risk Committee. Finally, Article 12 will be amended to confirm that, in appointing the Chairman of the Board and the LCH SA CEO, the Board will act in accordance with the ToR of the Nomination Committee.
• Article 13, Company management (Chairman—CEO), will be amended to provide that certain actions, which previously the CEO was authorized to take with the consent of the Board, may be undertaken only after consultation with the board of LCH Group. These activities include: (i) Any type of joint venture arrangement between LCH SA and any third party; (ii) any acquisition of a business with a valuation representing five percent or more of LCH SA's net revenue stated in the last audited accounts published by LCH SA; (iii) any disposal of all or any material part of LCH SA's business; (iv) any decision to cease to operate all or any material part of LCH SA's business; (v) any acquisition or disposal of shares or any interest in shares of LCH SA, any significant investment in any third party or the making of any takeover offer; and (vi) any material acquisitions and disposals, including in relation to intellectual property and LCH SA's various business segments and group undertakings.
Article 13 will also be amended to provide that, in line with LSEG's consent rights in the Relationship Agreement, LSEG will have the right to consent with regard to the settlement of any litigation that could result in a
• Article 14, Conflicts of Interest, will be amended to provide that, notwithstanding the general prohibition on a Director nominated by a shareholder of LCH Group from sharing information with the shareholder of LCH Group without the consent of the independent non-executive Directors of the Board, information may be shared with LSEG, in its capacity as an indirect shareholder of LCH SA, for legal, accounting, tax regulatory or disclosure purposes.
• Article 15, Committees of the Board, will be amended to note (i) the addition of a new committee, the Technology, Security and Resilience Committee, and (ii) that the Group Nomination Committee is now the Nomination Committee,
• Article 16, Audit Committee, will be amended to remove the requirement that the ToR of the Audit Committee must be substantially similar to the terms of reference of the Audit Committee of LCH Group (as this will no longer exist) and to recognize that changes in the ToR may be required by LCH SA's regulators (and not LCH Group's regulators) or any applicable law or regulation. The ToR must be reviewed annually by the Board, and (ii) are subject to the approval of the Board and to the consent of LSEG, in respect of the rights of LSEG under the ToR. Finally, the amended Article 16 will confirm that a Director representing LSEG and a Director representing Euronext will be a part of the Audit Committee.
• Article 17, Risk Committee, will confirm that a Director representing LSEG will be vice-chairman of the Risk Committee. The ToR must be reviewed annually by the Board, and (ii) are subject to the approval of the Board and to the consent of LSEG, in respect of the rights of LSEG under the ToR.
• Article 18, Nomination Committee, will be amended to remove any reference to the Group Nomination Committee and the requirement that, in the event LCH SA establishes its own Nomination Committee, its ToR must be substantially similar to the terms of reference of the LCH Group Nomination Committee. As amended, Article 18 will provide that the ToR of the Nomination Committee (i) must be reviewed annually by the Board, and (ii) are subject to the approval of the Board and to the consent of LSEG.
• Article 19, Remuneration Committee, will be amended to remove the provision requiring the ToR to take into account the remuneration policies and principles of the LCH Group Remuneration Committee (which is being disbanded). However, the requirement to take into account the remuneration policies and principles applied by LSEG for its executive management remains. Any change in LSEG's rights under the ToR is subject to LSEG's consent. Finally, Article 19 confirms that a Director representing LSEG will be a member of LCH SA's Remuneration Committee.
• Article 20, Technology, Security and Resilience Committee, is a new article that recognizes the establishment of the Technology, Security and Resilience Committee, and provides that its organization and functions will be set out in a ToR, which are reviewed annually and subject to the approval of the Board.
• Article 25, Related party agreements between LCH SA and a manager, a Director or a shareholder, will be amended to provide that any contracts and agreements between LCH SA and LSEG or any member of the LSEG Group,
• New Article 26, Group Compliance, will provide that, in light of LSEG's obligations under the Financial Conduct Authority's Listing Rules, the Board will notify LSEG of any proposed transaction in relation to LCH SA or of which the Board is otherwise aware that may constitute for LSEG either (i) a significant transaction under Listing Rule 10, or (ii) a related party transaction under Listing Rule 11. Further, if LSEG informs the Board that the proposed transaction constitutes a transaction (or other relevant matter) under Listing Rule 10 or 11, the transaction will not take place without the prior approval of LSEG.
• New Article 27, Amendment, will provide that the Board ToR may be amended by the Board, provided that any changes to LSEG's rights or any changes which would otherwise have a detrimental effect on LSEG's rights pursuant to the ToR will be subject to LSEG's consent.
As noted earlier, as a part of the LCH Group governance changes, the committees of the Board of LCH Group will be disbanded. Therefore, LCH SA will establish its own Nomination Committee. Although this ToR is entirely new to LCH SA, it is based in substantial part on the provisions of the Group Nomination Committee applicable to LCH SA.
The structure of the Board established under the Nomination Committee ToR will be essentially the same as it is today. Specifically, Article 2, Purpose, will provide that the Nomination Committee will recommend: (i) An independent Chairman; (ii) up to four independent directors; (iii) up to two User Directors; (iii) a director nominated by LSEG; and (iv) a director nominated by Euronext.
As discussed above, under the Nomination Committee ToR, there will be no change in the proportion of independent directors or the number of directors representing members and participants. It should be noted, however, that the Group Nomination Committee ToR had provided for up to two representatives of Venues. As explained earlier, with the exception of Euronext, there have been no Venue representatives on the LCH SA Board for some time. Because Euronext is entitled to Board representation through its contractual arrangements,
Article 5, Executive Management Team, will provide that LCH SA's CEO, in consultation with the LCH Group CEO will be responsible for appointing the management team for LCH SA. This provision is intended to ensure independence at the CCP level.
Article 6, Duties and Powers of the Committee, will set out the duties and powers of the Nomination Committee. Among other duties, the committee must: (i) Be satisfied that candidates understand the responsibilities of Board membership and be able to devote to necessary time to LCH SA matters; (ii) ensure that its recommended candidates are respected for their competence and are of good standing in their field of business; and (iii) keep itself informed of any changes in law or regulations applicable to the composition of the Board and other matters for which the committee is responsible.
Article 7, Procedures of the Committee, will set out the procedures of the Nomination Committee. As they relate to the appointment of the Chairman and the Independent Directors, Article 7 will provide that the committee will maintain a short list of potential candidates and consult with the CEO of LCH Group and the CEO and the Chairman of LSEG as to the suitability of the candidates. With regard to the appointment of a new Chairman, the committee will also consult with the Independent Directors.
Article 7 further provides that, in determining whether a candidate is fit for appointment as Chairman or as an Independent Director, the committee will consider whether there are relationships or circumstances (including with LSEG or any member of LSEG Group) likely to affect such person's judgment and whether the candidate has a relationship that would disqualify such person as a “public director” within the meaning of CFTC rules in force from time to time or as an “independent director” under any corporate governance standards applicable from time to time, or which the Board otherwise determines should be complied with in the interests of best practice corporate governance.
Finally, in making recommendations with regard to Independent Directors, the committee will take into account that there should be among the Independent Directors: (i) A breadth of industry expertise and experience and product knowledge; (ii) particular expertise and experience in each of risk management, audit, clearing services and financial services; and (iii) diversity, including gender, age, geographical provenance, and educational and professional background.
The procedures for the appointment of User Directors are set out in Appendix to Article 7 (“Appendix”). Under these procedures, if a User Director retires from the Board, the committee may invite an “Eligible User”, as defined,
In deciding whether to approve a candidate for appointment to the Board (each, an “Approved Candidate”), the committee will have regard for: (i) The seniority, experience, skill and expertise of each candidate; (ii) the regulatory good standing of each candidate; (iii) the desirability of having deep expertise on a wide range of products, including those which pose the greatest risk challenges for LCH SA from time to time; and (iv) the desirability of having significant experience and expertise in LCH SA's principal markets; and (v) the desirability of diversity on the Board, including gender, age, geographical provenance, and educational and professional background.
From the Approved Candidates, the committee selects a number of “Proposed Directors” that is equal to the number of User Directors that are retiring from the Board and presents the Proposed Directors to LSEG for approval. If LSEG does not approve a Proposed Director, the Nominating User may accept LSEG's decision, in which case, the committee may select another Proposed Director from among the Approved Candidates to be put to LSEG for approval, or the Nominating User may propose one or more alternative candidates to be considered and, if approved, be put to LSEG for approval.
Article 8, Tenure of Directors, will provide that each director (other than the Executive Directors and User Directors) will have, in principle, a maximum tenure on the Board of three three-year terms. However, the Committee may nominate an Independent Director for such longer period as is necessary to ensure that not all such Independent Directors' appointments terminate at the same time. All User Directors will have a tenure on the Board of one three-year term, unless otherwise agreed by the Board to ensure that not all such User Directors' appointments terminate at the same time. Article 8 further provides that the terms of appointment of each User Director will provide that the User Director must retire from the Board if any of the circumstances set out in sub-paragraphs 2(a) through 2(e) of the Appendix occurs.
Article 9, Membership of the Nomination Committee, will provide that the members of the Nomination Committee will be appointed by the Board and be comprised of four to six directors, including the Chairman, at least two Independent Directors, one User Director and the LSEG Director. The Chairman of the Board, or such other Independent Director as the Independent Directors and LSEG may agree, will be the Chairman of the committee.
Articles 10 and 12 through 16 will establish the Committee's policies with regard to the conduct of meetings. In this regard, these articles provide that: (i) LCH SA's secretary will be the secretary of the Committee (Article 10); (ii) notice of meetings will be provided by the secretary or Committee Chairman in a timely manner, along with an agenda and supporting documents (Article 12); (iii) the Committee will meet at least twice each year and as necessary to fulfill its duties (Article 13); (iv) Committee meetings may be held in person, by telephone, by video conference or any combination thereof, and decisions may be made by email circulation, provided approval is unanimous (Article 14); (v) one Independent Director, one User Director, and the LSEG Director must be in attendance to constitute a quorum of the Committee, authorized to exercise all authorities of the Committee (Article 15); and the secretary will prepare minutes of all Committee meetings, which will be presented to the Committee for approval at its next meeting.
Article 11, Tenure of Nomination Committee Members, will provide that, in the event a member of the Committee ceases to be a director or LCH SA, the member will automatically cease to be a member of the Committee.
Article 17, Reporting and Reviews, will provide that the Committee will furnish to the Board for approval each year a summary of (i) its activities, (ii) the process used to make nominations, (iii) a description of its policy on diversity (including gender), any measurable objectives it has set for implementing the policy and progress on achieving such objectives, and (iv) will either explain if external advice or search consultants have not been used or, if they have been used, identify them and state whether they have a connection with LCH SA.
Article 18, Amendment, will provide that the ToR may be amended with approval of the Board, subject to LSEG's consent.
Article 19, Confidentiality and Conflicts of Interest, will set out the requirements with respect to confidentiality and conflicts of interest and provides that all confidential matters considered by the committee and any confidential information disclosed to members of the committee in connection with their position as a member of the committee must remain confidential, notwithstanding the company to which that information relates, nor whether the member is a director of that company or not, except as required to be disclosed by law or regulation. Conflicts of interest relating to committee members will be governed by the relevant articles in LCH SA's Articles of Association.
Article 20, Other, will provide that (i) the Committee will have sufficient resources to carry out its duties, (ii) every member of the Committee will receive a copy of the ToR, and (iii) every member of the Committee will receive appropriate and timely training, including access to external consultancy support, when required.
No substantive changes are proposed to be made to the ToR of the Risk Committee. The ToR will be amended primarily to reflect the changes in the LCH Group governing arrangements. For example, (i) Article 1, Composition, will be revised to reference the criteria for independence set out in LCH SA's Nomination Committee ToR rather than in LCH Group's Nomination Committee ToR, and (ii) Article 16, Confidentiality and Conflicts of Interest, will be revised to remove reference to any rights LSEG may have in the Relationship Agreement and refer, instead, to rights LSEG or its representatives have under this ToR.
Article 1 will also been amended to remove as unnecessary the provision that authorized LSEG to appoint the Vice Chairman of the committee only for so long as LSEG is entitled to exercise or control the exercise of at least 40 percent of the votes able to be cast on all or substantially all matters at general meetings of LCH SA. Provided such person has the skills and experience commensurate with such a role, LSEG will be entitled to appoint the Vice Chairman of the committee without restriction.
Article 20, Other, will be amended to provide that LSEG must consent to any amendments to: (i) Paragraph 1.2.6, recognizing the authority of LSEG's Head of Financial Risk (or delegate) to attend meeting of the Risk Committee; (ii) paragraph 1.4, authorizing LSEG to appoint the Vice Chairman of the committee; (iii) paragraph 16.1, relating to confidentiality and conflicts of interest; and (iv) paragraph 20.6, recognizing the provisions of the ToR requiring LSEG's consent. Further, no provisions of ToR may be amended without the approval of the Board.
No substantive changes are proposed to be made to the ToR of the Audit Committee. However, Article 2, Structure and Membership, will be revised to reference the criteria for independence set out in LCH SA's Nomination Committee ToR rather than in LCH Group's Nomination Committee ToR and, further, will be amended to provide that one member of the Audit Committee will be a director recommended or approved by LSEG.
Article 3, Authority and Responsibilities, will be amended to remove the requirement that LCH SA's Audit Committee coordinate with the Audit Committee of LCH Group. However, Article will be amended to require the committee to coordinate with the Technology, Security and Resilience Committee.
Article 5, Reporting, will be amended to confirm that Committee secretary will present all minutes of the proceedings and resolutions of all Committee meetings to the Committee for approval at the next following meeting.
Current Article 8, Annual Evaluation and Terms of Reference Review, which provides that the Committee will arrange for periodic reviews of its own performance and, at least annually, arrange for independent internal review of its constitution and these Terms of Reference, will be removed. This review is conducted, instead, by the Board and executive management.
Article 8, Amendments, will be added, which will specify those provisions of the ToR that may be approved solely by the Board and those provisions that will also require LSEG's consent.
The ToR of the Remuneration Committee will be amended to reflect some minor changes in the remuneration process. For example, Article 1, Duties and Powers of the Committee will be revised to provide that the remuneration policies will apply to “Specified Executives” rather than “Executive Management”. This is a technical change to confirm that the remuneration policies will apply only to those executives identified in the ToR or otherwise specified by the Board and will not apply to other LCH SA executives who otherwise might be deemed to fall within the category of “Executive Management” for other purposes. As defined, “Specified Executives” means, with respect to LCH SA, the Executive Directors, the CEO, the Chief Risk Officer, the Chief Compliance Officer, and any other personnel designated by the Board from time to time.
Article 2, Composition of the Committee, will be revised to remove as unnecessary the provision that LSEG is entitled to appoint a representative to the committee only for so long LSEG is entitled to exercise or control the exercise of at least five percent of the votes able to be cast on all or substantially all matters at general meetings in Group.
Article 10. Amendment, will be amended to confirm those paragraphs of the ToR that may only be amended with the approval of the Board and the consent of LSEG.
Article 12, Confidentiality and Conflicts of Interest, will be revised to remove reference to any rights LSEG may have in the Relationship Agreement and refer, instead, to rights LSEG or its representatives have under this ToR.
Unrelated to the changes in its governance arrangements described above, LCH SA has also established ToR for a Technology, Security and Resilience Committee of the Board.
Article 1, Purpose, will provide that the purpose of the Committee is to “represent the interests of the Board in the sound management of technology, security and operational resilience, including cyber security, to ensure that technology security and operational resilience strategies, investments and outcomes support the mission, values, and strategic goals” of LCH SA, and determine whether management has put in place adequate strategies that provide reasonable assurance that LCH SA “operates within its risk appetite and complies with regulatory requirements.”
To this end, the Committee will assist the Board in fulfilling its responsibilities relating to,
Article 2, Structure and Membership, will provide that the Committee will be comprised of at least four directors of the Board. At least two members of the Committee will be Independent Directors, one of whom will be appointed by the Chairman of the Committee. Both Independent Directors must satisfy the criteria for independence set out in the ToR of the Nomination Committee. One member of the Committee must also be a member
Article 2 will further provide that he Committee will meet as frequently as it determines necessary but must meet no less frequently than three times a year. Two members of the committee will constitute a quorum, provided at least one member is an independent director. Remuneration of the Committee members will be determined by the Board, and no member of the Committee may receive any consulting, performance, advisory or other compensatory fee from LCH SA other than fees paid in member's capacity as a member of the Board or as a member of a Committee of the Board.
Article 3, Reports to the Committee, will provide that the Committee will receive and review periodic management information for relevant operations and technology metrics and will align its meeting schedule with the requirements of the Board.
Article 4, Authority and Responsibilities, will describe the specific functions of the Committee, including: (i) Reviewing LCH SA's operations and technology strategy and policies including application and infrastructure architecture; (ii) reviewing and, as appropriate, making recommendations to the Board regarding significant technology investments in support of LCH SA's technology strategy; (iii) reviewing and, as appropriate, making recommendations to the Board regarding the resources and delivery of LCH SA's technology programs; (iv) reviewing any information technology resilience, cyber and information security programs, tracking progress in relation to such programs and providing reports to the Board as appropriate; (vi) reviewing any significant operations and technology risk exposures of LCH SA, including any detailed operational risk assessments with significant information technology elements and information security and cyber security risks, together with the steps management has taken to monitor and control such exposures; (vii) reviewing LCH SA's integrated security and resilience, including review of any new or novel approaches to information technology including security and resilience; (viii) reviewing reports from management regarding LCH SA's Business Continuity Management planning; (ix) receiving reports, as appropriate, from the Audit Committee regarding the results of reviews and assessments of LCH SA's operations and technology functions; and (x) reviewing reports, as appropriate, on operations and agreed metrics in conjunction with the Audit Committee.
Article 5, Provisions for Access, will confirm that the Committee (i) will have full and unrestricted access to management and employees of LCH SA and other members of the LCH Group, (ii) may obtain independent professional advice and the assistance of relevant experts outside of LCH SA, and (iii) will have full and unrestricted access to any systems, records, facilities or other data from LCH SA or other member of LCH Group that it requires to carry out its functions.
Article 6, Reporting, will provide that the Committee Chairman will report the Committee's discussions, decisions and recommendations to the Board, which will decide on an appropriate policy response.
Article 7, Confidentiality and Conflicts of Interest, will set out the requirements with respect to confidentiality and conflicts of interest and provides that all confidential matters considered by the Committee and any confidential information disclosed to members of the Committee in connection with their position as a member of the Committee must remain confidential, notwithstanding the company to which that information relates, nor whether the member is a director of that company or not, except as required to Committee members will be governed by the relevant articles in LCH SA's Articles of Association.
LCH SA has determined that Proposed Rule Change is consistent with the requirements of Section 17A of the Act
As noted above, the Proposed Rule Change will not lead to any change in the proportion of independent directors or the number of directors representing members and participants. Therefore, the Board and the committees of the Board will continue to assure fair representation of its members and participants in the selection of its directors and the administration of its affairs as provided in section 17A(b)(3)(C) of the Act.
Further, Section 17A(b)(3)(F) of the Act
The Proposed Rule Change will amend Article 12 of the Board of Directors ToR to clarify that the Board must approve at least annually the LCH Group Risk Governance Framework and LCH SA's various policies, including LCH SA's: (i) Financial Resource Adequacy Policy; (ii) Default Management Policy; (iii) Collateral Risk Policy; (iv) Investment Risk Policy; (v) Liquidity Risk Policy; (vi) Settlement, Payment & Custody Risk Policy; (vii) Counterparty Credit Risk Policy; (viii) Contract and Market Acceptability Policy; (ix) Model Governance, Validation & Review Policy; (x) Operational Risk Policy; (xi) and Procyclicality Policy and any significant changes to those policies upon recommendations from the Risk Committee.
By making no substantive changes to the risk management policies of LCH SA or to the obligations of the Board with respect to risk management and by clarifying the obligation of LCH SA's Board to approve the above policies annually, which policies collectively assure the safeguarding of securities and funds which are in the custody or control of LCH SA, the Proposed Rule Change is consistent with the requirements of Section 17A(b)(3)(F) of the Act.
Commission Rule 17Ad-22(e)(2) requires each registered clearing agency to “establish, implement, maintain and enforce written policies and procedures reasonably designed to provide for
As discussed above, the Proposed Rule Change is being adopted in significant part to conform LCH SA's Governance Documents to actions taken by LCH Group to simplify its governing arrangements and to eliminate provisions in LCH Group's governance documents that are unnecessary and outdated. Importantly, LCH Group and LSEG have decided to terminate the Relationship Agreement between them and remove duplication in board decision-making between LCH Group and the CCP Boards by making the LCH Group Board an internal only board and disbanding all LCH Group committees.
By simplifying its governance arrangements and eliminating provisions in LCH Group's governance documents that are unnecessary and outdated; by vesting in LCH SA's CEO responsibility for appointing LCH SA's management team; and by confirming that the Proposed Rule Change will not lead to any change in the proportion of independent directors or the number of directors representing members and participants, the Proposed Rule Change enhances LCH SA's governance arrangements and assures that they (i) remain clear and transparent (ii) continue to fulfill the public interest requirements in Section 17A of the Act applicable to clearing agencies by assuring fair representation of its members and participants in the selection of its directors and the administration of its affairs, (iii) support the objectives of members and participants, (iv) specify clear and direct lines of responsibility; and (v) consider the interests of participants' customers . . . and other relevant stakeholders of the covered clearing agency, within the meaning of SEC Rule 17Ad-22(e)(2).
LCH SA does not believe the Proposed Rule Change would have any impact, or impose any burden, on competition. The Proposed Rule Change does not address any competitive issue or have any impact on the competition among central counterparties. LCH SA operates an open access model, and the Proposed Rule Change will have no effect on this model.
Written comments relating to the Proposed Rule Change have not been solicited or received. LCH SA will notify the Commission of any written comments received by LCH SA.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, security-based swap submission, or advance notice is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to rules governing liability of directors and of the Exchange, including the limits on liability for specified circumstances, that would harmonize such rules with those of the Exchange's affiliates NYSE Arca, Inc. (“NYSE Arca”) and NYSE National, Inc. (“NYSE National”). The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to change the rules governing liability of directors and of the Exchange, including the limits on liability for specified circumstances. Specifically, the Exchange proposes to replace Article 3, Rule 19 with new Rules 13.1 (Liability of Directors), 13.2 (Liability of Exchange), 13.3 (Legal Proceedings Against Exchange Directors, Officers, Employees or Agents) and 13.4 (Exchange's Costs of Defending Legal Proceedings). Proposed Rules 13.1 through 13.4 are based on the rules set forth in NYSE Arca Rule 14 and NYSE National Rule 13, with non-substantive differences to use the term “Participant”
In July 2018, the Exchange and its direct parent company were acquired by NYSE Group, Inc. (“Transaction”).
Following the Transaction, the Exchange established a rule numbering framework in connection with the migration of the Exchange to the NYSE Pillar platform
Currently, Article 3, Rule 19 (Limitation of Liability), generally states that neither the Exchange, nor its affiliates, nor any of the directors, officers, committee members, officials, employees, contractors or agents of the Exchange or its affiliates would be liable to Participants or persons associated with Participants for any loss arising out of the use of the facilities, systems, services or equipment provided by the Exchange or for any loss associated with an interruption in, or in a failure or unavailability of any such facilities, systems, services or equipment, whether or not the loss resulted from negligence or other unintentional errors omissions or from any other cause within or without the Exchange's control.
The Exchange now proposes to replace Article 3, Rule 19 with Rules 13.1 through 13.4 to add rules related to liability of directors and of the Exchange, including the liability caps and reimbursement requirements that are based on the rules of NYSE Arca and NYSE National.
Proposed Rule 13.1 would provide that any provision of the Certificate of Incorporation, Bylaws or the Rules of the Exchange that provides or purports to provide that the members of the Board of Directors shall not be liable to the Exchange or its Participants for monetary damages for breach of fiduciary duty as a Manager shall not be applied in any instance in which such liability arises directly or indirectly as a result of a violation of federal securities laws.
Proposed Rule 13.2(a)
Proposed Rule 13.2(a) would further provide that subject to certain exceptions, the Exchange would have no liability to any person for any loss, expense, damages or claims that result from any error, omission or delay in calculating or disseminating any current or closing index value, or any reports of transactions in or quotations for securities traded on the Exchange. The first two paragraphs of proposed Rule 13.2(a) replace Article 3, Rule 19(a) and are based on the first two paragraphs of NYSE Arca Rule 14.2(a) and NYSE National Rule 13.2(a) without any substantive differences. Additionally, proposed Rule 13.2(a) would provide that the Exchange makes no warranty as to results that might be obtained by any person or entity from the use of any data transmitted to disseminated by or on behalf of the Exchange or any reporting authority designated by the Exchange. This paragraph of proposed Rule 13.2(a) replaces Article 3, Rule 19(b), and is based on the third paragraph of NYSE Arca Rule 14.2(a) and NYSE National Rule 13.2(a) without any substantive differences.
Proposed Rule 13.2(b)
Proposed Rule 13.2(c)
Proposed Rule 13.2(d)
Proposed Rule 13.3 would establish requirements relating to legal proceedings against directors, officers, employees, agents, or other officials of the Exchange. This proposed rule replaces Article 3, Rule 19(c), and is based on NYSE Arca Rule 14.3 and NYSE National Rule 13.3 without any substantive differences.
Proposed Rule 13.4 would establish the circumstances regarding who is responsible for the Exchange's costs in defending a legal proceeding brought against the Exchange. This proposed rule replaces Article 3, Rule 19(e), and is based on NYSE Arca Rule 14.3 and NYSE National Rule 13.3 without any substantive differences.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that proposed Rule 13 would remove impediments to and perfect the mechanism of a free and open market and a national market system by harmonizing the Exchange's rules governing liability of directors, liability of exchange, legal proceedings against Exchange directors, officers, employees, or agents, and Exchange's costs of defending legal proceedings with the approved rules of its affiliated exchanges, NYSE Arca and NYSE National. The Exchange believes that the proposed rules would further promote just and equitable principles of trade by providing for consistent methodology relating to liability for trading on affiliated exchanges that use the same trading platform. The proposed rule change would therefore promote consistency among the Exchange and its affiliates and make its rules easier to navigate for the public, the Commission, and Participants.
The proposed rule change is also intended to align the liability caps and compensation claims requirements with the caps and requirements currently provided by the Exchange's affiliates, NYSE Arca and NYSE National, and would therefore provide consistent rules across those exchanges.
Lastly, the Exchange notes that the proposal to adopt provisions governing liability of directors, liability of exchange, legal proceedings against
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because all Participants would be subject to the same limits on liability, liability caps and reimbursement requirements. The proposed rule change is designed to provide greater harmonization among similar rules across the Exchange's affiliates, NYSE Arca and NYSE National, resulting in more efficient regulatory compliance for common members.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule relating to the Options Regulatory Fee. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to reduce the Options Regulatory Fee (“ORF”) from $0.0045 per contract to $0.0023 per contract, effective August 3, 2020, in order to help ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs.
The ORF is assessed by Cboe Options to each Trading Permit Holder (“TPH”) for options transactions cleared by the TPH that are cleared by the Options Clearing Corporation (“OCC”) in the customer range, regardless of the exchange on which the transaction occurs.
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of TPH customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses for work allocated in support of the regulatory function. The direct expenses include in-house and third-party service provider costs to support the day to day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as human resources, legal, information technology, facilities and accounting. These indirect expenses are estimated to be approximately 26% of Cboe Options' total regulatory costs for 2020. Thus, direct expenses are estimated to be approximately 74% of total regulatory costs for 2020. In addition, it is Cboe Options' practice that revenue generated from ORF not exceed more than 75% of total annual regulatory costs.
The Exchange monitors its regulatory costs and revenues at a minimum on a semi-annual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs in a given year, the Exchange will adjust the ORF by submitting a fee change filing to the Commission. The Exchange also notifies TPHs of adjustments to the ORF via regulatory circular and/or Exchange Notice.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee than the current rate. Moreover, the proposed reduction is necessary in order for the Exchange to not collect revenue in excess of its anticipated regulatory costs, in combination with other regulatory fees and fines, which is consistent with the Exchange's practices. The Exchange had designed the ORF to generate revenues that would be less than or equal to 75% of the Exchange's regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after its semi-annual review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it would be collecting revenue in excess of 75% of its regulatory costs. Indeed, the Exchange notes that when taking into account the recent options volume, coupled with the projected reduction in regulatory costs, it estimates the ORF will generate revenues that would cover more than the approximated 75% of the Exchange's projected regulatory costs. Moreover, when coupled with the Exchange's other regulatory fees and revenues, the Exchange estimates ORF to generate over 100% of the Exchange's projected regulatory costs. As such, the Exchange believes it's reasonable and appropriate to decrease the ORF amount from $0.0045 to $0.0023 per contract side.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all TPHs on all their transactions that clear in the customer range at the OCC. The Exchange believes the ORF ensures fairness by assessing higher fees to those TPHs that require more Exchange regulatory services based on the amount of customer options business they conduct. Regulating customer trading activity is much more labor intensive and requires greater expenditure of human and technical resources than regulating non-customer trading activity, which tends to be more automated and less labor-intensive. For example, there are costs associated with main office and branch office examinations (
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend General 7 of the Exchange Rulebook, the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend General 7, the Compliance Rule regarding the CAT NMS Plan, to be consistent with an amendment to the CAT NMS Plan recently approved by the Commission.
General 7, Section 1(r) defines the term “Firm Designated ID” to mean “a unique identifier for each trading account designated by Industry Members for purposes of providing data to the Central Repository, where each such identifier is unique among all identifiers from any given Industry Member for each business date.”
The Exchange proposes to amend the definition of “Firm Designated ID” in General 7, Section 1(r) to provide that Industry Members may not use account numbers as the Firm Designated ID for trading accounts that are not proprietary accounts. Specifically, the Exchange proposes to add the following to the definition of a Firm Designated ID: “provided, however, such identifier may not be the account number for such trading account if the trading account is not a proprietary account.”
The Exchange also proposes to amend the definition of “Firm Designated ID” in General 7, Section 1(r) to require a Firm Designated ID assigned by an Industry Member to a trading account to be persistent over time, not for each business day.
The FDID Amendment also permits an Industry Member to provide a relationship identifier as the Firm Designated ID, rather than an identifier that represents a trading account, in certain scenarios in which an Industry Member does not have an account number available to its order handling and/or execution system at the time of order receipt (
When a trading relationship is established at a broker-dealer for clients, the broker-dealer typically creates a parent account, under which additional subaccounts are created. However, in some cases, the broker-dealer establishes the parent relationship for a client using a relationship identifier as opposed to an actual parent account. The relationship identifier could be any of a variety of identifiers, such as a short name for a relevant individual or institution. This relationship identifier is established prior to any trading for the client. If a relationship identifier has been established rather than a parent account, and an order is placed on behalf of the client, any executed trades will be kept in a firm account (
Relationship identifiers are used in circumstances in which the account structure is not available to the trading system at the time of order placement. The clients have established accounts prior to the trade that satisfy relevant regulatory obligations for opening accounts, such as Know Your Customer and other customer obligations. However, the order receipt workflows operate using relationship identifiers, not accounts.
For Firm Designated ID purposes, as with an identifier for a trading account, the relationship identifier must be persistent over time. The relationship identifier also must be unique among all identifiers from any given Industry Member. With these requirements, a single relationship could be tracked across time within a single Industry Member using the Firm Designated ID. In addition, the relationship identifier must be masked as the relationship identifier could be a name or otherwise provide an indication as to the identity of the relationship. The masking requirement would avoid potentially revealing the identity of the relationship.
An example of the use of a relationship identifier as a Firm Designated ID would be as follows: Suppose that Big Fund Manager is known in Industry Member A's systems as “BFM1.” When an order is placed by Big Fund Manager, the order is tagged to BFM1. Industry Member A could use a masked version of BFM1 in place of the Firm Designated ID representing a trading account when reporting a new order from Big Fund Manager instead of the account numbers to which executed shares/contracts will be allocated at a later time via a booking or other system. Similarly, another example of the use of a relationship identifier as a Firm Designated ID would involve an individual in place of the Big Fund Manager in the above example.
In accordance with the FDID Amendment, the Exchange proposes to amend the definition of a “Firm Designated ID” in General 7, Section 1(r) to permit Industry Members to provide a relationship identifier as the Firm Designated ID as described above. Specifically, the Exchange proposes to amend the definition of “Firm Designated ID” in General 7, Section 1(r) to state that a Firm Designated ID means, in relevant part, “a unique and persistent relationship identifier when an Industry Member does not have an account number available to its order handling and/or execution system at the time of order receipt, provided, however, such identifier must be masked.”
The FDID Amendment also permits Industry Members to provide an entity identifier, rather than an identifier that represents a trading account, when an employee of the Industry Member is exercising discretion over multiple client accounts and creates an aggregated order for which a trading account number of the Industry Member is not available at the time of order origination. An entity identifier is an identifier of the Industry Member that represents the firm discretionary relationship with the client rather than a firm trading account.
The scenarios in which a firm uses an entity identifier are comparable to when a firm uses a relationship identifier (as described above) except the entity identifier represents the Industry Member rather than a client. As with relationship identifiers, entity identifiers are used in circumstances in which the account structure is not
For Firm Designated ID purposes, as with the identifier for a trading account or a relationship, the entity identifier must be persistent over time. The entity identifier also must be unique among all identifiers from any given Industry Member. Each Industry Member must make its own risk determination as to whether it believes it is necessary to mask the entity identifier when using an entity identifier to report the Firm Designated ID to CAT.
An example of the use of an entity identifier as a Firm Designated ID would be when Industry Member 1 has an employee that is a registered representative that has discretion over several client accounts held at Industry Member 1. The registered representative places an order that he will later allocate to individual client accounts. At the time the order is placed, the trading system only knows it involves a representative of Industry Member 1 and it does not have a specific trading account that could be used for Firm Designated ID reporting. Therefore, Industry Member 1 could report IM1, its entity identifier, as the FDID with the new order.
In accordance with the FDID Amendment, the Exchange proposes to amend the definition of “Firm Designated ID” in General 7, Section 1(r) to permit the use of an entity identifier as a Firm Designated ID as described above. Specifically, the Exchange proposes to amend the definition of a “Firm Designated ID” in General 7, Section 1(r) to state that a Firm Designated ID means, in relevant part, “a unique and persistent entity identifier when an employee of an Industry Member is exercising discretion over multiple client accounts and creates an aggregated order for which a trading account number of the Industry Member is not available at the time of order origination.”
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
The Exchange believes that this proposal is consistent with the Act because it is consistent with, and implements, a recent amendment to the CAT NMS Plan, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule changes are consistent with a recent amendment to the CAT NMS Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the FDID Amendment will apply equally to all Industry Members that trade NMS Securities and OTC Equity Securities. In addition, all national securities exchanges and FINRA are proposing this amendment to their Compliance Rules. Therefore, this is not a competitive rule filing, and, therefore, it does not impose a burden on competition.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of this proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe C2 Exchange, Inc. (the “Exchange” or “C2 Options”) proposes to amend its Fees Schedule relating to the Options Regulatory Fee. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to reduce the Options Regulatory Fee (“ORF”) from $0.0012 per contract to $0.0004 per contract, effective August 3, 2020, in order to help ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs.
The ORF is assessed by C2 Options to each Trading Permit Holder (“TPH”) for options transactions cleared by the TPH that are cleared by the Options Clearing Corporation (“OCC”) in the customer range, regardless of the exchange on which the transaction occurs.
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of TPH customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
The Exchange monitors its regulatory costs and revenues at a minimum on a semi-annual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs in a given year, the Exchange will adjust the ORF by submitting a fee change filing to the Commission. The Exchange also notifies TPHs of adjustments to the ORF via regulatory circular and/or Exchange Notice.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee than the current rate. Moreover, the proposed reduction is necessary in order for the Exchange to not collect revenue in excess of its anticipated regulatory costs, in combination with other regulatory fees and fines, which is consistent with the Exchange's practices. The Exchange had designed the ORF to generate revenues that would be less than or equal to 75% of the Exchange's regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after its semi-annual review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it would be collecting revenue in excess of 75% of its regulatory costs. Indeed, the Exchange notes that when taking into account the recent options volume, coupled with the projected reduction in regulatory costs, it estimates the ORF will generate revenues that would cover more than the approximated 75% of the Exchange's projected regulatory costs. Moreover, when coupled with the Exchange's other regulatory fees and revenues, the Exchange estimates ORF to generate over 100% of the Exchange's projected regulatory costs. As such, the Exchange believes it's reasonable and
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all TPHs on all their transactions that clear in the customer range at the OCC. The Exchange believes the ORF ensures fairness by assessing higher fees to those TPHs that require more Exchange regulatory services based on the amount of customer options business they conduct. Regulating customer trading activity is much more labor intensive and requires greater expenditure of human and technical resources than regulating non-customer trading activity, which tends to be more automated and less labor-intensive. For example, there are costs associated with main office and branch office examinations (
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Pursuant to the provisions of Section 19(b)(1) of the Exchange Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statement may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Rule Series 11.600, the Compliance Rule regarding the CAT NMS Plan, to be consistent with an amendment to the CAT NMS Plan recently approved by the Commission.
Rule 11.610(r) defines the term “Firm Designated ID” to mean “a unique identifier for each trading account designated by Industry Members for purposes of providing data to the Central Repository, where each such identifier is unique among all identifiers from any given Industry Member for each business date.”
The Exchange proposes to amend the definition of “Firm Designated ID” in Rule 11.610(r) to provide that Industry Members may not use account numbers as the Firm Designated ID for trading accounts that are not proprietary accounts. Specifically, the Exchange proposes to add the following to the definition of a Firm Designated ID: “Provided, however, such identifier may not be the account number for such trading account if the trading account is not a proprietary account.”
The Exchange also proposes to amend the definition of “Firm Designated ID” in Rule 11.610(r) to require a Firm Designated ID assigned by an Industry Member to a trading account to be persistent over time, not for each business day.
The FDID Amendment also permits an Industry Member to provide a relationship identifier as the Firm Designated ID, rather than an identifier that represents a trading account, in certain scenarios in which an Industry Member does not have an account number available to its order handling and/or execution system at the time of order receipt (
When a trading relationship is established at a broker-dealer for clients, the broker-dealer typically creates a parent account, under which additional subaccounts are created. However, in some cases, the broker-dealer establishes the parent relationship for a client using a relationship identifier as opposed to an actual parent account. The relationship identifier could be any of a variety of identifiers, such as a short name for a relevant individual or institution. This relationship identifier is established prior to any trading for the client. If a relationship identifier has been established rather than a parent account, and an order is placed on behalf of the client, any executed trades will be kept in a firm account (
Relationship identifiers are used in circumstances in which the account structure is not available to the trading system at the time of order placement. The clients have established accounts prior to the trade that satisfy relevant regulatory obligations for opening accounts, such as Know Your Customer and other customer obligations. However, the order receipt workflows operate using relationship identifiers, not accounts.
For Firm Designated ID purposes, as with an identifier for a trading account, the relationship identifier must be persistent over time. The relationship identifier also must be unique among all identifiers from any given Industry Member. With these requirements, a single relationship could be tracked across time within a single Industry Member using the Firm Designated ID. In addition, the relationship identifier must be masked as the relationship identifier could be a name or otherwise provide an indication as to the identity of the relationship. The masking requirement would avoid potentially revealing the identity of the relationship.
An example of the use of a relationship identifier as a Firm Designated ID would be as follows: Suppose that Big Fund Manager is known in Industry Member A's systems as “BFM1.” When an order is placed by Big Fund Manager, the order is tagged to BFM1. Industry Member A could use a masked version of BFM1 in place of the Firm Designated ID representing a trading account when reporting a new order from Big Fund Manager instead of the account numbers to which executed shares/contracts will be allocated at a later time via a booking or other system. Similarly, another example of the use of a relationship identifier as a Firm Designated ID would involve an individual in place of the Big Fund Manager in the above example.
In accordance with the FDID Amendment, the Exchange proposes to amend the definition of a “Firm Designated ID” in Rule 11.610(r) to permit Industry Members to provide a relationship identifier as the Firm Designated ID as described above. Specifically, the Exchange proposes to amend the definition of “Firm Designated ID” in Rule 11.610(r) to state that a Firm Designated ID means, in relevant part, “a unique and persistent relationship identifier when an Industry Member does not have an account number available to its order handling and/or execution system at the time of order receipt, provided, however, such identifier must be masked.”
The FDID Amendment also permits Industry Members to provide an entity identifier, rather than an identifier that represents a trading account, when an employee of the Industry Member is exercising discretion over multiple client accounts and creates an aggregated order for which a trading account number of the Industry Member is not available at the time of order origination. An entity identifier is an identifier of the Industry Member that represents the firm discretionary relationship with the client rather than a firm trading account.
The scenarios in which a firm uses an entity identifier are comparable to when a firm uses a relationship identifier (as described above) except the entity identifier represents the Industry Member rather than a client. As with relationship identifiers, entity identifiers are used in circumstances in which the account structure is not available to the trading system at the time of order placement. In this workflow, the Industry Member's order handling and/execution system does not have an account number at the time of order origination. The relevant clients that will receive an allocation of the execution have established accounts prior to the trade that satisfy relevant regulatory obligations for opening accounts, such as Know Your Customer and other customer obligations. However, the order origination workflows operate using entity identifiers, not accounts.
For Firm Designated ID purposes, as with the identifier for a trading account or a relationship, the entity identifier must be persistent over time. The entity identifier also must be unique among all identifiers from any given Industry Member. Each Industry Member must make its own risk determination as to whether it believes it is necessary to mask the entity identifier when using an entity identifier to report the Firm Designated ID to CAT.
An example of the use of an entity identifier as a Firm Designated ID would be when Industry Member 1 has an employee that is a registered representative that has discretion over several client accounts held at Industry Member 1. The registered representative places an order that he will later allocate to individual client accounts. At the time the order is placed, the trading system only knows it involves a representative of Industry Member 1 and it does not have a specific trading account that could be used for Firm Designated ID reporting. Therefore, Industry Member 1 could report IM1, its entity identifier, as the FDID with the new order.
In accordance with the FDID Amendment, the Exchange proposes to amend the definition of “Firm Designated ID” in Rule 11.610(r) to permit the use of an entity identifier as a Firm Designated ID as described above. Specifically, the Exchange proposes to amend the definition of a “Firm Designated ID” in Rule 11.610(r) to state that a Firm Designated ID means, in relevant part, “a unique and persistent entity identifier when an employee of an Industry Member is exercising discretion over multiple client accounts and creates an aggregated order for which a trading account number of the Industry Member is not available at the time of order origination.”
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
The Exchange believes that this proposal is consistent with the Act because it is consistent with, and implements, a recent amendment to the CAT NMS Plan, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule changes are consistent with a recent amendment to the CAT NMS Plan, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the FDID Amendment will apply equally to all Industry Members that trade NMS Securities and OTC Equity Securities. In addition, all national securities exchanges and FINRA are proposing this amendment to their Compliance Rules. Therefore, this is not a competitive rule filing, and, therefore, it does not impose a burden on competition.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of this proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 29, 2020, Cboe BZX Exchange, Inc. (“Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
On June 16, 2020, pursuant to Section 19(b)(2) of the Act,
A continued listing requirement for certain ETPs
The Exchange asserts that it would be appropriate to increase the Non-Compliance Period from 12 months to 36 months because: (1) It would bring the rule more in line with the life cycle of an ETP; (2) the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products rather than continuing to list products that do not garner investor interest; and (3) extending the period from 12 to 36 months will not meaningfully impact the manipulation concerns that the continued listing standard is intended to address.
According to the Exchange, the ETP space is more competitive that it has ever been, with more than 2000 ETPs listed on exchanges. As a result, distribution platforms have become more restrictive about the ETPs they will allow on their systems, often requiring a minimum track record (
In addition, the Exchange believes that the economic and competitive structures in place in the ETP ecosystem naturally incentivize issuers to de-list products with insufficient investor interest, and that the Beneficial Holders Rule has resulted in the forced termination of ETPs that issuers believed were still economically viable. The Exchange states that there are significant costs associated with the launch and continued operation of an ETP, and notes that the Exchange has had 69 products voluntarily delist in the last two years. The Exchange also questions whether the number of beneficial holders is a meaningful measure of market interest in an ETP, and believes that an ETP issuer is incentivized to have as many beneficial holders as possible.
Finally, the Exchange states that the proposal “does not create any significant change in the risk of manipulation for ETPs listed on the exchange.” The Exchange “does not believe there is anything particularly important about the 50th Beneficial Holder that reduces the manipulation risk associated with an ETP as compared to the 49th, nor is there any manipulation concern that arises on the 366th day after an ETP began trading on the Exchange that didn't otherwise exist on the 1st, 2nd, or 365th day.”
The Commission received one comment in support of the proposal.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission has consistently recognized the importance of the minimum number of holders and other similar requirements in exchange listing standards. Among other things, such listing standards help ensure that exchange listed securities have sufficient public float, investor base, and trading interest to provide the depth and liquidity necessary to promote fair and orderly markets.
As discussed above, the Exchange is proposing to increase the Non-Compliance Period from 12 months to 36 months, thereby extending by two years the length of time during which an ETP listed on the Exchange would have no requirement to have a minimum number of beneficial holders. In support of its proposal, the Exchange emphasizes that some ETPs have had difficulty complying with the Beneficial Holders Rule. The Exchange indicates that noncompliance with the Beneficial Holders Rule is increasing because the ETP market has become so competitive, and there are so many of them, that it can be difficult to acquire the requisite number of beneficial holders within the existing Non-Compliance Period. The Exchange also believes that the existing Beneficial Holders Rule forces the delisting of ETPs that may still be economically viable. With respect to regulatory considerations, the Exchange takes the position that the manipulation risk would not be materially greater if an ETP had 49 beneficial holders as opposed to 50, and that no new manipulation concerns would arise with a longer Non-Compliance Period than a shorter one. The Exchange also asserts that existing surveillances and other listing standards are sufficient to mitigate manipulation concerns.
While the Exchange takes the position that the highly-competitive ETP market has made compliance with the Beneficial Holders Rule difficult, and led to the delisting of ETPs that may be economically viable, the Exchange does not explain why these compliance difficulties justify extending the Non-Compliance Period for this core quantitative listing standard for an additional two years. For example, the Exchange states that the manipulation risk is not materially greater with 49 beneficial holders than with 50, but the Exchange is proposing to require no minimum number during the Non-Compliance Period, and does not explain why the manipulation and other regulatory risks would not be greater with a very small number of beneficial holders. The Exchange also states that no new manipulation concerns would arise with a longer Non-Compliance Period than a shorter one, but does not explain why tripling the period during which the same regulatory risks posed by a Non-Compliance Period would be present, is consistent with the Exchange Act. The Exchange takes the position that existing surveillances and other listing standards are sufficient to mitigate manipulation concerns, but does not explain in any detail the basis for this view, or the impact of its proposal on the maintenance of fair and orderly markets or other applicable Exchange Act standards.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the Exchange Act and the rules and regulations issued thereunder . . . is on the self-regulatory organization [`SRO'] that proposed the rule change.”
For these reasons, the Commission believes it is appropriate to institute proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the proposal should be approved or disapproved.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by August 31, 2020. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 14, 2020. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice, in addition to any other comments they may wish to submit about the proposed rule change.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, that are final. The actions relate to a proposed highway improvement project along State Route 70 in the County of Yuba, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
For Caltrans: Cara Lambirth, Branch Chief, Caltrans Office of Environmental Management, M-3 California Department of Transportation-District 3, 703 B Street, Marysville, CA 95901. Office Hours: 8:00 a.m.-5:00 p.m., Pacific Standard Time, telephone (530) 741-4549 or email
Effective July 1, 2007, FHWA assigned, and the Caltrans assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans has taken final agency actions subject to 23 U.S.C. 139(
The Caltrans proposes a project along a 9.6-mile portion of State Route 70 (SR 70) from Laurellen Road to Honcut Creek Bridge in Yuba County. The project is intended to improve travel times along the corridor which will result in greater reliability and efficiency for the movement of goods, provide better connectivity between Yuba County and the Sacramento Valley, and support the overall economic viability of the Yuba County region. This project will address operational deficiencies in the corridor, but these improvements improve the overall safety of travelers within the corridor.
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Assessment (FEA)/Finding of No Significant Impact (FONSI) for the project, issued July 16, 2020, and in other documents in Caltrans' project records. The FEA, FONSI and other project records are available by contacting Caltrans at the addresses provided above. The Caltrans FEA, FONSI and other project records can be viewed and downloaded from the project website at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
23 U.S.C. 139(
Federal Highway Administration (FHWA), Transportation (DOT).
Notice of limitation on claims for judicial review of actions by FHWA and other Federal agencies.
This notice announces actions taken by FHWA and other Federal agencies that are final. This final agency action relates to a proposed highway project, I-94, from I-96 to Conner Avenue in the city of Detroit, Wayne County, State of Michigan. The FHWA's Record of Decision provides details on the Selected Alternative for the proposed improvements.
By this notice, FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1)-(2). A claim seeking judicial review of the Federal agency action on the highway project will be barred unless the claim is filed on or before January 7, 2021. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For FHWA: Ruth Hepfer, Environment/Right-of-way Specialist, FHWA Michigan Division, 315 Allegan, Room 201, Lansing, MI 48933, Telephone: (517) 702-1847, Email:
Notice is hereby given that FHWA has taken final agency action by issuing a Record of Decision for the following highway project in the State of Michigan: I-94 Detroit Modernization Project in Wayne County including modernization of approximately 6.7 miles of Interstate freeway (I-94) in the city of Detroit, Michigan between I-96 and Conner Avenue. Improvements include adding a travel lane in each direction, modernizing system and service interchanges, reconstructing bridges crossing over the freeway, and work on the service drives. The project is included in MDOT's adopted 2020-2023 State Transportation Improvement Program (STIP) and 2045 State Long Range Plan. The project is also included in the Southeast Michigan Council of Government's (SEMCOG) 2020-2023 Transportation Improvement Program and 2045 Regional Transportation Plan.
The FHWA's action, related actions by other Federal agencies and the laws under which such actions were taken, are described in the Combined Final Supplemental Environmental Impact Statement and Record of Decision (Combined FSEIS and ROD) for the project, approved on June 30, 2020, and in other documents in the project file. The Combined FSEIS and ROD is available for review by contacting FHWA or MDOT at the addresses provided above. In addition, these documents can be viewed and downloaded from the project website at:
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139 (l)(1).
Texas Department of Transportation (TxDOT), Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of Limitation on Claims for Judicial Review of Actions by TxDOT and Federal Agencies.
This notice announces actions taken by TxDOT and Federal agencies that are final. The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried-out by TxDOT pursuant to an assignment agreement executed by FHWA and TxDOT. The actions relate to various proposed highway projects in the State of Texas. These actions grant licenses, permits, and approvals for the projects.
By this notice, TxDOT is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of TxDOT and Federal agency actions on the highway projects will be barred unless the claim is filed on or before the deadline. For the projects listed below, the deadline is January 7, 2021. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such a claim, then that shorter time period still applies.
Carlos Swonke, Environmental Affairs Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701; telephone: (512) 416-2734; email:
The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried-out by TxDOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding dated December 9, 2019, and executed by FHWA and TxDOT.
Notice is hereby given that TxDOT and Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Texas that are listed below.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE), Environmental Assessment (EA), or Environmental Impact Statement (EIS) issued in connection with the projects and in other key project documents. The CE, EA, or EIS and other key documents for the listed projects are available by contacting TxDOT at the address provided above.
This notice applies to all TxDOT and Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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The projects subject to this notice are:
1. SH 6 from SH 16 North to the East city limit of De Leon, Comanche County, Texas. The project proposes to expand the roadway from two to four lanes and include a center turn lane. The reconstruction of the roadway includes adding pavement width, illumination, traffic signals, sidewalks, curb and gutter, and storm drains throughout the entire approximate 2 mile limits. The purpose is to enhance safety and improve mobility by allowing for safer turning movements into numerous driveways along this facility. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion approved on October 25, 2019. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Brownwood District Office at 2495 HWY 183 North, Brownwood, Texas 76802; telephone (325) 643-0413.
2. IH 35 from Shiloh Drive to 0.25 Miles N of US 59/IH 69 W in Webb County, Texas. The proposed project would be constructed in two phases. The first phase would fill in the current railroad underpass and construct a railroad overpass allowing for six main lanes of I-35 traffic to pass over the Union Pacific Railroad (UPRR). This project would be approximately 1.0-mile long. The second phase would extend the frontage roads by constructing two lane frontage road bridges over the UPRR for both the north bound and south bound frontage roads. These new bridges would tie into the frontage roads/turnarounds that were constructed under the first phase. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on October 28, 2019 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Laredo District Office at 1817 Bob Bullock Loop, Laredo, TX 78043; telephone (956) 712-7416.
3. William J. Bryan Parkway (FM 158) Improvement Project from BS 6-R (Texas Ave.) to SH 6, Brazos County, Texas. The proposed project would install shared use paths and sidewalks, raised medians, and improve intersections. The purpose of the proposed project is to enhance safety and mobility along the Parkway. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 26, 2019, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Bryan District Office at 2591 North Earl Rudder Freeway, Bryan, Texas 77803-5190; telephone (979) 778-9764.
4. County Road (CR) 59 from CR 48 to Kirby Drive in Brazoria County, Texas. The project will widen CR 59 from two-lanes to four lanes divided by a raised median. The project also includes drainage features and a shared use path. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on December 11, 2019 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office located at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5076.
5. New SH 205 (John King Boulevard) from the junction of SH 205/John King (South Goliad Street) to the junction of SH 205/John King (North Goliad Street) in Rockwall County, Texas. John King Boulevard currently serves as a bypass for SH 205 around the east side of the City of Rockwall's downtown area. The proposed project would widen existing John King Boulevard to an ultimate six-lane, divided, urban highway that would be re-designated as SH 205. New connections that would tie John King Boulevard directly into SH 205 are proposed at the northern and southern project termini. In addition, the improvements include a proposed underpass of the Dallas Garland & Northeastern Railroad. The purpose of the proposed project is to improve traffic mobility and reduce congestion. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on January 13, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-4480.
6. County Road (CR) 58 from Savannah Development to CR 48 in Brazoria County, Texas. The project will widen CR 58 from two lanes to four lanes divided by a raised median. The project also includes drainage features such as curb-and-gutter and a redesigned open drainage system with detention basin. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on January 16, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office located at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5076.
7. US 380 from Airport Drive to CR 458 in Collin County, Texas. The proposed project would widen the current 4-lane divided rural and urban sections to a 6-lane divided urban thoroughfare with two 12-foot wide lanes and one 14-foot wide outside lane in each direction. The project would include a 15-foot raised median, curb and gutter, and 6.5-foot sidewalks. The length of the proposed project is approximately 7.5 miles. The purpose of the proposed project is to improve safety and mobility in the area and alleviate traffic congestion. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on January 29, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-4480.
8. FM 802 from FM 1847 to Old Port Isabel Road, Cameron County, Texas. The purpose of the proposed project is to improve mobility, to accommodate current and future traffic volumes by reconstructing and widening the freeway from four to six lanes, and reconstructing and widening bike lanes and sidewalks. The proposed project length is approximately 1.85 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on January 29, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Pharr District Office at 600 W. Expressway 83, Pharr, TX 78577; telephone (956) 702-6100.
9. FM 526 from Nola Court to IH 10; IH 10 WB frontage road from FM 526 to Normandy Street; and Normandy Street from IH 10 to Greens Bayou Street in Harris County, Texas. The project will construct bicycle and pedestrian improvements within the project area, including sidewalks and a shared use path. The project will also relocate existing storm sewers and widen existing shoulders. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on February 5, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office located at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5076.
10. SH 6 at FM 2 Intersection Improvement from 0.51 miles north of FM 2 and 0.11 miles west of SH 6 to 0.53 miles south of FM 2 and 0.11 miles east of SH 6, Grimes County, Texas. The proposed project would convert the at-grade intersection to a grade-separated intersection. This would create a typical main-lane section on SH 6 with 12 ft. travel lanes bounded by 10 ft. inside and outside shoulders; the ramps would have two 12 ft. lanes, one for dedicated left turns and the other for through traffic. The length of this project is approximately 1.4 miles. The purpose of the proposed project is to improve safety at the intersection of SH 6 with FM 2 in Grimes County. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 30, 2019, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Bryan District Office at 2591 North Earl Rudder Freeway, Bryan, Texas 77803-5190; telephone (979) 778-9764.
11. US 281 from 0.273 mile south of SH 186 to 0.023 mile north of FM 490, Hidalgo County, Texas. The purpose of the proposed project is to bring US 281 to current interstate highway standards between SH 186 and FM 490 to accommodate current and future traffic volumes by reconstructing, straightening, and widening US 281 with inside and outside shoulders, installation of a center concrete barrier, and constructing frontage roads to control access. The proposed project length is approximately 7.04 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment approved on December 9, 2019, the Finding of No Significant Impact (FONSI) approved on December 12, 2019 and other documents in the TxDOT project file. The final environmental assessment, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Pharr District Office at 600 W. Expressway 83, Pharr, TX 78577; telephone (956) 702-6100.
12. FM 676 and Mile 5 from SH 107 to FM 2220, Hidalgo County, Texas. The purpose of the proposed project is to improve mobility on FM 676 and Mile 5 between SH 107 and FM 2220, to accommodate current and future traffic volumes by reconstructing and widening the facility from two to four lanes with continuous center turn lane, and constructing 10-foot shoulders and sidewalks.
The proposed project length is approximately 4.0 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment approved on February 5, 2020, the Finding of No Significant Impact (FONSI) approved on February 7, 2020 and other documents in the TxDOT project file. The final environmental assessment, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Pharr District Office at 600 W Expressway 83, Pharr, TX 78577; telephone (956) 702-6100.
13. State Highway (SH) 105 from 10th Street in Conroe to Business 105 in Montgomery, San Jacinto, and Liberty Counties, Texas. The proposed project would widen SH 105 to the north and south to a four-lane facility with a continuous two-way turn lane of varying width. Sidewalk and bicycle accommodations along the north and south sides of SH 105 would be provided for the entire length of the facility. The proposed project includes a curb and gutter system along approximately 75 percent of the facility with open ditches along the remaining easternmost portion. The length of the project, including transitions, is approximately 20 miles. The purpose of the project is to improve safety, operational efficiency, and travel times; to accommodate growth along SH 105 within the project limits, and reduce the number of traffic accidents and fatalities. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on February 19, 2020, the Finding of No Significant Impact (FONSI) issued on February 20, 2020 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office located at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5076.
14. FM 1378 at FM 3286 Intersection Improvement in Collin County, Texas. The proposed project would improve the existing intersection at FM 1378 and FM 3286. The purpose of the proposed project is to provide congestion relief, improve traffic flow, and improve safety. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in, the Categorical Exclusion Determination issued on February 27, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-4480.
15. FM 518 from SH 288 to SH 35 in Brazoria County, Texas. The proposed project would reconstruct and widen the existing roadway from two lanes in each direction to three lanes in each direction. The typical section would include two 12-foot-wide travel lanes and one 15-foot-wide outside travel lane
16. I-10 from SH 46 to FM 3351 in Bexar and Kendall Counties, Texas. The project adds one general-purpose lane and one High Occupancy Vehicle (HOV) lane in each direction of I-10 from FM 3351 (Ralph Fair Rd) to SH 46. The project is approximately 10.07 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on February 27, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
17. SH 42 from IH 20 to US 80, in Gregg County, Texas. The proposed project would construct a four-lane highway with two 12-foot travel lanes in each direction, a center left-turn lane, shoulders, and sidewalks in portions of the project. The proposed project length is approximately 5.9 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment approved on March 12, 2020, the Finding of No Significant Impact approved on March 12, 2020, and other documents in the TxDOT project file. The Final Environmental Assessment and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Tyler District Office at 2709 W Front St., Tyler, TX 75702; telephone (903) 510-9100.
18. IH 20 Roscoe Interchange Improvement, from East of CR 608 to West of Loop 170, in Nolan County, Texas. The project is located at the interchange of IH 20 and US 84 between the towns of Roscoe and Sweetwater. The proposed project would flatten the sharp curve at the interchange, and construct and reconstruct direct connectors and associated ramps. The existing two-way frontage roads would be reconstructed but would remain two-way. The project is approximately one mile in length and would address operational and safety concerns at the interchange. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the approved Categorical Exclusion Determination issued on April 1, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Abilene District Office at 4250 North Clack, Abilene, TX. 79601; (325) 676-6817.
19. IH 10 from 0.54 miles east of FM 3247 to the Sabine River Bridge in Orange County, Texas. The proposed project would be reconstructed from four, 12-foot wide travel lanes (two in each direction) with variable width inside and outside shoulders to six 12-foot wide travel lanes with 10-foot wide inside shoulders and 10-foot wide outside shoulders. A concrete median barrier would separate the eastbound/westbound travel lanes. The project also includes widening the existing I-10 Adam's Bayou bridges to provide the additional 12-foot wide travel lane in each direction. The length of the proposed project is 4.84 miles with all work being completed in existing right of way. The purpose of the proposed project is to improve the safety and ensure mobility of the traveling public by widening the interstate highway and replacing the structurally deficient Sabine River Relief bridge. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 6, 2019, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Beaumont District Office at 8350 Eastex Freeway, Beaumont, Texas 77708; telephone (409) 898-5745.
20. IH 20 at SH 31 Interchange from 0.7 miles west of US 259 to 1.3 miles east of SH 31, in Gregg County, Texas. The proposed project would improve safety by removing the existing left exits and to address conflict points along SH 31 by reconstructing the IH 20 and SH 31 interchange. The proposed project length is approximately 1.5 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on April 3, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Tyler District Office at 2709 W Front St., Tyler, TX 75702; telephone (903) 510-9100.
21. El Dora Road from FM 3362 (Jackson Road) to Veterans Boulevard (I Road), in Hidalgo County, Texas. The proposed project would widen the roadway from two to four lanes, with continuous left turn lane, adding right turn lanes, and including sidewalks. The proposed project length is approximately 2.3 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on April 10, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Pharr District Office at 600 W Expressway 83, Pharr, TX 78577; telephone (956) 702-6100.
22. Watson Road from FM 2790/Somerset Road to 0.62 mile east of Somerset Road in Bexar County, Texas. The proposed project would expand the existing two-lane roadway to four lanes, provide a shared use path for pedestrians and bicycles, make storm-water drainage improvements, and construct a roundabout at the intersection of Verano Parkway and Watson Road. The project is approximately 0.62 miles in length. The purpose of the proposed project is to improve mobility and safety in the project area. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on April 15, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
23. Galm Road Phase III From FM 471 to Government Canyon State Natural Area in Bexar County, Texas. The proposed project would consist of the reconstruction and widening of Galm Road from a two- lane section to a four-lane curbed urban arterial section with continuous sidewalks in each direction. The project is approximately 1.6 miles in length. The purpose of the proposed project is to improve mobility and safety in the project area. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in, the Categorical Exclusion Determination issued on April 21, 2020, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
24. FM 2642 from FM 35 to SH 66 in Hunt County, Texas. The proposed project would convert FM 2642 to a four-lane urban divided roadway with curb/gutter and sidewalks. The proposed project length is approximately 2.37 miles in length. The purpose of the proposed project is to improve safety and mobility. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination approved on June 12, 2020 and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Paris District Office at 1365 N Main St., Paris, TX 75460; telephone (903) 737-9213.
25. FM 664 From IH 35 East to IH 45 in Ellis County, Texas. The proposed project would widen and reconstruct FM 664 within the proposed limits from a two/four-lane undivided rural roadway to a six-lane rural, curb and gutter facility with a raised median. A 2.5-mile bypass south of the City of Ferris would be constructed on new location to connect to a new interchange at IH 45. Major interchanges are proposed at IH 35 and IH 45. The length of the proposed project is approximately 9.96 miles. The purpose of the proposed project is to alleviate traffic congestion, accommodate future traffic, and improve mobility and safety. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on January 23, 2020, Finding of No Significant Impact (FONSI) issued on March 25, 2020 and other documents in the TxDOT project file. The EA and other documents are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E Highway 80, Mesquite, TX 75150; telephone: (214) 320-4480.
26. IH 20 from Lawson Road to East of CR 138 (Wilson Road) in Dallas and Kaufman Counties, Texas. The proposed project would include constructing continuous one-way frontage road lanes in each direction, reconfiguring the ramps from a “diamond” configuration to an “X” configuration at each interchange, and adding auxiliary lanes on the mainlanes. The length of the proposed project is approximately 20.39 miles. The purpose of the proposed project is to address local policies, improve mobility, accommodate future traffic demand, enhance access, and improve safety. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on April 10, 2020, Finding of No Significant Impact (FONSI) issued on April 10, 2020 and other documents in the TxDOT project file. The EA and other documents are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E Highway 80, Mesquite, TX 75150; telephone: (214) 320-4480.
27. US 80 from IH 30 to FM 460 in Dallas and Kaufman Counties, Texas. The proposed project would consist of reconstruction and widening to four mainlanes in each direction and reconstruction of the frontage roads, ramps, and bridge structures within the US 80 project limits. The length of the proposed project is approximately 11 miles. The purpose of the proposed project is to meet current roadway design standards, reduce congestion, improve mobility, and meet anticipated traffic demand with the project limits. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on April 13, 2020, Finding of No Significant Impact (FONSI) issued on April 13, 2020 and other documents in the TxDOT project file. The EA and other documents are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E Highway 80, Mesquite, TX 75150; telephone: (214) 320-4480.
28. IH 35W from Dale Earnhardt Way to IH 35E/IH 35W Interchange in Denton County, Texas. The proposed project would construct continuous one-way, two lane urban northbound and southbound frontage roads along IH 35W, entrance and exit ramp reversals, flipping three interchanges so that IH 35W mainlanes cross over these streets; constructing a new interchange for future Denton Creek Road and expanding the Cleveland Gibbs Road, FM 407, Robson Ranch Road/Crawford Road, and proposed Loop 288/Vintage Road interchanges. The length of the proposed project is approximately 12.3 miles. The purpose of the proposed project is to improve safety and provide access to adjacent lands. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on June 30, 2020, Finding of No Significant Impact (FONSI) issued on June 30, 2020 and other documents in the TxDOT project file. The EA and other documents are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E Highway 80, Mesquite, TX 75150; telephone: (214) 320-4480.
29. Nolana Loop from FM 1426 to FM 88, in Hidalgo County, Texas. The proposed project would widen, reconstruct, and extend the existing roadway. The proposed project length is approximately 9.8 miles. The purpose of the project is to improve mobility and connectivity. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on May 1, 2020, Finding of No Significant Impact (FONSI) issued on July 20, 2020 and other documents in the TxDOT project file. The final environmental assessment, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Pharr District Office at 600 W Expressway 83, Pharr, TX 78577; telephone (956) 702-6100.
23 U.S.C. 139(l)(1).
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, that are final. The actions relate to a proposed highway project, replacement of Shoemaker Bridge at State Route 710 at the Los Angeles River in the City of Long Beach, County of Los Angeles, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139
For Caltrans: Jason Roach, Senior Environmental Planner/Branch Chief, Caltrans Division of Environmental Planning, District 7, 100 South Main Street, Los Angeles, CA 90012. Office Hours: 8:00 a.m.-5:00 p.m., Pacific Standard Time, telephone (213) 266-3805 or email
Effective July 1, 2007, FHWA assigned, and Caltrans assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that Caltrans has taken final agency actions subject to 23 U.S.C. 139
Caltrans in corporation with the City of Long Beach proposes a bridge replacement project at State Route 710 (SR-710). The proposed Project would reconstruct Shoemaker Bridge and realign local street connections to the bridge. The proposed Project limits serve as logical termini, or rational end points for transportation improvements and is sufficient to evaluate the environmental impacts of the connections that originate in downtown Long Beach at the south end and terminate at the bridge's connection to SR-710 at the north end because the Project purpose is to modernize the structure and geometrics of the bridge and to facilitate planned projects adjacent to the bridge.
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Report (FEIR)/Finding of No Significant Impact (FONSI) for the project, issued on June 30, 2020, and in other documents in Caltrans' project records. The FEIR/FONSI and other project records are available by contact Caltrans at the addresses provided above. The Caltrans FEIR/FONSI and other project records can be viewed and downloaded at the following City of Long Beach Shoemaker Bridge Project website.
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
23 U.S.C. 139
Financial Crimes Enforcement Network (FinCEN), Treasury.
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comment on a renewal, without change, to information collection requirements finalized on November 8, 2017, imposing a special measure with respect to Bank of Dandong as a financial institution of primary money laundering concern. This request for comments is being made pursuant to the Paperwork Reduction Act of 1995.
Written comments are welcome and must be received on or before October 9, 2020.
Comments may be submitted by any of the following methods:
•
•
Please submit comments by one method only. All comments submitted in response to this notice will become a matter of public record. Therefore, you should submit only information that you wish to make publicly available.
The FinCEN Regulatory Support Section at
The legislative framework generally referred to as the Bank Secrecy Act (BSA) consists of the Currency and Financial Transactions Reporting Act of 1970, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) (Pub. L. 107-56) and other legislation. The BSA is codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, 31 U.S.C. 5311-5314 and 5316-5332, and notes thereto, with implementing regulations at 31 CFR Chapter X.
The BSA authorizes the Secretary of the Treasury,
Section 311 of the USA PATRIOT Act (Section 311), codified at 31 U.S.C. 5318A, grants FinCEN the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, financial institution, class of transactions, or type of account is of primary money laundering concern, to require domestic financial institutions and financial agencies to take certain special measures to address the primary money laundering concern.
FinCEN may impose one or more of these special measures in order to protect the U.S. financial system from these threats. Special measures one through four, codified at 31 U.S.C. 5318A(b)(1)-(b)(4), impose additional recordkeeping, information collection, and reporting requirements on covered U.S. financial institutions. The fifth special measure, codified at 31 U.S.C. 5318A(b)(5), allows FinCEN to impose prohibitions or conditions on the opening or maintenance of certain correspondent accounts.
FinCEN issued a final rule on November 8, 2017, imposing the fifth special measure to prohibit covered U.S. financial institutions from opening or maintaining a correspondent account for, or on behalf of, Bank of Dandong.
The notification requirement in 31 CFR 1010.660(b)(3)(i)(A) is intended to enhance cooperation from correspondent account holders in preventing Bank of Dandong from accessing to the U.S. financial system. The information financial institutions are required to maintain pursuant to section 1010.660(b)(4)(i) will be used by federal agencies and certain self-regulatory organizations to verify compliance by covered financial institutions with the provisions of 31 CFR 1010.660.
• 5,306 banks—according to the Federal Deposit Insurance Corporation (FDIC) there were 5,103 FDIC-insured banks as of March 31, 2020. According to the Federal Reserve Board (FRB), there were 203 other entities supervised by the FRB, as of June 16, 2020, that fall within the definition of bank. (20 Edge Act institutions, 15 agreement corporations, and 168 foreign banking organizations).
• 5,236 federally-insured credit unions—according to the National Credit Union Administration there were 5,236 federally regulated credit unions as of December 31, 2019.
• 125 privately-insured credit unions—according to the General Accountability Office,
• 1,104 introducing brokers—according to the Commodities and Futures Trading Commission (CFTC), there were 1,104 introducing brokers in commodities registered with the CFTC as of March 31, 2020.
• 61 futures commission merchants—according to the CFTC, there were 61 futures commission merchants registered with the CFTC, as of March 31, 2020.
• 3,640 broker/dealers—according to the Securities and Exchange Commission (SEC), there were 3,640 brokers or dealers in securities registered with the SEC, as of March 31, 2020.
• 1,591 mutual funds—according to the SEC, there were approximately 1,591 mutual funds in 2017, based on forms filed with the SEC. The SEC provided the estimate to FinCEN for the last renewal of OMB control number 1506-0033 (83 FR 46012, Sept. 11, 2018). FinCEN was unable to obtain a more recent estimate.
When the final rule was published on November 8, 2017, the number of financial institutions affected by the rule was estimated at 5,000. FinCEN has since revised the estimated number of affected financial institutions upward to account for all domestic financial institutions that could potentially maintain correspondent accounts for foreign banks, and recognizing that, under the final rule, covered financial institutions are required to apply due diligence to their correspondent accounts that is reasonably designed to guard against their indirect use by Bank
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Records required to be retained under the BSA must be retained for five years. Generally, information collected pursuant to the BSA is confidential but may be shared as provided by law with regulatory and law enforcement authorities.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce; U.S. Fish and Wildlife Service (USFWS), Interior.
Notification of 12-month petition finding.
We, NMFS and USFWS, announce a 12-month finding on a petition to identify the Northwest Atlantic population of the leatherback turtle (
This finding was made on August 10, 2020.
The Status Review Report are available on NMFS' website at
Jennifer Schultz, NMFS Office of Protected Resources, (301) 427-8443,
The leatherback turtle species as a whole was listed as an endangered species (one determined to be threatened with worldwide extinction) (35 FR 8491; June 2, 1970), under the Endangered Species Conservation Act of 1969, the precursor statute to the ESA (16 U.S.C. 1531
On September 20, 2017, the Blue Water Fishermen's Association petitioned NMFS and USFWS (together, the Services) to identify the Northwest (NW) Atlantic leatherback turtle population as a DPS and to list it as threatened under the ESA. On December 6, 2017, NMFS published a “positive” 90-day finding in the
Under the ESA, the term “species” includes any subspecies of fish or wildlife or plants, and any DPS of any vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). The Services adopted a joint policy clarifying their interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act,” 61 FR 4722 (Feb. 7, 1996; “DPS Policy”). The DPS Policy stipulates two elements that must be considered: (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; and (2) the significance of the population segment to the species to which it belongs.
Section 3 of the ESA defines an endangered species as any species which is in danger of extinction throughout all or a significant portion of its range and a threatened species as one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(6) and (20)). Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so within the foreseeable future (that is, within a specified later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or within the foreseeable future (threatened). The ESA uses the term “foreseeable future” to refer to the time over which identified threats are likely to impact the biological status of the species. The duration of the “foreseeable future” in any circumstance is inherently fact-specific and depends on the particular kinds of threats, the life-history characteristics, and the specific habitat requirements for the species under consideration. The existence of threats to a species and the species' response to such threats are not, in general, equally predictable or foreseeable. Hence, in some cases, the ability to foresee a threat to a species is greater than the ability to foresee the species' exact response, or the timeframe of such a response, to that
Pursuant to the ESA and our implementing regulations, we determine whether a species is threatened or endangered based on any one or a combination of the following ESA section 4(a)(1) factors or threats (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)):
1. The present or threatened destruction, modification, or curtailment of its habitat or range;
2. Overutilization for commercial, recreational, scientific, or educational purposes;
3. Disease or predation;
4. Inadequacy of existing regulatory mechanisms; or
5. Other natural or manmade factors affecting its continued existence, which could include but are not limited to: Fisheries bycatch; vessel strikes; pollution (including marine debris and plastics, contaminants, oil and gas activities, and derelict fishing gear); natural disasters; climate change; and oceanographic regime shifts.
Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species' existence (16 U.S.C. 1533(b)(1)(A)).
The Services convened a team of NMFS and USFWS biologists (
The Team compiled information on leatherback turtle life history, biology, ecology, demographic factors, and threats. This included the information received in the petition and in response to the
The Team evaluated the discreteness and significance of each population and provided their evaluation of whether each population would meet the criteria of the DPS Policy. The DPS Policy states that a population of a vertebrate species may be considered discrete if it satisfies one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722, February 7, 1996). While the Team used the term “DPS” in describing and discussing populations that they concluded meet the requirements of discreteness and significance, it is important to note that the DPS term is used throughout the Status Review Report for ease of reference only. A DPS is formally recognized under the ESA only upon a listing action by the Services, and the Services cannot delegate authority to take formal listing actions to status review teams. The information compiled by the Team must be reviewed by the Services, which retain responsibility for making the listing determination after complying with all the requirements of Section 4 of the ESA and considering agency policies. Because we ultimately conclude for the reasons discussed in this finding that it would not be appropriate to disaggregate the existing global listing into DPSs, references in the Status Review Report (and in this finding when we are reviewing the information presented by the Team) must be understood as references to potential or hypothetical DPSs only.
The Team evaluated significance in terms of the importance of the population segment to the overall welfare of the species, such as: (1) Persistence of the population segment in an unusual or unique ecological setting; (2) evidence that loss of the population segment would result in a significant gap in the range of the taxon; (3) evidence that the DPS represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or (4) evidence that the population segment differs markedly from other populations of the species in its genetic characteristics.
For each population segment that the Team determined would meet the criteria of the DPS Policy (which the Team and we refer to as a “DPS” for ease of reference), the Team performed an extinction risk analysis, which involved the evaluation of demographic factors and threats. Demographic factors reflect the impact that operative threats have had on the species. In some cases those threats or the impacts from the threats are continuing in nature. The demographic factors included abundance, productivity, spatial distribution, and diversity. Because sea turtles spend the majority of their lives at sea, where they are spread across vast distances, it is difficult to estimate total abundance. However, the number of nesting females can be counted directly, or estimated indirectly by counting the number of nests on beaches, during a nesting season. Females nest more than once in a season (
The Team evaluated the productivity for each DPS by evaluating nesting trends (through trend analyses or bar graphs) and productivity metrics. Where available data allowed it, they estimated the long-term trend for individual beaches using a Bayesian state-space model of stochastic exponential population growth (Boyd
For each DPS, the Team evaluated spatial distribution, which included the number and location of nesting beaches and foraging areas, as well as spatial structure (
For each DPS, the Team next evaluated each of the ESA Section 4(a)(1) factors (or “threats”) as listed above (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). For each threat, the Team used the best available information to describe the threat, identify which life stages are affected, and describe the impact to the DPS with as much specificity as the best available information allowed to link the threat to the demographic factor it affected. The best available data often allow only for qualitative assessment. For each DPS, the Team identified the primary threat(s) to its continued existence, as well as other threats. The Team considered the impact of each threat individually, with the primary threat(s) given the greatest weight, and all threats cumulatively, to determine the extinction risk. To assess confidence in the extinction risk determination, the Team identified any sources of uncertainty and the impact of uncertainty on the conclusions. They analyzed all threats assuming the DPS had lost ESA protections going forward because a DPS would not receive such protections if it was not listed under the ESA. For example, a DPS would not have benefits of section 9 take prohibitions or section 7 consultations on actions that may affect the DPS.
The Team performed an extinction risk assessment for each of the seven DPSs by evaluating the demographic factors and threats, as described above. Then, the Team voted, based on the best available data, on whether the extinction risk of each DPS was high, moderate, or low, following the definitions included in NMFS' internal guidance document, “Guidance on Responding to Petitions and Conducting Status Reviews under the Endangered Species Act, Section II” (
After the Team completed its draft Status Review Report, the Services met to review and discuss that document and conservation efforts. The Services based our status determinations of the DPSs on the best scientific and commercial data available (as compiled and reflected in the Status Review Report) and after taking into account efforts by States and foreign nation, or any political subdivision thereof, to protect the species as mandated by the statute.
The following is a summary of the DPS analysis conducted by the Team. For a detailed description of the Team's analyses of discreteness and significance, please see the Status Review Report. As a starting point, the Team considered seven leatherback populations that were previously identified as regional management units (RMUs) by Wallace
The Team evaluated all populations for discreteness and determined that each showed marked separation from the others as a consequence of behavioral and physical factors. Behavioral factors, especially returning to waters off a turtle's natal beach to breed, have prevented interbreeding, resulting in reproductive isolation, as indicated by genetic discontinuity.
Although some populations use the same foraging areas, tagging and telemetry studies also demonstrate the discreteness of the populations at nesting beaches. Physical factors, such as land masses, ocean currents, and other oceanographic features, have established and reinforced barriers to gene flow among the seven populations.
Genetic data provide the most compelling evidence for discreteness among the seven populations. The most recent and comprehensive global analysis of published and unpublished
From this starting point, the Team then evaluated more recent genetic data. Subsequent genetic analyses confirmed genetic discontinuity among the NW, SW, and SE Atlantic populations (Wallace
Tagging and telemetry studies confirm marked separation of the seven populations because nesting sites remain distant and isolated. Nesting females of one population have not been tracked to, or observed on, beaches used by another population, even though telemetry data indicate shared use of foraging areas by different populations.
Telemetry studies demonstrate that females nesting on NW Atlantic beaches move throughout most of the North Atlantic from the Equator to about 50° N latitude (Ferraroli
In the Indian Ocean, telemetry studies have been conducted at South African nesting beaches in the SW Indian Ocean (Hughes
Within the Pacific Ocean, nearly all turtles tracked from East Pacific nesting beaches moved southward across the Equator to forage in open-ocean waters of the SE Pacific Ocean or in the coastal waters of Central America, Peru, and Chile. The movements of post-nesting females from the West Pacific Ocean are dependent on the season in which they nest, with winter-nesting females predominantly tracked into the Southern Hemisphere and summer-nesting females foraging in diverse coastal and oceanic ecosystems throughout the northern Indo-Pacific region (Benson
Physical factors likely shape and reinforce the behavior patterns that result in reproductive isolation. Though the species has a global range, with foraging areas extending into high latitudes, nesting mainly occurs on tropical or subtropical beaches. Post-hatchling dispersal is determined by the ocean currents they encounter off nesting beaches. While adults move throughout tropical and temperate waters irrespective of ocean currents, both males and females return to the waters off their natal nesting beach to mate. This natal homing is somewhat flexible, (Dutton
Based on these data, the Team concluded that the seven populations demonstrate discreteness, or marked separation from each other, due to behavioral and physical factors. These are the NW Atlantic, SW Atlantic, SE Atlantic, SW Indian, NE Indian, West Pacific, and East Pacific populations.
Each of the discrete populations is significant to the species because the loss of any one would result in a significant gap (
A loss of the NW Atlantic population would result in a gap (
In the SW Atlantic Ocean, leatherback turtles only nest in a small area of the coastline of Brazil. All other nesting in South America occurs above the Equator or on the Pacific Coast. Therefore, the loss of this population would result in a gap of the nesting range of the species (
Leatherback turtles of the SE Atlantic population nest in West Africa and forage in the South Atlantic Ocean. This population is much more abundant than the SW Atlantic population, which also forages in the South Atlantic Ocean. Therefore, the loss of this population would result in a gap of the nesting range of the species (
In the SW Indian Ocean, leatherback turtles only nest in a small area along the South African and Mozambican coastlines. No other leatherback turtles nest in eastern Africa or in other areas throughout the entire western Indian Ocean. Therefore, the loss of this population would result in a gap of the
Leatherback turtles nest in small numbers in the NE Indian Ocean. These nesting sites are separated from other Indian Ocean nesting sites by at least 5,000 km. Although western Pacific nesting sites are closer, males and females return to the waters off their natal beaches to breed, preventing interbreeding among NE Indian and West Pacific populations. Therefore, the loss of this population would result in a gap of the nesting range of the species (
West Pacific leatherback turtles nest in small numbers primarily in four nations of the West Pacific Ocean. These nesting sites are separated from East Pacific nesting sites by over 10,000 km. Though NE Indian nesting sites are closer in distance, male and female philopatry prevents interbreeding. Therefore, the loss of this population would result in a gap of the nesting range of the species (
Leatherback turtles nesting on eastern Pacific coastlines also forage in the East Pacific Ocean. A loss of this population would result in a gap of the nesting range of the species (
The Team found that seven populations met the definition for discreteness. These populations are markedly separated as a result of the behavioral factors of movement (as demonstrated by satellite telemetry and flipper tagging studies) and philopatry, which has led to reproductive isolation (as demonstrated by genetic discontinuity). They are also physically separated by land masses, oceanographic features, and currents. The Team found these seven populations to be significant to the species because the loss of any one of them would result in a significant gap in the range of the species as well as a significant loss of genetic diversity, reducing the evolutionary potential of the species. Some populations also occur in a unique ecological setting. Thus, after reviewing the best available information, the Team identified the following populations as potential DPSs: NW Atlantic, SW Atlantic, SE Atlantic, SW Indian, NE Indian, West Pacific, and East Pacific. The Team defined the potential DPSs as leatherback turtles originating from nesting beaches within the boundaries for each DPS. The range of each DPS, which also includes foraging areas, thus extends beyond the nesting boundaries for most DPSs, and may overlap extensively with the range of another DPS. The boundaries are based on the best available genetic, telemetry, and observational data. When such data were not available, the Team used information on possible barriers to gene flow, such as oceanographic features. For ease of use, the Team applied political boundaries when this did not conflict with biological or oceanographic data. Additional information on the boundaries is available in the following sections, which summarize the extinction risk analysis for each DPS, and in the Status Review Report.
The Team defined the NW Atlantic DPS as leatherback turtles originating from the NW Atlantic Ocean, south of 71° N, east of the Americas, and west of Europe and northern Africa; the southern boundary is a diagonal line between 5.377° S, 35.321° W and 16.063° N, 16.51° W. The northern boundary reflects a straight latitudinal line based on the northernmost documented occurrence of leatherback turtles (Brongersma 1972; Goff and Lien 1988; Carriol and Vader 2002; McMahon and Hayes 2006; Eckert
The range of this DPS (
All nesting in this DPS occurs in the NW Atlantic Ocean, concentrated from the southeast United States throughout the Wider Caribbean Region (Dow
Nesting occurs on unobstructed, high-energy beaches with either a deep water oceanic approach or a shallow water approach with mud banks, but without coral or rock formations (TEWG 2007). The main characteristics of leatherback nesting beaches include coarse-grained sand; steep, sloping littoral zone; obstacle-free approach; proximity to deep water; and oceanic currents along the coast (Hendrickson and Balasingam 1966 in Eckert
Foraging areas of the NW Atlantic DPS include coastal and pelagic waters of the North Atlantic Ocean (Eckert
The total index of nesting female abundance for the NW Atlantic DPS is 20,659 females. The nesting beaches with the greatest abundance have been included in this index, and most beaches with an unquantified number of nests likely host few nesting females. We based this index on 24 nesting aggregations in 10 nations: Trinidad and Tobago (n = 11,324), French Guiana (n = 2,519), Panama (n = 2,251), United States (n = 1,694), Costa Rica (n = 1,306), Suriname (n = 698), Grenada (n = 499), Venezuela (n = 215), Guyana (n = 76), and Nicaragua (n = 10). With the possible exception of Colombia, our total index does not include 31 unquantified but likely small nesting aggregations for which data are not available. It also does not include outdated data published by Dow
Our total index of nesting female abundance is based on the best available data for this DPS. It is the most robust estimate of nesting females at this time because it only includes available nesting data from recently and consistently monitored nesting beaches. Our total index does not include data from beaches where we were unable to quantify the number of nesting females, either due to the lack of recent or available nesting data or because only crawl data were reported (often on smaller nesting beaches). Scattered nesting may occur on beaches throughout the region, but because these beaches are not monitored, or have not been recently monitored, recent data are not available.
Nesting in the NW Atlantic DPS is characterized by many small nesting beaches. Large nesting aggregations are rare; only about 10 leatherback nesting beaches in the Wider Caribbean Region (about two percent of the DPS's total nesting sites) host more than 1,000 crawls annually (Dow Piniak and Eckert 2011). Only one site, Grande Riviere in Trinidad, hosts more than 5,000 nesting females, representing 29 percent of the total index of nesting female abundance. Relatively large nesting aggregations are also found in Matura (Trinidad), Chiriqui Beach (Panama), and Cayenne and Remire Montjoly (French Guiana). In contrast, most known nesting beaches support a small nesting female abundance; 71 percent of the total nesting sites record annual crawls of less than 100 (Dow Piniak and Eckert 2011). The number of nesting females is unquantified at 31 beaches (
Our total index of nesting female abundance is similar in comparison to other published estimates. TEWG (2007) estimated the abundance of NW Atlantic leatherback turtles using nesting data from 2004 and 2005. At that time, the number of adult females (equating to total index of nesting female abundance in our analysis) was estimated to be approximately 18,700 (range 10,000 to 31,000). While a wide range was provided, the point estimate in TEWG (2007) is similar to, albeit slightly lower than, our total index of 20,659 nesting females. The most recent, published IUCN Red List assessment for the NW Atlantic Ocean subpopulation estimated a total of 20,000 mature individuals (The NW Atlantic Working Group 2019). Our total index, which only includes nesting females, exceeds their estimate, likely due to our use of a 3-year remigration interval, which has increased at some locations in recent years (
We conclude that the total index of nesting females for the NW Atlantic DPS is 20,659 females. The nesting beaches with the greatest abundance have been included in our total index, and most beaches with an unquantified number of nests likely host few nesting females. Current nesting female abundance is not at a level where stochastic or environmental changes would have catastrophic impacts, but the abundance at several nesting sites with previously high density has declined drastically. However, as we discuss below, a declining nest trend and several existing threats will likely continue to reduce this abundance.
The NW Atlantic DPS exhibits decreasing nest trends at nesting aggregations with the greatest indices of nesting female abundance. Though some nesting aggregations indicate increasing trends, most of the largest ones demonstrate declining nest trends. We evaluated nest trends by using nest count data consistently collected using a standardized approach for at least 9 years, with the last year of data in 2014 or more recently and with an average of more than 50 nests annually. When data did not meet these criteria, we evaluated bar graphs provided in the Status Review Report to consider all available data. Thus, these data are representative of the DPS because they include the largest nesting aggregations. With the possible exception of Colombia, nesting aggregations for which data are not available are likely small. Significant declines have been observed at nesting beaches with the greatest historical or current nesting female abundance, most notably in Trinidad and Tobago (Grande Riviere, Fishing Pond, and Tobago), Suriname, French Guiana (Awala-Yalimapo), Florida, and Costa Rica (Tortuguero). Therefore, these nest trends represent the best available data for this DPS.
In Trinidad and Tobago, trends in annual nest counts were largely negative between 2009 and 2017, the years for which data were available. For Trinidad, we analyzed trends for three separately monitored beaches, including Grande Riviere, Matura, and Fishing Pond. The long-term trend was negative for Grande Riviere (median = −6.9 percent; sd = 17.4 percent; 95 percent CI = −43.8 to 26.9 percent; f = 0.682; mean annual nests = 13,272), positive for Matura (median = 1.8 percent; sd = 15.1 percent; 95 percent CI = −29.2 to 33.0 percent; f = 0.561; mean annual nests = 7,359), and negative for Fishing Pond (median = −19.3 percent; sd = 15.1 percent; 95 percent CI = −49.8 to 12.0 percent; f = 0.916; mean annual nests = 3,892). For Tobago, the median trend was −0.9 percent annually (sd = 11.3 percent; 95 percent CI = −25.0 to 21.5 percent; f = 0.540; mean annual nests = 452).
For French Guiana, we analyzed nest count data from 2002 to 2017 for Awala-Yalimapo beach in the west and data from 1999 to 2017 for Cayenne and Remire Montjoly beaches in the east. There was a steep decline at Awala-Yalimapo, with a median trend of −19.4 percent annually (sd = 12.2 percent; 95 percent CI = −43.2 to 6.0 percent; f = 0.942; mean annual nests = 3,200). In contrast to Awala-Yalimapo, nest counts at Cayenne and Remire Montjoly increased by 2.8 percent annually (sd = 12.9 percent; 95 percent CI = −24.9 to 27.9 percent; f = 0.596; mean annual nests = 3,498). In addition, leatherback nesting occurred on remote beaches in western French Guiana until 2013 (
Suriname, Grenada, and Panama each had a single time series sufficient for trend analysis. For Suriname, we combined datasets from two beaches, Galibi and Braamspunt, which were monitored between 2001 and 2017. Total nests in Suriname declined by −14.6 percent annually (sd = 9.6 percent; 95 percent CI = −36.4 to 4.5 percent; f = 0.953; mean annual nests = 4,586). In Grenada, data on the number of nesting tracks were collected on Levera beach between 2002 and 2018. There was a 7.1 percent annual increase in tracks at Levera during that period (sd = 8.7 percent; 95 percent CI = −10.5 to 25.3 percent; f = 0.827; mean annual tracks = 895). In Panama, the nest counts at Chiriqui beach increased by 0.8 percent annually (sd = 7.0 percent; 95 percent CI = −14.1 to 14.6 percent; f = 0.557; mean annual nests = 4,463) between 2004 and 2017.
In Costa Rica, the four beaches for which we had sufficient data to analyze annual nest count trends mostly exhibited declining trends. Tortuguero experienced the steepest decrease, with a median trend of −10.9 percent annually (sd = 4.2 percent; 95 percent CI = −19.5 to 2.2 percent) for data collected between 1995 and 2017. Nest counts decreased by −3.8 percent annually at Pacuare beach (sd = 9.3 percent; 95 percent CI = −22.6 to 16.9 percent) between 2004 and 2017, but increased by 1.8 percent annually (sd = 6.0 percent; 95 percent CI = −10.8 to 14.2 percent) at the nearby Pacuare Nature Reserve between 1991 and 2017. Nest counts at Estacion la Tortuga deceased slightly, with a median trend of −0.5 percent annually (sd = 7.0 percent; 95 percent CI = −15.7 to 13.1 percent) between 2002 and 2017.
For the United States, we analyzed annual nest count trends for Florida (statewide data collected between 2008 and 2017), three beaches in Puerto Rico, including Culebra (1984 to 2017), Luquillo-Fajardo (1996 to 2017), and Maunabo (1999 to 2017), and Sandy Point National Wildlife Refuge in St. Croix, USVI (1982 to 2017). The median trend for Florida was a decline of −2.1 percent annually (sd = 13.0 percent; 95 percent CI = −28.3 to 25.5 percent; f = 0.582; mean annual nests = 1,288). Culebra nests decreased by −3.7 percent annually (sd = 5.3 percent; 95 percent CI = −14.9 to 6.8 percent; f = 0.791; mean annual nests = 153), while nests increased by 15.9 percent annually at Luquillo-Fajardo (sd = 5.5 percent; 95 percent CI = −7.1 to 15.3 percent; f = 0.805; mean annual nests = 283) and by 7.7 percent annually at Maunabo (sd = 4.9 percent; 95 percent CI = −2.7 to 17.4 percent; f = 0.945; mean annual nests = 161). In St. Croix, nests increased by 1.7 percent annually (sd = 4.6 percent; 95 percent CI = −7.8 to 10.7 percent; f = 0.660; mean annual nests = 399).
These trend data are similar to other recent findings, adding further
The Working Group found that regional, abundance-weighted trends were negative for all three time periods and became more negative in the more recent time series (NW Atlantic Leatherback Working Group 2018). Specifically, overall nesting trends decreased at −4.21 percent annually from 1990 to 2017 and at −5.37 percent annually from 1998 to 2017, with the most notable decrease (−9.32 percent annually) occurring during the most recent time frame of 2008 to 2017. While site-level trends showed variation within and among sites and across the time periods, overall the sites also reflected the same regional pattern: More negative trends were apparent during the most recent time frame. Seven sites had significant positive nesting trends from 1990 to 2017, but no sites exhibited significant positive trends from 2008 to 2017. The significant decline observed at Awala-Yalimapo, French Guiana (−12.95 percent annually from 1990 to 2017, −19.05 percent annually from 1998 to 2017, and −31.26 percent annually from 2008 to 2017), drove the regional results, but similar significant declines were found at other nesting beaches for the longer time period, including: St. Kitts and Nevis (−12.43 percent annually), Tortuguero, Costa Rica (−10.42 percent annually), Suriname (−5.14 percent annually), and Culebra, Puerto Rico (−4.61 percent annually). It should be noted that the other nesting beach in French Guiana (Cayenne) demonstrated an increasing trend (7.44 percent annually from 1990 to 2017 and 8.19 percent annually from 1998 to 2017). However, it exhibited a decreasing trend (−14.21 percent annually) from 2008 to 2017. While nesting increased over time at Cayenne, this increase has apparently not resulted from females shifting from Awala-Yalimapo, as turtles that nest at Cayenne are genetically distinct (Molfetti
These modeling results demonstrate that there has been a decline in NW Atlantic nesting from 1990 to 2017, with the most significant decreases occurring from 2008 to 2017. Some nesting beaches demonstrated positive trends for the longer time period. However, none showed significant increases over the most recent time period. The cause for the decline is uncertain, but the Working Group identified anthropogenic sources (
In-water abundance studies of leatherback turtles are rare. Archibald and James (2016) assessed the relative abundance of turtles at a foraging area off Nova Scotia, Canada, from 2002 to 2015. This study evaluated opportunistic sightings per unit effort and found a mean density of 9.8 turtles per 100 km
Despite the declining trend in nesting, productivity parameters for the DPS are similar to the species' averages (though some may be declining, as we discuss below). While there is some variation, most productivity parameters are relatively consistent throughout the DPS. The overall survival rate for nesting females is relatively high at 85 percent (Pfaller
We conclude that the DPS exhibits a declining nest trend. In addition, there are indications of decreased productivity within the DPS. In St. Croix, one of the most thoroughly monitored nesting beaches in this DPS, the data from 1981 to 2010 indicate that hatching success and clutch frequency are declining and remigration intervals are increasing (Garner
The DPS has a broad spatial distribution for both foraging and nesting. There is significant genetic population structure, with subpopulations connected via various levels of gene flow and metapopulation dynamics. Tagging and telemetry studies indicate considerable mixing of leatherback turtles among nesting beaches and at multiple foraging areas throughout the North Atlantic Ocean.
Nesting is widespread throughout the NW Atlantic beaches, occurring primarily as scattered, small aggregations throughout the Wider Caribbean, but with larger concentrations of nesting activity at certain sites in Trinidad, French Guiana, Suriname, Trinidad, Colombia, Panama, Costa Rica, Puerto Rico, St. Croix, and Florida (Horrocks
Genetic sampling in the NW Atlantic DPS has been generally extensive with good coverage of large populations in this region. However, sampling from some smaller Caribbean nesting aggregations is absent, and there are gaps in sampling or analysis for nesting sites along the coasts of South and Central America (
Tagging studies indicate individual movement and gene flow among nesting aggregations. This is facilitated by the species' flexible natal homing,
Genetic studies have revealed that turtles from different nesting aggregations use the same foraging areas. Analyzing 684 longline bycatch samples from across the NW Atlantic in a mixed stock analysis and microsatellite assignment, Stewart
The mixing of nesting aggregations at foraging areas is also supported by several tagging and/or satellite telemetry projects, conducted in U.S. waters (Murphy
High use foraging areas may be identified through available telemetry data, but the migration routes to those areas may vary. Ferraroli
Although adults forage at multiple areas throughout the North Atlantic Ocean (Fossette
The wide distribution of nesting and foraging areas likely buffers the DPS against local catastrophes or environmental changes. The fine-scale population structure, with movement of individuals and genes among nesting aggregations, indicates that the DPS has the capacity to withstand other catastrophic events.
The NW Atlantic DPS exhibits spatial diversity, as demonstrated by insular and continental nesting, multiple diverse foraging areas, and moderate genetic diversity. The DPS nests along both continental and insular coastlines. Nesting beach habitat also shows considerable diversity, ranging from coarse-grained, sandy beaches to silty, ephemeral shorelines whose dynamics are influenced by estuarine input. The breadth and, in some cases, transiency, of suitable nesting habitat in the western North Atlantic may contribute to consistent, low-level flexibility in natal homing, both within and among reproductive seasons (Bräutigam and Eckert 2006), and this flexibility is thought to surpass that of other sea turtle species (TEWG 2007).
This DPS exhibits some temporal variation in nesting. Nesting generally begins in March or April, peaks in May or June, and ends in July or August (Eckert
The foraging strategies are also diverse, with turtles using coastal and pelagic waters throughout the entire North Atlantic Ocean (Fossette
Genetic diversity of the DPS is moderate, with six mtDNA haplotypes (Dutton
Based upon this information, we conclude that nesting location and habitat are diverse, providing some level of resilience against short-term spatial and temporal changes in the
Destruction and modification of leatherback turtle nesting habitat results from a variety of activities including coastal development and construction; beach erosion and inundation; placement of erosion control and nearshore shoreline stabilization structures and other barriers to nesting; beachfront lighting; vehicular and pedestrian traffic; beach sand placement; sand extraction; removal of native vegetation; and planting of non-native vegetation (Lutcavage
In many areas, nesting habitat is under constant threat from coastal development and construction (Dow
Development occurs to varying extents throughout the range of the DPS, but most leatherback nesting occurs in proximity to some coastal development. The Florida shoreline is extensively developed outside wildlife refuges (Witherington
Coastal development likely influences leatherback nest placement and subsequent nest success, which is the percentage of nesting attempts (
The magnitude of development is also changing in some areas, where nest placement and success may be affected in the future. For instance, the area around Cayenne, French Guiana, is undergoing increased urbanization and recreational use (Fossette
While erosion is often intensified due to anthropogenic influences, natural features in some areas result in high erosion rates and unstable beaches, thus affecting leatherback nesting. For instance, the Maroni River influence in the Guianas (French Guiana especially) has resulted in highly dynamic and unstable beaches, with shifting mudflats making nesting habitat unsuitable (Crossland 2003; Goverse and Hilterman 2003; Fossette
Seasonal erosion also occurs at most Caribbean nesting beaches. A survey of Wider Caribbean Regions found that erosion/accretion was the highest threat to nesting habitat (Dow
Inundation of nests is also a concern. Leatherback turtles generally nest closer to the water than other sea turtles (Caut
Such naturally dynamic areas make it difficult to protect nesting beach habitat and accurately assess leatherback nesting trends. This is particularly noteworthy given that nesting females use high energy, erosion-prone beaches, which often result in high nest loss (Chacón-Chaverri and Eckert 2007; TEWG 2007; Spanier 2008; Trinidad and Tobago Forestry Division
Nest site selection by leatherback turtles is still poorly understood (Maison
A widespread strategy to reduce coastal erosion is to construct erosion control structures. However, these structures reduce the amount of available nesting habitat. Also, when beachfront development occurs, the site is often engineered to protect the property from erosion. This type of shoreline engineering, collectively referred to as beach armoring, includes sea walls, rock revetments, riprap, sandbag installations, groins and jetties. Beach armoring can result in permanent loss of a nesting beach through accelerated erosion and prevention of natural beach/dune accretion. These impacts can prevent or hamper nesting females from accessing suitable nesting sites (USFWS 1999). Clutches deposited seaward of these structures may be inundated at high tide or washed out entirely by increased wave action near the base of the erosion control structures. As these structures fail and break apart, they spread debris on the beach, thus creating additional impacts to hatchlings and nesting females.
In the southeastern United States, numerous erosion control structures that create barriers to nesting have been constructed. In Florida, the total amount of existing and potential future armoring along the coastline is approximately 24 percent (164 miles; FDEP, pers. comm., 2018). This assessment of armoring does not include other structures that are a barrier to sea turtle nesting, such as dune crossovers, cabanas, sand fences, and recreational equipment. Additionally, jetties have been placed at many ocean inlets in the United States to keep transported sand from closing the inlet channel. The installation of jetties resulted in lower loggerhead and green turtle nesting density updrift and downdrift of the inlets, leading researchers to propose that beach instability from both erosion and accretion may discourage turtle nesting (Witherington
Due to erosion, beach nourishment is a frequent activity in some developed
Coastal development also contributes to habitat degradation by increasing light pollution, which can result in hatchling and nesting female disorientation, altering behavior and leading to mortality. In Florida, from 2013 to 2017, a total of 341 leatherback nests (representing the whole or majority of hatchlings in the nest) and five nesting females were disoriented (FWC unpublished data 2018). Artificial lighting ranked as the third highest threat to nesting/hatching turtles in the Wider Caribbean Region (Dow
Light pollution has been managed to some extent (Witherington
Extracting sand from nesting beaches for construction projects has a detrimental effect on the amount of available nesting beach habitat and also accelerates erosion (resulting in the aforementioned associated impacts). Sand mining occurs in most Wider Caribbean nations to varying extent and frequency (Dow
In some nations, upland deforestation and the resultant deposition of debris and garbage can destroy or modify nesting beaches. The debris can block access of gravid (pregnant) females and fatally trap emergent hatchlings (Chacón-Chaverri and Eckert 2007). The accumulation of logs reduces the amount of available nesting habitat, possibly forcing leatherback females to nest in suboptimal locations (TEWG 2007). Deforestation due to coastal development is a notable concern in Puerto Rico (Crespo and Diez 2016).
Beach driving also occurs in most nations throughout the range of this DPS (Chacón-Chaverri and Eckert 2007; Dow
Beach vegetation (native and non-native) can affect turtle nesting productivity by obstructing nest construction and potentially drying the sand (resulting in egg chamber collapse). Vegetation can form impenetrable root mats that can invade and desiccate eggs and affect developing embryos, impede hatchling emergence, and trap hatchlings (Conrad
While non-native vegetation can affect nesting habitat throughout the range of the DPS, native vegetation can also affect productivity. For instance, at Sandy Point, St. Croix, changing erosion-accretion cycles led to native
Nesting habitat disruptions are minimized in some areas. Several areas in the NW Atlantic DPS range are under U.S. Federal ownership as National Wildlife Refuges in Florida (Archie Carr and Hobe Sound), Puerto Rico (Culebra and Vieques) and St. Croix (Sandy Point). Beaches in some Wider Caribbean countries are also protected. In Trinidad, Matura and Fishing Pond beaches were declared Prohibited Areas in 1990, and the nesting beach at Grande Riviere in 1997. In 1998, the Amana Nature Reserve, which includes Awala-Yalimapo beach and a 30 m wide marine fringe, was established in French Guiana. In Suriname, the Wia Wia Nature Reserve was implemented in 1961 (amended and enlarged in 1966 to protect sea turtles), and in 1969, the Marowijne beaches were declared a sanctuary (the Galibi Nature Reserve; Schulz 1971). In addition, Tortuguero National Park, Costa Rica, was established in 1976 to protect nesting habitat (Bjorndal
In the marine environment, habitat threats include anthropogenic noise and offshore lighting. We discuss other threats to marine habitat and prey (
We conclude that nesting females, hatchlings, and eggs are exposed to the loss and modification of nesting habitat, especially as a result of coastal development and armoring, erosion, and artificial lighting. These threats impact the DPS by reducing nesting and hatching success, thus, lowering the productivity of the DPS. Based on the information presented above, we conclude that habitat reduction and modification pose a threat to the NW Atlantic DPS.
Overutilization is a threat to the NW Atlantic DPS, mostly due to poaching of turtles and eggs in certain nations. Legal harvest of turtles and eggs also occurs in some nations.
While the vast majority of nations within the range of the NW Atlantic DPS protect leatherback turtles from harvest, it is legal in some Caribbean and Central American nations (Brautigam and Eckert 2006; Dow
Poaching of turtles and eggs occurs throughout the NW Atlantic DPS, and Dow
Poaching has been significantly reduced at some nesting beaches. In Suriname, high levels of egg poaching (at least 26 percent of nests) occurred in the late 1990s, but due to better monitoring and enforcement, that level has been significantly reduced (Hilterman and Goverse 2007; M. Hiwat, WWF, pers. comm., 2018). Poaching was also a major problem in Trinidad, but levels have been reduced with more people monitoring the beach (Trinidad and Tobago Forestry Division
Poaching of eggs is widespread throughout the Caribbean, especially on beaches of Costa Rica, Dominican Republic, and Colombia. The total number of individuals affected by poaching cannot be quantified at this time. However, we conclude that many eggs and some adults are affected by illegal poaching at nesting beaches. Adults and eggs are also exposed to legal harvest in some nations. The legal and illegal harvest of nesting females reduces both abundance (through loss of nesting females) and productivity (through loss of reproductive potential), resulting in a high impact to the DPS. Legal and illegal egg harvest reduces productivity only. Thus, we conclude that overutilization poses a threat to the DPS.
For the NW Atlantic DPS, information on diseases is limited, but predation is a well-documented threat.
Much of the available information on disease in leatherback turtles was obtained by necropsy of stranded large juvenile and adult turtles; the health implications of various conditions reported in this species are incompletely understood. Solitary large intestinal diverticulitis of unknown etiology was found in 31 subadult and adult leatherback turtles stranded in U.S. waters (Stacy
An in-water health assessment was performed on 12 turtles directly caught at-sea and seven turtles bycaught in fishing gear in the NW Atlantic Ocean (Innis
From these data, we estimate that the exposure of eggs, juveniles, and adults to disease is low. The impact of disease cannot be quantified at this time as we have no documentation of any deaths or reductions in productivity directly related to disease. However, disease may compound the effects of or have synergistic effects with other threats to the species and related physiologic derangements. We conclude that disease, alone or in combination with other threats, is likely a threat to the DPS.
Throughout the range of the DPS, predation is a threat to leatherback eggs, hatchlings, and adults. Eckert
In particular, dog predation of eggs occurs in many areas (
Egg predation by other species is also a notable concern in some areas. On Gandoca Beach, Costa Rica, dipteran larvae infestation exceeded 75 percent of nests in 2005 and 2006 (Gautreau
Hatchlings are preyed upon by a wide variety of species, including mole crickets, ghost crabs, horse-eye jack fish (
There are few documented predators to subadults and adult leatherback turtles, presumably because of their large size and pelagic behavior. Predation by sharks (Elasmobranchii) and killer whales (
Predation on early life stages is natural; however, at high rates, it reduces the viability of the DPS (see the Status Review). Predation primarily reduces productivity via reduced egg and hatching success and the loss of hatchlings. Predation on nesting females reduces abundance and productivity. We conclude that predation is a threat to the NW Atlantic DPS.
Many regulatory mechanisms (including state, Federal and international) have been promulgated to protect leatherback turtles, eggs, and nesting habitat throughout the range of the NW Atlantic DPS. We reviewed the objectives of each regulation and to what extent they adequately address the targeted threat (
National regulatory mechanisms are described in full in the Status Review Report. Although these regulatory mechanisms provide some protection to the species, most inadequately reduce the threat they were designed to address, generally as a result of poor implementation or incomplete enforcement. Specifically, existing regulatory mechanisms continue to be inadequate to control impacts to nesting beach habitat and overutilization (harvest of turtles and eggs) for this DPS. In addition, regulatory mechanisms are inadequate to reduce several other threats including bycatch in fishing gear, vessel strikes, and marine debris. Despite existing regulatory mechanisms, bycatch from fisheries (discussed in detail along with existing regulatory mechanisms in the Fisheries Bycatch section), incomplete nesting habitat protection, and poaching remain major threats to the DPS.
Fisheries bycatch is the primary threat to the NW Atlantic DPS. Bycatch occurs throughout the range of the DPS, affecting juveniles, subadults, and adults.
Finkbeiner
In the Wider Caribbean Region, reports of leatherback bycatch in fisheries are common. In a survey of Caribbean nations, Dow
Fisheries bycatch also occur in the Mediterranean and eastern North Atlantic Ocean. Casale
Based upon these summary reports and stranding assessments, it is clear that fisheries have a large impact on the NW Atlantic DPS. In the following paragraphs, we review information on specific gear interactions, including the following fisheries: Gillnet, longline, trawl, pot/trap, and other.
Gillnet fisheries are common throughout the range of this DPS. Due to the nature of the gear and fishing practices (
The largest documented bycatch of leatherback turtles in gillnet gear occurs off the coast of Trinidad. Lee Lum (2006) estimated that more than 3,000 leatherback turtles were captured by coastal surface gillnets off Trinidad annually, with an approximate 30 percent mortality rate. These captures involved adult turtles, occurring off the north and east coasts of Trinidad during January to August,
Whereas most of the documented leatherback bycatch off Trinidad occurs in surface drift gillnet fisheries, bottom set gillnet fishing also captures leatherback turtles (Gass 2006; S. Eckert, WIDECAST, pers. comm., 2018). The magnitude of effort and turtle bycatch in this fishery are lower than for surface nets, but mortality rates are higher (approximately 70 percent; Gass 2006). As such, the bottom set gillnet fishery is thought to have a comparable level of mortality to the drift gillnet fishery (approximately 500 to 1,000 leatherback turtles annually; Gass 2006; S. Eckert, WIDECAST, pers. comm., 2018). The Sea Turtle Recovery Action Plan for the Republic of Trinidad and Tobago noted that drowning in gillnets is that nation's most significant cause of sea turtle mortality (Trinidad and Tobago Forestry Division
High levels of gillnet bycatch occur in other Caribbean and South American nations, also off major nesting beaches. In French Guiana, bycatch was confirmed to be high in the Maroni estuary (Chevalier 2001; Girondot 2015). In 2003, 26 leatherback turtles were caught in coastal gillnets and released off the Cayenne and Montjoly nesting sites (Gratiot
Although not at as high a rate as in the Caribbean (based upon observed interactions), gillnet bycatch occurs in U.S. and Canadian waters. Although South Carolina, Georgia, Florida, Louisiana, and Texas have prohibited gillnets in their State waters, active gillnet fisheries remain in other states and U.S. Federal waters. No cumulative estimates of leatherback bycatch in gillnet fisheries in U.S. waters are available due to the limited observed interactions. However, from 2003 to 2017, fishery observers recorded lethal and non-lethal bycatch in fixed sink, drift sink, and drift floating gillnets throughout the U.S. Atlantic Exclusive Economic Zone (EEZ) and GOM (NMFS unpublished data). From 2012 to 2016, 27 leatherback turtles (coefficient of variation = 0.71, 95 percent CI over all years: 0-68) were bycaught with 21 mortalities in sink gillnet gear in the Georges Bank and Mid-Atlantic regions (Murray 2018). From 1989 to 1998, U.S. drift pelagic gillnets captured 54 leatherback turtles, but that gear is no longer used. Hamelin
Gillnet bycatch occurs in the eastern North Atlantic Ocean and in the Mediterranean Sea. As in other areas, sea turtles have the potential to interact with set gillnets and drift gillnets. The United Nations (UN) established a worldwide moratorium on drift gillnet fishing effective in 1992; the General Fisheries Commission for the Mediterranean prohibited driftnet fishing in 1997; a total ban on driftnet fishing by the European Union fleet in the Mediterranean went into effect in 2002; and the International Commission for the Conservation of Atlantic Tunas (ICCAT) banned driftnets in 2003. Nevertheless, unregulated driftnetting continued to occur in some areas (
Historically, driftnet fishing in the Mediterranean Sea caught large numbers of sea turtles. And today an estimated 600 illegal driftnet vessels operate in the Mediterranean, including fleets based in Algeria, France, Italy, Morocco, and Turkey (Environmental Justice Foundation 2007). Out of 411 records of leatherback turtles (stranded, captured, sighted, or found in unknown circumstances) in the Mediterranean Sea, 170 turtles were captured by fishermen, of which 29.4 percent were caught by set or drift nets (Casale
Throughout the range of the NW Atlantic DPS, effective gillnet bycatch reduction measures have not been required, but measures to reduce leatherback bycatch have been discussed in some areas (
Leatherback turtles are known to interact with longline fishing gear, most commonly pelagic longlines (Lewison
Pelagic longline fishing is widespread throughout the range of the DPS and involves a number of nations, so an accurate estimate of total bycatch is difficult to obtain. In the Atlantic Ocean from 2002 to 2013, the largest longline fishing fleets belonged to Taiwan, Japan, Spain, Belize, and China, with the Taiwanese fleet comprising the largest distant-water longline effort throughout
Bycatch in U.S. Atlantic and GOM pelagic longlines has been extensively studied in the last decade. Current estimates of leatherback interactions with the U.S. Atlantic pelagic longline fishery are lower than previous years. In the late 1990s and early 2000s, estimates of Atlantic U.S. pelagic longline bycatch were around 1000 leatherback turtles annually (NMFS 2001; Yeung 2001; NMFS 2018), with bycatch rates of about 0.15 to 0.5 turtles per 1000 hooks (Watson
Leatherback interactions also occur in Canadian pelagic longline fisheries. From summer to fall, primarily on the Scotian Shelf, encounters with leatherback turtles have been documented in the large pelagic longline fishery since 2001 (DFO 2012). With observer coverage ranging from 5 to 30 percent since 2001, there were 102 reported interactions with pelagic longlines from 2001 to 2005, and 36 from 2006 to 2010 (DFO 2012). Mortality rates are estimated to be in the range of 21 to 49 percent, resulting in an estimated mortality of 13 to 44 leatherback turtles annually. Based on an analysis of Canadian observer data from 2002 to 2010, the bycatch rate in this fishery is estimated to have declined from 120-190 leatherback turtles annually from 2002 to 2006 to 60-90 leatherback turtles annually from 2006 to 2010, largely as a result of gear modifications (Hanke
In the Mediterranean Sea, longlining is prevalent. Drifting longlines targeting swordfish (
Longline bycatch of leatherback turtles in the range of the NW Atlantic DPS also occurs in waters off Cape Verde (Melo and Melo 2013; Coelho
Large circle hooks (non-offset) have been found to reduce leatherback bycatch by as much as 55 percent compared to traditional J-style hooks (Andraka
Since 2004, the United States has issued regulations that require
Efforts have been made to reduce interactions in Canadian waters as well. Circle hook use has been recommended in the swordfish-directed Canadian longline fleet since 2003, whereas corrodible circle hooks have been required in the pelagic longline fishery since 2012 (DFO 2013; C. MacDonald, DFO, pers. comm., 2019). There is no mandatory hook size restriction for the Canadian longline fleet, but license holders almost exclusively use 16/0 circle hooks (C. MacDonald, DFO, pers. comm., 2019). De-hooking and line-cutting kits are required on swordfish longline fishery vessels (C. MacDonald, DFO, pers. comm. 2019).
Some fishing fleets in the Atlantic Ocean (
Leatherback interactions with bottom longlines also occur. Directed shark fisheries using bottom longlines in the Atlantic Ocean and GOM may capture or entangle leatherback turtles (NMFS 2012), and the GOM reef fishery is also anticipated to take leatherback turtles (NMFS 2011). On February 7, 2007, NMFS published a rule that required commercial shark bottom longline vessels to carry the same dehooking equipment as the pelagic longline vessels; this rule was promulgated to reduce post-interaction mortality (72 FR 5633).
The Canadian east coast groundfish longline fishery targets a wide variety of groundfish species, including cod, haddock, pollock and white hake. Observer coverage has ranged from 2 to 30 percent depending on area, and there have been no reported interactions of leatherback turtles in the observer database since 2001 (DFO 2012). However, there have been three reports from Quebec logbooks and 10 reports of interactions with groundfish longline gear to non-governmental groups (DFO 2012). This indicates that the risk of interactions in this gear may be higher than documented through the observer program.
Bottom longlines are also used in the Mediterranean Sea (Casale 2008). While there have not been any documented leatherback captures from this gear type, loggerheads have been caught at high rates in Tunisia, Libya, Greece, Turkey, Egypt, Morocco, and Italy (Casale 2008), and interactions with leatherback turtles are possible.
Commercial pelagic longline fisheries do not operate in some Caribbean nations, such as in Panama where effort is limited to vessels under six tons (Executive Decree 486, December 28, 2010). However, other Caribbean nations allow commercial pelagic longline fishing, and many find leatherback turtles with longline hooks (Réserve Naturelle de l'Amana data in Berzins, Office National de la Chasse et de la Faune Sauvage, pers. comm., 2018 and KWATA data in Berzins 2018). While no longlines exist in the Caribbean Dutch nations of Bonaire, St. Eustatius and Saba, there are efforts to introduce circle hooks into the trolling fishery (Ministry of Economic Affairs 2014). We consider longline bycatch to be a widespread threat to this DPS, likely resulting in the loss of thousands of individuals annually.
Leatherback turtles may interact with bottom and midwater trawl gear throughout the North Atlantic Ocean. The highest reported trawl bycatch of leatherback turtles of the NW Atlantic DPS is likely from the southeastern U.S. shrimp trawl fishery. Epperly
In the mid-Atlantic and northeastern U.S. waters, observers reported 9 leatherback captures in bottom otter trawl gear and 5 captures in midwater trawls from 1993 to 2017 (NMFS unpublished data 2018). In the Wider Caribbean Region, leatherback turtles are reported captured in trawls in French Guiana (Ferraroli
Since 1980, there were eight reports of leatherback turtles incidentally captured by trawl gear in British and Irish waters (Pierpoint 2000). In the Mediterranean Sea, leatherback bycatch in bottom trawls off Tunisia (Caminas 2004) and Egypt (Casale 2008) has also been reported.
Trawl bycatch reduction measures (
TEDs are also used outside the United States. Shrimp harvested with commercial fishing technology that may adversely affect sea turtles generally cannot be imported into the United States per Public Law 101-162, Section 609(b), enacted on November 21, 1989 (16 U.S.C. 1537 note). The import ban does not apply to nations that have adopted sea turtle protection programs comparable to that of the United States (
TEDs are also required in trawl fleets in Trinidad, Belize, Brazil, and Venezuela, but those gear modifications do not currently meet the U.S. certification protocol. On June 20, 2019, the European Union passed a regulation (PE-CONS 59/1/19 Rev 1) that requires technical measures concerning: The taking and landing of marine biological resources; the operation of fishing gear; and the interaction of fishing activities with marine ecosystems. Specific to sea turtles, the regulation requires shrimp trawl fisheries to use a TED in European Union waters of the Indian and West Atlantic Oceans, consisting of waters around Guadeloupe, French Guiana, Martinique, Mayotte, Réunion and Saint Martin.
TEDs are not required in Mediterranean trawls. Some nations, like Belize, St. Barthelemy, Venezuela (industrial fishing only), and the Caribbean Netherlands (Bonaire, St. Eustatius, Saba), have banned trawling (Bolivarian Republic of Venezuela Official Gazette N° 5.877, March 14, 2008; Ministry of Economic Affairs 2016; Belize Fisheries Department 2017), and Costa Rica does not allow the issuance of any new permits for shrimp trawling (Costa Rica Ministry of Environment and Energy 2017). Curacao prohibits fishing in its territorial waters and inland bays with dragnets (and certain fish traps). These initiatives reduce the impact of trawling on leatherback turtles.
Leatherback turtles are commonly entangled in the vertical lines of pot and trap gear. Entanglements have been mostly reported from U.S. and Canadian waters, but line entanglements have occurred in other areas where similar gear is used (
Due to high numbers of entanglement reports, a Sea Turtle Disentanglement Network (STDN) was established by NMFS in the northeastern United States (Maine to Virginia) in 2002. This program relies primarily on reports from the public and subsequent documentation and disentanglement by trained responders. From 2008 to 2017, 267 leatherback entanglements were reported in vertical fishing line (STDN unpublished data). Of those fisheries that could be identified, 79 were lobster, 21 were fish traps or fish lines, 18 were conch (or a combination of conch and lobster), and 5 were crab gear; 144 entanglements were from unidentifiable fishing gear. While most unknown vertical line entanglements likely involve pot/trap gear, this cannot always be conclusively determined. The majority of the leatherback turtle reports (67 percent) were from Massachusetts waters. Of the 267 leatherback entanglements, 221 were released alive and 46 were found dead.
Given the nature of their injuries, it is probable that not all animals released alive from entanglements survived. Currently there are limited empirical data on leatherback survival from pot/trap entanglements. Innis
Entanglements in Canadian waters are also frequently reported under circumstances similar to the U.S. STDN program,
Leatherback turtles are also found entangled in vertical fishing lines in European waters. Since 1980, 83 leatherback turtles were bycaught in British and Irish waters, with the method of capture identified in 58 cases (Piedpoint 2000). The majority of captures (n = 36) were rope entanglements, usually buoy lines used in pot fisheries for crustaceans or whelk, with a 61 percent recorded mortality (Pierpoint 2000).
Some types of aquaculture use vertical lines similar to pot/traps and may pose an entanglement risk (Price
These data comprise the best available information on pot/trap fishery interactions with the NW Atlantic DPS. However, due to the high probability of underreporting leatherback turtle entanglements by fishers, the ad hoc nature of public reporting, and the uncertainty about post-release survivorship, the leatherback mortality rate due to entanglements in vertical lines is likely underestimated (Hamelin
Leatherback turtles are also susceptible to bycatch in pound nets, weirs, and purse seine fisheries. In the United States, pound nets set in Virginia waters have entangled leatherback turtles. On June 23, 2006, NMFS issued a regulation (71 FR 36024) requiring offshore pound nets set in a portion of the lower Chesapeake Bay from May 6 through July 15 of each year to use modified pound net leaders, a gear modification consisting of vertical hard lay lines spaced at least two feet apart on the top portion of the leader, and eight inch or smaller stretched mesh on the bottom portion of the leader. From 2013 to 2017, 16 leatherback turtles have been found entangled in the hard lay lines of the leaders, of which two were dead (NMFS 2018). While individuals may continue to be entangled in modified pound net leaders, the impact of the pound net fishery on the NW Atlantic DPS is likely minor given the few nets set in the lower Chesapeake Bay using this gear (approximately four to six) and the frequency of live interactions. From 2008 to 2017, the STDN also documented leatherback captures in weirs set off Massachusetts; these turtles were found alive, either entangled in the netting (n = 2) or free swimming in the weir (n = 4).
Purse seines are used to catch a variety of fish species and are commonly used in the ICCAT area to catch tuna (Angel
We conclude that most immature and adult leatherback turtles of this DPS are exposed to bycatch in multiple fisheries throughout their range. Bycatch in gillnet fisheries, in particular, is a major threat with high mortality rates (Lee Lum 2006; Gilman
Vessel strikes are a threat to the NW Atlantic DPS. Injuries from vessel strikes may include blunt force trauma and propeller parallel slicing wounds affecting the carapace, flippers, head, and/or underlying organs (Work
Vessel strikes have been documented in other nations as well, including in Portugal (Nicolau
Leatherback behavior data can help predict the potential for vessel strikes. Based on telemetry data for leatherback turtles (n = 15) on the northeastern U.S. shelf, leatherback turtles spent over 60 percent of their time in the top 10 m of the water column and over 70 percent of their time in the top 15 m (Dodge
While observational data are limited, it is reasonable to conclude that, based upon the best available information, mortality due to vessel strikes may occur wherever vessel traffic and leatherback distribution (juvenile and adult) overlap. The impact is likely minimized in areas with less frequent vessel traffic (
Pollution includes contaminants, marine debris, and ghost fishing gear. The detection of pollution impacts on leatherback turtles is opportunistic and thus likely underestimated. While plastic ingestion is not always fatal, it can reduce ability to feed, affect swimming behavior and buoyancy control, potentially lead to chemical contamination and chronic effects, and weaken physical condition, which could impair the ability to avoid predators and survive threats (Nelms
Dow
Leatherback turtles are susceptible to adverse effects from pollution. Marine pollution, including direct contamination and structural habitat degradation, can also affect leatherback habitat. In particular, the Mediterranean is an enclosed sea, so organic and inorganic wastes, toxic effluents, and other pollutants rapidly affect the ecosystem (Camiñas 2004).
Of particular concern, due to their immune, reproductive, and endocrine disrupting nature, are persistent organic pollutants (POPs), such as polychlorinated biphenyls (PCBs), polybrominated diphenyl ethers (PBDEs), and pesticides (Bergeron
Other contaminants have also been documented in leatherback turtles and their eggs. Heavy metals (
Mercury and selenium have also been recorded in nesting females and eggs in Florida and St. Croix. Animals persistently exposed to mercury can experience selenium deficiency, which is of concern because selenium is important to hatching and emergence success (Perrault
Marine debris (most notably plastic pollution) is a threat throughout the range of the NW Atlantic DPS (Girondot 2015). Several global reviews have outlined the persistent and widespread nature of the issue, both as an ingestion and an entanglement threat (Mrosovsky
Ingestion of marine debris is a concern for leatherback turtles, especially given the similarity of their preferred prey (
Marine debris ingestion can occur in any location, but given the enclosed nature of the sea and intense human pressure, the Mediterranean Sea in particular is a hot spot for plastic marine debris and other pollutants (Camiñas 2004; Cozar
In U.S. waters, marine debris ingestion has also been documented in stranded leatherback turtles. However, ingestion does not always cause mortality and is typically an incidental finding. Of 41 leatherback turtles necropsied from North Carolina to Texas between 2008 and 2017, 17 had ingested plastics or marine debris (STSSN unpublished data 2018). From Maine to Virginia during that same time period, 10 necropsies detected ingestion, but the total number of necropsied turtles, out of the 677 strandings in the region, is currently unknown. It is likely that many more stranded turtles ingested some level of marine debris (STSSN unpublished data 2018). Out of 33 leatherback turtles examined in New York Bight (an area with dense population), 30 percent had
Marine debris ingestion is not limited to microplastics or plastic bags. Off the northeastern U.S. coast, necropsies of disentangled leatherback turtles that have died post-release have documented considerably large pieces of plastic (
Leatherback turtles can also become entangled in marine debris. From 2008 to 2017, the Northeast U.S. STDN documented 24 entanglements from miscellaneous sources not attributed to obvious fisheries entanglements, as described above (STDN unpublished data). These unknown entanglements could involve a myriad of sources but are considered as entangling marine debris. The Sea Turtle Recovery Action Plan for the Republic of Trinidad and Tobago noted that entanglement in lost or abandoned fishing gear (primarily nets) poses a threat to leatherback turtles in the marine and terrestrial environment (Forestry Division
Marine debris is also a problem on nesting beaches and can reduce nesting success. Pollution and debris often are deposited on high energy beaches, which are also the preferred nesting habitat of leatherback turtles (TEWG 2007). Coastal and inland littering (which can ultimately reach the sea) is a problem throughout Trinidad and Tobago, and ocean borne debris is particularly prevalent on the east and north coasts, which host the main leatherback nesting beaches (Trinidad and Tobago Forestry Division
The majority of the NW Atlantic DPS is exposed to pollution throughout all life stages. These threats are a result of the developed nature of many of the nations within the range of the DPS. The degree of impact is difficult to quantify, especially given the widespread nature of pollution and the diverse types of impacts. Contaminants may affect this DPS by reducing productivity, if hatching success is lowered, and by lowering abundance, if contamination results in mortality. Marine debris affects the DPS by lowering abundance, when it causes death through ingestion or entanglement, and reducing productivity, when hatchlings and nesting females are affected. While, we do not have quantitative estimates of the number of individuals that are killed or injured as a result of pollution, we conclude that it is prevalent throughout the range of the DPS and constitutes a threat to the NW Atlantic DPS.
Oil and gas activities have the potential to impact the NW Atlantic DPS directly (
Several areas within the range of the NW Atlantic DPS have intense oil and gas development and exploration close to major nesting beaches. The potential for oil spills is of particular concern in the Wider Caribbean Region due to its effect on all life stages in the marine environment. The biggest oil producing nations in South America are Brazil, Mexico, Venezuela, and Colombia. Although only three Caribbean nations currently have exportable oil and natural gas reserves (Barbados, Cuba, and Trinidad and Tobago, with Trinidad and Tobago the only significant exporter), in 2017, a major oil field was discovered off Guyana, which will likely lead to extensive new development and extraction. As a result, marine traffic is likely to increase in the area as well as the possibility for oil spills. In Panama, contamination from oil spills, primarily in area of the Trans-Isthmus oil pipeline and the Panama Canal, is of particular concern (Bräutigam and Eckert 2006; Ruiz
In the United States, oil and gas extraction primarily occurs in the GOM (BOEM 2016; BOEM 2017), an area with leatherback foraging and migratory habitat (Aleksa
In Atlantic Canada, impacts from oil and gas may also occur. Several petroleum production projects occur offshore of Nova Scotia (
In summary, oil and gas activities are prevalent in foraging, migratory, and offshore nesting habitats of the NW Atlantic DPS, potentially exposing all life stages to oil associated threats, such as direct miring in oil, oil ingestion, vessel strikes, and nesting beach contamination. Oil and gas activities have the potential to affect this DPS by reducing productivity (
Natural disasters, such as hurricanes and other storms, and natural phenomena, such as
Hurricanes are common in the Caribbean and southeastern United States. Hurricanes and tropical storms impact nesting beaches by increasing erosion and sand loss and depositing large amounts of debris. In 2017, Hurricane Maria devastated the islands of Dominica, St. Croix, and Puerto Rico, and even though the nesting season was nearly over, many beaches were impacted, including Maunabo, Puerto Rico (one of the most abundant nesting beaches on the island; R. Espinoza, Conservación ConCiencia, pers. comm., 2017). Dewald and Pike (2014) found that a lower level of leatherback nesting attempts occurred on sites that were more likely to be impacted by hurricanes. These types of storm events may ultimately affect the amount of suitable nesting beach habitat, potentially resulting in reduced productivity, especially as leatherback turtles typically nest on high energy beaches (TEWG 2007).
Hurricanes may also result in egg loss by destroying and inundating nests. However, hurricanes are usually aperiodic so the impacts are expected to be infrequent. Hurricanes also typically occur after the peak of the leatherback hatching season and would not be expected to affect the majority of incubating nests (USFWS 1999). That said, according to the Intergovernmental Panel on Climate Change (IPCC), climate change may be increasing the frequency and patterns of hurricanes (IPCC 2014) potentially causing such impacts to nests to become more common in the future.
In summary, natural disasters and phenomena have the potential to impact the NW Atlantic DPS. However, given the infrequent and temporary nature of the occurrences, only a small proportion of eggs, hatchlings, and nesting females are exposed to these threats. Impacts include egg and hatchling mortality that affect productivity of the DPS. Seasonal losses at individual beaches may be large, but we do not expect such impacts to be spatially or temporally widespread. However, we conclude that natural disasters pose a threat to the DPS.
Climate change is a threat to the NW Atlantic DPS. The impacts of climate change include increases in temperatures (air, sand, and sea surface); sea level rise; increased coastal erosion; more frequent and intense storm events; and changes in ocean currents. These impacts may affect leatherbacks through alterations of the incubation environment, reduction of nesting habitat, and changes in prey as described in the following subsections.
Modeling results show that global warming (rise in average surface temperature) poses a “slight risk” to females nesting in French Guiana and Suriname relative to those nesting in Gabon, Congo, and West Papua (Dudley
Hatching success is affected by warming temperatures. Extremely high sand/nest temperatures are anticipated to result in embryonic mortality (Gledhill 2007, Santidrián Tomillo
Temperature increases are likely to be associated with more extreme precipitation and faster evaporation of water, leading to greater frequency of both very wet and very dry conditions that reduce productivity (Patiño-Martínez
Finally, incubation temperatures can also influence hatchling morphology and locomotion (Mickelson and Downie 2010). Leatherback hatchlings originating from nests incubated at lower temperatures exhibited carapace and front flipper length-width ratios that significantly improved their crawling speeds relative to those hatchlings incubated at high temperatures (Mickelson and Downie 2010).
Sea level rise is another threat to leatherback turtles. Thornalley
Sea level rise is expected to result in more nests being inundated, reducing hatching success. On Playona Beach, Colombia, Patiño-Martínez
However, leatherback turtles may be less susceptible than other species of sea turtles to loss of nesting habitat, because they exhibit lower nest-site fidelity (Dutton
Observed changes in marine systems are associated with other aspects of climate change, including rising water temperatures, as well as related changes in ice cover, salinity, oxygen levels, and circulation. Ocean temperatures of the U.S. northeastern continental shelf and surrounding NW Atlantic waters have warmed faster than the global average over the last decade (Pershing
Global warming is expected to expand leatherback foraging habitats into, and increase residency time in, higher latitude waters (James
The effects of global warming are difficult to predict, but changes in reproductive behavior (
Extreme precipitation events over most of the mid-latitude and tropical regions will very likely become more intense and more frequent (IPCC 2014). Changes in the frequency and timing of storms or changes in prevailing currents could lead to increased beach loss via erosion (Van Houtan and Bass 2007; Fuentes and Abbs 2010). More frequent and intense storm events will have the same effect on leatherback nesting success as previously described for natural disasters.
In summary, climate change is likely to affect multiple life stages of turtles in the NW Atlantic DPS. Likely impacts include altering sex ratios and reducing nest success, reducing nesting beach habitat and nests due to sea level rise and storms, and potentially changing distribution. Climate change therefore has the potential to alter productivity and diversity. These impacts could be more severe in certain areas with more dynamic beach environments, or could be widespread throughout the DPS. Impacts are likely to range from small, temporal changes in nesting season to large losses of productivity. That said, leatherback turtles are considered to be the best able to cope with climate change of all sea turtle species due to their wide geographic distribution and relatively weak nesting site fidelity. Overall, we conclude that climate change is a threat to the NW Atlantic DPS.
Next we consider “conservation efforts” under Section 4(b)(1)(A) (16 U.S.C. 1533(b)(1)(A)).
After reviewing the best available information, the Team concluded that the NW Atlantic DPS is at high risk of extinction. The total index of nesting female abundance is 20,659 females at consistently monitored beaches, and the most recent annual rate of decline is estimated to be approximately nine percent (NW Atlantic Leatherback Working Group 2018). The best available nest data reflect a steady decline for more than a decade, becoming more pronounced since 2008 (Eckert and Mitchell 2018; NW Atlantic Leatherback Working Group 2018). This decreasing trend is observed when all available nest data are combined and at most nesting beaches (NW Atlantic Leatherback Working Group 2018), including the largest nesting aggregation in Trinidad (
However, the DPS exhibits broad spatial distribution and some diversity. Based upon genetic data, as well as flipper tagging and satellite telemetry data, this DPS shows significant spatial structure with some connectivity among nesting and foraging areas. Further, nesting occurs in a variety of habitats,
The primary threat to the NW Atlantic DPS is bycatch in commercial and artisanal, pelagic and coastal fisheries. Gillnet fisheries, in particular those off nesting beaches, are the greatest concern given the high mortality rate. In particular, the coastal surface drift gillnet fishery off Trinidad kills an estimated 1,000 adult leatherback turtles annually (Lee Lum 2006; Eckert
Additional threats to the DPS include habitat loss, the legal and illegal harvest of turtles and eggs, predation, vessel strikes, pollution, climate change, oil and gas activities, and natural disasters. Coastal development and armoring, erosion (natural and anthropogenic), and artificial lighting are some of the most significant stressors on nesting beach habitat, reducing nesting and hatching success (
Vessel strikes are also a threat, killing numerous leatherback turtles each year. While exposure to vessel strikes may be most severe in developed areas, the total impacts are high, affecting both abundance and productivity. Pollution, ingestion of plastics, and entanglement in marine debris are threats to all leatherback turtles, most likely resulting in injury and compromised health, and sometimes mortality. Exposure to pollution is widespread in the NW Atlantic Ocean, but effect data are limited. Oil and gas activities are threats with the potential to grow in some Caribbean areas. Natural disasters (hurricanes) and phenomenon (large
The cumulative impact of these multiple threats is potentially large (Andersen
We find that the NW Atlantic DPS is affected by numerous severe threats. These present, ongoing threats injure or kill turtles and contribute to the declining nest trend. The Team evaluated whether the DPS is at risk of extinction currently or would become so within the foreseeable future. To answer this question, they asked how long it would take for the total index of nesting female abundance to be reduced by 50 percent, a drastic decline that would reduce abundance to a level where demographic risks would present an independent threat to the DPS's continued existence, and whether this time period places the DPS at risk currently or within the foreseeable future. Using estimates of the mean time to maturation for the population (approximately 19 years; Avens
Second, the Team used regional nest trend data from the NW Atlantic Leatherback Working Group (2018). Using the most recent trends as is typical for population projections (
For the purpose of the extinction risk analysis, the Team discussed whether the resulting range of time periods (8 to 28 years) suggests a present risk of extinction or a risk of extinction within the foreseeable future. The Team did not have a unanimous view. All but one Team member were present to vote on the level of extinction risk. Eight Team members concluded with moderate confidence that the DPS is at high extinction risk due to threats and the declining trend that has accelerated in recent years. Their confidence was moderate rather than high due to some resilience provided by the abundance, spatial distribution, and diversity for this DPS. Two Team members concluded with low confidence that the DPS is at moderate extinction risk. Their confidence in this conclusion was low due to the declining trend that has accelerated in recent years. The Terms of Reference called for a simple majority, and after voting, the Team concluded that the DPS met the definition for high risk of extinction. We agree with the Team's overall conclusion that a 50 percent decline in less than one generation equates to a current, high risk of extinction. We find support for this conclusion in well documented examples of other leatherback populations that have quickly declined despite larger abundances (
We conclude that the NW Atlantic DPS is presently in danger of extinction due to the number and magnitude of threats, of which fisheries bycatch is the greatest concern. These present and ongoing threats have resulted in imminent and substantial demographic risks (
The Team defined the SW Atlantic DPS as leatherback turtles originating from the SW Atlantic Ocean, north of 47° S, east of South America, and west of 20° W; the northern boundary is a diagonal line between 5.377° S, 35.321° W and 12.084620° N, 20° W. The southern boundary is based on the Antarctic circumpolar current which prevents sea turtles from nesting further south. The western end of the northern boundary is based at the “elbow” of the Brazilian coast, where the Brazilian Current begins and likely restricts the northern nesting range of this DPS. We placed the eastern boundary at the 20° W meridian as an approximate midpoint between SW Atlantic and SE Atlantic (
The SW Atlantic DPS only nests on the southeastern coast of Brazil, primarily in the state of Espírito Santo, on a continuous stretch of beach, less than 100 km in length, with concentrated nesting in Povoação and Comboios. While there is occasional, limited nesting south of these primary nesting beaches, the sand becomes coarser further south, and the excavation of nests becomes more difficult because the sand falls back into the holes (Thomé
While nesting is limited geographically, the overall range of this DPS (
The total index of nesting female abundance for the SW Atlantic DPS is 27 females. We based this index on nest monitoring data from Projeto TAMAR, the Brazilian Sea Turtle Conservation Program, which has established an index nesting survey area along 47 km of beach (10 km along Povoação and 37 km along Comboios; IAC Brazil Annual Report 2018), where complete daily surveys have been conducted during the primary nesting season from September through March, since the 1986/1987 nesting season. Some nesting occurs along the non-index stretches of Povoação and the beaches to the northern part of the area, but it is minor relative to nesting on the index survey area (Thomé
Minimal, scattered nesting has been reported on beaches outside Espírito Santo (Barata and Fabiano 2002; Thomé
Our total index of nesting female abundance is similar to the IUCN Red List assessment's estimate of 35 mature individuals (female and male, assuming a 3:1 sex ratio) based on nesting data through 2010 (Tiwari
The total index of nesting female abundance (
The SW Atlantic DPS exhibits an increasing, although variable nest trend. Long-term monitoring data for this small DPS are limited to the index nesting survey area in southeastern Brazil, where data has been collected between the 1986/1987 and 2016/2017 nesting seasons. Over the 31-year data collection period, the mean annual number of nests for these beaches was 35. While this is below the criterion of 50 annual nests for conducting a trend analysis, we determined that this site should nevertheless be included due to the high quality and consistency of the data, and the fact that these data accurately represent the low level of nesting of this DPS. The median increase in nest counts was 4.8 percent annually (sd = 5.8 percent; 95 percent CI = −8.4 to 15.5 percent; f = 0.832; mean annual nests = 35). As the index area hosts the majority of known nesting activity, these data are representative of the entire DPS. We conclude that nesting has increased from 1986 to 2017. Our trend estimate is similar to that of the IUCN Red List assessment, which characterizes the population as increasing (Tiwari
While the long term trend indicates an increase in nesting, the most recent 3 years of data (
The productivity parameters for this DPS are fairly typical for the species. In Brazil, the average clutch size appears to be on the lower end of the range for Atlantic populations; conversely, Brazilian nests tend to have a higher average number and percentage of eggs per clutch (Thomé
While the overall nest trend for this DPS is increasing, there is uncertainty regarding the continuation of this trend, given the data for the past 3 years. The population remains extremely small, and thus overall productivity is limited. Additionally, the potential for population growth is not clear, given the limited suitable nesting habitat available. We conclude that limited productivity places the DPS at risk of extinction.
The SW Atlantic DPS comprises a single, small nesting aggregation concentrated on the beaches of one state in Brazil (Espírito Santo). A tagging study has shown internesting movements along 300 km of the coast, including over 100 km on either side of known nesting beaches (Almeida
The wide distribution of foraging areas likely provides some level of buffer for the DPS against local catastrophes or environmental changes that could limit prey availability. However, the limited nesting range, and apparent lack of suitable nesting beaches into which to expand, renders the DPS highly susceptible to detrimental environmental impacts, both acute (
Despite its extremely low nesting female abundance, the Brazilian nesting aggregation has the second-highest haplotype diversity among all Atlantic populations (h = 0.498−0.532; Dutton
Within the limited nesting range of the SW Atlantic DPS, habitat modification is a threat. The 2015 collapse of a tailings dam at an ore mine upstream of the index nesting survey area had an undetermined, but potentially long-term, impact on the nesting beach of the DPS. Tens of millions of cubic meters of heavy metal-laden mining waste entered the Doce River and ultimately passed through the mouth of the river, in the middle of the index nesting area. Nests laid near the river mouth were relocated to prevent hatchlings from entering polluted waters. Hatching success was not significantly different between years in the period of 2012 to 2017, which include three seasons before (2012-2014) and three seasons after (2015-2017) the mining event (Colman
Beach erosion and tidal flooding are also threats to this DPS. According to Thomé
Although coastal light pollution has been documented to be increasing in Brazil, nesting has not been notably impacted thus far (Colman
A significant portion of the nesting beach is protected as a Federal reserve under Brazilian Decree no. 90222 (September, 25 1984), which covers 15 km of Comboios Beach, south of the mouth of the Doce River. An additional 22 km, south of the reserve, falls within indigenous land that has restricted access under Federal law. No Federally protected areas exist north of the Doce River mouth, where Povoação Beach occurs. However, local, state, and Federal regulations provide some coastal zone protections in that area.
Overutilization poses a threat to the SW Atlantic DPS. Though specific information on leatherback turtle harvests is not available, there was historically traditional harvest of sea turtles and eggs in Espírito Santo (Hartt 1941; Medeiros 1983). This harvest, however, has been largely curtailed through the work of Projeto TAMAR, which promoted other economic activities and hired ex-turtle hunters to protect nests (Marcovaldi
While we could not find any information on disease for this DPS, predation is a threat to the SW Atlantic DPS. Invertebrates, reptiles, and mammals prey on eggs, while hatchlings fall prey to land, air, and marine predators. According to Thomé
The SW Atlantic DPS is protected by several regulatory mechanisms. For each, the Team reviewed the objectives of the regulation and to what extent it adequately addresses the targeted threat.
Beach habitat is protected throughout much of the nesting range of this DPS. The vast majority of nesting occurs in Espírito Santo, where beaches have been protected since 1982. All light sources with a light intensity greater than 0 lux (lux = lumen per m
The take of leatherback turtles is illegal throughout the SW Atlantic Ocean. Regional regulations include: Brazil Portaria, Manter proibida a captura de tartarugas marinhas das espécies
Fisheries bycatch is the primary threat to the SW Atlantic DPS. Although regulations address this issue to some extent, they do not do so adequately and it continues to be a threat. In 2001, Brazil established the National Plan for the Reduction of Incidental Capture of Sea Turtles in Fishing Activities (Marcovaldi
In summary, while numerous regulatory mechanisms have been enacted to provide some protections to leatherback turtles, their eggs, and nesting habitat throughout the range of this DPS, they have been inadequate. Many do not effectively reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. Fisheries bycatch, in particular, remains a major threat to the DPS despite regulatory mechanisms. We conclude that the failure to implement and enforce effective regulations is a threat to the DPS.
Fisheries bycatch is the primary threat to the SW Atlantic DPS. Leatherback turtles are captured as bycatch in commercial and artisanal fisheries, along coastal foraging and breeding areas, and on the high seas. The extensive foraging range of this DPS makes it vulnerable to interactions with fisheries off the coasts of Brazil, Uruguay, and Argentina, in the pelagic waters of the South Atlantic Ocean, and along the coastal waters off western Africa. Recoveries of females tagged in Espírito Santo are scarce, however. Three were found dead on the Brazilian coast (incidentally captured in fisheries around the Doce River mouth (TAMAR, unpublished data)), one in Argentina (Alvarez
Coastal gillnet fisheries interactions are one of the largest threats to the survival of the SW Atlantic DPS. In an analysis of Brazilian fishery data from 1990 to 2012, Giffoni
Smaller scale artisanal gillnet fisheries occur in coastal waters that are used by SW Atlantic individuals for mating, access to nesting beaches, and foraging. Thomé
Larger-scale commercial ocean gillnet fisheries are also a significant threat for the SW Atlantic DPS, with high bycatch rates reported off Brazil in drift and set gillnets (Fiedler
Longline fisheries pose a significant threat to the SW Atlantic DPS, as the spatio-temporal distribution of leatherback turtles overlaps with longline fishing effort (Fossette
Trawl fisheries also impact the SW Atlantic DPS, mainly along coastal waters off southern Brazil, Argentina, and Uruguay (Gonzalez Carman
Other fisheries such as corrals, pound nets, and pots appear to present a much lower risk for leatherback turtles than to other sea turtle species. From 1990 to 2012, Giffoni
While specific information is not available to permit calculating an estimate of overall bycatch and mortality rates of SW Atlantic leatherback turtles, it is clear that fisheries bycatch, especially in gillnets and longlines, is a major threat to the DPS. Immature and adult individuals are exposed to high fishing effort throughout their foraging range and in coastal waters near nesting beaches. Bycatch mortality is also high, with reported rates of up to 31 percent (Giffoni
There is little information regarding vessel strikes for the SW Atlantic DPS. Many of the primary foraging areas for this DPS off the coasts of Argentina, Uruguay, and Brazil are experiencing increased vessel traffic from fishing vessels, cargo transport, and tourism (López-Mendilaharsu
As with all leatherback turtles, entanglement in and ingestion of marine debris and plastics is a threat that likely kills several individuals a year. Multiple studies have implicated the ingestion of marine debris and/or entanglement in cases of injury or death of turtles found in waters occupied by the SW Atlantic DPS (Bugoni
While there is no specific information on effects to leatherback turtles of this DPS, pollution from various economic activities including maritime transport, tourism, and domestic and industrial waste discharges that are known to occur within their range, may also have an impact (López-Mendilaharsu
Assigning impacts of pollution specifically to individuals within the SW Atlantic DPS is difficult, and the best available information does not quantify such impacts. However, given its prevalence, we conclude that pollution poses a threat to the DPS.
Climate change poses a threat to the SW Atlantic DPS. The impacts of climate change include: Increases in temperatures (air, sand, and sea surface); sea level rise; increased coastal erosion; more frequent and intense storm events; and changes in ocean currents.
Because leatherback turtles nest lower on the beach than other sea turtles, their eggs are more at risk of being exposed and destroyed by increases in sea level and coastal erosion (Boyes
While we do not have specific information on pivotal temperatures and temperature thresholds for egg mortality for this DPS, sand temperatures influence egg viability and sex determination. Given the potential lack of suitable nesting habitat outside the area currently being utilized, there is little opportunity for a spatial shift in nesting in response to changing temperatures. This DPS exhibits some year-round nesting, which provides a small measure of resilience to counteract increasing temperatures. However, it is not likely to be sufficient to make up for the loss of nesting habitat and opportunity resulting from sea level rise and temperature increases. The impacts on productivity and survivorship for such shifts in nesting are unknown.
The threat of climate change is likely to modify the nesting conditions for the DPS. Adverse impacts on turtles of the SW Atlantic DPS would be inescapable because the entire DPS is confined to a limited nesting area. Impacts are likely to range from small, temporal changes in nesting season to large losses of productivity. Therefore, we conclude that climate change is a threat to the DPS.
There is evidence of interactions with hopper dredges associated with channel dredging and maintenance. Between 2008 and 2014, four leatherback turtles were killed by hopper dredges in Rio de Janeiro (Goldberg
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply turtles of the SW Atlantic DPS (for a description of each effort, please see the section on conservation efforts for the overall species): Southwest Atlantic Sea Turtle Network, Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), FAO Technical Consultation on Sea Turtle-Fishery Interactions, IAC, MARPOL, IUCN, Ramsar Convention on Wetlands, RFMOs, South Atlantic Association, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded that the SW Atlantic DPS is at “high” risk of extinction. The DPS exhibits a total index of nesting female abundance of 27 females at the index beach. Such a nesting population size places this DPS at risk of stochastic or catastrophic events that increase its extinction risk. Although there has been substantial variability in nesting at the index nesting beach since 1986, the nest trend shows a strong, nearly five percent annual increase through 2017, with the largest increase occurring in the past decade. However, nesting has declined in the past 3 years. There is only one nesting aggregation, limited to a relatively small stretch (47 km) of beach along a single coast. Some nesting also occurs outside that area, but is mostly sporadic and limited by sand and temperatures unsuited for nesting. Thus, stochastic events have the potential to have catastrophic effects on the entire DPS, with no distant subpopulations serving as a buffer or source of additional individuals or diversity. Based on these factors, we find the DPS to be at risk of extinction as a result of its limited abundance, spatial structure, and resilience.
Current threats place this DPS at further risk of extinction. The primary threat to this DPS is bycatch in commercial and artisanal, pelagic and coastal fisheries, especially gillnet and longline fisheries. Fisheries bycatch reduces abundance by removing individuals from the population. Because several fisheries operate near nesting beaches, productivity is also reduced when nesting females are prevented from returning to nesting beaches. Exposure to and impact of this threat are high. Additional threats include: Habitat modification, overutilization, predation, pollution, vessel strikes, and climate change. Habitat modification includes incidents such as the mining dam breach upstream of the Doce River, which flows into the ocean through the middle of the primary nesting beach. Overutilization and predation are threats for this DPS as well, though some protective measures exist. While many laws are in place to protect sea turtles from fishery impacts, the continued impact of bycatch indicates that regulatory mechanisms are inadequate to sufficiently address the threat. Pollution and vessel strikes are potentially increasing threats to the DPS. Climate change is another threat that is likely to increase, resulting in reduced productivity due to greater rates of coastal erosion and nest inundation, and in some areas, nest failure or skewed sex ratios due to increased sand temperatures.
We conclude, consistent with the Team's findings, that the SW Atlantic DPS is currently in danger of extinction. The total index of nesting female abundance make the DPS highly vulnerable to threats despite the apparent increasing nesting trend. In addition, this DPS consists of only one small nesting aggregation with limited potential nesting beaches to the north and south for expansion. The limited nesting range and small size makes the DPS highly vulnerable to stochastic impacts in the natural environment as well as singular, large-scale, anthropogenic events such as oil spills. Some degree of resilience is provided by the use of multiple foraging areas across a vast geographic area. However, that expansive foraging range also exposes the DPS to numerous fisheries (which are coastal and on the high seas, artisanal and commercial, off both South America and western Africa), making fisheries bycatch by far the biggest threat to the DPS. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce the risk of extinction.
The Team defined the SE Atlantic DPS as leatherback turtles originating from the SE Atlantic Ocean, north of 47° S, east of 20° W, and west of 20° E; the NW boundary is a diagonal line between 12.084620° N, 20° W and 16.063° N, 16.51° W. The eastern boundary occurs at the southern tip of Africa, where the Agulhas and Benguela Currents meet. Along with the cold waters of the Antarctic Circumpolar Current, these currents likely restrict the nesting range of this DPS. We placed the western boundary at the 20° W meridian as an approximate midpoint between SE Atlantic and SW Atlantic (
The range of the SE Atlantic DPS is extensive, mirroring that of the SW Atlantic DPS. While nesting occurs along the western coast of Africa, data indicate that foraging areas and migratory paths stretch along the Atlantic coast of Africa from Senegal to South Africa, across the South Atlantic Ocean, and into the coastal waters of Brazil, Uruguay, and Argentina. As with the SW Atlantic DPS, this DPS does not appear to forage in northern latitudes.
All nesting for the SE Atlantic DPS occurs along the Atlantic coast of western Africa, from Senegal to Angola, a nesting range of over 7,500 km. However, the vast majority of nesting occurs in Gabon, Equatorial Guinea (including Bioko Island), and the Republic of Congo (TEWG 2007; Fretey
While nesting occurs along the western coast of Africa, foraging grounds and migratory paths stretch across the South Atlantic Ocean to the coastal waters of Brazil, Uruguay, and Argentina. Because of the greater abundance of this DPS, most individuals found in the western South Atlantic along the coast of South America, and on the high seas, belong to the SE Atlantic DPS. Prosdocimi
The total index of nesting female abundance for the SE Atlantic DPS is 9,198 females. We based this total index on nine nesting aggregations in Gabon (n = 8,495 nesting females), Equatorial Guinea (n = 457), Republic of Congo (n = 69), Sierra Leone (n = 39), Liberia (n = 45), Ivory Coast (n = 40), Ghana (n = 4), Cameroon (n = 3), and Sao Tome and Principe (n = 46). Our total index does not include 10 unquantified nesting aggregations in Guinea-Bissau, Angola, and other nations. For more information on data sources and calculations, please see the Status Review Report.
Our total index of nesting female abundance is an index because we do not have consistent data from much of the nesting range of the DPS, which extends from Senegal to Angola. However, the largest nesting aggregations occur in Gabon, Equatorial Guinea (including Bioko Island), and the Republic of Congo (TEWG 2007; Fretey
To calculate the index of nesting female abundance in Gabon, where annual aerial surveys of 600 km of nesting beaches gather emergence data, we used a remigration interval of 3 years, a clutch frequency of 7.8 clutches per season per female, and estimated that 95 percent of emergences resulted in nesting (Formia
Nesting is scattered on continental Equatorial Guinea (Fretey 2001), but it occurs on several beaches of Bioko Island and is monitored at the Gran Caldera Scientific Reserve (n = 457 nesting females, based on body pit data from the 2000/2001 through 2017/2018 nesting seasons; D. Venditti
In Guinea-Bissau, only one beach is monitored regularly, in Orango National Park, Bijagos Archipelago, where occasional leatherback nesting tracks are recorded. Each season, a few nests are reported elsewhere throughout the nation (Barbosa
In the Ivory Coast (n = 40 nesting females), Gomez (2005) counted 218 nests over 41 km of beach in February 2001. Peñate
In Ghana, nest monitoring occurs on three beaches: Mankoadze (n = 4 nesting females), Ada, and Keta. We were unable to calculate the index for Ada and Keta beaches because we only received information on nest averages. From 2000 to 2017, an annual average of 34 nests were observed on Ada Beach (D. Agyeman, pers. comm., 2018). During the 2006/2007 nesting season, 481 leatherback nests were counted on Ada Beach (Allman and Armah 2010). Over an unspecified time frame, an annual average of 80 nests were observed on Keta Beach (A. Fuseini, pers. comm., 2018).
In Cameroon (n = 3 nesting females; Fretey and Nibam unpublished data 2018), Girard
Nesting occurs on other beaches throughout western Africa. However, recent consistent and standardized monitoring data are not available. Sporadic nesting occurs in Senegal (Maigret 1978; Dupuy 1986), Republic of The Gambia (Barnett
The total index of nesting female abundance of the SE Atlantic DPS (9,198 females) does not reduce the risk for environmental variation, genetic complications, demographic stochasticity, negative ecological feedback, and catastrophes (McElhany
Based on data collected from the largest nesting aggregation (
Regarding productivity parameters, available information is often from a limited area and may not be representative of the entire DPS. However, based on available data, the size of nesting females, clutch size, hatching success, and incubation period appear to be similar to the species' averages. We conclude that the declining nesting trend contributes to the extinction risk of this DPS.
The SE Atlantic DPS has a broad spatial distribution. The nesting range is centered on Gabon, with nesting occurring from Senegal to Angola. Genetic data available for Gabon and Ghana indicate significant genetic differentiation based on mtDNA data, but weak differentiation based on analysis of nuclear DNA, likely indicating demographically independent subpopulations connected by limited gene flow (Dutton
In addition to the extensive nesting range, this DPS also has an expansive foraging and migratory range, from the coastal waters of Atlantic Africa, across the pelagic waters of the South Atlantic, and along the South American coast from Brazil to Argentina. While nesting along the coast of Africa extends only to Angola, recent tag returns and satellite telemetry indicate that turtles utilize the waters in Namibia as well (Almeida
The wide distribution of foraging areas likely buffers the DPS against local catastrophes or environmental changes that could limit prey availability. The expansive nesting range may buffer the DPS from acute environmental impacts (
Genetic analyses for the SE Atlantic DPS are limited, but Dutton
Modification and loss of habitat is a threat to the SE Atlantic DPS. Present threats include obstructions, erosion, and light pollution at nesting beaches. Future threats include coastal construction and development in the region.
Nesting beach obstruction due to logs is a problem in Gabon, Equatorial Guinea, and Cameroon (Formia
Habitat loss from coastal erosion due to sand mining, harbor building, and irregular current flows has compromised the suitability of long stretches of coastal areas as nesting sites. This issue is especially prevalent between Ghana and Nigeria (Formia
Light pollution modifies nesting beach habitat, deterring nesting females
Urbanization and coastal development are rapidly growing threats at some nesting beaches (Girard and Honarvar 2017). There is a high potential for coastal development in Gabon, including the beaches near Pointe Denis, an important and growing tourist area (Ikaran 2010). Along with direct habitat loss from coastal development and urbanization, impacts from pollution and litter are expected to increase.
In Gabon, a network of marine protected areas was created by decree 00161/PR in 2017, covering 26 percent of Gabon's territorial seas, including a vast area in front of the most important nesting beach in Gabon (Mayumba National Park) that stretches to the outer limits of the EEZ.
We conclude that a large portion of nesting females, hatchlings, and eggs are exposed to the reduction and modification of nesting habitat, as a result of logging, erosion, coastal development, and artificial lighting. These threats impact the DPS by reducing nesting and hatching success, thus lowering the productivity of the DPS. Logging also results in the death of nesting females, reducing the abundance of the population by removing its most reproductively important individuals. Based on the information presented above, we conclude that habitat loss and modification are major and increasing threats to the DPS.
Overutilization is a threat to the SE Atlantic DPS. Although receiving some legal protections, eggs and turtles nevertheless are poached for consumption, traditional medicine, and religious practices.
In Gabon, poaching is limited because 78 percent of nesting occurs within national parks and human population density along the coast is low (A. Formia, Gabon Sea Turtle Partnership, pers. comm., 2018). However, elsewhere in the region, poaching occurs at a high rate, or would be reasonably expected to return to high levels, if not limited by activities funded through the USFWS' Marine Turtle Conservation Fund enacted under the MTCA. These activities reduce poaching through increased presence on nesting beaches, beach monitoring, hiring of local citizens for participation in the projects, and raising awareness and providing education to local communities (M. Tiwari, NMFS, pers. comm. 2018).
Conflicting beliefs about sea turtles exist throughout the region. In some communities sea turtles are considered divinely provided food, while in others they have been historically protected by indigenous custom, often based on stories passed down by ancestors (Barbosa and Regalla 2016; Alexander
Turtles and eggs are poached throughout the nesting range of the DPS. Though most nesting females and eggs are protected in Gabon, poaching is widespread in other areas. Poaching of nesting females reduces both abundance (through loss of nesting females) and productivity (through loss of reproductive potential). Such impacts are high because they directly remove the most productive individuals from DPS, reducing current and/or future reproductive potential. Egg poaching reduces productivity. Given the moderate exposure and high impact, we conclude that the poaching of turtles and eggs poses a threat to the DPS.
Information on diseases among leatherback turtles originating in the SE Atlantic is minimal, but an analysis of samples from nesting females in Gabon indicated normal blood chemistry parameters (Deem
Predation of leatherback eggs and/or hatchlings has been documented for a variety of predators, including: Various ants, ghost crabs, monitor lizards (
As is common for all sea turtle species, leatherback hatchlings likely experience predation from various fish species as they enter the water and swim towards the open ocean. In-water predation of juveniles and adults is not well-documented, but there is evidence of shark and killer whale predation. Shark predation was determined to be the cause of one leatherback stranding reported from Central Africa (Parnell
While all eggs and hatchlings have some exposure to predation, the species compensates for a certain level of natural predation by producing a large number of eggs and hatchlings. For this DPS, the primary impact is to productivity (
The SE Atlantic DPS is protected by various regulatory mechanisms. For each, the Team reviewed the objectives of the regulation and to what extent it adequately addresses the targeted threat.
The harvest of turtles and eggs is illegal in most of the nations where the DPS nests. In some cases, however, these protective mechanisms are inadequate. In addition, many nesting beaches are not protected.
In Gabon, the harvest of turtles and eggs is illegal (2011 decree 0164/PR/
In Congo, wildlife laws prohibit the hunting and collection of wildlife and their products, including eggs, between November 1 and April 31. Turtles are also protected in the Conkaouati-Douli National Park. However, in areas without permanent beach monitoring, almost all eggs and nesting individuals are collected and eaten (Bal
In the Democratic Republic of Congo, leatherback turtles are cited under the 1982 Hunting Act for protection. However, there is no post-independence legislation protecting sea turtles, and there is little commitment to the legislated protections (Fretey 2001).
Since 1988, Equatorial Guinea has protected all sea turtles under Law 8/1988 and Decree 183/87 on fishing (Tomás
In Ghana, the Wildlife Regulations Act of 1974 prohibits all harvest of eggs and turtles. However, poverty is prevalent, and eggs and sea turtles are poached at nesting beaches (Tanner 2013). Enforcement is likely inadequate because of funding issues, the remoteness of some nesting beaches, and cultural practices.
Fishery bycatch is the primary threat to this DPS. While most nations in the region have some form of legal protection for sea turtles, many leatherback turtles die from fisheries bycatch throughout the range of the DPS. Examples of fisheries legislation include Brazil's gear restrictions and Nigeria's requirement to use TEDs in bottom trawls.
In summary, numerous regulatory mechanisms provide some protection to leatherback turtles, their eggs, and nesting habitat throughout the range of this DPS. Though the regulatory mechanisms provide some protection to the turtles, many do not adequately reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. Fisheries bycatch, poaching, and habitat loss remain major threats to the DPS despite regulatory mechanisms. We conclude that inadequacy of the regulatory mechanisms are a threat to the SE Atlantic DPS.
Fisheries bycatch is the primary threat to the SE Atlantic DPS. Leatherback turtles are captured as bycatch in commercial and artisanal fisheries along coastal foraging and breeding areas as well as on the high seas. Because of the overlapping range with the SW Atlantic DPS, this DPS is vulnerable to interactions with fisheries off the coasts of Brazil, Uruguay, and Argentina, in the pelagic waters of the South Atlantic Ocean, and along the coastal waters off western Africa. Therefore, the information presented on the fisheries bycatch for the SW Atlantic is applicable to this DPS.
One of the biggest threats for leatherback turtles in Atlantic waters is bycatch in artisanal and commercial fisheries (Wallace
Along the coasts of Angola, Namibia, and South Africa, Honig
The limited bycatch data available for waters of the western coast of Africa show that other fisheries interact with leatherback turtles. Between 2005 and 2015, artisanal fishing nets in Loango Bay in the Republic of Congo killed a total of 45 leatherback turtles; 0 to 628 leatherback turtles were captured or recaptured annually over that time period (Bréheret
While specific information to estimate overall capture and mortality rates of SE Atlantic leatherback turtles in fisheries is not available, it is clear that bycatch in fisheries, especially gillnets and longlines, are a threat to the DPS across its range. Immature and mature individuals are exposed to high fishing effort throughout their foraging range and in coastal waters near nesting beaches. Mortality is also high. Mortality reduces abundance, by removing individuals from the population; it also reduces productivity, when nesting females are incidentally captured and killed. We conclude that fisheries bycatch is a major, and the primary, threat to the SE Atlantic DPS.
There is little information regarding vessel strikes for the SE Atlantic DPS, but such interactions are a potential, and possibly increasing, threat across at least a portion of this DPS's range. In the western South Atlantic foraging grounds off Brazil, Uruguay, and Argentina, increasing vessel traffic from fishing vessels, cargo transport, and tourism has been noted (López-Mendilaharsu
The SE Atlantic DPS faces the threat of pollution across its extensive range throughout the South Atlantic Ocean, from Africa to South America. As the ranges of the SW Atlantic and SE Atlantic DPSs overlap, they are exposed to the same pollutants, which include contaminants, marine debris, and ghost fishing gear. Throughout Africa, marine and coastal pollution is widespread in industrial and urban areas, and garbage litters many developed beaches (Formia
The Gulf of Guinea has increasingly been the focus of extensive oil exploitation activities, following the discovery of large oil reserves. Drilling activities by large oil corporations, with associated pollution and habitat destruction, are threats to nesting aggregations in the area (Formia
In Nigeria, the main sources of pollution include industrial waste, raw/untreated sewage, and pesticides. Oil exploration, exploitation, and transportation have a significant effect on the environment. Spills of crude and refined oil are frequent in the coastal and marine environment, especially during periods of very strong ocean currents, when they can spread to cover the entire 853 km coastline of Nigeria.
It is clear that individuals from the SE Atlantic DPS have a high probability of encountering pollution across their range and throughout their lifecycle. Although the best available information does not quantify such impacts, ample information demonstrates that these threats are ongoing. We conclude that pollution is a threat to the DPS.
Climate change is a threat to the SE Atlantic DPS. The impacts of climate change include: Increases in temperatures (air, sand, and sea surface); sea level rise; increased coastal erosion; more frequent and intense storm events; and changes in ocean currents.
Sea level rise resulting from climate change negatively impacts sea turtle nesting. Erosion of important nesting beaches in Gabon may be at least partially attributable to sea level rise. From 1983 through the 2000s, some areas have lost up to 100 m of beach width, reducing the availability of suitable nesting beach (Gabon Sea Turtle Partnership 2018;
Changes in sand temperatures are likely to impact egg viability and sex determination. Ikaran (2010) found the thermal range of sand over the nesting season to be adequate for hatchling sex ratios to be mixed or even male dominated. In Gabon, the early rainy months tend to produce males, while the later, warmer months produce females, with a tendency towards a net higher production of males. Ikaran (2010) considered the nesting beaches of Gabon to be an important male producing area. However, based on predictions of warming trends, he found that within two decades the ratio could skew towards 100 percent female.
The threat of climate change is likely to modify the nesting conditions for turtles of the DPS, and it is unclear whether they have or can develop the ability to nest in different locations along existing beaches, or on new beaches. Impacts from climate change are likely to range from small, temporal changes in nesting season to large losses of productivity. Therefore, we conclude that climate change is a threat to the DPS.
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply within the range of the SE Atlantic DPS (for a description of each effort, please see the section on conservation efforts for the overall species): Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), FAO Technical Consultation on Sea Turtle-Fishery Interactions, IAC, MARPOL, IUCN, Memorandum of Understanding Concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa, Ramsar Convention on Wetlands, South-East Atlantic Fisheries Organization, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded overall that the SE Atlantic DPS is at high risk of extinction. The total index of nesting female abundance is 9,198 females. Since 2002, the first year that aerial survey data was collected, nesting activity has declined by −8.6 percent annually in Gabon, the largest nesting aggregation of the DPS, and what was, in 2002, the largest nesting aggregation in the world. This declining trend has the potential to further lower abundance and increase the risk of extinction. Nesting and foraging is broadly distributed; thus, the population is somewhat buffered from stochastic events that could otherwise have catastrophic effects on the entire DPS. There is a metapopulation structure within this DPS, with fine-scale genetic differentiation between Gabon and Ghana. Genetic diversity also appears to be moderate. Based on the reduced nesting female abundance and declining nest trend, we find the DPS to be at risk of extinction, likely as a result of past threats.
Current threats place the DPS at further risk of extinction. The primary threat to this DPS is bycatch in commercial and artisanal, pelagic and coastal, fisheries, especially coastal gillnet and pelagic longline fisheries. Fisheries bycatch reduces abundance by removing individuals from the population. Because several fisheries operate near nesting beaches, productivity is also reduced when nesting females are prevented from returning to nesting beaches. Thus, exposure and impact of this threat are high. Habitat loss or modification is a threat that reduces abundance and productivity and includes the impacts of logs, which block access to the
The DPS is relatively data-poor, reducing our ability to quantify threats for more than a small portion of the population. For this reason, the Status Review Team did not come to consensus regarding the extinction risk analysis for the SE Atlantic DPS. All Team members were present to vote on the level of extinction risk. Nine Team members concluded with moderate confidence that the DPS is at high extinction risk due to threats and loss of abundance; their confidence was moderate due to the lack of data on this DPS. Two team members concluded with low confidence that the DPS is at moderate extinction risk; their confidence in this conclusion is low due to the lack of data on this DPS.
We conclude, consistent with the Team's overall conclusion, that the SE Atlantic DPS is currently in danger of extinction. The decreasing nesting trend (
The Team defined the SW Indian DPS as leatherback turtles originating from the SW Indian Ocean, north of 47° S, east of 20° E, and west of 61.577° E. The western boundary occurs at the southern tip of Africa, approximately where the Agulhas and Benguela Currents meet. The eastern boundary occurs at the border between Iran and Pakistan, where the Somali Current begins. These currents, and the cold waters of the Antarctic Circumpolar Current, likely restrict the nesting range of this DPS.
The range of the DPS (
Leatherback turtles of the SW Indian DPS nest over a distance of approximately 900 km, from Cape Vidal, South Africa to Bazaruto Islands, Mozambique (Videira
Nesting occurs on long (5 to 15 km), broad (50 to 100 m), silica sand beaches with little vegetation (Botha 2010; Nel
Foraging areas of the SW Indian DPS include coastal and pelagic waters of the SW Indian Ocean and the SE Atlantic Ocean. The DPS is somewhat unique in that turtles forage in two ocean basins and do not need to undergo long migrations between nesting and foraging areas because highly productive foraging areas are available adjacent to nesting beaches or connected to nesting beaches via fast-moving currents. For example, the warm, fast-flowing Agulhas Current (Lutjeharms 2001; Nel
Satellite tracking of post-nesting females (n = 27) reveals the use of one of three post-nesting migratory corridors: north into the nearby coastal waters of the Mozambique channel; south and west (via the Agulhas and Benguela Currents) into the pelagic waters of the South Atlantic Ocean; or south and east (via the Agulhas Current and Retroflection) into the oceanic eddies in the SW Indian Ocean (Luschi
The total index of nesting female abundance of the SW Indian DPS is 149 females. We based this index on two nesting aggregations: South Africa (Ezemvelo KwaZulu-Natal Wildlife (Ezemvelo), unpublished data, 2018) and Mozambique (Centro Terra Viva Estudos e Advocacia Ambiental (CTV), unpublished data, 2018). Our total index does not include two unquantified nesting aggregations in Mozambique. To calculate the index of nesting female abundance (
This is an index for the DPS because it only includes available data from recently and consistently monitored nesting beaches. While nesting occurs on beaches that stretch across 900 km of South Africa and Mozambique, consistent and standardized monitoring occurs only across approximately 300 km of beaches across the two nations (Nel
Other estimates of total or annual nesting female abundance have been published. The IUCN Red List assessment estimated the total number of mature individuals (males and females) at 148 individuals, based on an average of 259 annual nests (Nel
There are additional published estimates for the South Africa monitoring area. Nel
For Mozambique, our index of nesting females is similar to other published estimates, which are generally less than 20 nesting females (Hamann
The total index of nesting female abundance of 149 females places the DPS at risk for environmental variation, genetic complications, demographic stochasticity, negative ecological feedback, and catastrophes (McElhany
The SW Indian DPS exhibits a slightly decreasing nesting trend. We base our conclusion on data consistently collected in a standardized approach in the 56 km South African monitoring area (Ezemvelo, unpublished data, 2018), where nest counts decreased by −0.3 percent annually (sd = 2.1 percent; 95 percent CI = −4.5 to 4.1 percent; f = 0.557; mean annual nests = 301) between the 1973/1974 and 2016/2017 nesting seasons. The trend in South Africa is likely representative of the entire DPS, as 80 to 90 percent of nesting is estimated to occur there (Wallace
Our trend estimates yield similar results to other published findings for the population. The IUCN concluded that this population has declined slightly, by 5.6 percent over the past three generations, with an annual decline of −0.1 percent in South Africa and −0.7 percent in Mozambique (Wallace
Despite the recent decline in nesting, productivity parameters remain relatively high for the SW Indian DPS, which has the largest body size, largest clutch size, and highest reproductive output of all leatherback turtles, likely due to the close proximity between their nesting beaches and highly productive foraging areas (Saba
The recent nesting decline may reflect the effects of past and current threats that overwhelm the population's high productivity metrics. We conclude that the slightly declining nest trend places the DPS at risk of extinction, which is further exacerbated by the limited nesting female abundance.
The SW Indian DPS comprises, in essence, a single nesting aggregation, with nesting females moving freely between South African and Mozambican beaches (Hughes 1996; Luschi
The DPS exhibits a broad foraging range that extends into coastal and pelagic waters of the eastern Atlantic and western Indian Oceans (Luschi
The wide distribution of foraging areas likely buffers the DPS somewhat against local catastrophes or environmental changes that would limit prey availability. Nesting occurs along one coastline, which is 3,000 km in length and may be similarly affected by environmental variation and directional changes (
Within the SW Indian DPS, genetic diversity is low, with only two mtDNA haplotypes found in 41 nesting females in South Africa (haplotype diversity = 0.298 ± 0.078 and nucleotide diversity = 0.0004 ± 0.0004; Dutton
Coastal erosion, foot and vehicle traffic, and artificial lighting modify the available, suitable nesting habitat and
Coastal erosion removes sand from nesting beaches, inundating nests and destroying eggs. Because leatherback turtles nest lower on the beach than other sea turtles, they have greater exposure to tidal erosion and deposition (Boyes
In Mozambique, Louro (2006) describes beach driving as a “very serious problem.” Tourism and beach driving are increasing in Ponta Malongane and Bazaruto Island, nesting areas in Mozambique, where there is no legislation regarding beach driving (Louro 2006). Foot and vehicular traffic, for tourism and recreational purposes, have been found to impact nesting beach habitat and turtles in several ways. Beach activities can deter females from using a nesting beach. Beach driving causes sand compaction, which may lower nest success. It also creates ruts that slow hatchlings' crawl to the surf, increasing their vulnerability to predators. Beach driving occurs to a lesser extent in South Africa. Recreational beach driving is allowed on a 1.5 km stretch of beach, and tourism driving (for concession, management, and media) involves a maximum of 10 vehicles per night across 40 km of beach (Nel 2006).
Artificial lighting modifies the quality of nesting beaches because lights over land disorient nesting females and hatchlings. Instead of crawling toward the surf and their marine habitat, they crawl further inland, where they may become dehydrated and die or become susceptible to predation. Within the 280 km of coastline within the iSimangaliso Wetland Park, South Africa, there are only four areas of less than 100 m each that contain artificial lighting (Nel 2006). We were unable to find data on artificial lighting in Mozambique.
The majority of nesting habitat occurs within the 280 km coastline of the iSimangaliso Wetland Park in South Africa, which has been a World Heritage Site since 1999 (UN Educational, Scientific and Cultural Organization 1999; Hughes 2010; Robinson
Overutilization is a threat to the SW Indian DPS (Bourjea 2015; Williams
Poaching of turtles is also a threat in Madagascar, where leatherback turtles caught in gillnets are taken back to local villages and consumed, which is documented to have occurred twice in 2016 (Williams 2017). Leatherback turtles were caught and consumed or sold in five of eight Malagasy villages surveyed between October 2004 and March 2004. Fishers reported that leatherback turtles were uncommon but large, possibly indicative of mature individuals (Walker and Roberts 2005).
Egg and turtle poaching does not appear to be a significant threat in South Africa. Prior to the ban on egg harvest in 1963, substantial numbers of leatherback eggs in South Africa were harvested, likely contributing to the critically low number of nesting females at that time (Nel
Exposure to poaching is low in South Africa, where the majority of females nest. Few females nest in Mozambique, reducing the DPS's overall exposure to egg and nesting female poaching during nesting. However, turtles regularly forage in the Mozambique Channel, where they may be poached along the coasts of Mozambique and Madagascar. Poaching of nesting females or post-nesting females (
While we could not find any information on disease for this DPS, predation is a threat to the SW Indian DPS. In South Africa, nest predators include feral dogs, side-striped jackals, honey badgers, and ghost crabs (Hughes 1996; Nel 2006). In the 1960s, the removal of feral dogs greatly reduced nest predation. Similarly, jackals were once a threat (Hughes 1996). However, nest predation by jackals has not been observed for 17 years (R. Nel, pers. comm. April 15, 2019). Nel (2006) reports current rates of predation as relatively low. Nel
While all eggs and hatchlings have some exposure to predation, the species compensated for a certain level of natural predation by producing a large number of eggs and hatchlings. For this DPS, the primary impact is to productivity (
The SW Indian DPS is protected to some degree by several regulatory mechanisms. For each, we review the objectives of the regulation and to what extent it adequately addresses the targeted threat.
Despite efforts to reduce impacts, fisheries bycatch continues to be the primary threat to this DPS (Petersen
Beach habitat is protected throughout a portion of the nesting range of this DPS. In South Africa, approximately 280 km of nesting beaches benefit from intensive and effective protection as part of the iSimangaliso Wetland Park, a World Heritage Site since 1999 (UN Educational, Scientific and Cultural Organization 1999; Nel
In addition, South Africa hosts several marine protected areas and has proposed to add 20 new marine protected areas to expand protection to five percent of its EEZ (
In South Africa, a 1963 ban on egg and turtle harvest has been effective in virtually eliminating overutilization (Hughes 1996). The current law, Regulation 58(7) of the MLRA (1998), provides full protection to sea turtles and their products. In Mozambique, national legislation includes: Diploma Legislativo 2627 (7 August 1965), Forest and Wildlife Regulation (Decree 12/2002 of 6 June 2002) and Conservation Law (Law 5/2017 of 11 May). These laws protect turtles and eggs and impose fines for poaching or possession. For example, the Forest and Wildlife regulation prohibits the killing of turtles and the possession of their eggs, with fines up to US $1,000 (Decree 12/2002 of 6 June 2002; Costa
In summary, numerous regulatory mechanisms protect leatherback turtles, eggs, and nesting habitat throughout the range of this DPS. Though the regulatory mechanisms provide some protection to the species, many do not adequately reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. As a result, bycatch, incomplete nesting habitat protection, and poaching in Mozambique and Madagascar remain threats to the DPS. In summary, we consider the inadequacy of the regulatory mechanisms to be a threat to the SW Indian DPS.
Fisheries bycatch is the primary threat to the SW Indian DPS (Wallace
Of all gear types, longline fisheries likely have the largest impact on the DPS (Petersen
Harris
In the Indian Ocean, Huang and Liu (2010) evaluated the Taiwanese longline fishery bycatch, and Louro (2006) described illegal longlining in Mozambique waters. Huang and Liu (2010) evaluated observer data from 77 trips (4,409 sets) on Taiwanese large-scale longline fishing vessels. They identified 84 leatherback turtles captured from 2004 to 2008, with 48 mortalities (57 percent; Huang and Liu 2010). Extrapolating to the entire Taiwanese longline fishery in the Indian Ocean, they estimated an average bycatch of 173 leatherback turtles between 2004 and 2007. This number likely included individuals from the SW and NE Indian DPSs. In addition to commercial longlining, artisanal longlining also occurs in the SW Indian Ocean. Illegal longlining off Mozambique targets sharks and leatherback turtles. The level of take and mortality is unknown. A program called Eyes on the Horizon reports such events, when observed (Louro 2006).
In the SE Atlantic Ocean, Honig
Other fisheries also impact the SW Indian DPS, possibly resulting in substantial mortalities. However, these fisheries are not as well studied, and mortality estimates are not available (Honig
During a small random sampling exercise in 2013 by onboard observers from the Research Division of Eritrea, one leatherback turtle (of 48 sea turtles total) was captured and released (Mebrahtu 2015). On June 20, 2019, the European Union passed a regulation (PE-CONS 59/1/19 Rev 1) that requires shrimp trawl fisheries to use a turtle excluder device in European Union waters of the Indian and West Atlantic Oceans.
Gillnets in Macaneta, Mozambique, killed two leatherback turtles during the 2010 nesting season (Videira
Shark or bather nets, which are gillnets installed off beaches in South Africa to limit human-shark interactions, incidentally capture
To reduce bycatch mortality in longlines, South African regulations require vessels to carry a dehooker and line cutter (Honig
Individuals (immature and adult turtles) of this DPS are exposed to high fishing effort throughout their foraging range. Estimates of bycatch rates, when available, range considerably. For example, Harris
Vessel strikes are a threat to the SW Indian DPS. According to Nel
Pollution includes contaminants, marine debris, and ghost fishing gear. As with all leatherback turtles, entanglement in and ingestion of marine debris and plastics are threats that likely kill several individuals a year. For six stranded hatchlings and 24 stranded adults over the past 40 years, the cause of death was generally unknown. However, fishery-related injuries, ghost-fishing (
In addition, State of the World's Sea Turtles (SWOT 2017) identifies hydrocarbon extraction along the eastern African seaboard, including northern Mozambique, as the greatest emerging concern for this DPS. They report that the impact of such activities remain to be seen (SWOT 2017). However associated oil spills are likely to modify habitat off nesting beaches and reduce prey availability for all life stages. Harris
Climate change is a threat to the SW Indian DPS. The impacts of climate change include: Increases in temperatures (air, sand, and sea surface); sea level rise; increased coastal erosion; more frequent and intense storm events; and changes in ocean currents.
Angel
Sand temperatures influence leatherbacks' egg viability and sex determination. Temperatures over 32 °C
The threat of climate change may modify the nesting conditions for the entire DPS. Impacts likely range from small, temporal changes in nesting season to large losses of productivity. Because we are already seeing small impacts due to coastal erosion and sea level rise, we conclude that climate change is a threat to the SW Indian DPS.
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply to the SW Indian DPS (for a description of each effort, please see the section on conservation efforts for the overall taxonomic species): African Convention on the Conservation of Nature and Natural Resources (Algiers Convention), Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention on the Conservation of European Wildlife and Natural Habitats, Convention for the Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan Convention) and Memorandum of Understanding Concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa (Abidjan Memorandum), Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), FAO Technical Consultation on Sea Turtle-Fishery Interactions, Indian Ocean Tuna Commission, The Indian Ocean Tuna Commission, Indian Ocean—South-East Asian Marine Turtle Memorandum of Understanding, MARPOL, IUCN, Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, Ramsar Convention on Wetlands, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded that the SW Indian DPS is at high risk of extinction. The DPS exhibits a total index of nesting female abundance of 149 females. Such a limited nesting population size places this DPS in danger of stochastic or catastrophic events that increase its extinction risk. This DPS exhibits a slightly decreasing nest trend at monitored nesting beaches in South Africa. This declining trend has the potential to further lower abundance and thereby increase the risk of extinction. With only one nesting aggregation, the DPS lacks spatial structure, and its genetic diversity is low. Thus, stochastic events could have catastrophic effects on nesting for the entire DPS, with no potential source subpopulations to buffer losses or provide additional diversity. However, the DPS uses multiple, distant, and diverse foraging areas, providing some resilience against reduced prey availability. Based on these factors, we find the DPS to be at risk of extinction, likely as a result of past threats.
Current (ongoing) threats further contribute the risk of extinction of this DPS. The primary threat to this DPS is bycatch in commercial and artisanal, pelagic and coastal, fisheries. Longline fisheries constitute the greatest threat. Though poorly studied, other fisheries together may have overall mortality rates for affected turtles from this DPS that rival those from longline fisheries. Fisheries bycatch reduces abundance by removing individuals from the population. Because several fisheries operate near nesting beaches, productivity is also reduced when nesting females are prevented from returning to nesting beaches. Exposure and impact of this threat are high. Poaching is also a threat to the DPS. Egg and turtle poaching, while no longer a threat in South Africa, likely continues in Mozambique. In Madagascar, turtles are illegally captured at sea and consumed in local villages. Vessel strikes also pose a threat. Vessel strikes kill several leatherback turtles each year, including females returning to beaches to nest. While exposure is low, impacts are high, affecting both abundance and productivity. Coastal erosion and beach driving in Mozambique modify nesting habitat and are believed to result in minor reductions in productivity currently. However, these threats are likely to increase over time as climate change and tourism increases. Climate change is likely to result in reduced productivity due to greater rates of coastal erosion and nest inundation. Predation of eggs and hatchlings is also a threat. However, although predation has the potential to reduce productivity, the DPS has likely adapted to predation by native species, which account for most of the predation at present. Ingestion of plastics and entanglement in marine debris are threats to all leatherback turtles, most likely resulting in injury and reduced health, though sometimes mortality. Though many regulatory mechanisms are in place, they do not reduce the impact of these threats to levels that allow the DPS to continue its previous increasing nesting trend.
Thus, the Team unanimously concluded, that the SW Indian DPS is at high risk of extinction. The total index of nesting female abundance of 149 females makes the DPS highly vulnerable to threats. We determine, consistent with the team's findings, that the DPS is currently “in danger of extinction.” The slightly declining nest trend and lack of spatial structure and diversity further contribute to its risk of extinction. While this small population had an increasing or stable nesting trend for decades, the lack of continued population growth and recent decline may indicate that threats have outpaced productivity. Past egg and turtle harvest initially reduced the nesting female abundance of this DPS and likely confined its nesting habitat to a relatively small geographic area, with little diversity or spatial structure. Currently, fisheries bycatch is the primary present, ongoing threat. It reduces abundance and productivity (
The Team defined the NE Indian DPS as leatherback turtles originating from the NE Indian Ocean, south of 71° N, east of 61.577° E, and west of 120° E. The western boundary occurs at the border between Iran and Pakistan, where the Somali Current begins. This current, and the cold waters of the Antarctic Circumpolar Current, likely restrict the nesting range of this DPS. We placed the eastern boundary at 120° E to approximate the Wallace and Huxley lines, which are established biogeographic barriers to gene flow between Indian and Pacific Ocean populations of numerous species. While the genetic differences between the NE Indian and West Pacific DPSs demonstrate discreteness, genetic sampling is unavailable from areas where the nesting range of the DPSs likely meet, preventing us from defining the boundary more specifically.
The range of the DPS (
Leatherback turtles of the NE Indian DPS nest on beaches scattered throughout the NE Indian Ocean. The largest abundance of nesting occurs on beaches of the Andaman and Nicobar Islands in India. The sandy beaches of the Andaman and Nicobar Islands consist of soft limestone formed of coral and shell (Lal 1976; Bandopadhyay and Carter 2017). A moderate amount of nesting occurs in Sri Lanka, and even less occurs in Thailand and Sumatra, Indonesia (Hamann
Information on this DPS is limited, but foraging appears to occur throughout the Indian Ocean (Andrews
The total index of nesting female abundance of the NE Indian DPS is 109 females. We based this total index on the nesting aggregations at South and West Bays, Little Andaman Island, India (K. Shanker pers. comm., 2018). Our total index does not include 14 unquantified nesting aggregations in Bangladesh, India, Indonesia, Malaysia, Myanmar, Sri Lanka, Thailand, Philippines, and Vietnam. To calculate the index of nesting female abundance, we divided the total number of nests at South and West Bays, Little Andaman Island between the 2015/2016 and 2017/2018 nesting seasons (
Published estimates of total nesting female abundance are not available for this DPS. The IUCN Red List assessment did not provide an estimate of the total number of mature individuals because monitoring was not sufficient (Tiwari
Malaysia once hosted the DPS's largest nesting aggregation (Chan and Liew 1996). It is now considered functionally extinct or extirpated (Pilcher
Our total index of nesting female abundance (109 females) places the DPS at risk for environmental variation, genetic complications, demographic stochasticity, negative ecological feedback, and catastrophes (McElhany
The NE Indian DPS has exhibited a drastic population decline with extirpation of its largest nesting aggregation in Malaysia. Nest counts from Malaysia exhibited a steep decline of 17.9 percent annually (sd = 4.2 percent; 95 percent CI = −25.5 to −8.4 percent; f = 0.998; mean annual nests = 1,166) over the 44-year period of data collection (1967 to 2010). The drastic decline of nests observed in Malaysia is likely representative of the overall trend for the DPS given the magnitude of historical abundance for that site and the high confidence in the trend estimate.
Despite the dramatic population decline, driven by the extirpation of the largest nesting aggregation (
For the NE Indian DPS, nesting is limited to a few, scattered nesting beaches. Currently, the majority of the nesting occurs on beaches of the Andaman and Nicobar Islands and Sri Lanka, with small numbers of nests on the western coast of Thailand, Sumatra, and Java (Nel
Spatial structure is unknown but presumed to be low. There are no estimates of genetic population structure within this DPS because published genotypes only exist for Malaysia (Dutton
The wide distribution of foraging areas likely buffers the DPS somewhat against local catastrophes or environmental changes that would limit prey availability. Remaining nesting is limited to a few, scattered but broadly distributed nesting sites. The largest nesting aggregations are clustered, thus rendering the DPS susceptible to environmental catastrophes (
Genetic diversity of the NE Indian DPS is potentially relatively high, based on analyses of samples collected from the previously large, but now functionally extinct, nesting aggregation in Malaysia (Dutton
Erosion, coastal development, and artificial lighting have destroyed or modified the available, suitable nesting habitat and thus are threats to the NE Indian DPS.
Erosion reduces the available nesting habitat for the DPS. Some erosion occurs as a result of natural disasters. In 2004, a major earthquake occurred off the west coast of Sumatra, Indonesia, resulting in the 2004 tsunami, which destroyed many of the beaches that once hosted over 1,000 nests (Subramaniam
Sand mining and tourism-related development are the main threats to nesting habitat (Fatima
Artificial lighting modifies the quality of nesting beaches because lights over land disorient nesting females and hatchlings. Instead of crawling toward the surf and their marine habitat, they crawl further inland, where they may become dehydrated and die or are susceptible to predation. Nests moved to hatcheries as part of conservation efforts may be subject to inadequate hatchery practices, which have resulted in skewed sex ratios and low hatching success (Chan and Liew 1996; Kapurisinghe 2006; Rajakaruna
Some areas are protected. Of the 306 islands in the Andaman and Nicobar Islands of India, 94 are designated as wildlife sanctuaries, six of which are national parks, and two of which are marine national parks (Andrews
We conclude that nesting females, hatchlings, and eggs are exposed to the reduction and modification of nesting habitat, as a result of erosion, coastal development, and artificial lighting. These threats impact the DPS by reducing nesting and hatching success, thus lowering its productivity. The most abundant remaining nesting aggregations are protected from
Overutilization is a threat to the NE Indian DPS. The harvest of turtles and eggs led to the historical decline of the DPS, and poaching continues in several areas (Phillott
Regular, nearly complete egg harvest caused the functional extinction of the once large nesting aggregation in Malaysia (Chan and Liew 1996). In the early 1960s, the Terengganu, Malaysia nesting beaches were leased to the highest bidder, and nearly all leatherback eggs were harvested. In the 1980s, the State Fisheries Department tried to buy back about 10 percent of the harvested eggs to be incubated in a hatchery (Siow and Moll 1982; Chan and Liew 1996; Stiles 2009). However, such efforts could not prevent the extirpation. Excessive egg harvest, both legal and illegal, also caused declines in India, Sri Lanka, and Thailand (Ross 1982).
The harvest of turtles and eggs continues but has not been quantified (Nel 2012). In Sri Lanka, almost all eggs are taken from the beach and sold at markets or to hatcheries for ecotourism (Kapurusinghe 2000, 2006; Rajakaruna
Exposure to egg and turtle poaching remains high throughout the range of the DPS. Poaching of nesting females or post-nesting females at sea reduces both abundance (through loss of nesting females) and productivity (through loss of reproductive potential). Such impacts are high because they directly remove the most productive individuals from the DPS, reducing current and future reproductive potential. Egg harvest reduces productivity only, but, as previously demonstrated within this DPS, can have devastating population-level impacts. We conclude that overutilization, as a result of egg and turtle harvest, poses a major threat to the NE Indian DPS.
While we could not find any information on disease for this DPS, the best available data indicate that predation is a threat to the NE Indian DPS. Multiple predators prey on eggs and hatchlings at several nesting beaches (Andrews 2000). During a 2016 survey of the Nicobar Islands, approximately 57 percent (n = 1,223) of leatherback nests were lost to depredation by feral dogs, water monitor lizards, or feral pigs (
A large number of eggs and hatchlings are exposed to predation. Though leatherback turtles produce a large number of eggs and hatchlings, published rates of predation (57 to 69 percent) are high. The predation of eggs and hatchlings mainly impacts productivity. We conclude that predation poses a threat to the NE Indian DPS.
Turtles of the NE Indian DPS are protected by several regulatory mechanisms. For each, we review the objectives of the regulation and to what extent it adequately addresses the targeted threat. Nearly all nations that host nesting aggregations have legislation to protect sea turtles.
In India, the leatherback turtle is included on Schedule I, Part II of the Wildlife (Protection) Act, 1972 (Entry No. 11) updated by Wild Life (Protection) Amendment Act, 2002 (No. 16 of 2003). India also bans the hunting and trade of wild animals (India National Report to CMS, 1991 and 1994). However, the indigenous people of the Andaman and Nicobar Islands are exempt from these laws. India has regulations to require TEDs and minimize fisheries interactions; and much of the Andaman and Nicobar Islands are protected as wildlife sanctuaries, including two marine national parks (Andrews
In Indonesia, Order No. 301/1991 lists leatherback turtles as a protected species. Pursuant to the Act of 10 August 1990 on the Conservation of Living Resources and Their Ecosystems, it is prohibited to kill, capture, possess, transport, trade in or export protected animals whether alive or dead, or parts of such animals. The taking, destruction, trade or possession of the eggs or nests of protected animals are also prohibited (ECOLEX 2003). There are no habitat protections and no regulations to minimize fisheries interactions or require TEDs in Indonesia.
In Sabah, Malaysia, the leatherback turtle is not listed as a totally protected or partially protected species in the Wildlife Conservation Enactment (No. 6 of 1997). In Sarawak, Malaysia, leatherback turtles have been fully protected since 1958. Under the Wildlife Protection Ordinance 1998, all marine turtles in Malaysia are protected from hunting, killing, capture, sale, import, export, possession of any animal, recognizable part or derivative or any nest, except in accordance with the permission in writing of the Controller of Wildlife for scientific or educational purposes or for the protection or conservation of a species (Tisen and Bali 2002). The nesting beach at Rantau Abang, Terengganu is protected. However, the nesting aggregation that once used this beach has been extirpated. In 1994, the waters surrounding 38 offshore islands of Peninsular Malaysia and Labuan became protected as marine parks. In
In Myanmar, the Burma Wildlife Protection Act 1936 (Act No. VII of 1936) requires licenses to hunt, possess, sell, or buy wild animals with closed hunting seasons (FAOLEX 2003). The Burma Wildlife Protection Rules of 1941 states that the import or export of any reptile (including parts or products) into or from Myanmar is prohibited.
In Pakistan, the leatherback turtle is protected in Baluchistan, Azad Kashmir and Sind (Baluchistan Wildlife Protection Act 1974 No.19/1974; The Azad Jammu and Kashmir Wildlife Act 1975 No.23/1975; The Sindh Wildlife Protection Ordinance 1972 No.5/1972). Possession, transport, and/or national trade are prohibited or regulated (ECOLEX 2003).
In Sri Lanka, the leatherback turtle is protected under the Fauna and Flora Protection Ordinance (Sri Lanka National Report to CMS 1994), which makes it an offense to kill, wound, harm or take a turtle, or to use a noose, net, trap, explosive or any other device for those purposes, to keep in possession a turtle (dead or alive) or any part of a turtle, to sell or expose for sale a turtle or part of a turtle, or to destroy or take turtle eggs. The minister of Fisheries and Aquatic Resources may also prohibit or regulate the import and export of turtles or their derivatives (Parliament of the Democratic Socialist Republic of Sri Lanka 1993). The nesting beach in Yala Reserve is also protected.
In Thailand, the Leatherback Turtle is protected under the Animals Protection Act B.D 2535 (The Zoological Park Organization 2003).
In summary, numerous regulatory mechanisms protect leatherback turtles, their eggs, and nesting habitat throughout the range of this DPS. Although these regulatory mechanisms provide some protection, many do not adequately reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. As a result, bycatch, nesting habitat protection, and legal and illegal harvest remain threats to the DPS. We conclude that the inadequacy of the regulatory mechanisms is a threat to the NE Indian DPS.
Fisheries bycatch is a threat to the NE Indian DPS. Capture in gillnet, trawl, purse seine, and longline fisheries is a significant cause of leatherback mortality for this DPS (Wright and Mohanty 2002; Hamann
Gillnet fisheries pose a major threat to the DPS. A survey conducted at 16 main fishing ports in Sri Lanka estimated that 431 leatherback turtles were caught in gillnets between 1999 and 2000 (Kapurusinghe and Cooray 2002). In Malaysia, Chan
Trawl fisheries also pose a large threat to the DPS. In India, TEDs are required for trawl nets. However, fishers are reluctant to use them (Murugan 2007). Trawl fishing is also common in Bangladesh, and the use of TEDs is not required (Ahmed
Longline fisheries occur in coastal and pelagic waters. Huang and Liu (2010) evaluated observer data from 77 trips (4,409 sets) on Taiwanese large-scale longline fishing vessels in the Indian Ocean. They identified 84 leatherback turtles captured from 2004 to 2008, with 48 mortalities (57 percent; Huang and Liu 2010). Extrapolating to the entire Taiwanese longline fishery in the Indian Ocean, they estimated an average bycatch of 173 leatherback turtles between 2004 and 2007. This number likely includes individuals from both the SW and NE Indian DPSs (Louro 2006). In Vietnam, longline fisheries continue to capture leatherback turtles. However, a circle hook program has been implemented to minimize the impact (WWF 2013).
Purse seine fisheries have a much lower impact than longline fisheries (Angel
In Thailand, one of the main causes of decline in the turtle population is bycatch in trawl, drift gillnet, and purse seine fisheries. The rapid expansion of fishing operations is largely responsible for the increase in adult turtle mortality due to bycatch (Settle 1995).
In Malaysia, the Fisheries Act of 1985 prohibited capture of sea turtles by any type of fishery. However, this merely reduced the reporting of interactions (Yeo
We conclude that juveniles and adults are exposed to high fishing effort throughout their foraging range and in coastal waters near nesting beaches. Mortality rates are likely high, especially in areas where turtle meat is consumed. Mortality reduces abundance, by removing individuals from the population. It also reduces productivity, when nesting females are incidentally captured and killed. We conclude that fisheries bycatch is a major threat to the NE Indian DPS.
Pollution includes contaminants, marine debris, and ghost fishing gear. Ghost fishing gear can drift in the ocean and fish unattended for decades and kill numerous individuals (Wilcox
As with all leatherback turtles, entanglement in and ingestion of marine debris and plastics are threats that likely kill several individuals a year. However, data specific to this DPS were not available. We conclude that pollution is a threat to the NE Indian DPS, albeit with effects that are unquantifiable on the basis of the best available information.
Climate change is a threat to the NE Indian DPS. A significant rise in sea level would further reduce nesting habitat, which is already affected by erosion. The DPS is also likely to be affected by increases in sand temperatures (Hawkes
In addition, the frequency and intensity of severe storm events and cyclones in the Bay of Bengal are predicted to increase with climate change (Balaguru
Climate change is likely to modify nesting conditions for the entire DPS. Impacts likely range from small changes in nesting metrics to large losses of productivity. As the DPS is already experiencing nesting habitat loss due to coastal erosion, we conclude that climate change is a threat to the NE Indian DPS.
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply to the NE Indian DPS (for a description of each effort, please see the section on conservation efforts for the overall species): Association of Southeast Asian Nations Ministers on Agriculture and Forestry, Andaman and Nicobar Island Environmental Team, The Centre for Herpetology/Madras Crocodile Bank Trust, Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), FAO Technical Consultation on Sea Turtle-Fishery Interactions, The Indian Ocean Tuna Commission, Indian Ocean—South-East Asian Marine Turtle Memorandum of Understanding, MARPOL, IUCN, Memorandum of Agreement between the Government of the Republic of the Philippines and the Government of Malaysia on the Establishment of the Turtle Island Heritage Protected Area, Memorandum of Understanding on Association of South East Asian Nations Sea Turtle Conservation and Protection, The Memorandum of Understanding of a Tri-National Partnership between the Government of the Republic of Indonesia, the Independent State of Papua New Guinea and the Government of Solomon Islands, National Sea Turtle Conservation Project in India, Ramsar Convention on Wetlands, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded that the NE Indian DPS is at high risk of extinction. The once large nesting aggregation in Malaysia is now functionally extirpated. The total index of nesting female abundance is 109 females at all monitored beaches. This estimate is likely low because several nesting sites were not included in the calculation due to lack of consistent, standardized monitoring over multiple and entire nesting seasons. Still, the low nesting female abundance places this DPS at risk of stochastic or catastrophic events that increase its extinction risk. The DPS once exhibited much greater nesting female abundance, which has dramatically declined in recent decades. It currently exhibits a slightly declining nest trend at monitored nesting beaches in India. The DPS exhibits average productivity metrics, such as body size, clutch size and frequency. Though it exhibits some spatial distribution and diversity, with multiple foraging sites and relatively high genetic diversity at the sampled locations, nesting only occurs on islands. Based on these factors, we find the DPS to be at risk of extinction as a result of past threats.
Current threats further contribute to the risk of extinction of this DPS. Major threats to the DPS include fisheries bycatch and the harvest of turtles and eggs. There are not many nests to exploit, but evidence suggests that if such nests are found by humans, the eggs are at risk of being harvested. Egg harvest led to the extirpation of the largest nesting aggregation (
We conclude, consistent with the team's findings, that the NE Indian DPS is currently in danger of extinction. Its low nesting female abundance makes the DPS highly vulnerable to threats. Dramatic declines in over the past several decades contribute to our concern over the continued persistence of the DPS. Past egg and turtle harvest initially reduced the nesting female abundance of this DPS and likely confined its nesting habitat to a few island beaches, with little diversity and reduced spatial distribution. The present, ongoing threats include: overutilization (
The Team defined the West Pacific DPS as leatherback turtles originating from the West Pacific Ocean, south of 71° N, north of 47° S, east of 120° E, and west of 117.124° W. The northern and southern boundaries reflect the highest latitude occurrences of leatherback turtles in each hemisphere (Goff and Lien 1988; Carriol and Vader 2002; McMahon and Hayes 2006; Shillinger
The range of the DPS (
Leatherback turtles of the West Pacific DPS nest in tropical and subtropical latitudes primarily in Indonesia, Papua New Guinea, and Solomon Islands, and a lesser extent in Vanuatu (Dutton
Nesting beach habitats throughout the West Pacific are generally dynamic, high profile beaches associated with deep water approaches and strong waves. Beaches can be quite narrow as in parts of the Solomon Islands or Papua New Guinea, or broad as in the case of Jamursba-Medi, Indonesia during the summer months. Nesting females appear to prefer coarse-grained sand free of rocks, coral, or other abrasive substrates (reviewed by Eckert
While West Pacific leatherback turtles do not have distinct “migratory corridors,” several areas are considered “areas of passage” used by turtles traveling between nesting and foraging locations, and there is clear separation of migratory and foraging destinations based on nesting season (Benson
Leatherback turtles migrate through and forage in the waters of the Philippines (Benson
The total index of nesting female abundance of the West Pacific DPS is 1,277 females. We based this total index on two nesting aggregations in Jamursba-Medi and Wermon, Indonesia (Tapilatu
Based on the Tapilatu
Within the nesting range of this DPS, nest monitoring activities have occurred relatively recently, with standardized methods in Papua Barat first implemented in 2002 (Hitipeuw
In Indonesia, aerial surveys provided the first indication of leatherback nesting in Papua (
In Papua New Guinea, the majority of known nesting activity occurs during the winter months (November to February) along the Huon Coast on the northeastern coast of the Morobe Province, where 576 females were tagged between 1999 and 2013 (Pilcher 2006, 2008, 2009, 2010, 2011, 2012, 2013; Pilcher and Chaloupka 2013). Aerial surveys along the Huon Coast in January and December between 2004 and 2006 documented 276 nests, with an estimate of 500 nests per season (Benson
Additional nesting activity occurs in other areas of Papua New Guinea, such as along the north coast of the Madang Province and on several islands including Manus, Long, New Britain, Bougainville, New Ireland, and Normanby (Prichard 1982; Spring 1982; Benson
In the Solomon Islands nesting activity is distributed throughout the country with the majority of nesting activity at Sasakolo and Litogarhira beaches on Isabel Island, and on Rendova and Tetepare Islands in the Western Province (Pita 2005; Dutton
Nesting occurs in low numbers at other islands in the western Pacific Ocean. In Vanuatu, 30 to 40 nests are laid annually on Epi and Ambrym Islands (Dutton
The total index of nesting female abundance of the West Pacific DPS (
The West Pacific DPS exhibits a declining nesting trend. We conducted trend analyses for the two index beaches in Indonesia, which were the only two beaches with 9 or more recent years of standardized data, with the most recent data collection in 2014 or more recently (the standards for conducting a trend analysis in this report). The median trend in annual nest counts estimated for Jamursba-Medi (data collected from 2001 to 2017) was −5.7 percent annually (sd = 5.4 percent; 95 percent CI = −16.2 to 5.3 percent; f = 0.867; mean annual nests = 2,063). While data are available for the period starting in 1999, the best available information indicates that beach monitoring and nest protection practices improved in 2001; therefore, we used the time series starting in 2001. For Wermon (data collected from 2006 to 2017, excluding 2002-2005 and 2013-2015 due to low or insufficient effort), the median trend was −2.3 percent annually (sd = 8.4 percent; 95 percent CI = −19.8 to 14.9 percent; f = 0.643; mean annual nests = 1,010). As Jamursba-Medi and Wermon currently represent approximately 75 percent of nesting for this DPS, we
Our trend data for Indonesia yield similar results to other published findings. The IUCN Red List assessment found a decreasing trend of −7 percent annually (Tiwari
At Jamursba-Medi, nesting data have been collected for some years since 1981. However, no data were collected during many years in the mid-1980s and late 1990s (Tapilatu
The first comprehensive surveys at Wermon beach in 2002 found almost as many nests laid on Wermon as on Jamursba-Medi (Hitipeuw
Local residents stated that leatherback turtles were the dominant sea turtle species nesting in Maokawari prior to the 1980s, but that the population has declined significantly since the 1990s due to village development and exploitation of turtles and eggs (Tapilatu
Data collection in Papua New Guinea spanned 8 years and ended prior to 2014. Because these data did not meet our criteria for “recent,” we did not perform a trend analysis, but included a bar graph in the Status Review Report. In Papua New Guinea, nesting activity along the Huon Coast was relatively stable between 2005 and 2013, with 193 to 527 nests per year (mean annual nests = 258) and with most nesting activity occurring at two primary areas, Busama and Kamiali (Pilcher 2013; Benson
In the Solomon Islands, it is not possible to estimate nesting trends due to non-standardized methods and opportunistic monitoring efforts over time. Available datasets cannot be compared due to differences in methodology and do not meet our criteria (
In Vanuatu, anecdotal information suggests that nesting has declined over time (Petro
In addition to an overall declining nest trend, the West Pacific DPS exhibits low reproductive output (
The DPS exhibits low productivity (
The West Pacific DPS nests throughout four countries with a broad, diverse foraging range. It exhibits metapopulation dynamics and fine-scale population structure.
Aerial surveys conducted between 2004 and 2007 identified Indonesia, Papua New Guinea and Solomon Islands as the core nesting areas for the DPS (Benson
Migration and foraging strategies vary based on nesting season, likely due to prevailing offshore currents and seasonal monsoon-related effects experienced by the turtles as hatchlings (Gaspar
Summer nesting females forage in Northern Hemisphere habitats in Asia and the Central North Pacific Ocean, while winter nesting females forage in tropical waters of the Southern Hemisphere in the South Pacific Ocean (Benson
The DPS also exhibits genetic population structure. While mtDNA analyses of 106 samples from Indonesia, Papua New Guinea, and Solomon Islands did not detect genetic differentiation among nesting aggregations (Dutton
The wide distribution and variance in foraging strategies likely buffers the DPS to some degree against local catastrophes or environmental changes that would limit prey availability. The distribution of nesting beaches throughout four countries, although primarily concentrated in three, helps to buffer the entire DPS from major environmental catastrophes, because disturbances are not likely to similarly affect all countries during the same seasons. Additionally, the fine-scale genetic structure among nesting aggregations is indicative of metapopulation dynamics, which may also provide the DPS with some resilience.
The West Pacific DPS exhibits genetic diversity, with six haplotypes identified in 106 samples from Solomon Islands, Papua Barat Indonesia, and Papua New Guinea (Dutton 2006; Dutton
The destruction or modification of habitat is a threat to this DPS. Primary impacts to nesting beaches include erosion and ocean inundation, which may be caused by natural processes.
Nesting beaches of the West Pacific DPS are dynamic, high profile beaches that are subject to erosion, such as during King Tides (naturally occurring, predictable highest tides), which are common seasonal occurrences. In Indonesia, the Bird's Head Peninsula beaches are also subject to seasonal patterns of erosion and accretion. Changes in the currents brought on by monsoons beginning in September cause major erosion at Jamursba-Medi that often removes the entire beach, making the habitat unsuitable for nesting until accretion begins again in March (Hitipieuw
At Wermon, the inundation of nests from high tides is a threat during the winter months. During the 2008/2009 winter nesting season, 26 percent of nests laid at Wermon were inundated by tidal activity (Wurlianty and Hitipeuw 2009). During the 2004/2005 nesting season, 23 percent of nests were lost to inundation (Wurlianty and Hitipeuw 2005). During the 2003/2004 nesting season, 10.7 percent of all nests at Wermon were below the high water mark and were subsequently washed away by high tides (Hitipeuw
Beach erosion is also a threat to nests in Papua New Guinea, where strong storms and tidal surges result in substantial erosion and changes to beaches throughout the Huon Coast. For example, much of the Labu Tale nesting beach was lost to erosion during the 2012/2013 nesting season (Pilcher 2013). The differences in beach width along the Huon Coast place some beaches at more risk of inundation and erosion, such as Kamiali Beach, which is half the width and significantly narrower than Busama Beach (Pilcher 2008). At Kamiali, the average distance of nests to the sea was 3.2 m, compared to 6.2 m at Busama; the distances to the vegetation line were comparable across sites (1.3 m and 1.7 m, respectively; Pilcher 2013).
In Vanuatu, there has been low hatching success in some years due to storms, floods, and high water (Petro
In recent years, management and conservation practices have included relocating erosion-prone nests to bolster hatchling production. However, these projects are funding-dependent throughout the range of the West Pacific DPS. At Jamursba-Medi, “doomed” nests (
A large, significant portion of nests (
The primary threat to the West Pacific DPS is the harvest (both legal and illegal) of leatherback turtles and their eggs. Leatherback turtles are protected by regulatory mechanisms in all four nations where the DPS nests, but laws are largely ignored and not consistently enforced. This is due to the extreme remoteness of beaches, customary and traditional community-based ownership of natural resources (which includes sea turtles), and overall lack of institutional capacity and funding for enforcement. Furthermore, the cultural and socio-economic dynamics in these nations confound community buy-in and conservation efforts (Kinch 2006; Gjersten and Pakiding 2012; von Essen
Turtle poaching affects both nesting females on beaches and turtles in their foraging habitats (Bellagio Sea Turtle Conservation Initiative 2008; Kinch 2009; Suarez and Starbird 1996; Tiwari
In Indonesia, the poaching of turtles and eggs continues to occur, though egg harvest and exploitation of females has been minimized at Jamursba-Medi and Wermon beaches due to the presence of monitoring programs and educational outreach. Large-scale egg poaching
In Indonesia, foraging leatherback turtles are also harvested in the waters of the Kei Islands, Maluku Province, where a recognized indigenous subsistence harvest of immature and adult turtles (average size 145 to 170 cm; range 52 to 203 cm) occurs and has likely been a key feature of the local traditional culture for centuries (Compost 1980; Hamman
In Papua New Guinea, turtle and egg poaching is a major threat despite the fact that leatherback turtles have been protected since the 1976 Fauna (Protection and Control) Act. The illegal take of both eggs and turtles likely continues throughout the country due to lack of community-based awareness, reliance on traditional community-based practices, institutional capacity, and law enforcement (Bellagio Sea Turtle Conservation Initiative, 2008). The killing of nesting females has also been well documented throughout Papua New Guinea (Bellagio Sea Turtle Conservation Initiative 2008; Kinch 2009; Pilcher 2013). For example, at Bougainville Island, surveys of community members identified that 21 nesting females were poached during the last decade (Kinch 2009). However, the harvest of eggs is likely the most prolific threat in Papua New Guinea. If unprotected, egg harvest (compounded by intense dog predation described below) resulted in the loss of 70 to 100 percent of nests (Quinn and Kojis 1985; Hirth 1993; Bellagio Sea Turtle Conservation Initiative 2008; Pilcher 2013). For example, during a one week survey in January 2009 at Bougainville Island, almost 100 percent of the 46 documented nests were poached (Kinch 2009). It is likely that near total egg collection occurred throughout the Huon Coast between World War II and the establishment of the Huon Coast Leatherback Turtle Monitoring and Conservation Program in 2003 (Bellagio Sea Turtle Conservation Initiative 2008; Pilcher and Chaloupka 2013; Pilcher 2013). The Huon Coast Project, which operated between 2003 and 2013, helped to reduce egg and turtle harvest due to program involvement and community incentive funds received in exchange for non-harvest agreements (Pilcher 2013). As a result of the program, hatchling production (
In Vanuatu and the Solomon Islands, the poaching of females and collection of eggs is also well documented (Bellagio Sea Turtle Conservation Initiative 2008; NMFS and USFWS 2013). In Vanuatu, MacKay
Within the West Pacific DPS, many nesting females, foraging turtles, and eggs are exposed to both illegal poaching and legal harvest. The taking of turtles reduces abundance. The taking of nesting females reduces both abundance and productivity. Such impacts are high because they directly remove the most productive individuals from the DPS, reducing current and/or future reproductive potential. Egg harvest reduces productivity; the persistent, and near-total (at some locations) collection of eggs guarantees that future population recruitment (
While we could not find any information on disease for this DPS, predation of eggs is a major and well-documented threat to the West Pacific DPS, likely second to poaching (
In Indonesia, predation of eggs by feral pigs, feral dogs, and monitor lizards has been documented, with feral pig predation being the most detrimental (Hitipeuw and Maturbongs 2002; Tapilatu and Tiwari 2007; Bellagio Sea Turtle Conservation Initiative 2008). Nest predation by domestic and/or feral dogs has been recorded in both Jamursba-Medi and Wermon. Predation of nesting females by crocodiles has also been documented at Wermon beach (Bellagio Sea Turtle Conservation Initiative 2008; UNIPA, pers. comm., 2018). At Jamursba-Medi, between June and July of 2005, 29.3 percent of nests were destroyed by pigs (Tapilatu and Tiwari 2007). Intensive management effort at Jamursba-Medi reduced feral pig predation of nests to five percent during the 2016 and 2017 nesting seasons (Tiwari
In Papua New Guinea, predators of eggs include feral dogs, monitor lizards, and ghost crabs (Kinch 2009). Depredation of nests by village dogs was determined to be an intense threat to nests, with dogs consuming all nests laid during the 2003/2004 and 2004/2005 nesting seasons at Kamiali beach (Pilcher 2006; I. Kelly, NMFS, pers. comm., 2018). Predation of nesting females by crocodiles has also been documented in a number of locations in Papua New Guinea (Bellagio Sea Turtle Conservation Initiative 2008; Kinch 2009). To protect nests, Huon Coast communities developed and placed bamboo grids over nests to prevent dogs from preying on the eggs (Pilcher 2006; 2009). This, along with efforts to reduce egg harvest by humans, resulted in increased hatching production from zero to approximately 60 percent between 2006 and 2013, with over 2,300 nests saved producing approximately 100,000 hatchlings (Pilcher 2009; 2011; 2013; WRFMC 2015). However, this project ended in 2013, and it is unknown if egg protection continues, or if nest predation has resumed.
In this DPS, a large proportion of eggs are exposed to predation, especially by dogs and pigs. Predation primarily results in the loss of eggs, and the impact of this threat is a reduction of productivity. Though leatherback turtles generally produce a large number of eggs and hatchlings, predation is widespread throughout the range of the DPS, and in some areas, predation rates are as high as 100 percent. We conclude that predation poses a threat to the West Pacific DPS.
The West Pacific DPS is protected by several regulatory mechanisms. For each, we review the objectives of the regulation and to what extent it adequately addresses the targeted threat.
Leatherback turtles are protected by legislation in all four of the nations where the West Pacific DPS nests (Indonesia, Papua New Guinea, Solomon Islands, and Vanuatu). It is generally illegal to harvest leatherback turtles and their eggs. However, laws are not typically enforced or followed given customary marine tenure systems that dictate near-shore rights. Lack of enforcement or implementation of protective laws may be due to: Overall lack of in-country institutional capacity and funding for enforcement; the extreme remoteness of beaches; customary marine tenure or traditional community-based ownership of natural resources in these nations (which includes sea turtles; Kinch 2006; McDonald 2006) and regulatory government-led legislation, which may be incompatible with traditional practices (von Essen
In Indonesia, all sea turtles are protected by law, but there are allowances for indigenous peoples (although indigenous provisions are not clearly defined). The 1990 Government Regulation Act number 5 concerning the Conservation of the Natural Resources and the Ecosystem, makes the trade of protected wildlife illegal, and those found liable can be punished to a maximum of 5-year prison term and fined 100 million Indonesia Rupiah (approximately 6,500 USD). The protection of all sea turtle species (Government Regulation No. 7 on Preserving Flora and Fauna Species) came into effect in 1999 (Zainudin
In Papua New Guinea, the leatherback turtle is the only species protected under the 1976 Fauna (Protection and Control) Act, which makes killing of leatherback turtles or taking of leatherback turtle eggs illegal, with fines of 500 to 1000 kina (approximately 100 to 300 USD). Any person who buys or sells or offers for sale, or has in possession leatherback turtle eggs or meat can also be fined. The Act makes provisions for persons with customary rights to take turtles, but states that sea turtles cannot be taken, killed, or sold from May through July (Kinch 2006). This is typically the nesting season for hard-shelled sea turtle species, but leatherback turtles nest primarily during the winter months (November to February). As with most Melanesian countries, lands are locally-owned and managed, and the national government has little influence outside major cities (Kinch 2006).
The Solomon Islands Fisheries Act (1993) regulations protect nesting turtles and eggs during the breeding season (June to August and November to January); prohibit the sale, purchase, or export of sea turtle species or their parts; and contain specific protections for leatherback turtles. In the Solomon Islands, more than 85 percent of the land is held under customary (locally-managed) marine tenure, and the vast majority of the population still lives in rural areas making a living from the natural resources on those lands. For centuries, communities have practiced traditional models of resource stewardship, making implementation and enforcement of national regulations nearly impossible. Instead, natural
Fisheries Regulations under the Vanuatu Fisheries Act (2009) prohibit the take, harm, capture, disturbance, possession, sale, purchase of or interference with any turtle nest (or any turtle in the process of nesting) and the import, or export of green, hawksbill, and leatherback turtles or their products (shell, eggs, or hatchlings). The Act also prohibits the possession of turtles in captivity. A person may apply in writing to the Director of Fisheries for an exemption from all or any of these provisions for the purposes of carrying out customary practices, education, and/or research. Similar to Papua New Guinea and the Solomon Islands, natural resource governance in Vanuatu is best directed, realized, and implemented at the community level and not via national legislation. Fortunately, traditional practices are experiencing a renaissance in Vanuatu and may complement current regulatory marine resource management efforts (Hickey
Throughout the foraging range of the DPS, there are numerous regulatory mechanisms that protect turtles within the DPS. These include: RFMOs such as the Western and Central Pacific Fisheries Commission (WCPFC) and the IATTC and fisheries management regulations in 32 nations where this DPS may occur (Harrison
In summary, regulatory mechanisms exist to protect leatherback turtles and their eggs throughout the range of this DPS. However, most are inadequate to reduce the threat that they were designed to address due to a lack of implementation or enforcement or inclusion of provisions for indigenous harvest. Regulations are also misaligned with established traditional practice and management systems. As a result, poaching and bycatch remain major threats to the DPS. In summary, we consider the inadequacy of the regulatory mechanisms to be a threat to the DPS.
Fishery bycatch in coastal and pelagic fisheries is a major threat to the West Pacific DPS, which is exposed to domestic and international fisheries throughout its extensive foraging range. At-sea bycatch of leatherback turtles has been documented for a variety of gillnet and longline fisheries in the Pacific Ocean, but little is known about the total magnitude or full geographic extent of mortality. Satellite telemetry studies have identified movements and revealed fidelity to foraging regions of the DPS, specifically in habitats of the North Pacific Ocean, southwestern Pacific Ocean, and Indo-Pacific tropical seas (Bailey
Historically, significant leatherback bycatch was documented in the North Pacific high seas driftnet fishery, which expanded rapidly during the late 1970s but was banned in 1992 by a UN resolution (summarized in Benson
Many nations are involved in longline fishing in the Pacific Ocean, where two types of vessels are used: (1) Large distant-water freezer vessels that undertake long (months) voyages and operate over large areas of the region; and (2) smaller offshore vessels with ice or chill capacity that typically undertake trips of about one month. Target species are yellowfin, bigeye, albacore tuna, and swordfish. The total annual number of longline vessels in the western and central Pacific region has fluctuated between 3,000 and 6,000 for the last 30 years, including the 100 to 140 vessels in the Hawaii longline fisheries (NMFS 2018).
International longline fisheries are characterized by inconsistent reporting and traditional gear configurations, including J-style hooks with squid bait, which result in higher interaction and mortality rates than for modified gear (Beverly and Chapman 2007; Lewison
Despite scientific evidence showing that use of circle hooks and finfish bait significantly reduces leatherback turtle bycatch rates in longline fisheries (Gilman
A workshop convened to assess the effectiveness of WCPFC's Sea Turtle Conservation and Management Measure found limited reductions in interactions and mortalities (Clarke 2017). Fishery observer data collected between 1989 and 2015 of 34 purse seine and longline fleets across the Pacific documented a total of 2,323 sea turtle interactions, of which 331 were leatherback turtles (Clarke 2017). Two bycatch hotspot areas were identified: One in central North Pacific (which likely reflects the 100 percent observer coverage in the Hawaii shallow-set longline fishery) and a second hotspot in eastern Australia (Clarke 2017). However, analysis of the data also found that overall conservation benefits would have been greater had mitigation measures also been applied to deep-set gear and not only to shallow-set swordfish fisheries (Clarke 2017).
While bycatch in pelagic shallow-set swordfish-targeting longline fisheries has received the most attention to date, comparable studies for deep-set tuna-targeting fisheries are not available due to the more complex nature of these fisheries. There may be fewer interactions because deep-set fisheries (operating at depths more than 60 m) generally have lower bycatch rates, but they also have higher mortality rates than shallow-set gear (Lewison
Wallace
Waters of Southeast Asia are heavily fished by a variety of gillnets, trawls, fish traps, and a range of different hook and line gears, involving hundreds of thousands of fishers (FAO 2011). The West Pacific DPS nests, migrates, and forages throughout this densely populated and heavily exploited coastal region (Bellagio Sea Turtle Conservation Initiative 2008; Benson
There are few quantitative estimates of fisheries interactions near nesting beaches of this DPS, and existing reports provide only brief snapshots of impacts or are outdated. In Indonesia, between 1980 and 1993, shark gillnets off the nesting beaches of Jamursba-Medi killed two to three nesting females weekly (Tapilatu
Fisheries operating out of Australia and New Zealand may result in high bycatch and mortality rates for the winter nesting component of the DPS that migrates into the Southern Hemisphere (MacKay
Between 2004 and 2014, the Australian shallow-set fishery had an estimated 29 to 178 leatherback interactions, based on two to 10 observations (average = 4.6 interactions) and four to 10 percent observer coverage (MacKay
In New Zealand, records document 288 instances of stranding or commercial and recreational bycatch of leatherback turtles from 1892 to 2015 (Godoy
Detailed bycatch data are available for U.S.-managed pelagic fisheries operating in the central and eastern Pacific Ocean due to regulatory mandates and high levels of observer coverage. Longline fisheries, based out of Hawaii and American Samoa, may interact with foraging turtles of the West Pacific DPS. However, only two interactions involved individuals of the East Pacific DPS in 1995 and 2011 (P. Dutton, NMFS, pers. comm., 2018). Prior to 2001, the Hawaii longline fishery was estimated to capture about 110 leatherback turtles annually, resulting in approximately 9 annual mortalities (McCracken 2000). Since 2005, the fishery has reduced its estimated mortality to seven leatherback turtles annually, and data confidence increased significantly due to increased observer coverage (NMFS 2018). The fishery was closed in 2001 under court order and re-opened in 2004 as two separate fisheries: A shallow-set swordfish-targeting fishery and a deep-set tuna-targeting fishery. Management requirements include: Gear modification (
The U.S. tuna purse seine fishery operating in the Western and Central Pacific Ocean anticipates up to 11 leatherback turtle interactions annually (NMFS 2006). However, the fishery had fewer interactions, with approximately 16 leatherback turtle interactions between 2008 and 2015 based on observer coverage ranging from 20 to 100 percent (NMFS unpublished data).
From 1990 to 2009, there were 24 observed leatherback turtle interactions in the California drift gillnet fishery based on 15.6 percent per year observer coverage (Martin
In addition, nine fixed gear fisheries operate off the U.S. West Coast, including the Federally-managed sablefish pot fishery and the state-managed California Dungeness crab fishery. Since 2008, only one leatherback interaction has been documented in the sablefish fishery (NMFS 2013). The state-managed Dungeness crab fishery may be a newly emerging threat: Two documented leatherback entanglements in pot gear (mainline or surface buoy) occurred in 2015 and 2016. Fishing effort was high, and the fishery had shifted into the Central California region, which overlaps somewhat with leatherback foraging habitat (S. Benson, NMFS, pers. comm., 2018). In 2019, the State of California settled with a non-profit organization in response to a complaint that the commercial Dungeness crab fishery was taking leatherback sea turtles (and other large whales) without authorization under section 10 of the ESA. The California Dungeness crab fishery closed in mid-April 2019 as part of the settlement agreement and again on May 15, 2020 (just the Central Management Area), due to significant risk of marine life entanglement. The northern part of California remains open until mid-July unless CDFW decides to take further management action (
The West Pacific DPS has a vast trans-Pacific range. Some individuals forage in the East Pacific Ocean, where leatherback turtles are caught in fisheries of Peru and Chile (Donoso and Dutton 2010; Alfaro-Shigueto
We conclude that individuals of this DPS are exposed to high fishing effort throughout their foraging range, in coastal waters near nesting beaches, and when migrating to and from nesting
Vessel strikes are a threat to the West Pacific DPS. Between 1981 and 2016, there were 11 documented vessel strikes in central California (NMFS West Coast Region, unpublished data 2018). Many vessel strikes are not reported, and turtles are not recovered.
The range of the DPS overlaps with many high-density vessel traffic areas. Though the potential for exposure is high, we are only aware of 11 vessel strikes in recent decades. Vessel strikes resulting in mortality would lower the abundance of the DPS. However, available data does not support characterizing this as a high or moderate impact. We conclude that vessel strikes pose a threat to the DPS, albeit of less concern than other impacts such as overutilization and fisheries interactions.
Pollution includes contaminants, marine debris, and ghost fishing gear. Leatherback turtles can ingest small debris, causing internal damage and blockage. Larger debris can entangle animals, leading to reduced mobility, starvation, and death. Given the amount of floating debris in the Pacific Ocean (Lebreton
Leatherback turtles feed exclusively on jellyfish and other gelatinous organisms and as a result may be prone to ingesting plastics resembling their food source (Schuyler
Few studies of pollutants and their effect on leatherback turtles were available within the range of this DPS. Harris
Given the large amount of marine debris within the range of the DPS, we expect exposure to be high for all life stages despite low sample sizes of leatherback turtles with ingested marine debris. Potential impacts include death and injury. However, quantitative estimates of such impacts are not available. We conclude that pollution may be a threat to the DPS.
The best available scientific and commercial data indicate that natural disasters are a threat to the DPS but do not allow the impact to be quantified. Natural disasters within the range of this DPS include: Tsunamis, typhoons, earthquakes, and flash floods. Such environmental events are periodic, with localized impacts that do not persist over time. These events may reduce nest incubation and hatching success in one season or at few locations. While leatherback turtles have undoubtedly evolved to sustain such natural impacts, the increasing frequency of environmental events as a result of a changing climate, which can affect the frequency and intensity of high tides and large storms, may hamper productivity and conservation activities (Goby
Climate change is a threat to the West Pacific DPS. A warming climate and rising sea levels can impact leatherback turtles through changes in beach morphology, increased sand temperatures leading to a greater incidence of lethal incubation temperatures, changes in hatchling sex ratios, and the loss of nests or nesting habitat due to beach erosion (Benson
Elevated egg incubation temperatures can lead to mortality. During the 2009/2010 nesting season at the Huon Coast (Papua New Guinea), Pilcher (2010) found higher incubation temperatures (32 to 33 °C) in exposed nests compared to shaded nests (29 to 30 °C). Sea turtles exhibit temperature-dependent sex determination. The incubation temperature determines sex ratios and the duration of incubation (
Climatic change may also alter rainfall levels, which may cool beaches and offset increases in sand temperature. At Wermon, the sand is black, yet beach temperatures are lower, perhaps because
Tapilatu
The threat of climate change is likely to modify the nesting and foraging conditions for turtles of the DPS. Impacts are likely to affect productivity. Negative impacts and low hatching success due to high beach temperatures and coastal erosion have already been documented and are likely to become worse, and thus we conclude that climate change is a threat to the West Pacific DPS.
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply to turtles of the West Pacific DPS (for a description of each effort, please see the section on conservation efforts for the overall species): Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (Lima Convention), Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention), Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), Eastern Pacific Leatherback Network, Eastern Tropical Pacific Marine Corridor Initiative, FAO Technical Consultation on Sea Turtle-Fishery Interactions, IAC, MARPOL, IUCN, The Memorandum of Understanding of a Tri-National Partnership between the Government of the Republic of Indonesia, the Independent State of Papua New Guinea and the Government of Solomon Islands, Ramsar Convention on Wetlands, RFMOs, Secretariat of the Pacific Regional Environment Programme, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded that the West Pacific DPS is at high risk of extinction. The DPS exhibits a total index of nesting female abundance of 1,277 females at two currently monitored beaches over the most recent remigration interval. These beaches may represent 75 percent of total DPS nesting activity. This abundance makes the DPS vulnerable to stochastic or catastrophic events that increase its extinction risk. This DPS exhibits low hatching success and decreasing nest and population trends due to past and current threats, which are likely to further lower abundance and increase the risk of extinction. The DPS exhibits genetic diversity and metapopulation structure, with nesting aggregations distributed throughout four nations. Nesting occurs during two seasons (winter and summer), with year-round nesting at some locations and uses multiple foraging areas, throughout the Pacific Ocean. Thus, the DPS has some resilience to stochastic events and environmental perturbations at nesting beaches and foraging areas. However, its abundance and declining trends place the DPS at risk of extinction as a result of past threats.
Current threats also contribute to the risk of extinction of this DPS. The overutilization of turtles and eggs, as a result of legal and illegal harvest, is the primary threat to this DPS, reducing abundance and productivity. Abundance and productivity are further reduced by fisheries bycatch. Juvenile and adult turtles are taken by numerous, international, coastal, and pelagic fisheries throughout the extensive, pan-Pacific foraging range of the DPS. Predation (especially by dogs and pigs) reduces productivity at high rates. Erosion and inundation result in habitat loss and modification that reduces productivity and contributes to low hatching success. Additional threats include: Pollution, vessel strikes, and natural disasters. Climate change is an increasing threat that results in reduced productivity. Though many regulatory mechanisms exist, they do not adequately reduce threats.
We conclude, consistent with the team's findings, that the West Pacific DPS is at risk of extinction. Its nesting female abundance makes the DPS highly vulnerable to threats. The declining nesting trend further contributes to its risk of extinction. While the DPS has spatial structure and diversity, the resilience provided by those factors is likely to be eroded by the reduced and declining abundance. Past egg and turtle harvest reduced the abundance and productivity of this DPS and remains a primary threat. Fisheries bycatch is also a primary threat that reduces abundance by removing mature and immature individuals from the population. Predation is also a major threat to productivity. Though numerous conservation efforts apply to this DPS, they do not adequately reduce the risk of extinction. We conclude that the West Pacific DPS is in danger of extinction throughout its range and therefore meets the definition of an endangered species. The threatened species definition does not apply because the DPS is currently in danger of extinction (
The Team defined the East Pacific DPS as leatherback turtles originating from the East Pacific Ocean, north of 47° S, south of 32.531° N, east of 117.124° W, and west of the Americas. In the south, the cold waters of the Antarctic Circumpolar Current likely restrict the nesting range of this DPS. We placed the northern and western boundaries at the border between the United States and Mexico because this DPS forages primarily in the East Pacific Ocean, off the coasts of Central and South America.
The range of the DPS (
Leatherback turtles of the East Pacific DPS nest primarily on beaches in Mexico, Costa Rica, and Nicaragua. In Mexico, where the largest nesting aggregations occur, nesting beaches are found in 11 states, over 7,828 kilometers as far north as Baja California Sur (Sarti 2002). The following beaches in Mexico host approximately 40 to 50 percent of total nesting for the nation: Mexiquillo (Michoacán), Tierra Colorada (Guerrero), and Cahuitán, Chacahua, and Barra de la Cruz (Oaxaca; Gaona Pineda and Barragán Rocha 2016). In Costa Rica, approximately 75 percent of nesting occurs within the Parque Nacional Marino Las Baulas (Guanacaste Province) at three nesting beaches: Playa Ventanas; Playa Grande; and Playa Langosta (based on recent abundance estimates from 2011-2015; Santidrián Tomillo
Generally, the nesting season starts in October and ends in March (Santidrián Tomillo
Foraging areas of the East Pacific DPS include coastal and pelagic waters of the southeastern Pacific Ocean. Leatherback turtles are widely dispersed on the high seas throughout the eastern Pacific Ocean (Shillinger
In summary, preferred foraging areas for the East Pacific DPS are characterized by low sea surface temperatures and high mesoscale variability. Post-nesting females migrate relatively quickly through areas that contain the strong equatorial currents as well as high chlorophyll-a concentrations, likely because of the strong currents. While swimming speed was significantly higher in areas of high chlorophyll levels, the association between these two variables was weak (Shillinger
The total index of nesting female abundance for the East Pacific DPS is 755 females. We based this total index on 13 nesting aggregations in: Mexico (Mexican Commission for Natural Protected Areas; L. Sarti, CONANP, pers. comm. 2018); Costa Rica (Santidrián Tomillo
This number represents an index of nesting females for this DPS because it only includes available data from recently and consistently monitored nesting beaches. While rare or sporadic nesting may occur on other beaches, consistent and standardized monitoring only occurs at these beaches, which are for the most part protected.
Our total index of nesting female abundance is similar to published abundance estimates for this DPS. The IUCN Red List assessment estimated the total number of mature individuals (males and females) at 633 turtles, based first on dividing the average annual number of nests (n = 926) by the estimated clutch frequency (n = 7.2, Reina
In Mexico, the beaches included in our total index represent approximately 70 to 75 percent of total nesting in that nation (Gaona Pineda and Barragan Rocha 2016). However, our total index does not include nesting females from Agua Blanca (40 km in Baja California); Playa Ventura (6 km), Playa San Valentín (21 km), Piedra de Tlacoyunque (44 km in Guerrero), and La Tuza (16 km in Oaxaca) (Sarti
In Costa Rica, 75 percent of nesting occurred at Las Baulas National Park (summarized
In Nicaragua, leatherback turtles nest at three beaches. Salamina Costa Grande and Veracruz de Acayo (in the Rio Escalante Chacocente Wildlife Refuge) host the most nesting and have been subject to the most consistent monitoring. Small numbers of females also nest at Juan Venado National Reserve, which is not consistently monitored (V. Gadea, FFI, personal communication, 2018).
Nesting is rare in other nations (Sarti
Our total index of nesting female abundance (755 females) places the DPS at risk for environmental variation, genetic complications, demographic stochasticity, negative ecological feedback, and catastrophes (McElhany
The East Pacific DPS exhibits a decreasing nest trend since monitoring began, with a 97.4 percent decline since the 1980s or 1990s, depending on the nesting beach (Wallace
In recent decades (after a historical decline), nest counts have increased at some beaches in Mexico. The Playa Tierra Colorada nest trend has increased by 0.6 percent annually (sd = 8.9 percent; 95 percent CI = −17.1 to 18.9 percent; f = 0.536; mean annual nests = 153) between the 1996/1997 and 2016/2017 nesting seasons. Over the same time period, nesting at Playa Barra de la Cruz/Playa Grande increased by 9.5 percent annually (sd = 8.0 percent; 95 percent CI = −6.5 to 25.8 percent; f = 0.918; mean annual nests = 122). In contrast, nest counts at Cahuitán decreased from 1997/1998 through 2016/2017, with a median trend of −4.3 percent annually (sd = 9.7 percent; 95 percent CI = −22.1 to 17.6 percent; f = 0.716; mean annual nests = 123).
We lack adequate data on nesting in Nicaragua to estimate trends.
Our trend analysis yields similar results to other published findings. The IUCN Red List assessment concluded that this subpopulation is decreasing and has declined by −97.4 percent over the past three generations (Wallace
In Costa Rica, the number of nesting females per season declined from 1,367 females in 1988 to 117 females in 1998 (Spotila 2000). While there were increases in the number of nesting females during the 1999/2000 season (224 females) and 2000/2001 season (397 females), the population has shown a steady decline, with less than 30 nesting females in recent years (
In Nicaragua, 108 leatherback turtles nested on Playa Chacocente from October to December, 1980; in January 1981, 100 turtles nested in a single night on Playa El Mogote (Arauz 2002). An aerial survey of Playa El Mogote during the 1998/1999 nesting season revealed a nesting density of 0.72 turtles per kilometer (Sarti
Nesting females of the East Pacific DPS are generally smaller and produce fewer eggs per clutch than turtles from other leatherback populations (Sarti
The DPS is characterized by somewhat continuous and low density nesting across long stretches of beaches along the coast of Mexico and Central America. Santidrián Tomillo
The best available genetic data indicate a high degree of connectivity among nesting aggregations. Dutton
Based on monitoring of tagged nesting females, researchers documented female interchange between nesting beaches within Mexico and within Costa Rica. However, only one interchange has been documented between Mexico and Costa Rica (Sarti
In Costa Rica, nesting females move among the three nesting beaches of Las Baulas National Park, within and between seasons, particularly between Playa Grande and Playa Langosta, although researchers study both Playa Grande and Playa Ventanas in combination. According to data gathered over 10 years of research (mid 1990s through the mid-2000s), an average of 71 percent of females nested only on Playa Grande, 10 percent nested only on Playa Langosta, and 18 percent nested on both beaches in a given season. In other seasons, females have been shown to shift and nest primarily on a different beach. Within two seasons, 82 percent of nesting females at Playa Langosta also nested at Playa Grande and 100 percent of nesting females at Playa Langosta within three seasons occasionally also nested at Playa Grande (Santidrián Tomillo
The foraging range of the DPS extends into coastal and pelagic waters of the southeastern Pacific Ocean. Individuals forage in the Pacific Gyre ecosystem and along the coasts of Peru and Chile, with variation resulting from the location of upwelling and ENSO effects. Researchers have hypothesized that high bycatch along the coastal foraging phenotype in this population (Saba
Multiple nesting and foraging distributions likely help to buffer the DPS against local catastrophes or environmental changes that would otherwise modify nesting habitat or limit prey availability. Nesting aggregations are largely connected. However, there is less exchange among distant nesting beaches. Foraging turtles are vulnerable to perturbations in ocean conditions due to climate change, ENSO, and the Pacific Decadal Oscillation.
The East Pacific DPS exhibits genetic diversity, as demonstrated by moderate to high mtDNA haplotypic diversity (h = 0.66-0.71; Dutton
The destruction or modification of habitat is a threat at many nesting beaches used by turtles of the East Pacific DPS. Foraging habitat has also been characterized as marginal, particularly in the eastern tropical Pacific Ocean (pelagic environment) due to relatively low productivity. Coastal habitat, which is normally associated with high productivity, may have been marginalized due to high levels of interactions with coastal artisanal fisheries.
Development threatens the DPS by modifying the preferred beach habitat for nesting. Sustained and substantial development along the northern and southern ends of the nesting beach at Playa Grande in Las Baulas National Park, and in adjacent areas, has resulted in the loss of nesting beach habitat in addition to the removal of much of the natural beach vegetation. As a result, erosion has increased and led to other environmental damages to sand that are associated with human development, including significant changes to elevation, water content, particle size, pH, salinity, organic content and calcium carbonate content (Clune and Paladino 2008). Within the past two decades, beachfront development in the town of Tamarindo (across Tamarindo Bay from Playa Grande) has resulted in the degradation of nesting beach habitat, including: Pollution from artificial light, solid and chemical wastes, beach erosion, unsustainable water consumption, and deforestation. Hotels in this area have replaced a significant leatherback nesting area at Playa Tamarindo, which hosted significant nesting in the 1970s and 1980s (Wallace and Piedra 2012). Playa Langosta, which is just across from Tamarindo, is inundated with lights and noise from the town (Wallace and Piedra 2012). Currently, development has been curtailed due mainly to water issues (
In Mexico, the extent of development near nesting beaches is generally low, given the remoteness of the beaches in Baja California and on the mainland. Reviewing the location of these nesting beaches, we found very few roads or development nearby. The main nesting beaches remain somewhat isolated, with very few roads or development adjacent to the nesting beaches. Thus, there is limited threat due to artificial lighting and generally little to no beach driving except perhaps that associated with monitoring efforts (L. Sarti, CONANP, pers. comm., 2018). In 2002, the Commission for Natural Protected Areas designated two of the index beaches (Mexiquillo and Tierra Colorada) as natural protected areas (turtle sanctuaries), which helped protect nesting habitat. Subsequently, in 2003, three of the index beaches (Mexiquillo, Tierra Colorada, and Cahuitán) were listed as Ramsar Sites, which are wetland sites designated to be of international importance under the Ramsar Convention.
At Veracruz de Acayo beach in Nicaragua, Salazar
While nesting beaches within this DPS are generally remote and/or protected due to monitoring and existence of national parks and wildlife refuges, nesting females, hatchlings, and eggs at Las Baulas National Park (Costa Rica) nesting beaches are exposed to the modification of nesting habitat, as a result of development. This threat impacts the DPS by reducing nesting and hatching success, thus lowering the productivity of the DPS. We conclude that habitat loss and modification is a threat to the East Pacific DPS.
The harvest of nesting females and eggs was the primary cause of the historical decline in abundance of the East Pacific DPS. Since then, laws have been passed to protect eggs and turtles. However, poaching still occurs.
In Mexico, Sarti
Although poaching of turtles and eggs has been consistently reduced over the years, it still occurs at high levels. Effective conservation and protection depends on human presence at the nesting beaches (Santidrián Tomillo
In Costa Rica, the population decline was predominantly caused by egg harvest. Ninety percent of eggs were collected on one of the major nesting beaches, Playa Grande, a decade or more prior to the reduction of nesting females (Santidrián Tomillo
In 1991, the Parque Nacional Marino Las Baulas was created and subsequently ratified by law in 1995. The Park consists of three leatherback nesting beaches: Playa Grande, Playa Ventanas, and Playa Langosta. The establishment of the park ensured increased protection at all three nesting beaches, greatly reducing egg poaching in the area. Poaching of eggs was reduced from 90 percent prior to 1990/1991, to 50 percent in 1990/1991, 25 percent in 1991 through 1993, and near 0 percent in 1993/1994 (Santridián Tomillo
In Nicaragua, prior to protection in the early 2000s, poachers took nearly 100 percent of the nests at the three nesting beaches. Nesting beach protection has occurred at Veracruz since 2002, Juan Venado since 2004, and Salamina since 2008. An average of ten community team members (mostly ex-poachers) monitor beaches seasonally. From 2002 to 2010, up to 420 nests were recorded and an estimated 94 were protected (Urteaga
Extensive and prolonged effects of comprehensive egg harvest have depleted the leatherback population in Costa Rica and Mexico, with egg harvest levels of nearly 90 percent for about two decades (Sarti
Little is known about diseases and parasites in leatherback turtles, although fibropapillomatosis has been described as a major epizootic disease in hard shelled turtles. A fibropapilloma tumor (in regression) was found on one nesting female at Mexiquillo, Mexico in 1997 (Huerta
Numerous predators prey on East Pacific leatherback turtles throughout their life stages. Eggs and hatchlings are eaten by crabs, ants, birds, reptiles, mammals, and fish (Eckert
For adult turtles, principal predators at sea include killer whales, crocodiles (Pritchard 1981), and sharks, while nesting females are taken by crocodiles (Bedding and Lockhart 1989), tigers, and jaguars (Pritchard 1971). Sarti
Several international regulatory mechanisms apply to turtles in this DPS. The IAC, in particular, prohibits the harvest of turtles and eggs. CITES
In 2015, at the 7th Conference of the Parties, the IAC resolved to prioritize conservation actions in their work programs that would help “reverse the critical situation of the leatherback sea turtle in the Eastern Pacific.” Specifically, parties were urged to: (1) Submit leatherback bycatch information annually to the IAC Secretariat; (2) improve leatherback turtle fishery monitoring efforts through the use of on-board observers; (3) report annually on the measures they have taken to reduce leatherback bycatch in their fisheries; (4) enhance leatherback nest monitoring and protection to increase hatchling survival and protect nesting beach habitat; (5) foster safe handling and release of incidentally bycaught leatherback turtles in fisheries; and (6) agree to a five-year strategic plan containing key activities related to the resolution (CIT-COP7-2015-R2). The strategic plan was patterned after the Regional Action Plan for Reversing the Decline of the Eastern Pacific Leatherback (
As mandated by the 1994
In 2015, the Eastern Pacific Leatherback Network (also known as La Red de la Tortuga Laúd del Océano Pacifico (Red Laúd OPO) (
The Convention for the Protection of Natural Resources and Environment of the South Pacific, also known as the Noumea Convention, has been in force since 1990 and includes 26 Parties (as of 2013). The purpose of the Convention is to protect the marine environment and coastal zones of the South-East Pacific, and beyond that area, the high seas up to a distance within which pollution of the high seas may affect that area.
In 2015, the IATTC passed a resolution that requires large longline vessels fishing in the eastern tropical Pacific Ocean to carry observers. Cooperating parties that have documented interactions with sea turtles in their longline fleet are required to maintain at least five percent observer coverage and provide an annual report to the IATTC. Unfortunately, the forms used by observers to report incidents are not standardized, so in some cases, the reports did not include species identification, condition of the released turtles, and location of the interactions, and the five percent minimum coverage is often not met. Nations without reported bycatch of sea turtles simply provided a statement to that effect. In the few reports we reviewed, leatherback turtles comprised some of the bycatch in the eastern tropical Pacific Ocean, but there were few details on the events (C. Fahy, NMFS, pers. comm., 2018). In 2007, the IATTC passed a resolution requiring nations to conduct research on sea turtle bycatch reduction measures in their longline fleets (
Throughout the world, illegal, unreported, and unregulated (IUU) fishing leads to underestimates of bycatch. In Mexico, there is a lack of effective fisheries governance, resulting in highly uncertain fishery statistics. For example, from 1950 to 2010, total fisheries catch, including estimated IUU catch and discarded bycatch, was nearly twice as high as the official statistics (Cisneros-Montemayor
In addition, several international treaties and/or regulatory mechanisms protect East Pacific leatherback turtles. While no single law or treaty can be 100 percent effective at minimizing anthropogenic impacts to sea turtles in these areas, there are several international conservation agreements and laws in the region that, when taken together, provide a framework within which sea turtle conservation advances can be made (Frazier 2012). In addition to protection provided by local marine reserves throughout the region, sea turtles may benefit from the following broader regional effort: (1) The Eastern Tropical Pacific (ETP) Marine Corridor (CMAR) Initiative supported by the governments of Costa Rica, Panama, Colombia, and Ecuador, which is a voluntary agreement to work towards sustainable use and conservation of marine resources in these nations' waters; (2) the ETP Seascape Program managed by Conservation International that supports cooperative marine management in the ETP, including implementation of the CMAR; (3) the IATTC and its bycatch reduction efforts through resolutions on sea turtles, observer coverage,
Most nations within the range of the East Pacific DPS have laws prohibiting the harvest of turtles and eggs. This applies to nesting turtles and those captured at sea. National laws in Mexico (1990 Presidential Decree), Costa Rica (2002 Presidential Decree N°8325: The Law of Protection, Conservation, and Recuperation of Marine Turtles), and Nicaragua (Law No. 651 and Ministrial Resolution No. 043-2005) protect nesting females and eggs and nesting beaches. However, poaching remains a major threat. Although laws prohibit the harvest of turtles in Peru, fishermen consume leatherback turtles bycaught in small-scale fisheries (Alfaro-Shigueto
Several protected areas have been established throughout the range of the DPS. Most of the nesting beaches in Mexico and Costa Rica are protected from egg and turtle poaching, with effective monitoring to ensure low levels of poaching. Poaching likely continues at unprotected and remote beaches, and at those that contain an extensive coastline that is difficult to monitor and protect. Protected nesting beaches in Mexico include: Mexiquillo (until 2013); Playa de Tierra Colorada, Playa Cahuitán, Playa San Juan, Bahia de Chacahua, and Playa Barra de la Cruz. Protected nesting beaches in Costa Rica include: Las Baulas National Park (Playa Grande, Playa Langosta, and Playa Ventanas), Naranjo (National Park), Cabuyal (under no official management category), Nombre De Jesús (under no official management category), Ostional (wildlife refuge), and Caletas (wildlife refuge). Protected nesting beaches in Nicaragua include: Salamina-Costa Grande, Veracruz de Acayo (Chacocente Wildlife Refuge).
Marine protected areas also exist. The waters of the Las Baulas National Park, which represents a hotspot for inter-nesting females and breeding males, are protected out to 22.2 km as a no-take zone for all fishing activity. However, satellite telemetry data for nesting females at these beaches over three seasons revealed that the turtles move well outside these boundaries during their inter-nesting period, which makes them vulnerable to fisheries outside the park (Shillinger
In summary, numerous regulatory mechanisms exist to protect leatherback turtles, eggs, and nesting habitat throughout the range of this DPS. Although the regulatory mechanisms provide some protection to the species, many do not adequately reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. As a result, bycatch, incomplete nesting habitat protection, and poaching remain threats to the DPS. We conclude that the inadequacy of existing regulatory mechanisms is a threat to the East Pacific DPS.
Bycatch in commercial and recreational fisheries, both on the high seas and off the coasts, is the primary threat to the East Pacific DPS. This threat affects the DPS by reducing the abundance of all life stages of the DPS (with the likely exception of hatchlings).
Integrating catch data from over 40 nations and bycatch data from 13 international observer programs, Lewison
In their global study of sea turtle bycatch, where available, Wallace
In Mexico, leatherback turtles wash to shore entangled in longlines and driftnet, indicating interaction and mortality (Sarti
Recent surveys of 765 Ecuadorian, Peruvian, and Chilean fishermen (at 43 ports, representing 28 to 63 percent of ports) reported the following leatherback interaction rates (as a percentage of total interactions with sea turtles): 2.81 percent of 40,480 interactions (32.5 percent mortality) in Ecuador, 14.87 of 5,828 interactions (50.8 percent mortality) in Peru, and 27.83 percent of 170 interactions (3.2 percent mortality) in Chile (Alfaro-Shigueto
The swordfish gillnet fisheries in Peru and Chile may have contributed to the decline of the DPS. The decline in the nesting population at Mexiquillo
In Peru, the capture of leatherback turtles has been prohibited since 1976, although retention of bycaught leatherback turtles continues (FAO 2004). From 1985 to 1999, based on field books, diaries, specimen data sheets, fishery statistics files and unpublished reports, 30 leatherback turtles were captured in fisheries (
In Chile, a commercial fishery was established in 2001 that permitted longlining for swordfish (shallow-set) with the condition that all vessels were required to take an observer on board to collect information on bycatch. Between 2001 and 2005, over 10 million hooks were observed, and leatherback turtles were the most common species caught (n = 284), with the majority (n = 282) released alive. Leatherback turtles were caught primarily between 24° S and 38° S (furthest south was 38°39′ S and 84°15′ W) in less than 4 percent of the sets with an overall mean of 0.0268 turtles per one thousand hooks. Size estimates revealed both juveniles and adults. Fishermen were trained to use the best practices for de-hooking, disentangling, and releasing sea turtles, which likely increased the survival rate of leatherback turtles (Donoso and Dutton 2010). Researchers recently presented information on the incidental capture of sea turtles in industrial and artisanal longlines, gillnets and artisanal espinel (
We conclude that juvenile and adult life stages of the East Pacific DPS are exposed to high fishing effort throughout their foraging range and in coastal waters near nesting beaches. Mortality is also high in some fisheries, with reported mortality rates of up to 58 percent due in part to the use of gillnets and as well as consumption of bycaught turtles in Peru. As noted above, there have been efforts by individual nations and regional fishery management organizations to mitigate and reduce the threat of bycatch, but those efforts have not been successful at ameliorating the risks. We conclude that fisheries bycatch remains a major threat to the East Pacific DPS.
Pollution is a threat to the East Pacific DPS. Pollution includes contaminants, marine debris, and ghost fishing gear. The South Pacific Garbage Patch, discovered in 2011 and confirmed in
Given the amount of floating debris in the Pacific Ocean (Lebreton
Prior to the early 1990s, high seas driftnet fisheries freely operated in the Pacific Ocean and interacted with thousands of sea turtles. Researchers estimated that over 1,000 leatherback turtles were taken by the combined fleets of Japan, Korea, and Taiwan during a one-year period (Wetherall 1997). However, because genetic analyses of Pacific leatherback turtles were relatively new at that time, the data does not indicate the nesting beach origin of those bycaught leatherback turtles. In 1992, a UN moratorium banned high seas driftnet fisheries, so that active large scale driftnets no longer pose a threat to leatherback turtles. However, numerous discarded driftnets continue to entangle and drown leatherback turtles in a phenomenon known as “ghost fishing” (Gilman
In 2007, the IATTC passed a resolution pertaining to sea turtle bycatch in purse seine and longline fisheries which primarily target tuna. In order to address the marine debris and potential interactions with sea turtles in the eastern tropical Pacific Ocean, fishermen are required to disentangle sea turtles entangled in fish aggregating devices, even if the device does not belong to the vessel.
Only a few studies of levels or effects of toxins on leatherback turtles have examined effects to their health and fitness, as well as any effects to eggs and hatchlings. Sill
As with all leatherback turtles, entanglement in and ingestion of marine debris and plastics is a threat that likely kills several individuals a year. However, data are not available because most affected turtles are not observed. Given the amount of pollution turtles are exposed to throughout their lifetime, this has the potential to be a significant threat to the East Pacific leatherback population, although the impact cannot be quantified using the best available data. We conclude that pollution is a threat to this DPS.
The East Pacific DPS is affected by oceanographic regime shifts. In the eastern equatorial Pacific Ocean, reductions in productivity parameters are primarily associated with ENSO, during which sex ratios become biased up to 100 percent female (Santidrián Tomillo
Climate change is a threat to the East Pacific DPS. The impacts of climate change include: Increases in temperatures (air, sand, and sea surface); sea level rise; increased coastal erosion; more frequent and intense storm events; and changes in oceanographic regimes and currents.
Climate projections assessed by the IPCC indicate that Central America is very likely (defined as 90 to 99 percent probability; IPCC 2007) to become warmer and likely (defined as 66 to 90 percent probability; IPCC 2007) to become drier by 2100 (Saba
Increasing sand temperature is an existing threat to the DPS. The long-term data set on leatherback turtles nesting at Playa Grande, Costa Rica indicates reduced emergence success, skewed sex ratios, and increased hatchling mortality as a result of increased sand temperature (Santidrián Tomillo
In addition to climate change influencing the nesting beach habitat of eastern Pacific leatherback turtles, the impacts of a warming ocean may also affect the environmental variables of their pelagic migratory and foraging habitat, which may further increase population declines. As mentioned previously, the preferred foraging habitat of eastern Pacific is characterized by relatively low sea surface temperatures and low levels of chlorophyll-a. Using information derived from satellite tracked leatherback turtles, which established migratory pathways and core foraging habitat (as summarized in Shillinger
Climate change is a threat to the East Pacific DPS that affects nesting females (
There are numerous efforts to conserve the leatherback turtle. The following conservation efforts apply to turtles of the East Pacific DPS (for a description of each effort, please see the section on conservation efforts for the overall species): Convention on the Conservation of Migratory Species of Wild Animals, Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (Lima Convention), Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention), Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), Eastern Pacific Leatherback Network, Eastern Tropical Pacific Marine Corridor Initiative, FAO Technical Consultation on Sea Turtle-Fishery Interactions, IAC, MARPOL, IUCN, Ramsar Convention on Wetlands, RFMOs, Secretariat of the Pacific Regional Environment Programme, UNCLOS, and UN Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing. Although numerous conservation efforts apply to the turtles of this DPS, they do not adequately reduce its risk of extinction.
After reviewing the best available information, the Team concluded that the East Pacific DPS is at high risk of extinction. The DPS exhibits a total index of nesting female abundance of 755 females at monitored beaches. Such a limited nesting population size makes this DPS vulnerable to stochastic or catastrophic events that increase its extinction risk. This DPS exhibits a decreasing nest trend, which along with lower than-average productivity metrics, has the potential to further reduce abundance and increase the risk of extinction. The nesting range is somewhat limited to the Pacific Central American coast, with little diversity among sites. Thus, stochastic events could have catastrophic effects on nesting for the entire DPS, with no distant subpopulations to buffer losses or provide additional diversity. Most foraging occurs in the eastern Pacific Ocean, which is subject to oceanographic regimes shifts that expose the DPS to low-productivity events. Based on these demographic factors, we find the DPS to be at risk of extinction as a result of past threats.
Current threats also contribute to the risk of extinction of this DPS. Fisheries bycatch is the major threat, capturing, and often killing, turtles throughout their foraging areas, thus reducing abundance. There are few mechanisms in place, including internationally through the IATTC or other bilateral or international instruments and through monitoring and enforcement of coastal fisheries laws, to mitigate or reduce bycatch. Overutilization is also a major threat. Historically, harvest of turtles and eggs reduced the once high abundance of turtles to current low levels. The poaching of eggs continues, reducing productivity, especially at unprotected beaches, where egg collection may reach 100 percent and nesting females may also be at risk of poaching. The effects of climate change, including the observed and predicted increase in frequency and strength of ENSO events (
We determine, consistent with the Team's findings, that the East Pacific DPS is currently in danger of extinction. Its nesting female abundance and declining trend make the DPS highly vulnerable to threats. Though numerous conservation efforts apply to this DPS, they do not adequately reduce the risk of extinction. We conclude that the East Pacific DPS is currently in danger of extinction throughout its range and therefore meets the definition of an endangered species. The threatened species definition does not apply because the DPS is currently at risk of extinction (
The petition under review sought specifically to identify the NW Atlantic population of leatherback sea turtles as a separate DPS and assign it a different status from the global listing. As explained throughout this finding, we have determined that seven leatherback populations would satisfy the tests for recognition under our DPS Policy (
As explained in the
The species has the widest distribution of any reptile, with a global range extending from 71° N, based on an at-sea capture off Norway (Carriol and Vader 2002) to 47° S, based on an at-sea sighting off New Zealand (Eggleston 1971; Eckert
Nesting is restricted to mainly tropical or subtropical beaches. However, nesting also occurs on temperate beaches of the SW Indian Ocean (Pritchard and Mortimer 1999). Nesting usually occurs on high-energy beaches (Pritchard 1976), resulting in high rates of natural erosion. The primary factors influencing shoreline suitability for nesting appear to be a lack of abrasive substrate material, a deep-water approach to minimize energy expenditure needed to reach nesting sites, and proximity to oceanic currents that can facilitate hatchling dispersal (Eckert
Foraging areas are generally characterized by zones of upwelling, including off the edges of continents, where major currents converge, and in deep-water eddies (Saba 2013). Important foraging areas include but are not limited to: upwelling off the west coasts of North and South America (Benson
Adding together the total indices of nesting female abundance for all DPSs, the total index of nesting female abundance for the species is 32,174 females. This number, however, should be considered as a compilation of seven populations ranging in size from 27 to 20,659 nesting females because nesting female exchange does not occur between DPSs.
Comparisons with historical accounts of nesting female abundance are complicated by the discovery of new nesting beaches over time, changes in remigration intervals and/or clutch frequency, and modified observational effort. Abundance estimates for even large nesting beaches were not available prior to 1950 (Rivalan
Species go extinct through the loss of populations. Therefore, the loss of any of these populations (which we refer to in this finding hypothetically as DPSs) would increase the extinction risk of the species. Most of the DPSs exhibit total indices of nesting female abundances that place them at risk for environmental variation, genetic complications, demographic stochasticity, negative ecological feedback, and catastrophes (McElhany
Nest trends are decreasing across the species, except at the least abundant nesting aggregation in Brazil (
The species occurs over a broad spatial range, in tropical and temperate waters worldwide, from 71° N to 47° S (Goff and Lien 1988; Carriol and Vader 2002; McMahon and Hayes 2006; Shillinger
Relative to other sea turtle species, the leatherback turtle has low genetic diversity and shallow mtDNA coalescence (Dutton
The destruction or modification of nesting habitat is a threat to most leatherback turtles, and in some areas, this threat is major, as a result of development, erosion, or obstruction from logs. By the year 2025, the UN Educational, Scientific and Cultural Organization (2001) forecasts that human population growth and migration will result in 75 percent of people living within 60 km of the sea. This will place significant additional pressure on coastal habitats.
Coastal development and associated activities cause accelerated erosion rates and interruption of natural shoreline migration (National Research Council 1990). Numerous beaches are eroding due to both natural (
Low hatching success, relative to other sea turtle species, is characteristic of many leatherback populations despite high fertility rates (reviewed by Bell
Coastal development and expansion also contributes to habitat degradation via artificial lighting (
The modification of nesting habitat generally results in loss of productivity for the species, as a result of reductions in nest and hatching success. In addition, several DPSs experience nesting beach habitat modifications (
Historically, the harvest of turtles and eggs was the primary threat to the species, leading to the loss of severe depletion of many nesting aggregations worldwide (Spotila
We do not have adequate information on disease to assess its impact on the species. However, we have enough information to conclude that predation is clearly a threat. Numerous species prey on leatherback eggs and hatchlings. Eckert
Numerous regulatory mechanisms provide certain protections to sea turtles at the international, regional, national, and local levels. For example, the harvest of sea turtles and their eggs is prohibited by regional conventions and national laws. Fisheries bycatch is also addressed, although not comprehensively, by several international and national instruments and/or governing bodies. However, as we detail below and has been discussed in prior sections reviewing each individual DPS, these measures are often poorly implemented or enforced, resulting in inadequate protections against the threats they are designed to ameliorate.
In some nations (
Due in part to their worldwide distribution and highly migratory nature, combined with nesting site fidelity, leatherback turtles require international, national, regional, and local protection. Hykle (2002) and Tiwari (2002) reviewed the value of some international instruments and concluded that they vary in their effectiveness. Often, international treaties do not realize their full potential because: They do not include all key nations; do not specifically address sea turtle conservation; are handicapped by the lack of a sovereign authority to promote enforcement; and/or lack of legally-binding requirements. Lack of implementation or enforcement by some nations may make them less effective than if they were implemented in a more consistent manner across the target region. A thorough discussion of this topic is available in the 2002 special issue of the Journal of International Wildlife Law and Policy: International Instruments and Marine Turtle Conservation (Hykle 2002). Additional information on national, regional, and local protection is provided in the prior sections of this finding relating to each individual DPS.
In summary, numerous regulatory mechanisms protect leatherback turtles, eggs, and nesting habitat throughout the range of the species. Although the regulatory mechanisms provide some protection, many do not adequately reduce the threat that they were designed to address, generally as a result of limited implementation or enforcement. As a result, bycatch, incomplete nesting habitat protection, and poaching remain threats to the species. We conclude that the inadequacy of the regulatory mechanisms is a threat to the leatherback turtle.
Fisheries bycatch is the primary threat to leatherback turtles (Crowder 2000; Spotila
Bycatch data are most commonly collected by trained observers on fishing vessels or via surveys or interviews (Lewison
Furthermore, IUU fishing is a significant yet unquantified threat to sea turtles worldwide. In addition to killing and injuring turtles, it undermines national and regional efforts to estimate fisheries bycatch. IUU fishing represents up to 26 million tonnes of fish caught annually (
Generally, leatherback turtles do not attempt to consume the bait associated with fishing gear, as other sea turtles do, but become entangled in fishing gear (Lewison
Longline and net fisheries are often the greatest threats to leatherback turtles. In a global study of sea turtle bycatch, Wallace
Integrating catch data from over 40 nations and bycatch data from 13 international observer programs, Lewison
In the Pacific Ocean, Roe
In the Atlantic Ocean, Fossette
Additional bycatch information that we have set out in prior sections specific to each DPS applies to our consideration of the risk to the overall species. In summary, fisheries bycatch is a threat that is encountered by numerous juvenile and adult leatherback turtles. Mortality rates are often high, and individuals that are released may experience injuries or sublethal effects associated with entanglement, submergence, or handling. Fisheries bycatch reduces abundance, and when it prevents nesting females from returning to nesting beaches, reduces productivity as well. Fisheries bycatch is the primary threat to the leatherback species.
Vessel strikes pose a threat to the species throughout its range. As mature individuals move from oceanic foraging areas into coastal waters to reproduce, they are exposed to a greater concentration of vessels. Vessel strikes off nesting beaches may injure or kill these individuals, reducing the abundance and productivity of the DPS. Most vessel strikes likely go unnoticed or unreported, making this threat potentially much more significant that documented occurrences would suggest. Vessel strikes are a threat to the leatherback species.
We define pollution as including contaminants, marine debris, and ghost or derelict fishing gear. Such interactions are likely to go unnoticed and unreported and thus likely present a more significant impact than documented occurrences would suggest. Leatherback turtles of all life stages are vulnerable to oil spills, on land and at sea, where exposure to oil and dispersants occurs via contact (
Marine debris is ubiquitous throughout the range of the species. Marine debris includes plastics (including plastic bags), microplastics, derelict fishing gear (
Leatherback turtles are susceptible to the impacts of natural disasters and oceanographic regime shifts as a result of their nesting and foraging preferences. Nesting usually occurs on high-energy beaches that are inherently unstable (Pritchard 1976) and which are susceptible to natural erosion. The primary factors influencing shoreline suitability for nesting appear to be a lack of abrasive substrate material, a deep-water approach to minimize energy expenditure needed to reach nesting sites, and proximity to oceanic currents that can facilitate hatchling dispersal (Eckert
Gelatinous prey have relatively low energy content, requiring leatherback turtles to consume large quantities to meet metabolic demands (Heaslip
We conclude that natural disasters and oceanographic regime shifts are threats to the species, affecting some but not all populations, depending on the location of nesting and foraging areas. These threats reduce productivity by reducing nesting, nesting habitat, and nest and hatching success.
Climate change is a threat that affects leatherback turtles of all life stages and within all DPSs. A warming climate and rising sea levels can impact leatherback turtles through changes in beach morphology, increased sand temperatures leading to a greater incidence of lethal incubation temperatures, changes in hatchling sex ratios, and the loss of nests or nesting habitat due to beach erosion (Benson
Impacts from climate change, especially due to global warming, are already being observed and are likely to become more apparent in future years (IPCC 2007a). In its Fifth Assessment Report, the IPCC (2014) stated that the globally averaged combined land and ocean surface temperature data has shown a warming of 0.85 °C from 1880 to 2012. The mean rate of globally averaged sea level rise was 1.7 millimeters annually between 1901 and 2010, 2.0 millimeters annually between 1971 and 2010, and 3.2 millimeters annually between 1993 and 2010. Climate model projections exhibit a wide range of plausible scenarios for both temperature and precipitation over the next several decades. The global mean surface temperature change for the period 2016 to 2035 relative to 1986 to 2005 will likely be in the range of 0.3 ° to 0.7 °C (medium confidence; IPCC 2014). The global ocean temperature will continue to warm, and increases in seasonal and annual mean surface temperatures are expected to be larger in the tropics and Northern Hemisphere subtropics (
For all sea turtles, including leatherback turtles, a warming climate and rising sea levels are likely to result in changes in beach morphology, increased sand temperatures leading to a greater incidence of lethal incubation temperatures, changes in hatchling sex ratios, and the loss of nests and nesting habitat due to beach erosion (Benson
Increasing sand temperatures will alter the thermal regime of incubating nests, resulting in altered sex ratios and reduced hatching output (Hawkes
Beach erosion and nest inundation already threaten leatherback nesting habitat globally. Sea level rise is likely to increase the number of nests lost to erosion and inundation. Such loss of nests is especially problematic in areas prone to storm events, which are likely to increase in intensity and duration, and in areas where coastal development impedes natural shoreline migration.
Climate change is also likely to alter the productivity in some marine environments, which could affect leatherback prey availability. With reports on the increasing incidence of jellyfish blooms in some locations, there is the perception that jellyfish abundance is increasing globally (Condon
As described in prior sections with respect to each individual population, some impacts from climate change have already been observed. At several nesting beaches, increased erosion occurs, and sex ratios are severely skewed toward females. Beach erosion reduces productivity. Although the skew toward females could increase productivity in the short-term, it is often correlated with low hatching success. For these reasons, climate change is a threat to the species.
The ESA requires the Services to make their listing determinations solely on the basis of the best scientific and commercial data available, after conducting a status review, and after taking into account those efforts, if any, being made by any State or foreign nation to protect the species, whether by predatory control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas (16 U.S.C. 1533 (b)(1)(A)). In addition, the Services published a policy for the evaluation of domestic conservation efforts which have yet to be implemented or to show effectiveness (68 FR 15100; March 28, 2003). We did not identify any conservation efforts that required such evaluation for leatherbacks (
African Convention on the Conservation of Nature and Natural Resources (Algiers Convention): Adopted in September 1968, the contracted states were “to undertake to adopt the measures necessary to ensure conservation, utilization and development of soil, water, floral and faunal resources in accordance with scientific principles and with due regard to the best interests of the people.” The Algiers Convention recently has undergone revision, and its objectives are to enhance environmental protection, foster conservation and sustainable use of natural resources, and harmonize and coordinate policies in these fields with a view to achieving ecologically rational, economically sound, and socially acceptable development policies and programs. Additional information is available at
Atlantic Sea Turtle Network (ASO): Created in 2003 to foster greater collaboration in southern Brazil, Uruguay, and Argentina for the protection of sea turtles and their habitats. ASO represents dozens of local and regional NGOs and government agencies as well as hundreds of community members. ASO and its partners have significantly advanced policies to protect sea turtles from fisheries interactions, which is one of the most severe threats in the region. Brazil plays a major role in South American (and global) sea turtle conservation and research, and it serves as an example to other countries. Projeto TAMAR, a partnership of the Centro TAMAR/ICMBio, government agencies, and Fundacão Pró TAMAR, has been active since 1980. Today, the group carries out sea turtle research and conservation from 22 stations on the coast and the offshore islands of Brazil. Another NGO based in the southern Brazilian state of Rio Grande do Sul, called NEMA has been collecting systematic sea turtle stranding data since 1990. Those data have been instrumental to conservation efforts in Brazil and have shown that southern Brazil has the highest stranding rates for loggerheads in the western Atlantic Ocean.
Association of Southeast Asian Nations (The ASEAN) Ministers on Agriculture and Forestry (AMAF): A Memorandum of Understanding (MoU) on ASEAN sea turtle conservation was created in 1999. From this, a Sea Turtle Conservation and Protection Program and Work plan has developed; research and monitoring activities have also been produced regionally (Kadir 2000). The objectives of this Memorandum of Understanding, initiated by ASEAN, are to promote the protection, conservation, replenishing, and recovery of sea turtles and their habitats based on the best
Andaman and Nicobar Island Environmental Team (ANET): A division of the Centre for Herpetology/Madras Crocodile Bank Trust has been conducting surveys and monitoring since 1991. Over the last few years, conservation and monitoring of sea turtles in these islands has been carried by Dakshin Foundation and Indian Institute of Science in collaboration with ANET, centered around a leatherback monitoring program on Little Andaman Island. A multi- institution stakeholder platform for marine conservation, including government and non- governmental agencies, was established by these groups to facilitate the conservation of marine turtles and other endangered species (Tripathy
Central American Regional Network: This collaborative effort created the national sea turtle network in each country of the region, as well as the development of first hand tools, such as a regional diagnosis, a 10-year strategic plan, a manual of best practices, and four regional training and information workshops for people in the region (
Convention on the Conservation of Migratory Species of Wild Animals (CMS): This Convention, also known as the Bonn Convention or CMS, is an international treaty that focuses on the conservation of migratory species and their habitats. As of December 2018, the Convention had 127 Parties, including Parties from Africa, Central and South America, Asia, Europe, and Oceania. While the Convention has successfully brought together about half the countries of the world with a direct interest in sea turtles, it has yet to realize its full potential (Hykle 2002). Its membership does not include a number of key countries, including Canada, China, Indonesia, Japan, Mexico, Oman, and the United States. Under the CMS, two Memoranda of Understanding (MOUs) apply to leatherback turtles: The MOU concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa and the MOU on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia. Additional information is available at
Convention on Biological Diversity (CBD): The primary objectives of this international treaty are: (1) The conservation of biological diversity, (2) the sustainable use of its components, and (3) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. This Convention has been in force since 1993 and had 193 Parties as of March 2013. While the Convention provides a framework within which are broad conservation objectives, it does not specifically address sea turtle conservation (Hykle 2002). Additional information is available at
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES): Known as CITES, this Convention was designed to regulate international trade in a wide range of wild animals and plants. CITES was implemented in 1975 and currently has 183 Parties. Although CITES has been effective at minimizing the international trade of sea turtle products, it does not limit legal harvest within countries, nor does it regulate intra-country commerce of sea turtle products (Hykle, 2002). The leatherback turtle is included (since 1977) in CITES Appendix I, which bans trade, including individuals and products, except as permitted for exceptional circumstances, not to include commercial purposes (Lyster 1985). Additional information is available at
Convention on the Conservation of European Wildlife and Natural Habitats: Also known as the Bern Convention, the goals of this instrument are to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the cooperation of several States, and to promote such cooperation. The Convention was enacted in 1982 and currently includes 51 European and African States and the European Union. Additional information is available at
Convention for the Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan Convention): The Abidjan Convention covers the marine environment, coastal zones, and related inland waters from Mauritania to Namibia. The Abidjan Convention countries are Angola, Benin, Cameroon, Cape Verde, Congo, Cote d'Ivoire, Democratic Republic of Congo, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mauritania, Namibia, Nigeria, Sao Tome and Principe, Senegal, Sierra Leone, and Togo. The Abidjan Convention is an agreement for the protection and management of the marine and coastal areas that highlights sources of pollution, including pollution from ships, dumping, land-based sources, exploration and exploitation of the sea-bed, and pollution from or through the atmosphere. The Convention also identifies where co-operative environmental management efforts are needed. These areas of concern include coastal erosion, specially protected areas, combating pollution in cases of emergency and environmental impact assessment.
Convention for the Protection Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention): The Nairobi Convention was signed in 1985 and came into force in 1996. This instrument “provides a mechanism for regional cooperation, coordination and collaborative actions, and enables the Contracting Parties to harness resources and expertise from a wide range of stakeholders and interest groups towards solving interlinked problems of the coastal and marine environment.” Parties are responsible for “the conservation and wise management of the sea turtle populations frequenting their waters and shores [and] agree to work closely together to improve the conservation status of the sea turtles and the habitats upon which they depend.” The Western Indian Ocean-Marine Turtle Task Force, which was created under the Nairobi Convention and the IOSEA, plays a role in sea turtle conservation. This is a technical, non-political working group comprised of specialists from eleven countries: Comoros, France (La Réunion), Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, South Africa, United Kingdom and Tanzania, as well as representatives from inter-governmental organizations, academic, and non-governmental organizations within the region. Additional information is available at
Convention for the Protection of the Marine Environment of the North-East Atlantic: Also called the OSPAR Convention, this 1992 instrument combines and updates the 1972 Oslo Convention against dumping waste in the marine environment and the 1974 Paris Convention addressing marine pollution stemming from land-based sources. The convention is managed by the OSPAR Commission, which is comprised of representatives from 15 signatory nations (Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and United Kingdom), as well as the European Commission, representing the European Community. The mission of the OSPAR Convention “. . . is to conserve marine ecosystems and safeguard human health in the North-East Atlantic by preventing and eliminating pollution; by protecting the marine environment from the adverse effects of human activities; and by contributing to the sustainable use of the seas.” Leatherback turtles are included on the OSPAR List of Threatened and/or Declining Species and Habitats, used by the OSPAR Commission for setting priorities for work on the conservation and protection of marine biodiversity. Additional information is available at
Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region: Also called the Cartagena Convention, this instrument that benefits turtles of the Northwest Atlantic leatherback DPS, has been in place since 1986 and currently has 38 member states and territories. Under this Convention, the component that relates to leatherback turtles is the Protocol Concerning Specially Protected Areas and Wildlife (SPAW) that has been in place since 2000. The goals are to encourage Parties “to take all appropriate measures to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species, in the Convention area.” The SPAW protocol has partnered with WIDECAST to develop a program of work on sea turtle conservation, which has helped many of the Caribbean nations to identify and prioritize their conservation actions through Sea Turtle Recovery Action Plans. Each recovery action plan summarizes the known distribution of sea turtles, discusses major causes of mortality, evaluates the effectiveness of existing conservation laws, and prioritizes implementing measures for stock recovery. The objective of the recovery action plan series is not only to assist Caribbean governments in the discharge of their obligations under the SPAW Protocol, but also to promote a regional capability to implement science-based sea turtle management and conservation programs. Additional information is available at
Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Washington or Western Hemisphere Convention): Elements of the Convention include the protection of species from human-induced extinction, the establishment of protected areas, the regulation of international trade in wildlife, special measures for migratory birds and stressing the need for co-operation in scientific research and other fields are all elements of wildlife conservation. Additional information is available at
Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (Lima Convention): This Convention's signatories include all countries along the Pacific Rim of South America from Panama to Chile. Among other resource management components, this Convention established protocol for the conservation and management of protected marine resources. Stemming from this Convention is the Commision Permanente del Pacifico Sur (CPPS) that has developed a Marine Turtle Action Plan for the Southeast Pacific that outlines a strategy for protecting and recovering marine turtles in this region. Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea Convention): This Convention has been in force since 1990 and currently includes 26 Parties. The purpose of the Convention is to protect the marine environment and coastal zones of the South-East Pacific within the 200-mile area of maritime sovereignty and jurisdiction of the Parties and, beyond that area, the high seas up to a distance within which pollution of the high seas may affect that area. Additional information is available at
Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention): The World Heritage Convention was signed in 1972 and, as of November 2007, 185 states were parties to the Convention. The instrument requires parties to take effective and active measures to protect and conserve habitat of threatened species of animals and plants of scientific or aesthetic value. The World Heritage Convention currently includes 31 marine sites. Additional information is available at
Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention): The convention entered into force on 19 June 2004. The WCPF Convention draws on many of the provisions of the UN Fish Stocks Agreement [UNFSA] while, at the same time, reflecting the special political, socio-economic, geographical and environmental characteristics of the western and central Pacific Ocean (WCPO) region. The WCPFC Convention seeks to address problems in the management of high seas fisheries resulting from unregulated fishing, over-capitalization, excessive fleet capacity, vessel re-flagging to escape controls, insufficiently selective gear, unreliable databases and insufficient multilateral cooperation in respect to conservation and management of highly migratory fish stocks.
Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific: This regional convention, also known as the Wellington Convention, was adopted in 1989 in Wellington, New Zealand, and entered into force in 1991. The objective of the Convention is “to restrict and prohibit the use of drift nets in the South Pacific region in order to conserve marine living resources.” Additional information is available at
Eastern Pacific Leatherback Network: Also known as La Red de la Tortuga Laúd del Océano Pacifico (Laúd OPO) (
The Eastern Tropical Pacific Marine Corridor (CMAR) is a regional and cross-border initiative for the conservation and sustainable use of the region's marine and coastal resources. Its objective is to sustainably manage biodiversity through ecosystem based management and the development of regional intergovernmental strategies with support of non-governmental organizations and international cooperation agencies.
United Nations' Food and Agricultural Organization (FAO) Technical Consultation on Sea Turtle-Fishery Interactions: While not a true international instrument for conservation, the 2004 FAO of the UN's technical consultation on sea turtle-fishery interactions was groundbreaking in that it solidified the commitment of the lead UN agency for fisheries to reduce sea turtle bycatch in marine fisheries operations. Recommendations from the technical consultation were endorsed by the FAO Committee on Fisheries (COFI) and called for the immediate implementation by member nations and Regional Fishery Management Organizations (RFMOs) of guidelines to reduce sea turtle mortality in fishing operations, developed as part of the technical consultation. Currently, all five of the tuna RFMOs call on their members and cooperating non-members to adhere to the 2009 FAO “Guidelines to Reduce Sea Turtle Mortality in Fishing Operations,” which describes all the gear types sea turtles could interact with and the latest mitigation options. The Western and Central Pacific Fisheries Commission (
Inter-American Tropical Tuna Convention (IATTC) has enacted a resolution to mitigate the impact of tuna fishing vessels on sea turtles by reducing bycatch, injury, and mortality of sea turtles. The IATTC has also developed a memorandum of understanding with the IAC. For more information, see
The International Commission for the Conservation of Atlantic Tunas (ICCAT) has adopted a resolution for the reduction of sea turtle mortality (Resolution 03-11), encouraging States to submit data on sea turtle interactions, release sea turtles alive wherever possible, and conduct research on mitigation measures. It calls for implementing the FAO Guidelines for sea turtles, avoiding encirclement of sea turtles by purse seiners, safely handling and releasing sea turtles, and reporting on interactions. The Commission does not have any specific gear requirements applicable to longline fisheries. ICCAT is currently undertaking an ecological risk assessment to better understand the impact of its fisheries on sea turtle populations. For more information see
The Indian Ocean Tuna Commission (IOTC) is playing an increased role in turtle conservation. Resolution 05/08, superseded by Resolution 09/06 on Sea Turtles, sets out reporting requirements related to interactions with sea turtles and accordingly provides an executive summary per species for adoption at the Working Party on Ecosystem and By-catch and then subsequently at the Scientific Committee. In 2011, IOTC developed a “Sea Turtle Identification Card” to be distributed to all longliners operating in the Indian Ocean (
Indian Ocean—South-East Asian Marine Turtle Memorandum of Understanding (IOSEA): Under the auspices of the Convention of Migratory Species, the IOSEA memorandum of understanding provides a mechanism for States of the Indian Ocean and South-East Asian region, as well as other concerned States, to work together to conserve and replenish depleted marine turtle populations. This collaboration is achieved through the collective implementation of an associated Conservation and Management Plan. Currently, there are 33 Signatory States. The United States became a signatory in 2001. The IOSEA has an active sub-regional group for the Western Indian Ocean, which has improved collaboration amongst sea turtle conservationists in the region. Further, the IOSEA website provides reference materials, satellite tracks, on-line reporting of compliance with the Convention, and information on all international mechanisms currently in place for the conservation of sea turtles. Finally, at the 2012 Sixth Signatory of States meeting in Bangkok, Thailand, the Signatory States agreed to procedures to establish a network of sites of importance for sea turtles in the IOSEA region (
Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC): This Convention is the only legally binding international treaty dedicated exclusively to sea turtles and sets standards for the conservation of these endangered animals and their habitats with a large emphasis on bycatch reduction. The Convention area is the Pacific and the Atlantic waters of the Americas. Currently, there are 15 Parties. The United States became a Party in 1999. The IAC has worked to adopt fisheries bycatch resolutions, carried out workshops on Caribbean sea turtle conservation, and established collaboration with other agreements such as the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and the International Commission for the Conservation of Atlantic Tunas. Additional information is available at
International Convention for the Prevention of Pollution from Ships (MARPOL): The MARPOL Convention is a combination of two treaties adopted in 1973 and 1978 to prevent pollution of the marine environment by ships from operational or accidental causes. The 1973 treaty covered pollution by oil, chemicals, and harmful substances in packaged form, sewage and garbage. The 1978 MARPOL Protocol was adopted at a Conference on Tanker Safety and Pollution Prevention which included standards for tanker design and operation. The 1978 Protocol incorporated the 1973 Convention as it had not yet been in force and is known as the International Convention for the Prevention of Marine Pollution from Ships, 1973, as modified by the Protocol
International Union for Conservation of Nature (IUCN): The IUCN Species Programme assesses the conservation status of species on a global scale. This assessment provides objective, scientific information on the current status of threatened species. The IUCN Red List of Threatened Species provides taxonomic, conservation status and distribution information on plants and animals that have been globally evaluated using the IUCN Red List Categories and Criteria. This system is designed to determine the relative risk of extinction, and the main purpose of the IUCN Red List is to catalogue and highlight those plants and animals that are facing a higher risk of global extinction (
Marine Turtle Conservation Act (MTCA): The MTCA is a key element of sea turtle protection in the United States and internationally. This Act authorizes a dedicated fund to support marine turtle conservation projects in foreign countries, with emphasis on protecting nesting populations and nesting habitat. Additional information is available at
Memorandum of Agreement between the Government of the Republic of the Philippines and the Government of Malaysia on the Establishment of the Turtle Island Heritage Protected Area: Through a bilateral agreement, the Governments of the Philippines and Malaysia established The Turtle Island Heritage Protected Area (TIHPA), made up of nine islands (6 in the Philippines and 3 in Malaysia). The following priority activities were identified: management-oriented research, the establishment of a centralized database and information network, appropriate information awareness programs, a marine turtle resource management and protection program, and an appropriate ecotourism program (Bache and Frazier 2006).
Memorandum of Understanding of a Tri-National Partnership between the Government of the Republic of Indonesia, the Independent State of Papua New Guinea and the Government of Solomon Islands: This agreement promotes the conservation and management of Western Pacific leatherback turtles at nesting sites, feeding areas and migratory routes in Indonesia, Papua New Guinea and Solomon Islands. This is done through the systematic exchange of information and data on research, population and migratory routes monitoring, nesting sites and feeding areas management activities for Western Pacific leatherback turtles and by enhancing public awareness of the importance of conserving these turtles and their critical habitats.
Memorandum of Understanding Concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa (Abidjan Memorandum): This MOU was concluded under the auspices of the Convention on the Conservation of Migratory Species of Wild Animals (CMS) and became effective in 1999. The MOU area covers 26 Range States along the Atlantic coast of Africa extending approximately 14,000 km from Morocco to South Africa. The goal of this MOU is to improve the conservation status of marine turtles along the Atlantic Coast of Africa. It aims at safeguarding six marine turtle species—including the leatherback turtle—that are estimated to have rapidly declined in numbers during recent years due to excessive exploitation (both direct and incidental) and the degradation of essential habitats. This includes the protection of the life stages from hatchlings through adults with particular attention paid to the impacts of fishery bycatch and the need to include local communities in the development and implementation of conservation activities. However, despite this agreement, killing of adult turtles and harvesting of eggs remains rampant in many areas along the Atlantic African coast. Additional information is available at
National Sea Turtle Conservation Project in India: Launched in 1998 with the aim of protecting
North American Agreement for Environmental Cooperation: As mandated by the 1994 North American Agreement for Environmental Cooperation, the Commission for Environmental Cooperation (CEC) encourages Canada, the United States, and Mexico to adopt a continental approach to the conservation of flora and fauna. In 2003, this mandate was strengthened as the three North American countries launched the Strategic Plan for North American Cooperation in the Conservation of Biodiversity. The North American Conservation Action Plan (NACAP) initiative began as an effort promoted by the three countries, through the CEC, to facilitate the conservation of marine and terrestrial species of common concern. In 2005, the CEC supported the development of a NACAP for Pacific leatherbacks by Canada, the United States, and Mexico. Identified actions in the plan addressed three main objectives: (1) protection and management of nesting beaches and females; (2) mortality reduction from bycatch throughout the Pacific Basin; and (3) waste management, control of pollution, and disposal of debris at sea.
Ramsar Convention on Wetlands: The Convention on Wetlands, signed in Ramsar, Iran, in 1971, is an intergovernmental treaty, which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. Currently, there are 158 parties to the convention, with 1,752 wetland sites, including important marine turtle habitat. Additional information is available at
Secretariat of the Pacific Regional Environment Programme (SPREP): SPREP's turtle conservation program seeks to improve knowledge about sea turtles in the Pacific through an active tagging program, as well as maintaining a database to collate information about sea turtle tags in the Pacific. SPREP supports capacity building throughout the central and southwest Pacific. SPREP established an action plan for the Pacific Islands (
South-East Atlantic Fisheries Organization (SEAFO): SEAFO manages fisheries activities in the Southeast Atlantic high seas area, excluding tunas and billfish. SEAFO adopted Resolution 01/06, “to Reduce Sea Turtle Mortality in Fishing Operations,” in 2006. The Resolution requires Members to: (1) Implement the FAO Guidelines; and (2) establish on-board observer programs to collect information on sea turtle
South Atlantic Association: In the southwest Atlantic, the South Atlantic Association is a multinational group that includes representatives from Brazil, Uruguay, and Argentina and meets bi-annually to share information and develop regional action plans to address threats including bycatch (
United Nations Convention on the Law of the Sea (UNCLOS): To date, 155 countries, including most mainland countries lining the western Pacific, and the European Community have joined in the convention. The United States has signed the treaty and abides by some provisions, but the Senate has not ratified it. Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment through mandating sustainable fishing practices and protecting freedom of scientific research on the high seas. Additional information is available at
United Nations' Food and Agricultural Organization (FAO): The FAO published guidelines for sea turtle protection, entitled Technical Consultation on Sea Turtle-Fishery Interactions (FAO 2005). The UN 1995 Code of Conduct for Responsible Fisheries (FAO 2004) provides guidelines for the development and implementation of national fisheries policies, including gear modification (
United Nations Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing: In 1989, the UN called, in a unanimous resolution, for the elimination of all high seas driftnets by 1992. Additional information is available at
Although numerous conservation efforts apply to the species, they do not adequately reduce its risk of extinction for the reasons discussed previously.
The best available information is consistent with the species' current “endangered” listing. The species exhibits a global total index of nesting female abundance of 32,060 females at monitored beaches. This number is lower than historical estimates of nesting female abundance (n = 115,000, Pritchard 1982; and n = 34,500, Spotila 1996), which did not include the large, but then unknown, Gabon nesting aggregation. Limited nesting female abundance is a major source of concern for most DPSs, whose small population sizes place them in danger of stochastic or catastrophic events that increase extinction risk. The limited nesting female abundance increases the extinction risk of the species.
The species also exhibits declining nesting trends for all but one of the DPSs. With the exception of the DPS with the smallest index of nesting female abundance (
The species exhibits broad nesting and foraging ranges. However, metapopulation dynamics have likely been reduced, with reductions in abundance and the loss of some nesting aggregations. The species also demonstrates little genetic diversity, relative to other sea turtle species. Although the species demonstrates some resilience to threats, overall we find it to be at risk of extinction, due to limited abundance and declining nesting trends, which reflect the cumulative impacts of threats that have acted on the species in the past (and in many cases continue to act on the species).
Current threats continue to place the species in danger of extinction. The primary threat to the species is bycatch in commercial and artisanal, pelagic and coastal, fisheries. Fisheries bycatch reduces abundance by removing individuals from the population. Because several fisheries operate near nesting beaches, productivity is also reduced when nesting females are prevented from returning to nesting beaches. The harvest of eggs and turtles is also a major threat to the species. Illegal poaching occurs throughout the range of the species, and harvest is legal but poorly documented in some nations. The loss and modification of nesting habitat is another major threat, reducing productivity and, in some instances, abundance, when nesting females die as a result of artificial lighting or obstructions preventing them from returning to sea. Predation results in the loss of eggs and hatchlings, reducing productivity of the species. Additional threats that occur throughout the range of the species include vessel strikes, pollution, marine debris, oil and gas exploration, and climate change. Natural disasters and oceanographic regime shifts are threats in some areas. Though many regulatory mechanisms are in place, they do not adequately reduce the impact of these threats.
Based on our review of the best available scientific and commercial data, we find nothing that is inconsistent with the leatherback species' current listing as an endangered species. In sum, the best available information is consistent with the current listing status of the leatherback sea turtle as an endangered species throughout its range. The threatened species definition does not apply because the species is currently in danger of extinction (
The Services determined that the best available scientific and commercial information would support recognizing seven populations as DPSs (including the NW Atlantic) because they meet the discreteness and significance criteria for DPSs. However, we found that—even were they to be recognized and listed separately—all DPSs meet the definition of an endangered species because they are in danger of extinction throughout all of their ranges. The leatherback turtle is currently listed throughout its range as an endangered species. Replacing this listing with seven endangered DPSs would not be consistent with Congressional guidance to use the authority to list DPSs “sparingly” while encouraging the conservation of genetic diversity (see Senate Report 151, 96th
After determining that all seven populations would have the same status as the overall species, we next considered whether there was any reason to nevertheless replace the global (range-wide) listing with individual listings for the seven DPSs. We conclude that disaggregating the global listing is not warranted. It would be inconsistent with Congressional guidance and run counter to the conservation purposes of the Act to disaggregate the current listing into DPSs, because those DPSs would have the same listing status as the whole currently. Disaggregating this listing would bring about significant complications and possible public confusion without any meaningful corresponding conservation benefit. Replacing the range-wide listing with seven DPSs having the same status would not provide leatherback turtles with an overriding conservation benefit, as all members are currently protected to the fullest extent under the ESA as an endangered species. Section 7 consultations already consider the effects of an action on individuals and populations to determine whether a Federal agency has insured that its action is not likely to jeopardize the continued existence of the species. Even if the species were disaggregated into DPSs, this change would not be expected to result in different substantive outcomes in consultations. In addition, focused conservation efforts have been, and will continue to be, applied at scales smaller than the species-level. For example, FWS' Marine Turtle Conservation Fund provides funding to partners in foreign nations to protect leatherback turtles and their nesting habitats; projects include efforts to monitor and protect leatherback turtles in Indonesia and Gabon (
For these reasons, the Services have determined that replacing the existing global listing with separate listings for individual DPSs is not warranted. Although the best available data indicates that the populations meet the criteria for significance and discreteness, we find that it would not further the purposes of the Act to recognize and list seven DPSs separately as endangered under the ESA. The current global listing of the species remains in effect.
We conclude that the petitioned actions, to identify the NW Atlantic population as a DPS and list it as a threatened species under the ESA, are not warranted. This is a final action, and, therefore, we are not soliciting public comments.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review, establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to enhance the quality and credibility of the Federal government's scientific information and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the Status Review Report by independent scientists with expertise in leatherback turtle biology, endangered species listing policy, and related fields. All peer reviewer comments were addressed prior to the publication of the Status Review Report and this finding.
A complete list of references is available upon request to the NMFS Office of Protected Resources (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule updates the prospective payment rates for inpatient rehabilitation facilities (IRFs) for Federal fiscal year (FY) 2021. As required by statute, this final rule includes the classification and weighting factors for the IRF prospective payment system's case-mix groups and a description of the methodologies and data used in computing the prospective payment rates for FY 2021. This final rule adopts more recent Office of Management and Budget statistical area delineations and applies a 5 percent cap on any wage index decreases compared to FY 2020 in a budget neutral manner. This final rule also amends the IRF coverage requirements to remove the post-admission physician evaluation requirement and codifies existing documentation instructions and guidance. In addition, this final rule amends the IRF coverage requirements to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law.
These regulations are effective on October 1, 2020.
Gwendolyn Johnson, (410) 786-6954, for general information.
Catie Cooksey, (410) 786-0179, for information about the IRF payment policies and payment rates.
Kadie Derby, (410) 786-0468, for information about the IRF coverage policies.
The IRF PPS Addenda along with other supporting documents and tables referenced in this final rule are available through the internet on the CMS website at
We note that in previous years, each rule or notice issued under the IRF PPS has included a detailed reiteration of the various regulatory provisions that have affected the IRF PPS over the years. That discussion, along with detailed background information for various other aspects of the IRF PPS, is now available on the CMS website at
This final rule updates the prospective payment rates for IRFs for FY 2021 (that is, for discharges occurring on or after October 1, 2020, and on or before September 30, 2021) as required under section 1886(j)(3)(C) of the Social Security Act (the Act). As required by section 1886(j)(5) of the Act, this final rule includes the classification and weighting factors for the IRF PPS's case-mix groups (CMGs) and a description of the methodologies and data used in computing the prospective payment rates for FY 2021. This final rule adopts more recent Office of Management and Budget (OMB) statistical area delineations and applies a 5 percent cap on any wage index decreases compared to FY 2020 in a budget neutral manner. This final rule also amends the IRF coverage requirements to remove the post-admission physician evaluation requirement and codifies existing documentation instructions and guidance. In addition, this final rule amends the IRF coverage requirements to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law. There are no updates in this final rule to the IRF Quality Reporting Program (QRP).
The United States is responding to an outbreak of respiratory disease caused by a novel (new) coronavirus that has now been detected in more than 190 locations internationally, including in all 50 States and the District of Columbia. The virus has been named “SARS-CoV-2” and the disease it causes has been named “coronavirus disease 2019” (abbreviated “COVID-19”).
Due to CMS prioritizing efforts in support of containing and combatting the COVID-19 PHE, and devoting significant resources to that end, as discussed and for the reasons discussed in section XIII. of this final rule, we are hereby waiving the 60-day requirement and determining that the IRF PPS final rule will take effect 55 days after issuance.
In this final rule, we use the methods described in the FY 2020 IRF PPS final rule (84 FR 39054) to update the prospective payment rates for FY 2021 using updated FY 2019 IRF claims and the most recent available IRF cost report data, which is FY 2018 IRF cost report data. This final rule adopts more recent OMB statistical area delineations and applies a 5 percent cap on any wage index decreases compared to FY 2020 in a budget neutral manner. This final rule also amends the IRF coverage requirements to remove the post-admission physician evaluation requirement and codifies existing documentation instructions and guidance. In addition, this final rule amends the IRF coverage requirements to allow non-physician practitioners to perform some of the weekly visits, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law.
Section 1886(j) of the Act provides for the implementation of a per-discharge PPS for inpatient rehabilitation hospitals and inpatient rehabilitation units of a hospital (collectively, hereinafter referred to as IRFs). Payments under the IRF PPS encompass inpatient operating and capital costs of furnishing covered rehabilitation services (that is, routine, ancillary, and capital costs), but not direct graduate medical education costs, costs of approved nursing and allied health education activities, bad debts, and other services or items outside the scope of the IRF PPS. A complete discussion of the IRF PPS provisions appears in the original FY 2002 IRF PPS final rule (66 FR 41316) and the FY 2006 IRF PPS final rule (70 FR 47880), and we provided a general description of the IRF PPS for FYs 2007 through 2019 in the FY 2020 IRF PPS final rule (84 FR 39055 through 39057).
Under the IRF PPS from FY 2002 through FY 2005, the prospective payment rates were computed across 100 distinct CMGs, as described in the FY 2002 IRF PPS final rule (66 FR 41316). We constructed 95 CMGs using rehabilitation impairment categories (RICs), functional status (both motor and cognitive), and age (in some cases, cognitive status and age may not be a factor in defining a CMG). In addition, we constructed five special CMGs to account for very short stays and for patients who expire in the IRF.
For each of the CMGs, we developed relative weighting factors to account for a patient's clinical characteristics and expected resource needs. Thus, the weighting factors accounted for the relative difference in resource use across all CMGs. Within each CMG, we created tiers based on the estimated effects that certain comorbidities would have on resource use.
We established the Federal PPS rates using a standardized payment conversion factor (formerly referred to as the budget-neutral conversion factor). For a detailed discussion of the budget-neutral conversion factor, please refer to our FY 2004 IRF PPS final rule (68 FR 45684 through 45685). In the FY 2006 IRF PPS final rule (70 FR 47880), we discussed in detail the methodology for determining the standard payment conversion factor.
We applied the relative weighting factors to the standard payment conversion factor to compute the unadjusted prospective payment rates under the IRF PPS from FYs 2002 through 2005. Within the structure of the payment system, we then made adjustments to account for interrupted stays, transfers, short stays, and deaths. Finally, we applied the applicable adjustments to account for geographic variations in wages (wage index), the percentage of low-income patients, location in a rural area (if applicable), and outlier payments (if applicable) to the IRFs' unadjusted prospective payment rates.
For cost reporting periods that began on or after January 1, 2002, and before October 1, 2002, we determined the final prospective payment amounts using the transition methodology prescribed in section 1886(j)(1) of the Act. Under this provision, IRFs transitioning into the PPS were paid a blend of the Federal IRF PPS rate and the payment that the IRFs would have received had the IRF PPS not been implemented. This provision also allowed IRFs to elect to bypass this blended payment and immediately be paid 100 percent of the Federal IRF PPS rate. The transition methodology expired as of cost reporting periods beginning on or after October 1, 2002 (FY 2003), and payments for all IRFs now consist of 100 percent of the Federal IRF PPS rate.
Section 1886(j) of the Act confers broad statutory authority upon the Secretary to propose refinements to the IRF PPS. In the FY 2006 IRF PPS final rule (70 FR 47880) and in correcting amendments to the FY 2006 IRF PPS final rule (70 FR 57166), we finalized a number of refinements to the IRF PPS case-mix classification system (the CMGs and the corresponding relative weights) and the case-level and facility-level adjustments. These refinements included the adoption of the OMB's Core-Based Statistical Area (CBSA) market definitions; modifications to the CMGs, tier comorbidities; and CMG relative weights, implementation of a new teaching status adjustment for IRFs; rebasing and revising the market basket index used to update IRF payments, and updates to the rural, low-income percentage (LIP), and high-cost outlier adjustments. Beginning with the FY 2006 IRF PPS final rule (70 FR 47908 through 47917), the market basket index used to update IRF payments was a market basket reflecting the operating and capital cost structures for freestanding IRFs, freestanding inpatient psychiatric facilities (IPFs), and long-term care hospitals (LTCHs) (hereinafter referred to as the rehabilitation, psychiatric, and long-term care (RPL) market basket). Any reference to the FY 2006 IRF PPS final rule in this final rule also includes the provisions effective in the correcting amendments. For a detailed discussion of the final key policy changes for FY 2006, please refer to the FY 2006 IRF PPS final rule.
The regulatory history previously included in each rule or notice issued under the IRF PPS is available on the CMS website at
The Patient Protection and Affordable Care Act (PPACA) (Pub. L. 111-148) was enacted on March 23, 2010. The Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152), which amended and revised several provisions of the PPACA, was enacted on March 30, 2010. In this final rule, we refer to the two statutes collectively as the “Patient Protection and Affordable Care Act” or “PPACA”.
The PPACA included several provisions that affect the IRF PPS in FYs 2012 and beyond. In addition to what was previously discussed, section 3401(d) of the PPACA also added section 1886(j)(3)(C)(ii)(I) of the Act (providing for a “productivity adjustment” for fiscal year (FY) 2012 and each subsequent FY). The productivity adjustment for FY 2021 is discussed in section VI.B. of this final rule. Section 1886(j)(3)(C)(ii)(II) of the Act provides that the application of the productivity adjustment to the market basket update may result in an update that is less than 0.0 for a FY and in payment rates for a FY being less than such payment rates for the preceding FY.
Sections 3004(b) of the PPACA and section 411(b) of the Medicare Access and CHIP Reauthorization Act of 2015 (Pub. L. 114-10, enacted on April 16, 2015) (MACRA) also addressed the IRF PPS. Section 3004(b) of PPACA reassigned the previously designated section 1886(j)(7) of the Act to section 1886(j)(8) of the Act and inserted a new section 1886(j)(7) of the Act, which contains requirements for the Secretary to establish a quality reporting program (QRP) for IRFs. Under that program, data must be submitted in a form and manner and at a time specified by the Secretary. Beginning in FY 2014, section 1886(j)(7)(A)(i) of the Act requires the application of a 2 percentage point reduction to the market basket increase factor otherwise applicable to an IRF (after application of paragraphs (C)(iii) and (D) of section 1886(j)(3) of the Act) for a FY if the IRF does not comply with the requirements of the IRF QRP for that FY. Application of the 2 percentage point reduction may result in an update that is less than 0.0 for a FY and in payment rates for a FY being less than such payment rates for the preceding FY. Reporting-based reductions to the market basket increase factor are not cumulative; they only apply for the FY involved. Section 411(b) of the MACRA amended section 1886(j)(3)(C) of the Act by adding paragraph (iii), which required us to apply for FY 2018, after the application of section 1886(j)(3)(C)(ii) of the Act, an increase factor of 1.0 percent to update the IRF prospective payment rates.
As described in the FY 2002 IRF PPS final rule (66 FR 41316), upon the admission and discharge of a Medicare Part A fee-for-service (FFS) patient, the IRF is required to complete the appropriate sections of a Patient Assessment Instrument (PAI), designated as the IRF-PAI. In addition, beginning with IRF discharges occurring on or after October 1, 2009, the IRF is also required to complete the appropriate sections of the IRF-PAI upon the admission and discharge of each Medicare Advantage (MA) patient, as described in the FY 2010 IRF PPS final rule (74 FR 39762 and 74 FR 50712). All required data must be electronically encoded into the IRF-PAI software product. Generally, the software product includes patient classification programming called the Grouper software. The Grouper software uses specific IRF-PAI data elements to classify (or group) patients into distinct CMGs and account for the existence of any relevant comorbidities.
The Grouper software produces a five-character CMG number. The first character is an alphabetic character that indicates the comorbidity tier. The last four characters are numeric characters that represent the distinct CMG number. A free download of the Grouper software is available on the CMS website at
Once a Medicare Part A FFS patient is discharged, the IRF submits a Medicare claim as a Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. 104-191, enacted on August 21, 1996)—compliant electronic claim or, if the Administrative Simplification Compliance Act of 2002 (ASCA) (Pub. L. 107-105, enacted on December 27, 2002) permits, a paper claim (a UB-04 or a CMS-1450 as appropriate) using the five-character CMG number and sends it to the appropriate Medicare Administrative Contractor (MAC). In addition, once a MA patient is discharged, in accordance with the Medicare Claims Processing Manual, chapter 3, section 20.3 (Pub. L. 100-04), hospitals (including IRFs) must submit an informational-only bill (type of bill (TOB) 111), which includes Condition Code 04 to their MAC. This will ensure that the MA days are included in the hospital's Supplemental Security Income (SSI) ratio (used in calculating the IRF LIP adjustment) for FY 2007 and beyond. Claims submitted to Medicare must comply with both ASCA and HIPAA.
Section 3 of the ASCA amended section 1862(a) of the Act by adding paragraph (22), which requires the Medicare program, subject to section 1862(h) of the Act, to deny payment under Part A or Part B for any expenses for items or services for which a claim is submitted other than in an electronic form specified by the Secretary. Section 1862(h) of the Act, in turn, provides that the Secretary shall waive such denial in situations in which there is no method available for the submission of claims in an electronic form or the entity submitting the claim is a small provider. In addition, the Secretary also has the authority to waive such denial in such unusual cases as the Secretary finds appropriate. For more information, see the “Medicare Program; Electronic Submission of Medicare Claims” final rule (70 FR 71008). Our instructions for the limited number of Medicare claims submitted on paper are available at
Section 3 of the ASCA operates in the context of the administrative simplification provisions of HIPAA, which include, among others, the requirements for transaction standards and code sets codified in 45 CFR part 160 and part 162, subparts A and I through R (generally known as the Transactions Rule). The Transactions Rule requires covered entities, including covered health care providers, to conduct covered electronic transactions according to the applicable transaction standards. (See the CMS program claim memoranda at
The MAC processes the claim through its software system. This software system includes pricing programming called the “Pricer” software. The Pricer software uses the CMG number, along with other specific claim data elements and provider-specific data, to adjust the IRF's prospective payment for interrupted stays, transfers, short stays, and deaths, and then applies the applicable adjustments to account for the IRF's wage index, percentage of low-income patients, rural location, and outlier payments. For discharges occurring on or after October 1, 2005, the IRF PPS payment also reflects the teaching status adjustment that became effective as of FY 2006, as discussed in the FY 2006 IRF PPS final rule (70 FR 47880).
The Department of Health and Human Services (HHS) has a number of initiatives designed to encourage and support the adoption of interoperable health information technology and to promote nationwide health information exchange to improve health care and patient access to their health information. The Office of the National Coordinator for Health Information Technology (ONC) and CMS work collaboratively to advance interoperability across settings of care, including post-acute care.
To further interoperability in post-acute care settings, CMS continues to explore opportunities to advance electronic exchange of patient information across payers, providers and with patients, including developing systems that use nationally recognized health IT standards such as the Logical Observation Identifiers Names and Codes (LOINC), the Systematized
The Data Element Library (DEL) continues to be updated and serves as the authoritative resource for PAC assessment data elements and their associated mappings to health IT standards. The DEL furthers CMS' goal of data standardization and interoperability. These interoperable data elements can reduce provider burden by allowing the use and exchange of healthcare data, support provider exchange of electronic health information for care coordination, person-centered care, and support real-time, data driven, clinical decision making. Standards in the Data Element Library (
In the September 30, 2019
On May 1 2020, ONC and CMS published the final rules, “21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program,”
In the FY 2021 IRF PPS proposed rule, we proposed to update the IRF prospective payment rates for FY 2021. We also proposed to adopt more recent Office of Management and Budget statistical area delineations and apply a 5 percent cap on any wage index decreases compared to FY 2020 in a budget neutral manner. We also proposed to amend the IRF coverage requirements to remove the post-admission physician evaluation requirement and codify existing documentation instructions and guidance. Additionally, we proposed to amend the IRF coverage requirements to allow non-physician practitioners to perform certain requirements that are currently required to be performed by a rehabilitation physician.
The proposed policy changes and updates to the IRF prospective payment rates for FY 2021 are as follows:
• Update the CMG relative weights and average length of stay values for FY 2021, in a budget neutral manner, as discussed in section IV. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22069 through 22073).
• Update the IRF PPS payment rates for FY 2021 by the proposed market basket increase factor, based upon the most current data available, with a proposed productivity adjustment required by section 1886(j)(3)(C)(ii)(I) of the Act, as described in section V. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22073 through 22075).
• Adopt the revised OMB delineations, the proposed IRF wage index transition, and the proposed update to the labor-related share for FY 2021 in a budget-neutral manner, as described in section V. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22075 through 22080).
• Describe the calculation of the IRF standard payment conversion factor for FY 2021, as discussed in section V. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22080 through 22081).
• Update the outlier threshold amount for FY 2021, as discussed in section VI. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22084 through 22085).
• Update the cost-to-charge ratio (CCR) ceiling and urban/rural average CCRs for FY 2021, as discussed in section VI. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22085 through 22086).
• Amend the IRF coverage requirements to remove the post-admission physician evaluation requirement as discussed in section VII. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22086 through 22087).
• Amend the IRF coverage requirements to codify existing documentation instructions and guidance as discussed in section VIII. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22087 through 22088).
• Amend the IRF coverage requirements to allow non-physician practitioners to perform certain requirements that are currently required to be performed by a rehabilitation physician, if permitted under state law, as discussed in section IX. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22088 through 22090).
• Describe the method for applying the reduction to the FY 2021 IRF increase factor for IRFs that fail to meet the quality reporting requirements as discussed in section X. of the FY 2021 IRF PPS proposed rule (85 FR 22065, 22090).
We received 2,668 timely responses from the public, many of which contained multiple comments on the FY
As specified in § 412.620(b)(1), we calculate a relative weight for each CMG that is proportional to the resources needed by an average inpatient rehabilitation case in that CMG. For example, cases in a CMG with a relative weight of 2, on average, will cost twice as much as cases in a CMG with a relative weight of 1. Relative weights account for the variance in cost per discharge due to the variance in resource utilization among the payment groups, and their use helps to ensure that IRF PPS payments support beneficiary access to care, as well as provider efficiency.
We proposed to update the CMG relative weights and average length of stay values for FY 2021. As required by statute, we always use the most recent available data to update the CMG relative weights and average lengths of stay. For FY 2021, we proposed to use the FY 2019 IRF claims and FY 2018 IRF cost report data. These data are the most current and complete data available at this time. Currently, only a small portion of the FY 2019 IRF cost report data are available for analysis, but the majority of the FY 2019 IRF claims data are available for analysis. We also proposed that if more recent data become available after the publication of the proposed rule and before the publication of the final rule, we would use such data to determine the FY 2021 CMG relative weights and average length of stay values in the final rule.
We proposed to apply these data using the same methodologies that we have used to update the CMG relative weights and average length of stay values each FY since we implemented an update to the methodology to use the more detailed CCR data from the cost reports of IRF provider units of primary acute care hospitals, instead of CCR data from the associated primary care hospitals, to calculate IRFs' average costs per case, as discussed in the FY 2009 IRF PPS final rule (73 FR 46372). In calculating the CMG relative weights, we use a hospital-specific relative value method to estimate operating (routine and ancillary services) and capital costs of IRFs. The process used to calculate the CMG relative weights for this final rule is as follows:
Consistent with the methodology that we have used to update the IRF classification system in each instance in the past, we proposed to update the CMG relative weights for FY 2021 in such a way that total estimated aggregate payments to IRFs for FY 2021 are the same with or without the changes (that is, in a budget-neutral manner) by applying a budget neutrality factor to the standard payment amount. We note that, as we typically do, we updated our data between the FY 2021 IRF PPS proposed and final rules to ensure that we use the most recent available data in calculating IRF PPS payments. This updated data reflects a more complete set of claims for FY 2019 and additional cost report data for FY 2018. To calculate the appropriate budget neutrality factor for use in updating the FY 2021 CMG relative weights, we use the following steps:
In section VI.D. of this final rule, we discuss the use of the existing methodology to calculate the standard payment conversion factor for FY 2021.
In Table 2, “Relative Weights and Average Length of Stay Values for Revised Case-Mix Groups,” we present the CMGs, the comorbidity tiers, the corresponding relative weights, and the average length of stay values for each CMG and tier for FY 2021. The average length of stay for each CMG is used to determine when an IRF discharge meets the definition of a short-stay transfer, which results in a per diem case level adjustment.
Generally, updates to the CMG relative weights result in some increases and some decreases to the CMG relative weight values. Table 3 shows how we estimate that the application of the revisions for FY 2021 would affect particular CMG relative weight values, which would affect the overall distribution of payments within CMGs and tiers. We note that, because we implement the CMG relative weight revisions in a budget-neutral manner (as previously described), total estimated aggregate payments to IRFs for FY 2021 are not affected as a result of the CMG relative weight revisions. However, the revisions affect the distribution of payments within CMGs and tiers.
As shown in Table 3, 99.3 percent of all IRF cases are in CMGs and tiers that would experience less than a 5 percent change (either increase or decrease) in the CMG relative weight value as a result of the revisions for FY 2021. The
The comments we received on our proposal to update the CMG relative weights and average length of stay values for FY 2021 are summarized below.
We do not agree that it would be appropriate to freeze the CMG relative weights and average length of stay values at FY 2020 levels because this would require us to base them on older data. Updating these values based on the most recent available data ensures that the IRF case mix system is as reflective as possible of recent changes in IRF utilization and case mix, thereby ensuring that IRF payments appropriately reflect the relative costs of caring for IRF patients. Freezing these values at FY 2020 levels does not allow us to reflect any changes in IRF utilization and case mix that might have occurred over time. As stated in the FY 2021 IRF PPS proposed rule, the FY 2019 data is the most current and complete data available for updating payments.
We are confident that the data is valid and reliable for use in setting IRF PPS payment rates. CMS's contractor (Research Triangle Institute (RTI)) analyzed 2 year's worth of these data (FYs 2017 and 2018) to determine the extent to which the data could predict resource use in the IRF setting. RTI produced two reports containing their analyses and findings, “Analyses to Inform the Potential use of Standardized Patient Assessment Data Elements in the Inpatient Rehabilitation Facility Prospective Payment System (PDF)” (April 2018) and “Analyses to Inform the Use of Standardized Patient Assessment Data Elements in the Inpatient Rehabilitation Facility Prospective Payment System (PDF)” (March 2019). These reports are both available for download from the IRF PPS website at
As most recently discussed in detail in the FY 2020 IRF PPS final rule (84 FR 39054), we believe that these data accurately reflect the severity of the IRF patient population and the associated costs of caring for these patients in the IRF setting. Therefore, we believe it is appropriate to use the FY 2019 data to update the CMG relative weights and average length of stay values for FY 2021 to ensure the case mix system is as reflective as possible of recent changes in IRF utilization and case mix.
With regard to the request for patient-level data, we are unable to make patient assessment and claims data publicly available on the CMS website because these data contain information that can be used to identify individual Medicare beneficiaries. However, stakeholders may obtain these data through the standard CMS data acquisition and Data Use Agreement (DUA) processes. More information on CMS data acquisition process can be found on the CMS website at
In addition, with regard to the request for the regularly scheduled TEPs to obtain stakeholder input on the routine annual updates to the CMG relative weights and average length of stay values, we provide the methodology for these updates in the IRF PPS proposed rules each year to enable stakeholders to comment on the methodology and provide any suggestions for updating this methodology. Furthermore, we rarely make changes to this methodology, so we believe that stakeholders have had ample opportunity to comment on this methodology over the years, and we do not believe that there would be added value to convening a TEP to discuss this well-established methodology.
With regard to the comment regarding Table 3, we do not agree with the commenter's suggestion that utilizing changes in payment would more adequately project changes in the CMG relative weight values than examining changes in the relative weight values themselves. We would also like to note that the data files published in conjunction with each proposed and final rule contain estimated facility level payment impacts for each IRF in our analysis file to support transparency and assist providers in determining the payment implications of the policy updates contained in each rule. However, we appreciate the commenter's suggested revisions to Table 3 and will take this comment under advisement for future consideration.
After consideration of the comments we received, we are finalizing our proposal to update the CMG relative weights and average length of stay values for FY 2021, as shown in Table 2 of this final rule. These updates are effective for FY 2021, that is, for discharges occurring on or after October 1, 2020 and on or before September 30, 2021.
Section 1886(j)(3)(C) of the Act requires the Secretary to establish an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services for which payment is made under the IRF PPS. According to section 1886(j)(3)(A)(i) of the Act, the increase factor shall be used to update the IRF prospective payment rates for each FY. Section 1886(j)(3)(C)(ii)(I) of the Act requires the application of the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act. Thus, in the FY 2021 IRF PPS proposed rule (85 FR 22073 through 22074), we proposed to update the IRF PPS payments for FY 2021 by a market basket increase factor as required by section 1886(j)(3)(C) of the Act based upon the most current data available, with a productivity adjustment as required by section 1886(j)(3)(C)(ii)(I) of the Act.
We have utilized various market baskets through the years in the IRF PPS. For a discussion of these market
In FY 2016, we finalized the use of a 2012-based IRF market basket, using Medicare cost report (MCR) data for both freestanding and hospital-based IRFs (80 FR 47049 through 47068). Beginning with FY 2020, we finalized a rebased and revised IRF market basket to reflect a 2016 base year. The FY 2020 IRF PPS final rule (84 FR 39071 through 39086) contains a complete discussion of the development of the 2016-based IRF market basket.
For FY 2021 (that is, beginning October 1, 2020 and ending September 30, 2021), we proposed to update the IRF PPS payments by a market basket increase factor as required by section 1886(j)(3)(C) of the Act, with a productivity adjustment as required by section 1886(j)(3)(C)(ii)(I) of the Act. For FY 2021, we proposed to use the same methodology described in the FY 2020 IRF PPS final rule (84 FR 39085) to compute the FY 2021 market basket increase factor to update the IRF PPS base payment rate.
Consistent with historical practice, we proposed to estimate the market basket update for the IRF PPS based on IHS Global Inc.'s (IGI's) forecast using the most recent available data. IGI is a nationally-recognized economic and financial forecasting firm with which we contract to forecast the components of the market baskets and multifactor productivity (MFP). Based on IGI's fourth quarter 2019 forecast with historical data through the third quarter of 2019, the 2016-based IRF market basket increase factor for FY 2021 was projected to be 2.9 percent. Therefore, we proposed that the 2016-based IRF market basket increase factor for FY 2021 would be 2.9 percent. We proposed that if more recent data became available after the publication of the proposed rule and before the publication of this final rule (for example, a more recent estimate of the market basket update), we would use such data to determine the FY 2021 market basket update in this final rule.
According to section 1886(j)(3)(C)(i) of the Act, the Secretary shall establish an increase factor based on an appropriate percentage increase in a market basket of goods and services. Section 1886(j)(3)(C)(ii) of the Act then requires that, after establishing the increase factor for a FY, the Secretary shall reduce such increase factor for FY 2012 and each subsequent FY, by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of the Act. Section 1886(b)(3)(B)(xi)(II) of the Act sets forth the definition of this productivity adjustment. The statute defines the productivity adjustment to be equal to the 10-year moving average of changes in annual economy-wide, private nonfarm business MFP (as projected by the Secretary for the 10-year period ending with the applicable FY, year, cost reporting period, or other annual period) (the “MFP adjustment”). The U.S. Department of Labor's Bureau of Labor Statistics (BLS) publishes the official measure of private nonfarm business MFP. Please see
Using IGI's fourth quarter 2019 forecast, the 10-year moving average growth of MFP for FY 2021 was projected to be 0.4 percentage point. Thus, in accordance with section 1886(j)(3)(C) of the Act, we proposed to base the FY 2021 market basket update, which is used to determine the applicable percentage increase for the IRF payments, on IGI's fourth quarter 2019 forecast of the 2016-based IRF market basket. We proposed to then reduce this percentage increase by the estimated MFP adjustment for FY 2021 of 0.4 percentage point (the 10-year moving average growth of MFP for the period ending FY 2021 based on IGI's fourth quarter 2019 forecast). Therefore, the proposed FY 2021 IRF update was equal to 2.5 percent (2.9 percent market basket update less 0.4 percentage point MFP adjustment). Furthermore, we proposed that if more recent data became available after the publication of the proposed rule and before the publication of this final rule (for example, a more recent estimate of the market basket and/or MFP), we would use such data to determine the FY 2021 market basket update and MFP adjustment in this final rule.
Based on the more recent data available for this FY 2021 IRF final rule (that is, IGI's second quarter 2020 forecast of the 2016-based IRF market basket rate-of-increase with historical data through the first quarter of 2020), we estimate that the FY 2021 market basket update is 2.4 percent. We note that the fourth quarter 2019 forecast was developed prior to the economic impacts of the Coronavirus disease 2019 (COVID-19) pandemic. This lower update (2.4 percent) for FY 2021 relative to the proposed rule (2.9 percent) is primarily driven by slower anticipated compensation growth for both health-related and other occupations as labor markets are expected to be significantly impacted during the recession that started in February 2020 and throughout the anticipated recovery.
Based on the more recent data available for this FY 2021 IRF final rule, the current estimate of the 10-year moving average growth of MFP for FY 2021 is -0.1 percentage point. This MFP is based on the most recent macroeconomic outlook from IGI at the time of rulemaking (released June 2020) in order to reflect more current historical economic data. IGI produces monthly macroeconomic forecasts, which include projections of all of the economic series used to derive MFP. In contrast, IGI only produces forecasts of the more detailed price proxies used in the 2016-based IRF market basket on a quarterly basis. Therefore, IGI's second quarter 2020 forecast is the most recent forecast of the 2016-based IRF market basket update.
We note that it has typically been our practice to base the projection of the market basket price proxies and MFP in the final rule on the second quarter IGI forecast. For this FY 2021 IRF PPS final rule, we are using the IGI June macroeconomic forecast for MFP because it is a more recent forecast, and it is important to use more recent data during this period when economic trends, particularly employment and labor productivity, are notably uncertain because of the COVID-19 pandemic. Historically, the MFP adjustment based on the second quarter IGI forecast has been very similar to the MFP adjustment derived with IGI's June macroeconomic forecast. Substantial changes in the macroeconomic indicators in between monthly forecasts are atypical.
Given the unprecedented economic uncertainty as a result of the COVID-19 pandemic, the change in the IGI macroeconomic series used to derive MFP between the IGI second quarter 2020 IGI forecast and the IGI June 2020 macroeconomic forecast is significant. Therefore, we believe it is technically appropriate to use IGI's more recent June 2020 macroeconomic forecast to determine the MFP adjustment for the final rule as it reflects more current historical data. For comparison purposes, the 10-year moving average growth of MFP for FY 2021 is projected to be -0.1 percentage point based on IGI's June 2020 macroeconomic forecast compared to a FY 2021 projected 10-year moving average growth of MFP of 0.7 percentage point based on IGI's second quarter 2020 forecast. Mechanically subtracting the negative
For FY 2021, the Medicare Payment Advisory Commission (MedPAC) recommends that we reduce IRF PPS payment rates by 5 percent. As discussed, and in accordance with sections 1886(j)(3)(C) and 1886(j)(3)(D) of the Act, the Secretary is required to update the IRF PPS payment rates for FY 2021 by an adjusted market basket increase factor which, based on the most recently available data, is 2.4 percent. Section 1886(j)(3)(C) of the Act does not provide the Secretary with the authority to apply a different update factor to IRF PPS payment rates for FY 2021.
The comments we received on the proposed market basket update and productivity adjustment are summarized below.
As stated in the FY 2020 IRF PPS final rule (84 FR 39087), we would be very interested in better understanding IRF-specific productivity; however, the data elements required to estimate IRF specific multi-factor productivity are not produced at the level of detail that would allow this analysis. We have estimated hospital-sector multi-factor productivity and have published the findings on the CMS website at
After consideration of the comments we received, we are finalizing a FY 2021 IRF update equal to 2.4 percent based on the most recent data available.
Section 1886(j)(6) of the Act specifies that the Secretary is to adjust the proportion (as estimated by the Secretary from time to time) of IRFs' costs which are attributable to wages and wage-related costs, of the prospective payment rates computed under section 1886(j)(3) of the Act for area differences in wage levels by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the rehabilitation facility compared to the national average wage level for such facilities. The labor-related share is determined by identifying the national average proportion of total costs that are related to, influenced by, or vary with the local labor market. We proposed to continue to classify a cost category as labor-related if the costs are labor-intensive and vary with the local labor market.
Based on our definition of the labor-related share and the cost categories in the 2016-based IRF market basket, we proposed to calculate the labor-related share for FY 2021 as the sum of the FY 2021 relative importance of Wages and Salaries, Employee Benefits, Professional Fees: Labor-related,
The relative importance reflects the different rates of price change for these cost categories between the base year (2016) and FY 2021. Based on IGI's fourth quarter 2019 forecast of the 2016-based IRF market basket, the sum of the FY 2021 relative importance for Wages and Salaries, Employee Benefits, Professional Fees: Labor-related, Administrative and Facilities Support Services, Installation Maintenance & Repair Services, and All Other: Labor-related Services was 69.0 percent. We proposed that the portion of Capital-Related costs that are influenced by the local labor market is 46 percent. Since the relative importance for Capital-Related costs was 8.5 percent of the 2016-based IRF market basket for FY 2021, we proposed to take 46 percent of 8.5 percent to determine the labor-related share of Capital-Related costs for FY 2021 of 3.9 percent. Therefore, we proposed a total labor-related share for FY 2021 of 72.9 percent (the sum of 69.0 percent for the labor-related share of operating costs and 3.9 percent for the labor-related share of Capital-Related costs). We proposed that if more recent data became available after publication of the proposed rule and before the publication of this final rule (for example, a more recent estimate of the labor-related share), we would use such data to determine the FY 2021 IRF labor-related share in this final rule.
Based on IGI's second quarter 2020 forecast of the 2016-based IRF market basket, the sum of the FY 2021 relative importance for Wages and Salaries, Employee Benefits, Professional Fees: Labor-related, Administrative and Facilities Support Services, Installation Maintenance & Repair Services, and All Other: Labor-related Services is 69.1 percent. We proposed that the portion of Capital-Related costs that are influenced by the local labor market is 46 percent. Since the relative importance for Capital-Related costs is 8.5 percent of the 2016-based IRF market basket for FY 2021, we take 46 percent of 8.5 percent to determine the labor-related share of Capital-Related costs for FY 2021 of 3.9 percent. Therefore, the current estimate of the total labor-related share for FY 2021 is equal to 73.0 percent (the sum of 69.1 percent for the labor-related share of operating costs and 3.9 percent for the labor-related share of Capital-Related costs). Table 4 shows the current estimate of the FY 2021 labor-related share and the FY 2020 final labor-related share using the 2016-based IRF market basket relative importance.
The comment we received on the proposed labor related share for FY 2021 is summarized below.
After consideration of the comment we received, we are finalizing the use of the sum of the FY 2021 relative importance for the labor-related cost categories based on the most recent forecast (IGI's second quarter 2020 forecast) of the 2016-based IRF market basket labor-related share cost weights as proposed.
Section 1886(j)(6) of the Act requires the Secretary to adjust the proportion of rehabilitation facilities' costs attributable to wages and wage-related costs (as estimated by the Secretary from time to time) by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the rehabilitation facility compared to the national average wage level for those facilities. The Secretary is required to update the IRF PPS wage index on the basis of information available to the Secretary on the wages and wage-related costs to furnish
For FY 2021, we proposed to maintain the policies and methodologies described in the FY 2020 IRF PPS final rule (84 FR 39090) related to the labor market area definitions and the wage index methodology for areas with wage data. Thus, we proposed to use the CBSA labor market area definitions and the FY 2021 pre-reclassification and pre-floor hospital wage index data. In accordance with section 1886(d)(3)(E) of the Act, the FY 2021 pre-reclassification and pre-floor hospital wage index is based on data submitted for hospital cost reporting periods beginning on or after October 1, 2016, and before October 1, 2017 (that is, FY 2017 cost report data).
The labor market designations made by the OMB include some geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the IRF PPS wage index. We proposed to continue to use the same methodology discussed in the FY 2008 IRF PPS final rule (72 FR 44299) to address those geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation for the FY 2021 IRF PPS wage index.
The comments we received on these proposals are summarized below.
With regard to the comments requesting that we adopt similar adjustments to address wage disparities between high and low wage index IPPS hospitals under the IRF PPS, we would like to note that the IRF wage index is derived from IPPS wage data. As such, any effects of this policy on the wage data of IPPS hospitals will be extended to the IRF setting, as this data will be used to establish the wage index for IRFs in the future.
We appreciate the commenters' concerns regarding beneficiary access to care and competition for labor resulting from different applicable wage index policies across different settings of care. While CMS and other stakeholders have explored potential alternatives to the current wage index system in the past, no consensus has been achieved regarding how best to implement a replacement system. These concerns will be taken into consideration while we continue to explore potential wage index reforms and monitor IRF wage index policies. After consideration of the comments we received, we are finalizing our proposed policies as discussed above relating to the wage index.
The wage index used for the IRF PPS is calculated using the pre-reclassification and pre-floor inpatient PPS (IPPS) wage index data and is assigned to the IRF on the basis of the labor market area in which the IRF is geographically located. IRF labor market areas are delineated based on the CBSAs established by the OMB. The current CBSA delineations (which were implemented for the IRF PPS beginning with FY 2016) are based on revised OMB delineations issued on February 28, 2013, in OMB Bulletin No. 13-01. OMB Bulletin No. 13-01 established revised delineations for Metropolitan Statistical Areas, Micropolitan Statistical Areas, and Combined Statistical Areas in the United States and Puerto Rico based on the 2010 Census, and provided guidance on the use of the delineations of these statistical areas using standards published in the June 28, 2010
Generally, OMB issues major revisions to statistical areas every 10 years, based on the results of the decennial census. However, OMB occasionally issues updates and revisions to the statistical areas to reflect the recognition of new areas or the addition of counties to existing areas. In some instances, these updates merge formerly separate areas, transfer components of an area from one area to another, or drop components from an area. On July 15, 2015, OMB issued OMB Bulletin No. 15-01, which provides minor updates to and supersedes OMB Bulletin No. 13-01 that was issued on February 28, 2013. The attachment to OMB Bulletin No. 15-01 provides detailed information on the update to statistical areas since February 28, 2013. The updates provided in OMB Bulletin No. 15-01 are based on the application of the 2010 Standards for Delineating Metropolitan and Micropolitan Statistical Areas to Census Bureau population estimates for July 1, 2012 and July 1, 2013.
In the FY 2018 IRF PPS final rule (82 FR 36250 through 36251), we adopted the updates set forth in OMB Bulletin No. 15-01 effective October 1, 2017, beginning with the FY 2018 IRF wage index. For a complete discussion of the adoption of the updates set forth in OMB Bulletin No. 15-01, we refer readers to the FY 2018 IRF PPS final rule. In the FY 2019 IRF PPS final rule (83 FR 38527), we continued to use the OMB delineations that were adopted beginning with FY 2016 to calculate the area wage indexes, with updates set forth in OMB Bulletin No. 15-01 that we adopted beginning with the FY 2018 wage index.
On August 15, 2017, OMB issued OMB Bulletin No. 17-01, which provided updates to and superseded OMB Bulletin No. 15-01 that was issued on July 15, 2015. The attachments to OMB Bulletin No. 17-01 provide detailed information on the update to statistical areas since July 15, 2015, and are based on the application of the 2010 Standards for Delineating Metropolitan and Micropolitan Statistical Areas to Census Bureau population estimates for July 1, 2014 and July 1, 2015. In the FY 2020 IRF PPS final rule (84 FR 39090 through 39091), we adopted the updates set forth in OMB Bulletin No. 17-01 effective October 1, 2019, beginning with the FY 2020 IRF wage index.
On April 10, 2018, OMB issued OMB Bulletin No. 18-03, which superseded the August 15, 2017 OMB Bulletin No. 17-01, and on September 14, 2018, OMB issued OMB Bulletin No. 18-04, which superseded the April 10, 2018 OMB Bulletin No. 18-03. These bulletins established revised delineations for Metropolitan Statistical Areas, Micropolitan Statistical Areas, and Combined Statistical Areas, and provided guidance on the use of the delineations of these statistical areas. A copy of this bulletin may be obtained at
While OMB Bulletin No. 18-04 is not based on new census data, there were some material changes based on the revised OMB delineations. The revisions OMB published on September 14, 2018 contain a number of significant changes. For example, under the new OMB delineations, there would be new CBSAs, urban counties that would become rural, rural counties that would become urban, and existing CBSAs that would be split apart. We discuss these changes in more detail in section VI.D.2.b. of this final rule. We proposed to adopt the updates to the OMB delineations announced in OMB Bulletin No. 18-04 effective beginning with FY 2021 under the IRF PPS. As noted previously, the March 6, 2020 OMB Bulletin 20-01 was not issued in time for development of this rule. While we do not believe that the minor updates included in OMB Bulletin 20-01 will impact the updates to the CBSA-based labor market area delineations, if appropriate, we will propose any updates from this bulletin in the FY 2022 IRF PPS proposed rule.
We believe it is important for the IRF PPS to use the latest labor market area delineations available as soon as is reasonably possible to maintain a more accurate and up-to-date payment system that reflects the reality of population shifts and labor market conditions. We further believe that using the most current delineations possible will increase the integrity of the IRF PPS wage index system by creating a more accurate representation of geographic variations in wage levels. Therefore, we proposed to adopt the new OMB delineations as described in the September 14, 2018 OMB Bulletin No. 18-04, effective beginning with the FY 2021 IRF PPS wage index. We proposed to use these new delineations to calculate area wage indexes in a manner that is generally consistent with the CBSA-based methodologies. As the adoption of the new OMB delineations may have significant negative impacts on the wage index values for certain geographic areas, we also proposed to apply a 5 percent cap on any decrease in an IRF's wage index from the IRF's wage index from the prior FY. This transition is discussed in more detail in section VI.D.3. of this final rule.
OMB defines a “Micropolitan Statistical Area” as a CBSA associated with at least one urban cluster that has a population of at least 10,000, but less than 50,000 (75 FR 37252). We refer to these areas as Micropolitan Areas. Since FY 2006, we have treated Micropolitan Areas as rural and include hospitals located in Micropolitan Areas in each State's rural wage index. We refer the reader to the FY 2006 IRF PPS final rule for a complete discussion regarding treating Micropolitan Areas as rural. Therefore, in conjunction with our proposal to implement the new OMB labor market delineations beginning in FY 2021 and consistent with the treatment of Micropolitan Areas under the IPPS, we proposed to continue to treat Micropolitan Areas as “rural” and to include Micropolitan Areas in the calculation of the state's rural wage index.
As previously discussed, we proposed to implement the new OMB labor market area delineations (based upon the 2010 Decennial Census data) beginning in FY 2021. Our analysis shows that a total of 34 counties (and county equivalents) that are currently considered part of an urban CBSA would be considered located in a rural area, beginning in FY 2021, under these new OMB delineations. Table 5 lists the 34 urban counties that will be rural with the implementation of the new OMB delineations.
We proposed that the wage data for all hospitals located in the counties listed above would now be considered rural, beginning in FY 2021, when calculating their respective State's rural wage index. This rural wage index value would also be used under the IRF PPS. We refer readers to section VI.D.3. of this final rule for a discussion of the wage index transition policy due to these changes.
As previously discussed, we are implementing the new OMB labor market area delineations (based upon the 2010 Decennial Census data) beginning in FY 2021. Analysis of these OMB labor market area delineations shows that a total of 47 counties (and county equivalents) that are currently considered located in rural areas will now be considered located in urban areas under the new OMB delineations. Table 6 lists the 47 rural counties that will be urban with the implementation of the new OMB delineations.
We proposed that when calculating the area wage index, beginning with FY 2021, the wage data for hospitals located in these counties would be included in their new respective urban CBSAs. Typically, providers located in an urban area receive a higher wage index value than or equal to providers located in their State's rural area. We refer readers to section VI.D.3. of this final rule for a discussion of the wage index transition policy.
In certain cases, adopting the new OMB delineations involves a change only in CBSA name and/or number, while the CBSA continues to encompass the same constituent counties. For example, CBSA 19380 (Dayton, OH) will experience both a change to its number and its name, and become CBSA 19430 (Dayton-Kettering, OH), while all of its three constituent counties will remain the same. In other cases, only the name of the CBSA will be modified, and none of the currently assigned counties will be reassigned to a different urban CBSA. Table 7 shows the current CBSA code and our proposed CBSA code where we proposed to change either the name or CBSA number only. We are not discussing further in this section these changes because they are inconsequential changes with respect to the IRF PPS wage index.
In some cases, counties will shift between existing and new CBSAs, changing the constituent makeup of the CBSAs. We consider this type of change, where CBSAs are split into multiple new CBSAs, or a CBSA loses one or more counties to another urban CBSA, to be significant modifications.
Table 8 lists the urban counties that will move from one urban CBSA to another or to a newly proposed or modified CBSA due to the implementation of the new OMB delineations.
If providers located in these counties move from one CBSA to another under the new OMB delineations, there may be impacts, both negative and positive, upon their specific wage index values. We refer readers to section VI.D.3. of this final rule for a discussion of the wage index transition policy due to these changes.
We believe the revisions to the CBSA-based labor market area delineations as established in OMB Bulletin 18-04 would ensure that the IRF PPS area wage level adjustment most appropriately accounts for and reflects the relative wage levels in the geographic area of the IRF. Therefore, we proposed to adopt the revisions to the CSBA based labor market area delineations under the IRF PPS, effective October 1, 2020. Accordingly, the proposed FY 2021 IRF PPS wage index values (which are available on the CMS website at
Furthermore, consistent with the requirement at § 412.624(e)(1) that changes to area wage level adjustment are made in a budget neutral manner, we proposed to adopt these revisions to the CSBA based labor market area delineations in a budget neutral manner. The methodology for calculating the budget neutrality factor is discussed in section VI.D.4. of this final rule.
The comments we received on the proposal to adopt the new OMB delineations, effective beginning with the FY 2021 IRF PPS wage index are summarized below.
After consideration of the comments we received, we are finalizing our proposal to adopt the revised OMB delineations contained in OMB Bulletin 18-04.
Overall, we believe that our proposal to adopt the revised OMB delineations for FY 2021 would result in wage index values being more representative of the actual costs of labor in a given area. However, we also recognize that approximately 5 percent of IRFs would experience decreases in their area wage index values as a result of our proposal to adopt the revised OMB delineations. We also realize that many IRFs would have higher area wage index values under our proposal.
To mitigate the potential impacts of revisions to the OMB delineations on IRFs, we have in the past provided for transition periods when adopting changes that have significant payment implications, particularly large negative impacts. For example, we proposed and finalized budget neutral transition policies to help mitigate negative impacts on IRFs following the adoption of the new CBSA delineations based on the 2010 decennial census data in the FY 2016 IRF PPS final rule (80 FR 47035). Specifically, we implemented a 1-year blended wage index for all IRFs due to our adoption of the revised delineations. This required calculating and comparing two wage indexes for each IRF since that blended wage index was computed as the sum of 50 percent of the FY 2016 IRF PPS wage index values under the FY 2015 CBSA delineations and 50 percent of the FY 2016 IRF PPS wage index values under the FY 2016 new OMB delineations. While we believe that using the new OMB delineations would create a more accurate payment adjustment for differences in area wage levels, we also recognize that adopting such changes may cause some short-term instability in IRF PPS payments, in particular for IRFs that would be negatively impacted by the proposed adoption of the updates to the OMB delineations. For example, IRF's currently located in CBSA 35614 (New York-Jersey City-White Plains, NY-NJ) that would be located in new CBSA 35154 (New Brunswick-Lakewood, NJ) under the proposed changes to the CBSA-based labor market area delineations would experience a nearly 17 percent decrease in the wage index as a result of the proposed change. Therefore, consistent with past practice we proposed a transition policy to help mitigate any significant negative impacts that IRFs may experience due to our proposal to adopt the revised OMB delineations under the IRF PPS. Specifically, for FY 2021 as a transition, we proposed to apply a 5 percent cap on any decrease in an IRF's wage index from the IRF's wage index from the prior FY. This transition would allow the effects of our proposed adoption of the revised OMB delineations to be phased in over 2 years, where the estimated reduction in an IRF's wage index would be capped at 5 percent in FY 2021 (that is, no cap would be applied to any reductions in the wage index for the second year (FY 2022)). We believe a 5 percent cap on the overall decrease in an IRF's wage index value would be an appropriate transition as it would effectively mitigate any significant decreases in an IRF's wage index for FY 2021.
Furthermore, consistent with the requirement at § 412.624(e)(1) that changes to area wage level adjustment are made in a budget neutral manner, we proposed that this transitional wage index would not result in any change in estimated aggregate IRF PPS payments by applying a budget neutrality factor to the standard payment conversion factor. Our proposed methodology for calculating this budget neutrality factor is discussed in section VI.D.4. of this final rule.
The comments we received on our proposed transition methodology to utilize a 5 percent cap on wage index decreases for FY 2021 are summarized below.
Additionally, the use of a 50/50 blended wage index transition would affect all IRF providers. We believe it would be more appropriate to allow IRFs that would experience an increase in their wage index value to receive the full benefit of their increased wage index value, which is intended to reflect accurately the higher labor costs in that area. The utilization of a cap on negative impacts restricts the transition to only those with negative impacts and allows providers who would experience positive impacts to receive the full amount of their wage index increase. As such, we believe a 5 percent cap on the overall decrease in an IRF's wage index value would be an appropriate transition as it would effectively mitigate any significant decreases in an IRF's wage index for FY 2021.
To calculate the wage-adjusted facility payment for the payment rates set forth in this final rule, we multiply the unadjusted Federal payment rate for IRFs by the FY 2021 labor-related share based on the 2016-based IRF market basket relative importance (73.0 percent) to determine the labor-related portion of the standard payment amount. A full discussion of the calculation of the labor-related share is located in section VI.C. of this final rule. We then multiply the labor-related portion by the applicable IRF wage index. The wage index tables are available on the CMS website at
Adjustments or updates to the IRF wage index made under section 1886(j)(6) of the Act must be made in a budget-neutral manner. We proposed to calculate a budget-neutral wage adjustment factor as established in the FY 2004 IRF PPS final rule (68 FR 45689), codified at § 412.624(e)(1), as described in the steps below. We proposed to use the listed steps to ensure that the FY 2021 IRF standard payment conversion factor reflects the update to the wage indexes (based on the FY 2017 hospital cost report data and taking into account the revisions to the OMB delineations and the transition policy) and the update to the labor-related share, in a budget-neutral manner:
We discuss the calculation of the standard payment conversion factor for FY 2021 in section VI.E. of this final rule.
We did not receive any comments on the proposed budget-neutral wage adjustment factor for FY 2021. Therefore, we are finalizing a budget-neutral wage adjustment factor of 1.0013 for FY 2021.
To calculate the standard payment conversion factor for FY 2021, as illustrated in Table 5, we begin by applying the increase factor for FY 2021, as adjusted in accordance with sections 1886(j)(3)(C) of the Act, to the standard payment conversion factor for FY 2020 ($16,489). Applying the 2.4 percent increase factor for FY 2021 to the standard payment conversion factor for FY 2020 of $16,489 yields a standard payment amount of $16,885. Then, we apply the budget neutrality factor for the FY 2021 wage index (taking into account the revisions to the CBSA delineations and the transition policy), and labor-related share of 1.0013, which results in a standard payment amount of $16,907. We next apply the budget neutrality factor for the CMG relative weights of 0.9970, which results in the standard payment conversion factor of $16,856 for FY 2021.
We did not receive any comments on the proposed calculation of the standard payment conversion factor for FY 2021. Therefore, we are finalizing the IRF standard payment conversion factor of $16,856 for FY 2021.
After the application of the CMG relative weights described in section V. of this final rule to the FY 2021 standard payment conversion factor ($16,856), the resulting unadjusted IRF prospective payment rates for FY 2021 are shown in Table 10.
Table 11 illustrates the methodology for adjusting the prospective payments (as described in section VI. of this final rule). The following examples are based on two hypothetical Medicare beneficiaries, both classified into CMG 0104 (without comorbidities). The unadjusted prospective payment rate for CMG 0104 (without comorbidities) appears in Table 10.
To calculate each IRF's labor and non-labor portion of the prospective payment, we begin by taking the unadjusted prospective payment rate for CMG 0104 (without comorbidities) from Table 10. Then, we multiply the labor-related share for FY 2021 (73.0 percent) described in section VI.C. of this final rule by the unadjusted prospective payment rate. To determine the non-labor portion of the prospective payment rate, we subtract the labor portion of the Federal payment from the unadjusted prospective payment.
To compute the wage-adjusted prospective payment, we multiply the labor portion of the Federal payment by the appropriate wage index located in the applicable wage index table. This table is available on the CMS website at
The resulting figure is the wage-adjusted labor amount. Next, we compute the wage-adjusted Federal payment by adding the wage-adjusted labor amount to the non-labor portion of the Federal payment.
Adjusting the wage-adjusted Federal payment by the facility-level adjustments involves several steps. First, we take the wage-adjusted prospective payment and multiply it by the appropriate rural and LIP adjustments (if applicable). Second, to determine the appropriate amount of additional payment for the teaching status adjustment (if applicable), we multiply the teaching status adjustment (0.0784, in this example) by the wage-adjusted and rural-adjusted amount (if applicable). Finally, we add the additional teaching status payments (if applicable) to the wage, rural, and LIP-adjusted prospective payment rates. Table 11 illustrates the components of the adjusted payment calculation.
Thus, the adjusted payment for Facility A would be $28,754.25, and the adjusted payment for Facility B would be $28,479.69.
Section 1886(j)(4) of the Act provides the Secretary with the authority to make payments in addition to the basic IRF prospective payments for cases incurring extraordinarily high costs. A case qualifies for an outlier payment if the estimated cost of the case exceeds the adjusted outlier threshold. We calculate the adjusted outlier threshold by adding the IRF PPS payment for the case (that is, the CMG payment adjusted by all of the relevant facility-level adjustments) and the adjusted threshold amount (also adjusted by all of the relevant facility-level adjustments). Then, we calculate the estimated cost of a case by multiplying the IRF's overall CCR by the Medicare allowable covered charge. If the estimated cost of the case is higher than the adjusted outlier threshold, we make an outlier payment for the case equal to 80 percent of the difference between the estimated cost of the case and the outlier threshold.
In the FY 2002 IRF PPS final rule (66 FR 41362 through 41363), we discussed our rationale for setting the outlier threshold amount for the IRF PPS so that estimated outlier payments would equal 3 percent of total estimated payments. For the FY 2002 IRF PPS final rule, we analyzed various outlier policies using 3, 4, and 5 percent of the total estimated payments, and we concluded that an outlier policy set at 3 percent of total estimated payments would optimize the extent to which we could reduce the financial risk to IRFs of caring for high-cost patients, while still providing for adequate payments for all other (non-high cost outlier) cases.
Subsequently, we updated the IRF outlier threshold amount in the FYs 2006 through 2020 IRF PPS final rules and the FY 2011 and FY 2013 notices (70 FR 47880, 71 FR 48354, 72 FR 44284, 73 FR 46370, 74 FR 39762, 75 FR 42836, 76 FR 47836, 76 FR 59256, 77 FR 44618, 78 FR 47860, 79 FR 45872, 80 FR 47036, 81 FR 52056, 82 FR 36238, 83 FR 38514, and 84 FR 39054, respectively) to maintain estimated outlier payments at 3 percent of total estimated payments. We also stated in the FY 2009 final rule (73 FR 46370 at 46385) that we would continue to analyze the estimated outlier payments for subsequent years and adjust the outlier threshold amount as appropriate to maintain the 3 percent target.
To update the IRF outlier threshold amount for FY 2021, we proposed to use FY 2019 claims data and the same methodology that we used to set the initial outlier threshold amount in the FY 2002 IRF PPS final rule (66 FR 41316 and 41362 through 41363), which is also the same methodology that we used to update the outlier threshold amounts for FYs 2006 through 2020. The outlier threshold is calculated by simulating aggregate payments and using an iterative process to determine a threshold that results in outlier payments being equal to 3 percent of total payments under the simulation. To determine the outlier threshold for FY 2021, we estimate the amount of FY 2021 IRF PPS aggregate and outlier payments using the most recent claims available (FY 2019) and the proposed FY 2021 standard payment conversion factor, labor-related share, and wage indexes, incorporating any applicable budget-neutrality adjustment factors. The outlier threshold is adjusted either up or down in this simulation until the estimated outlier payments equal 3 percent of the estimated aggregate payments. Based on an analysis of the preliminary data used for the proposed rule, we estimated that IRF outlier payments as a percentage of total estimated payments would be approximately 2.6 percent in FY 2020. Therefore, we proposed to update the outlier threshold amount from $9,300 for FY 2020 to $8,102 for FY 2021 to maintain estimated outlier payments at approximately 3 percent of total estimated aggregate IRF payments for FY 2021.
We note that, as we typically do, we updated our data between the FY 2021 IRF PPS proposed and final rules to ensure that we use the most recent available data in calculating IRF PPS payments. This updated data includes a more complete set of claims for FY 2019. Based on our analysis using this updated data, we continue to estimate that IRF outlier payments as a percentage of total estimated payments are approximately 2.6 percent in FY 2020. Therefore, we will update the outlier threshold amount from $9,300 for FY 2020 to $7,906 for FY 2021 to account for the increases in IRF PPS payments and estimated costs and to maintain estimated outlier payments at approximately 3 percent of total estimated aggregate IRF payments for FY 2021.
The comments we received on the update to the FY 2021 outlier threshold amount to maintain estimated outlier payments at approximately 3 percent of total estimated IRF payments are summarized below.
After consideration of the comments received and also taking into account the most recent available data, we are finalizing the outlier threshold amount of $7,906 to maintain estimated outlier payments at approximately 3 percent of total estimated aggregate IRF payments for FY 2021.
Cost-to-charge ratios (CCRs) are used to adjust charges from Medicare claims to costs and are computed annually
• New IRFs that have not yet submitted their first MCR.
• IRFs whose overall CCR is in excess of the national CCR ceiling for FY 2021, as discussed below in this section.
• Other IRFs for which accurate data to calculate an overall CCR are not available.
Specifically, for FY 2021, we proposed to estimate a national average CCR of 0.490 for rural IRFs, which we calculated by taking an average of the CCRs for all rural IRFs using their most recently submitted cost report data. Similarly, we proposed to estimate a national average CCR of 0.400 for urban IRFs, which we calculated by taking an average of the CCRs for all urban IRFs using their most recently submitted cost report data. We apply weights to both of these averages using the IRFs' estimated costs, meaning that the CCRs of IRFs with higher total costs factor more heavily into the averages than the CCRs of IRFs with lower total costs. For this final rule, we have used the most recent available cost report data (FY 2018). This includes all IRFs whose cost reporting periods begin on or after October 1, 2017, and before October 1, 2018. If, for any IRF, the FY 2018 cost report was missing or had an “as submitted” status, we used data from a previous FY's (that is, FY 2004 through FY 2017) settled cost report for that IRF. We do not use cost report data from before FY 2004 for any IRF because changes in IRF utilization since FY 2004 resulting from the 60 percent rule and IRF medical review activities suggest that these older data do not adequately reflect the current cost of care. Using updated FY 2018 cost report data for this final rule, we estimate a national average CCR of 0.493 for rural IRFs, and a national average CCR of 0.398 for urban IRFs.
In accordance with past practice, we proposed to set the national CCR ceiling at 3 standard deviations above the mean CCR. Using this method, we proposed a national CCR ceiling of 1.33 for FY 2021. This means that, if an individual IRF's CCR were to exceed this ceiling of 1.33 for FY 2021, we will replace the IRF's CCR with the appropriate proposed national average CCR (either rural or urban, depending on the geographic location of the IRF). We calculated the proposed national CCR ceiling by:
Using the updated FY 2018 cost report data for this final rule, we estimate a national average CCR ceiling of 1.34, using the same methodology.
We did not receive any comments on the proposed update to the IRF CCR ceiling and urban/rural averages for FY 2021. Therefore, we are finalizing the national average urban CCR at 0.398, the national average rural CCR at 0.493, and the national average CCR ceiling at 1.34 for FY 2021.
We are committed to transforming the health care delivery system, and the Medicare program, by putting an additional focus on patient-centered care and working with providers and clinicians to improve patient outcomes. We refer to this transformation as “Patients Over Paperwork.” That is, CMS recognizes it is imperative that we develop and implement policies that allow providers and clinicians to focus the majority of their time treating patients rather than completing paperwork. Moreover, we believe it is essential for us to reexamine current regulations and administrative requirements to ensure that we are not placing unnecessary burden on providers.
In the FY 2018 IRF PPS proposed rule (82 FR 20743), we included a request for information (RFI) to solicit comments from stakeholders requesting information on CMS flexibilities and efficiencies. The purpose of the RFI was to receive feedback regarding ways in which we could reduce burden for hospitals and clinicians, improve quality of care, decrease costs and ensure that patients receive the best care. We received comments from IRF industry associations, state and national hospital associations, industry groups representing hospitals, and individual IRF providers in response to the solicitation. In the FY 2019 IRF PPS final rule (83 FR 38549 through 38553), we finalized several changes to the regulatory requirements that we believed were responsive to stakeholder feedback and helpful to providers in reducing administrative burden.
Patients over Paperwork has continued to be a priority for the agency, as we target ways in which we can reduce paperwork burden for hospitals and clinicians while improving quality of care for patients. Therefore, we are proposing to revise the current IRF coverage criteria. Specifically, we are focused on reducing medical record documentation requirements that we believe are no longer necessary.
IRF care is only considered by Medicare to be reasonable and necessary under section 1862(a)(1) of the Act if the patient meets all of the IRF coverage requirements outlined in § 412.622(a)(3), (4), and (5). Failure to meet the IRF coverage criteria in a particular case will result in denial of the IRF claim. Under § 412.622(a)(4)(ii), to document that each patient for whom the IRF seeks payment is reasonably expected to meet all of the requirements in § 412.622(a)(3) at the time of admission, the patient's medical record at the IRF must contain a post-admission physician evaluation that meets ALL of the following requirements:
• It is completed by the rehabilitation physician within 24 hours of the patient's admission to the IRF.
• It documents the patient's status on admission to the IRF, includes a comparison with the information noted in the preadmission screening documentation, and serves as the basis for the development of the overall individualized plan of care.
• It is retained in the patient's medical record at the IRF.
Before the current IRF coverage criteria were implemented in January 1, 2010, Medicare permitted “trial” IRF admissions (HCFAR 85-2-4 through 85-2-5). A “trial” IRF admission meant that patients were sometimes admitted to IRFs for 3 to 10 days to assess whether the patients would benefit significantly from treatment in the IRF or other settings. Therefore, if it was determined during a “trial” admission
In addition, the Medicare Benefit Policy Manual, chapter 1, section 110.1.2 (Pub. L. 100-02), which can be downloaded from the CMS website at
At this time, we believe that IRFs are more knowledgeable in determining prior to admission, whether a patient meets the coverage criteria for IRF services than they were when the IRF coverage requirements were initially implemented. Over time, we have analyzed the data regarding the number of above-mentioned cases described in chapter 1, section 110.1.2, of the Medicare Benefit Policy Manual, and it has trended downward since the IRF coverage requirements were initially implemented. In FY 2019, the payment was utilized 4 times across all 1,117 Medicare certified IRFs. Additionally, we believe that if IRFs are doing their due diligence while completing the pre-admission screening as required in § 412.622(a)(4)(i) by making sure each prospective IRF patient meets all of the requirements to be admitted to the IRF, then the post-admission physician evaluation is unnecessary.
Finally, we have removed the post-admission physician evaluation requirement during the public health emergency for the COVID-19 pandemic in the interim final rule with comment entitled, “Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency”, published on April 6, 2020 (85 FR 19230) (hereinafter referred to as the April 6, 2020 IFC). We believe that this will provide us with experience to determine whether this requirement can be removed permanently to reduce paperwork burden for hospitals and clinicians while continuing to provide adequate quality of care for patients.
Therefore, we proposed to remove the post-admission physician evaluation documentation requirement at § 412.622(a)(4)(ii) beginning with FY 2021, that is, for all IRF discharges beginning on or after October 1, 2020. Accordingly, we proposed to amend § 412.622(a)(3)(iv) to remove the reference to § 412.622(a)(4)(ii). We would also rescind the above-mentioned policy described in chapter 1, section 110.1.2, of the Medicare Benefit Policy Manual.
We note that removal of the post-admission physician evaluation does not preclude an IRF patient from being evaluated within the first 24 hours of admission if the IRF believes that the patient's condition warrants such an evaluation. We merely proposed that a post-admission physician evaluation would no longer be an IRF documentation requirement for IRF discharges occurring on and after October 1, 2020. Moreover, removal of the post-admission physician evaluation does not remove one of the required rehabilitation physician visits in the first week of the patient's stay in the IRF as specified in § 412.622(a)(3)(iv). IRFs will need to continue to meet the requirements at § 412.622(a)(3)(iv) as they always have.
While removal of the post-admission physician evaluation does not attribute to any direct savings for Medicare Part-A or Part-B, we do believe that removing it will reduce administrative and paperwork burden for both IRF providers and MACs.
The comments we received on our proposal to remove the post-admission physician evaluation documentation requirement at § 412.622(a)(4)(ii) beginning with FY 2021, that is, for all IRF discharges beginning on or after October 1, 2020; our proposed conforming amendments to § 412.622(a)(3)(iv) to remove the reference to § 412.622(a)(4)(ii); and on rescinding the above-mentioned policy described in chapter 1, sections 110.1.2, of the Medicare Benefit Policy Manual are summarized below.
After consideration of the comments we received, we are finalizing our proposal to remove the post-admission physician evaluation documentation requirement at § 412.622(a)(4)(ii) beginning with FY 2021, that is, for all IRF discharges beginning on or after October 1, 2020; our proposed conforming amendments to § 412.622(a)(3)(iv) to remove the reference to § 412.622(a)(4)(ii); and on rescinding the above-mentioned policy described in chapter 1, sections 110.1.2, of the Medicare Benefit Policy Manual.
Another way in which CMS has continued to explore burden reduction for providers and clinicians, while keeping patient centered care a priority, is by reviewing subregulatory guidance to identify any longstanding policies, instructions, or guidance that would be appropriate to codify through notice and comment rulemaking.
Specifically, in regards to the IRF PPS payment requirements, we conducted a detailed review of the Medicare Benefit Policy Manual, chapter 1, section 110.1.2 (Pub. L. 100-02), as well as the IRF PPS website (
Currently, § 412.622(a)(4)(i) requires that a comprehensive preadmission screening must meet ALL of the following requirements:
• It is conducted by a licensed or certified clinician(s) designated by a rehabilitation physician described in § 412.622(a)(3)(iv) within the 48 hours immediately preceding the IRF admission.
• It includes a detailed and comprehensive review of each patient's condition and medical history.
• It serves as the basis for the initial determination of whether or not the patient meets the requirements for an IRF admission to be considered reasonable and necessary in § 412.622(a)(3).
• It is used to inform a rehabilitation who reviews and comments his or her concurrence with the findings and results of the preadmission screening.
• It is retained in the patient's medical record at the IRF.
When the pre-admission screening documentation requirements were finalized (74 FR 39790 through 39792), we did not specify any individual elements as being required for the pre-admission screening documentation to be considered detailed and comprehensive in accordance with § 412.622(a)(4)(i)(B). In addition, we did not specify at § 412.622(a)(4)(i)(D) that the rehabilitation physician must review and concur with the preadmission screening prior to the IRF admission. The Medicare Benefit Policy Manual, chapter 1, section 110.1.1 (Pub. L. 100-02) provides a more detailed description of what elements the preadmission screening should include and clarifies that the rehabilitation physician should review and concur with the preadmission screening prior to the patient being admitted to the IRF.
In chapter 1, section 110.1.1 of the Medicare Benefit Policy Manual currently, we state, “The preadmission screening documentation must indicate the patient's prior level of function (prior to the event or condition that led to the patient's need for intensive rehabilitation therapy), expected level of improvement, and the expected length of time necessary to achieve that level of improvement. It must also include an evaluation of the patient's risk for clinical complications, the conditions that caused the need for rehabilitation, the treatments needed (that is, physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics), expected frequency and duration of treatment in the IRF, anticipated discharge destination, any anticipated post-discharge treatments, and other information relevant to the care needs of the patient.” Additionally, we state, “All findings of the preadmission screening must be conveyed to a rehabilitation physician prior to the IRF admission. In addition, the rehabilitation physician must document that he or she has reviewed and concurs with the findings and results of the preadmission screening prior to the IRF admission.” These have been our documentation instructions and guidance since the implementation of the IRF coverage requirements on January 1, 2010.
We believe that codifying these longstanding instructions and guidance would improve clarity and reduce administrative burden on both IRF providers and MACs. With patient centered care being such a high priority in today's healthcare climate, we want to mitigate, as much as possible, tasks that take away from time spent directly with the patient. Lastly, we believe IRF providers and MACs will appreciate all preadmission screening documentation requirements being located in the same place for ease of reference.
Thus, in the interest of reducing administrative burden and being able to locate all preadmission screening documentation requirements in the same place for ease of reference, we proposed to make the following regulatory amendments:
• At § 412.622(a)(4)(i)(B), to provide that the comprehensive preadmission screening must include a detailed and comprehensive review of each patient's condition and medical history, including the patient's level of function prior to the event or condition that led to the patient's need for intensive rehabilitation therapy, expected level of improvement, and the expected length of time necessary to achieve that level of improvement; an evaluation of the patient's risk for clinical complications; the conditions that caused the need for rehabilitation; the treatments needed (that is, physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics); expected frequency and duration of treatment in the IRF; anticipated discharge destination; and anticipated post-discharge treatments; and
• At § 412.622(a)(4)(i)(D), to provide that the comprehensive preadmission screening must be used to inform a rehabilitation physician who must then review and document his or her concurrence with the findings and results of the preadmission screening prior to the IRF admission.
The comments we received on our proposal to amend § 412.622(a)(4)(i)(B) and (D) to codify our longstanding documentation instructions and guidance of the preadmission screening in regulation text, are summarized below.
We believe that the elements noted above are duplicative requirements that will be captured in other medical documentation, such as the history and physical or the individualized overall plan of care, and require the rehabilitation physician to predict what will happen during and after the IRF admission, which often changes during the IRF stay. We believe that by removing the above mentioned elements, we are not only reducing provider burden, but we are continuing to align with the agency's Patients over Paperwork initiative without diminishing the quality of care patients receive.
We are, therefore, keeping the following key elements of the pre-admission screening documentation:
We believe that the elements above demonstrate not only the anticipated functional progress of the patient and the therapeutic disciplines that will be utilized to reach those goals, but also the need for medical supervision by a physician and supports the need for an intensive inpatient rehabilitation program instead of a lower level of care. Since IRF patients are more medically complex than ever before, often suffering from chronic illnesses or disabilities, and/or recovering from devastating physical trauma, we believe that these elements are essential in determining if the patient can tolerate and benefit from IRF level care. They require a higher level of care and more intense therapy and physician supervision than patients in other post-acute care settings. Therefore, properly managing a patient's medical complexities while developing an informative and, to the extent possible, an all-inclusive pre-admission screening is of utmost importance. We continue to believe that having as much pertinent information about the patient as possible prior to the IRF admission improves the quality of care the patient receives in the IRF. Additionally,
After consideration of the comments we received, we are finalizing our proposal to amend § 412.622(a)(4)(i)(B) and (D) to codify certain elements of our longstanding documentation instructions and guidance of the preadmission screening in regulation text. Specifically, we are finalizing the following elements of the pre-admission screening requirements prior to codifying the pre-admission screening elements at § 412.622(a)(4)(i):
These changes will become effective for all IRF discharges on or after Oct. 1, 2020. We are not finalizing the following elements of the pre-admission screening documentation:
These elements will be removed from chapter 1, section 110.1.1 of the Medicare Benefit Policy Manual.
In § 412.622(a)(3)(ii) we state that in certain well-documented cases, this intensive rehabilitation therapy program might instead consist of at least 15 hours of intensive rehabilitation therapy within a 7 consecutive day period, beginning with the date of admission to the IRF. This language is also used many times throughout the IRF Services section of the Medicare Benefit Policy Manual. For more information, we refer readers to the Medicare Benefit Policy Manual, chapter 1, section 110.1.2 (Pub. L. 100-02), which can be downloaded from the CMS website at
However, we understand there is some question as to whether the term “Week” may be construed as a different period (for example, Monday through Sunday). To provide clarity and reduce administrative burden for stakeholders regarding several of the IRF coverage requirements, we proposed to amend our regulation text to clarify that we define a “Week” as “a 7 consecutive calendar day period” for purposes of the IRF coverage requirements.
Therefore, we proposed to amend § 412.622(c) to clarify our definition of a “Week” as a period of “7 consecutive calendar days beginning with the date of admission to the IRF.” We also proposed to make conforming amendments to § 412.622(a)(3)(ii) by replacing “7 consecutive day period, beginning with the date of admission to the IRF” with “Week”.
The comments we received on our proposals to §§ 412.622(c) and 412.622(a)(3)(ii) are summarized below.
After consideration of the comments we received, we are finalizing our proposal to amend § 412.622(c) to clarify the definition of a “Week” as a “7 consecutive calendar days beginning with the date of admission to the IRF.” We are also finalizing our proposal to make conforming amendments to § 412.622(a)(3)(ii) by replacing “7 consecutive day period, beginning with the date of admission to the IRF” with “Week”.
As noted in section VIII. of this final rule, we are considering ways in which we can continue to help reduce administrative burden on IRF providers. Specifically, we have been reviewing the pre-admission screening documentation requirements under § 412.622(a)(4)(i) and are considering whether we could remove some of the requirements, but still maintain an IRF patient's clinical history, as well as documentation of their medical and functional needs in sufficient detail to
To assist us in balancing the needs of the patient with the desire to reduce the regulatory burden on rehabilitation physicians, we solicited feedback from stakeholders in the proposed rule about potentially removing some of the preadmission screening documentation requirements. Specifically, we requested feedback regarding:
• What aspects of the preadmission screening do stakeholders believe are most or least critical and useful for supporting the appropriateness of an IRF admission, and why?
We appreciate the commenters' responses to this solicitation. We have summarized and responded to those comments in section IX.A. of this final rule.
In October 2019, Executive Order 13890, entitled “Protecting and Improving Medicare for Our Nation's Seniors,” available at
In responding to this Executive Order, CMS has begun to review any IRF coverage requirements at § 412.622(a) where we explicitly state the requirement must be completed by a rehabilitation physician to see if, when appropriate, some of these requirements could be fulfilled by non-physician practitioners (physician assistants, nurse practitioners, and licensed practical nurses).
Several of the IRF coverage requirements at § 412.622(a)(3), (4), and (5) explicitly state that a requirement must be completed by a rehabilitation physician, defined at § 412.622(c) as a licensed physician who is determined by the IRF to have specialized training and experience in inpatient rehabilitation. For example, under § 412.622(a)(3)(iv), for an IRF claim to be considered reasonable and necessary under section 1862(a)(1) of the Act, there must be a reasonable expectation at the time of the patient's admission to the IRF that the patient requires physician supervision by a rehabilitation physician. The requirement for medical supervision means that the rehabilitation physician must conduct face-to-face visits with the patient at least 3 days per week throughout the patient's stay in the IRF to assess the patient both medically and functionally, as well as to modify the course of treatment as needed to maximize the patient's capacity to benefit from the rehabilitation process. For more information, please refer to the Medicare Benefit Policy Manual, chapter 1, section 110.2.4 (Pub. L. 100-02), which can be downloaded from the CMS website at
In addition, under § 412.622(a)(4)(ii), to document that each patient for whom the IRF seeks payment is reasonably expected to meet all of the requirements in § 412.622(a)(3) at the time of admission, the patient's medical record at the IRF must contain a post-admission physician evaluation that must, among other requirements, be completed by a rehabilitation physician within 24 hours of the patient's admission to the IRF. For more information, we refer readers to the Medicare Benefit Policy Manual, chapter 1, section 110.1.2 (Pub. L. 100-02), which can be downloaded from the CMS website at
In response to the RFI in the FY 2018 IRF PPS proposed rule (82 FR 20742 through 20743), we received comments suggesting that we consider amending the requirements in § 412.622(a)(3)(iv) and (a)(4)(ii) to allow non-physician practitioners to fulfill some of the requirements that rehabilitation physicians are currently required to complete. The commenters suggested that expanding the use of non-physician practitioners in meeting some of the IRF coverage requirements would ease the documentation burden on rehabilitation physicians.
We solicited additional comments in the FY 2019 proposed rule (83 FR 20998 through 20999) on potentially allowing non-physician practitioners to fulfill some of the requirements in § 412.622(a)(3), (4), and (5) that rehabilitation physicians are currently required to complete. Specifically, we sought feedback from the industry and asked:
• Does the IRF industry believe non-physician practitioners have the specialized training in rehabilitation that they need to have to appropriately assess IRF patients both medically and functionally?
• How would the non-physician practitioner's credentials be documented and monitored to ensure that IRF patients are receiving high quality care?
• Do stakeholders believe that utilizing non-physician practitioners to fulfill some of the requirements that are currently required to be completed by a rehabilitation physician would have an impact of the quality of care for IRF patients?
We received significant feedback in response to our solicitation of comments on allowing non-physician practitioners to fulfill the requirements at § 412.622(a)(3), (4) and (5). However, the comments from stakeholders were conflicting. Some commenters expressed concern with allowing non-physician practitioners to fulfill some or all of the requirements that rehabilitation physicians are currently required to meet. These commenters generally raised the following specific concerns:
• The first concern was that IRF patients would not continue receiving the hospital level and quality of care that is necessary to treat such complex conditions in an IRF if being treated only by a non-physician practitioner.
• The second concern was that non-physician practitioners have no specialized training in inpatient rehabilitation that would enable them to adequately assess the interaction between patients' medical and functional care needs in an IRF.
Conversely, we also received comments from industry stakeholders stating that non-physician practitioners do have the necessary education and are qualified to provide the same level of care currently being provided to IRF patients by rehabilitation physicians. These commenters stated that non-physician practitioners are capable of performing the same tasks that the rehabilitation physicians currently must perform in IRFs. These commenters stated that non-physician practitioners have a history of treating complex patients across all settings, and are already doing so in IRFs. They also stated that the types of patient assessments that they would be required to do in the IRFs are the same types of assessments they are currently authorized to provide in other settings, such as inpatient hospitals, skilled nursing facilities, hospice, and outpatient rehabilitation centers. Additionally, commenters stated that because non-physician practitioners practice in conjunction with
Additionally, several commenters stated that allowing non-physician practitioners to practice to the full extent of their education, training, and scope of practice will increase the number of available health care providers able to work in the post-acute care setting resulting in lower costs and improved quality of care. Allowing the use of non-physician practitioners, authorized to provide care to the full extent of their states scope of practice, would also help offset deficiencies in physician supply, especially in rural areas. Physician burnout is also something that commenters suggested can occur overtime, and they commented that allowing the use of non-physician practitioners could potentially help decrease the rate at which physicians move on from providing care in IRFs.
After carefully reviewing and taking all feedback that we received to our solicitation of comments into consideration, we proposed to allow the use of non-physician practitioners to perform the IRF services and documentation requirements currently required to be performed by the rehabilitation physician in § 412.622(a)(3), (4), and (5). In the FY 2021 IRF PPS proposed rule, we stated that we agreed with commenters that non-physician practitioners have the training and experience to perform the IRF requirements, and believe that allowing IRFs to utilize non-physician practitioners practicing to their full scope of practice under applicable state law will increase access to post-acute care services specifically in rural areas, where rehabilitation physicians are often in short supply. We stated that we believed that alleviating access barriers to post-acute care services will improve the quality of care and lead to better patient outcomes in rural areas. We also agreed with commenters that non-physician practitioners have the appropriate education and are capable of providing hospital level quality of care to complex IRF patients. Lastly, we stated that we believed that it continues to be the IRF's responsibility to exercise their best judgment regarding who has appropriate specialized training and experience, provided that these duties are within the practitioner's scope of practice under applicable state law.
We proposed to mirror our current definition of a rehabilitation physician with the proposed definition of a non-physician practitioner in that we expect the IRF to determine whether the non-physician practitioner has specialized training and experience in inpatient rehabilitation and thus may perform any of the duties that are required to be performed by a rehabilitation physician, provided that the duties are within the non-physician practitioner's scope of practice under applicable state law.
Therefore, we proposed to add new § 412.622(d) providing that for purposes of § 412.622, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation may perform any of the duties that are required to be performed by a rehabilitation physician, provided that the duties are within the non-physician practitioner's scope of practice under applicable state law.
Additionally, we noted that if an IRF believes in any given situation a rehabilitation physician should have sole responsibility, or shared responsibility with non-physician practitioners, for overseeing a patient's care, the IRF should make that decision. Furthermore, IRFs are required to meet the hospital Conditions of Participation in section 1861(e) of the Act and in the regulations in part 482. Under section 1861(e)(4) of the Act and § 482.12(c), every Medicare patient is generally required to be under the care of a physician.
Our proposal did not preclude IRFs from making decisions regarding the role of rehabilitation physicians or non-physician practitioners. We merely proposed to allow non-physician practitioners to perform the IRF coverage requirements at § 412.622(a)(3), (4), and (5) that are currently required to be performed by a rehabilitation physician, provided that these duties are within the practitioner's scope of practice under applicable state law.
We invited public comment on this proposal. In particular, we invited commenters to provide feedback on whether they believed that utilizing non-physician practitioners to fulfill some of the requirements that are currently required to be completed by a rehabilitation physician would have an impact on the quality of care for IRF patients. We also requested information from IRFs regarding whether or not their facilities would allow non-physician practitioners to complete all of the requirements at § 412.622(a)(3), (4), and (5), some of these requirements at § 412.622(a)(3), (4), and (5), or none of the requirements at § 412.622(a)(3), (4), and (5). We stated that this information would assist us in refining our estimates of the changes in Medicare payment that may result from the proposal.
The comments we received on our proposal to allow non-physician practitioners to perform the IRF coverage requirements at § 412.622(a)(3), (4), and (5) that are currently required to be performed by a rehabilitation physician, provided that these duties are within the practitioner's scope of practice under applicable state law, are summarized below.
Many commenters suggested that, while non-physician practitioners can play a vital role in supporting the rehabilitation physician in coordinating the patient's medical needs with his or her functional rehabilitation needs, they do not have the adequate training and experience to play a direct role in the execution of the individualized overall plan of care for IRF patients.
Commenters noted that the complexity of patients in IRFs has been increasing, and it would be illogical, and particularly ill-timed in light of the COVID-19 public health emergency, to allow a non-physician practitioner to synthesize and approve all of the elements of the individualized overall plan of care for IRF patients.
Many commenters stated that CMS' proposal to allow non-physician practitioners to administer the three weekly face-to-face visits was particularly concerning because the physician visits with patients significantly inform the course of patients' treatment and overall plans of care. In these visits, physicians modify patients' course of treatment as needed, so that the patient's capacity to benefit is maximized. Commenters also suggested that a patient's ability to benefit from the IRF care is diminished if lesser trained clinicians are tasked with treating the patients. Additionally, commenters suggested that some states would not permit (under their current laws) non-physician practitioners to engage in these visits because such services are only intended to be performed by a licensed physician with the skillset that allows them to assess the patient or make modifications to treatment plans, both medically and functionally.
Lastly, commenters stated that all recommendations made by the interdisciplinary team are directly related to the prognosis and oversight of the patient's care and should be authorized only by a rehabilitation physician, as the complex nature of the patient in IRFs, combined with the delivery of an intensive course of therapy, requires skills and expertise that far exceed those held by a non-physician practitioner.
After consideration of the comments we received, we are finalizing a portion of our proposed policy changes by amending § 412.622(a)(3)(iv) to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law. To be clear, in the first week of the IRF stay, we continue to require the rehabilitation physician to visit patients a minimum of three times to ensure that the patient's plan of care is fully established and optimized to the patient's care needs in the IRF. In the second, third, fourth weeks of the stay, and beyond, we will continue to require Medicare fee-for-services beneficiaries in IRFs to receive a minimum of three rehabilitation physicians visits per week, but will amend § 412.622(a)(3)(iv) to allow non-physician practitioners to independently conduct one of these three minimum required visits per week. We believe that this measured approach to expanding the role of non-physician practitioners in IRFs balances the commenters' concerns about maintaining the rehabilitation physician at the core of the patient's plan of care in the IRF with the benefits of expanding the role of non-physician practitioners, who play an important role in the interdisciplinary team and the care of complex patients. We are also making conforming changes to § 412.29(e) to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law.
As previously noted, section 1886(j)(7)(A)(i) of the Act requires the application of a 2-percentage point reduction of the applicable market basket increase factor for payments for discharges occurring during such FY for IRFs that fail to comply with the quality data submission requirements. In accordance with § 412.624(c)(4)(i), we apply a 2-percentage point reduction to the applicable FY 2021 market basket increase factor in calculating an adjusted FY 2021 standard payment conversion factor to apply to payments for only those IRFs that failed to comply with the data submission requirements. As previously noted, application of the 2-percentage point reduction may result in an update that is less than 0.0 for a FY and in payment rates for a FY being less than such payment rates for the preceding FY. Also, reporting-based reductions to the market basket increase factor are not cumulative; they only apply for the FY involved.
Table 12 shows the calculation of the proposed adjusted FY 2021 standard payment conversion factor that would be used to compute IRF PPS payment rates for any IRF that failed to meet the quality reporting requirements for the applicable reporting period.
Several commenters also provided recommendations for additions and modifications of IRF QRP measures. One commenter suggested CMS collect and stratify patient and caregiver data based on key variables of inequities in patient care within population segments and other communities of belonging, such as race and ethnicity, for all types of measures.
One commenter recommended that CMS exercise flexibility regarding the non-compliance payment penalty. Another commenter requested that CMS lower the IRF QRP APU minimum submission threshold from 95 percent to 80 percent, for consistency with the SNF QRP and LTCH QRP.
We received several additional comments that were outside the scope of the FY 2021 IRF PPS proposed rule. Specifically, we received comments regarding the facility-level adjustment factors, cognitive function and resource use in IRFs, the motor score, the reliability and validity of IRF data collection, modifications to the 60 percent rule, IRF regulatory burden reduction, the use of recreational therapy, IMPACT Act data availability, COVID-19 health pandemic, post-acute care payment reform, and the PAC PPS prototype among other topics. We thank the commenters for bringing these issues to our attention, and will take these comments into consideration for potential policy refinements.
We ordinarily provide a 60-day delay in the effective date of final rules after the date they are issued in accord with the Congressional Review Act (CRA) (5 U.S.C. 801(a)(3)). However, section 808(2) of the CRA provides that, if an agency finds good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the rule shall take effect at such time as the agency determines. The United States is responding to an outbreak of respiratory disease caused by a novel (new) coronavirus that has now been detected in more than 190 locations internationally, including in all 50 States and the District of Columbia. The virus has been named “SARS-CoV-2” and the disease it causes has been named “coronavirus disease 2019” (abbreviated “COVID-19”).
On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (WHO) declared the outbreak a “Public Health Emergency of international concern.” On January 31, 2020, Health and Human Services Secretary, Alex M. Azar II, declared a public health emergency (PHE) for the United States to aid the nation's healthcare community in responding to COVID-19. On March 11, 2020, the WHO publicly characterized COVID-19 as a pandemic. On March 13, 2020, the President of the United States declared the COVID-19 outbreak a national emergency.
Due to CMS prioritizing efforts in support of containing and combatting the COVID-19 PHE, and devoting significant resources to that end, it was impracticable for CMS to complete the work needed on the IRF PPS final rule in accordance with our usual schedule for this rulemaking, which aims for a publication date providing for at least 60 days of public notice before the start of the fiscal year to which it applies. The IRF PPS final rule is necessary to annually review and update the payment system, and it is critical to ensure that the payment policies for this payment system are effective on the first day of the fiscal year to which they are intended to apply. Therefore, in light of the COVID-19 PHE and the resulting strain on CMS's resources, it was impracticable for CMS to publish the IRF PPS final rule 60 days before the effective date, and we are hereby waiving the 60-day requirement and determining that the IRF PPS final rule
In this final rule, we are adopting the provisions set forth in the FY 2021 IRF PPS proposed rule (85 FR 22065), specifically:
• We will update the CMG relative weights and average length of stay values for FY 2021, in a budget neutral manner, as discussed in section V. of this final rule.
• We will update the IRF PPS payment rates for FY 2021 by the market basket increase factor, based upon the most current data available, with a productivity adjustment required by section 1886(j)(3)(C)(ii)(I) of the Act, as described in section VI. of this final rule.
• We will adopt the revised OMB delineations, the IRF wage index transition, and the update to the labor-related share for FY 2021 in a budget-neutral manner, as described in section VI. of this final rule.
• We will calculate the final IRF standard payment conversion factor for FY 2021, as discussed in section VI. of this final rule.
• We will update the outlier threshold amount for FY 2021, as discussed in section VII. of this final rule.
• We will update the CCR ceiling and urban/rural average CCRs for FY 2021, as discussed in section VII. of this final rule.
• We will amend the IRF coverage requirements to remove the post-admission physician evaluation requirement as discussed in section VIII. of this final rule.
• We will amend the IRF coverage requirements to codify existing documentation instructions and guidance as discussed in section IX. of this final rule.
• We will amend the IRF coverage requirements to allow non-physician practitioners to conduct one of the three minimum required rehabilitation physician visits every week of the IRF stay, except for the first week, if permitted under state law, as discussed in section X. of this final rule.
• We will apply the reduction to the FY 2021 IRF increase factor for IRFs that fail to meet the quality reporting requirements as discussed in section XI. of this final rule.
As discussed in section IX. of this final rule, we are amending § 412.622(a)(4)(i)(B) and (D) to codify our longstanding documentation instructions and guidance of the preadmission screening in regulation text. As per our discussion in the FY 2010 IRF PPS final rule (74 CR 39803), we do not believe that there is any burden associated with this requirement. The burden associated with this requirement is the time and effort put forth by the rehabilitation physician to document his or her concurrence with the pre-admission findings and the results of the pre-admission screening and retain the information in the patient's medical record. The burden associated with this requirement is in keeping with the “Conditions of Participation: Medical record services,” that are already applicable to Medicare participating hospitals. Therefore, we believe that this requirement reflects customary and usual business and medical practice. Thus, in accordance with section 1320.3(b)(2) of the Act, the burden is not subject to the PRA.
As discussed in section VIII. of this final rule, we are removing the post-admission physician evaluation requirement at § 412.622(a)(4)(ii) beginning with FY 2021, that is, for all IRF discharges beginning on or after October 1, 2020. Accordingly, we are amending § 412.622(a)(3)(iv) to remove the reference to § 412.622(a)(4)(ii). We discuss any potential cost savings from this revision in the Overall Impact section of this final rule.
This final rule updates the IRF prospective payment rates for FY 2021 as required under section 1886(j)(3)(C) of the Act and in accordance with section 1886(j)(5) of the Act, which requires the Secretary to publish in the
Furthermore, this final rule adopts policy changes under the statutory discretion afforded to the Secretary under section 1886(j) of the Act. We are finalizing our proposal to adopt more recent OMB statistical area delineations and apply a 5 percent cap on any wage index decreases compared to FY 2020 in a budget neutral manner. We are also finalizing our proposal to amend the IRF coverage requirements to remove the post-admission physician evaluation requirement and codify existing documentation instructions and guidance.
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We estimate the total impact of the policy updates described in this final rule by comparing the estimated payments in FY 2021 with those in FY 2020. This analysis results in an estimated $260 million increase for FY 2021 IRF PPS payments. We estimate that this
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IRFs and most other providers and suppliers are small entities, either by having revenues of $8.0 million to $41.5 million or less in any 1 year depending on industry classification, or by being nonprofit organizations that are not dominant in their markets. (For details, see the Small Business Administration's final rule that set forth size standards for health care industries, at 65 FR 69432 at
In addition, section 1102(b) of the Act requires us to prepare an RIA if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. As shown in Table 13, we estimate that the net revenue impact of this final rule on rural IRFs is to increase estimated payments by approximately 3.0 percent based on the data of the 132 rural units and 11 rural hospitals in our database of 1,118 IRFs for which data were available. We estimate an overall impact for rural IRFs in all areas except Rural South Atlantic and Rural East South Central of between 3.0 percent and 5.0 percent. As a result, we anticipate this final rule would have a positive impact on a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-04, enacted on March 22, 1995) (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2020, that threshold is approximately $156 million. This final rule does not mandate any requirements for State, local, or tribal governments, or for the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has federalism implications. As stated, this final rule will not have a substantial effect on state and local governments, preempt state law, or otherwise have a federalism implication.
Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017 and requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” It has been determined that this final rule is a transfer rule that does not impose more than de minimis costs and thus is not a regulatory action for the purposes of Executive Order 13771.
This final rule will update the IRF PPS rates contained in the FY 2020 IRF PPS final rule (84 FR 39054). Specifically, this final rule will update the CMG relative weights and average length of stay values, the wage index, and the outlier threshold for high-cost cases. This final rule will apply a MFP adjustment to the FY 2021 IRF market basket increase factor in accordance with section 1886(j)(3)(C)(ii)(I) of the Act. In addition, it adopts more recent OMB statistical area delineations and applies a transition wage index under the IRF PPS. We are also amending the IRF coverage requirements to remove the post-admission physician evaluation requirement and codify existing documentation instructions and guidance.
We estimate that the impact of the changes and updates described in this final rule will be a net estimated increase of $260 million in payments to IRF providers. This estimate does not include the implementation of the required 2 percentage point reduction of the market basket increase factor for any IRF that fails to meet the IRF quality reporting requirements (as discussed in section XI. of this final rule). The impact analysis in Table 13 of this final rule represents the projected effects of the updates to IRF PPS payments for FY 2021 compared with the estimated IRF PPS payments in FY 2020. We determine the effects by estimating payments while holding all other payment variables constant. We use the best data available, but we do not attempt to predict behavioral responses to these changes, and we do not make adjustments for future changes in such variables as number of discharges or case-mix.
We note that certain events may combine to limit the scope or accuracy of our impact analysis, because such an analysis is future-oriented and, thus, susceptible to forecasting errors because of other changes in the forecasted impact time period. Some examples could be legislative changes made by the Congress to the Medicare program that would impact program funding, or changes specifically related to IRFs. Although some of these changes may not necessarily be specific to the IRF
In updating the rates for FY 2021, we are implementing standard annual revisions described in this final rule (for example, the update to the wage index and market basket increase factor used to adjust the Federal rates). We are also implementing a productivity adjustment to the FY 2021 IRF market basket increase factor in accordance with section 1886(j)(3)(C)(ii)(I) of the Act. We estimate the total increase in payments to IRFs in FY 2021, relative to FY 2020, would be approximately $260 million.
This estimate is derived from the application of the FY 2021 IRF market basket increase factor, as reduced by a productivity adjustment in accordance with section 1886(j)(3)(C)(ii)(I) of the Act which yields an estimated increase in aggregate payments to IRFs of $220 million. Furthermore, there is an additional estimated $40 million increase in aggregate payments to IRFs due to the update to the outlier threshold amount. Therefore, summed together, we estimate that these updates will result in a net increase in estimated payments of $260 million from FY 2020 to FY 2021.
The effects of the updates that impact IRF PPS payment rates are shown in Table 13. The following updates that affect the IRF PPS payment rates are discussed separately below:
• The effects of the update to the outlier threshold amount, from approximately 2.6 percent to 3.0 percent of total estimated payments for FY 2021, consistent with section 1886(j)(4) of the Act.
• The effects of the annual market basket update (using the IRF market basket) to IRF PPS payment rates, as required by sections 1886(j)(3)(A)(i) and (j)(3)(C) of the Act, including a productivity adjustment in accordance with section 1886(j)(3)(C)(i)(I) of the Act.
• The effects of applying the budget-neutral labor-related share and wage index adjustment, as required under section 1886(j)(6) of the Act.
• The effects of the budget neutral changes to the wage index due to the OMB delineation revisions and the transition wage index policy.
• The effects of the budget-neutral changes to the CMG relative weights and average LOS values under the authority of section 1886(j)(2)(C)(i) of the Act.
• The total change in estimated payments based on the FY 2021 payment changes relative to the estimated FY 2020 payments.
Table 13 shows the overall impact on the 1,118 IRFs included in the analysis.
The next 12 rows of Table 13 contain IRFs categorized according to their geographic location, designation as either a freestanding hospital or a unit of a hospital, and by type of ownership; all urban, which is further divided into urban units of a hospital, urban freestanding hospitals, and by type of ownership; and all rural, which is further divided into rural units of a hospital, rural freestanding hospitals, and by type of ownership. There are 975 IRFs located in urban areas included in our analysis. Among these, there are 684 IRF units of hospitals located in urban areas and 291 freestanding IRF hospitals located in urban areas. There are 143 IRFs located in rural areas included in our analysis. Among these, there are 132 IRF units of hospitals located in rural areas and 11 freestanding IRF hospitals located in rural areas. There are 394 for-profit IRFs. Among these, there are 361 IRFs in urban areas and 33 IRFs in rural areas. There are 610 non-profit IRFs. Among these, there are 521 urban IRFs and 89 rural IRFs. There are 114 government-owned IRFs. Among these, there are 93 urban IRFs and 21 rural IRFs.
The remaining four parts of Table 13 show IRFs grouped by their geographic location within a region, by teaching status, and by DSH patient percentage (PP). First, IRFs located in urban areas are categorized for their location within a particular one of the nine Census geographic regions. Second, IRFs located in rural areas are categorized for their location within a particular one of the nine Census geographic regions. In some cases, especially for rural IRFs located in the New England, Mountain, and Pacific regions, the number of IRFs represented is small. IRFs are then grouped by teaching status, including non-teaching IRFs, IRFs with an intern and resident to average daily census (ADC) ratio less than 10 percent, IRFs with an intern and resident to ADC ratio greater than or equal to 10 percent and less than or equal to 19 percent, and IRFs with an intern and resident to ADC ratio greater than 19 percent. Finally, IRFs are grouped by DSH PP, including IRFs with zero DSH PP, IRFs with a DSH PP less than 5 percent, IRFs with a DSH PP between 5 and less than 10 percent, IRFs with a DSH PP between 10 and 20 percent, and IRFs with a DSH PP greater than 20 percent.
The estimated impacts of each policy described in this rule to the facility categories listed are shown in the columns of Table 13. The description of each column is as follows:
• Column (1) shows the facility classification categories.
• Column (2) shows the number of IRFs in each category in our FY 2021 analysis file.
• Column (3) shows the number of cases in each category in our FY 2021 analysis file.
• Column (4) shows the estimated effect of the adjustment to the outlier threshold amount.
• Column (5) shows the estimated effect of the update to the IRF labor-related share and wage index, in a budget-neutral manner.
• Column (6) shows the estimated effect of the revisions to the CBSA delineations and the transition wage index, in a budget-neutral manner.
• Column (7) shows the estimated effect of the update to the CMG relative weights and average LOS values, in a budget-neutral manner.
• Column (8) compares our estimates of the payments per discharge, incorporating all of the policies reflected in this final rule for FY 2021 to our estimates of payments per discharge in FY 2020.
The average estimated increase for all IRFs is approximately 2.8 percent. This estimated net increase includes the effects of the IRF market basket increase factor for FY 2021 of 2.4 percent, reduced by a productivity adjustment of 0.0 percentage point in accordance with section 1886(j)(3)(C)(ii)(I) of the Act. It also includes the approximate 0.4 percent overall increase in estimated IRF outlier payments from the update to the outlier threshold amount. Since we are making the updates to the IRF wage index, labor-related share and the CMG relative weights in a budget-neutral manner, they will not be expected to affect total estimated IRF payments in the aggregate. However, as described in more detail in each section, they will be expected to affect the estimated distribution of payments among providers.
The estimated effects of the update to the outlier threshold adjustment are presented in column 4 of Table 13. In the FY 2020 IRF PPS final rule (84 FR 39095 through 39097), we used FY 2018 IRF claims data (the best, most complete data available at that time) to set the outlier threshold amount for FY 2020 so that estimated outlier payments will equal 3 percent of total estimated payments for FY 2020.
For the FY 2021 IRF PPS proposed rule, we used preliminary FY 2019 IRF claims data, and, based on that preliminary analysis, we estimated that IRF outlier payments as a percentage of total estimated IRF payments would be 2.6 percent in FY 2020. As we typically do between the proposed and final rules each year, we updated our FY 2019 IRF claims data to ensure that we are using the most recent available data in setting IRF payments. Therefore, based on updated analysis of the most recent IRF claims data for this final rule, we continue to estimate that IRF outlier payments as a percentage of total estimated IRF payments are 2.6 percent in FY 2021. Thus, we are adjusting the outlier threshold amount in this final rule to maintain total estimated outlier payments equal to 3 percent of total estimated payments in FY 2021. The estimated change in total IRF payments for FY 2021, therefore, includes an approximate 0.4 percent increase in payments because the estimated outlier portion of total payments is estimated to
The impact of this outlier adjustment update (as shown in column 4 of Table 13) is to increase estimated overall payments to IRFs by 0.4 percent.
In column 5 of Table 13, we present the effects of the budget-neutral update of the wage index and labor-related share. The changes to the wage index and the labor-related share are discussed together because the wage index is applied to the labor-related share portion of payments, so the changes in the two have a combined effect on payments to providers. As discussed in section VI.C. of this final rule, we are updating the labor-related share from 72.7 percent in FY 2020 to 73.0 percent in FY 2021.
In column 6 of Table 13, we present the effects of the budget-neutral update of the geographic labor-market area designations under the IRF PPS and the application of the 5 percent cap on any decrease in an IRF's wage index for FY 2021 from the prior FY. As discussed in section VI.D.2. of this final rule, we are implementing the new OMB delineations as described in the September 14, 2018 OMB Bulletin No. 18-04, effective beginning with the FY 2021 IRF PPS wage index. Additionally, as discussed in section VI.D.3. of this final rule, we are applying a 5 percent cap on any decrease in an IRF's wage index from the prior FY to help mitigate any significant negative impacts that IRFs may experience due to our adoption of the revised OMB delineations under the IRF PPS.
In column 7 of Table 13, we present the effects of the budget-neutral update of the CMG relative weights and average LOS values. In the aggregate, we do not estimate that these updates will affect overall estimated payments of IRFs. However, we do expect these updates to have small distributional effects.
As discussed in section VIII. of this final rule, we are removing § 412.622(a)(4)(ii) that requires an IRF to complete a post-admission physician evaluation for all patients admitted to the IRF, beginning with FY 2021, that is, for all IRF discharges beginning on or after October 1, 2020.
We do not estimate that there will be a cost savings associated with our removal of the post-admission physician evaluation, as discussed in section VIII. of this final rule. While we are removing the post-admission physician requirement at § 412.622(a)(4)(ii), we are not removing any of the required face-to-face visits in § 412.622(a)(3)(iv). Thus, the rehabilitation physician or non-physician practitioners, as described in section X. of this final rule, will still be required to conduct face-to-face visits with the patient at least 3 days per week throughout the patient's stay in the IRF. Since this change does not decrease the amount of times the physician is required to visit and assess the patient, we do not estimate any cost savings to the IRF with this change.
As discussed in section X. of this final rule, we are amending the regulations at § 412.622(a)(3)(iv) to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law. We believe this final rule represents a decrease in administrative burden to rehabilitation physicians and providers beginning in FY 2021, that is, for all IRF discharges on or after October 1, 2020. We estimate the cost savings associated with this change in the following way.
The requirement at § 412.622(a)(3)(iv) must currently be fulfilled by a rehabilitation physician; therefore, to estimate the burden reduction of these changes, we obtained the hourly wage rate for a physician (there was not a specific wage rate for a rehabilitation physician) from the Bureau of Labor Statistics (
We estimate that the required face-to-face physician visits at § 412.622(a)(3)(iv) take, on average, 30 minutes each to complete. In FY 2019, we estimate that there were approximately 1,117 total IRFs and on average 366 discharges per IRF annually. A patient's average length of stay in an IRF is 13 days. Therefore, we can estimate that on average, each patient receives at least six physician visits during their IRF admission. If each IRF has approximately 366 patients per year, and on average each patient receives at least six face-to-face visits with a rehabilitation physician that take an estimated 30 minutes each, annually the rehabilitation physician spends an estimated 1098 hours (366 patients × 6 visits × 0.5 hours) completing the required face-to-face physician visits. Allowing a non-physician practitioner to complete one of the required face-to-face visits for each patient beginning with the patient's second week of admission and estimating the patient's average length of stay is 13 days, we estimate a reduction of 183 hours for rehabilitation physicians per IRF annually (366 patients × 0.5 hours). We estimate a reduction of 204,411 hours for rehabilitation physicians across all IRFs annually (1,117 IRFs × 183 hours).
To estimate the total cost savings per IRF annually, assuming the IRF was able and willing to take full advantage of this regulatory provision, we multiply 183 hours by $200.00 (average physician's salary doubled to account for fringe and overhead costs) which equals $36,600. We then multiply 183 hours by $107.00 (average non-physician practitioners salary doubled to account for fringe and overhead costs) which equals $19,581. The total estimated cost savings per IRF is $17,019 ($36,600−$19,581). Therefore, we can estimate the total cost savings across all IRFs annually for non-physician practitioners to conduct one of the 3 required face-to-face visits in a patient's average length of stay of 13 days would be $1.9 million ($17,019 × 1,117).
Please note that the $1.9 million in burden reduction described above will not solely be savings to the Medicare Trust Fund. We note that all of the cost savings reflected in this estimate will occur on the Medicare Part B side, in the form of reduced Part B payments to physicians under the Medicare Physician Fee Schedule (MPFS). Physician services provided in an IRF
We have also estimated the impacts of this change using the MPFS regarding what a physician would bill for these services versus what a non-physician practitioner would bill. The MPFS provides more than 10,000 physician services, the associated relative value units, a fee schedule state indicator and various payment policy indicators needed for payment adjustment. The MPFS pricing amounts are adjusted to reflect the variation in practice costs from area to area. For additional information regarding how to use the MPFS please visit the website at
The face-to-face physician visits are considered separately payable services for physicians. Therefore, we can use the active pricing paid in calendar year 2020 for a national base payment.
There are different evaluation and management codes depending on the complexity of the patient and the duration of the visit. The current evaluation and management codes for the face-to-face visit in a facility are 99231 ($40.06), 99232 ($73.62), or 99233 ($106.10). Therefore, we estimate that the average national pricing which is a standard reference payment amount for the physicians without geographic adjustment for one of the face-to-face visits in a facility is $73.26. During a patient's average length of stay of 13 days, the rehabilitation physician is currently required to see the patient a minimum of six times. The current estimated total that physicians are currently billing per IRF patient for 6 face-to-face visits is $439.56 ($73.26 × 6 visits). In FY 2019, we estimate that there were approximately 1,117 total IRFs and on average 366 discharges per IRF annually. Therefore, we estimate that on average each year physicians are billing $179 million for these services ($439.56 × 366 patients × 1117 IRFs). For the purposes of this estimation, if we allow non-physician practitioners to conduct one of the three face-to-face visits beginning with the second week during a patient's admission with an average length of stay of 13 days, the rehabilitation would complete only 5 face-to-face visits during the patient's IRF admission. Therefore, the estimated total that a physician would bill per IRF patient for 5 face-to-face visits is $366.30 ($73.26 × 5 visits). We estimate that on average each year physicians across all IRFs are billing $149 million for these services ($366.30 × 366 patients × 1,117 IRFs).
According to the Medicare Benefit Policy Manual, chapter 15, section 80 (Pub. L. 100-02), as well as, the IRF PPS website (
We estimate that if 100 percent of IRFs allowed non-physician practitioners to fulfill some of the requirement at § 412.622(a)(3)(iv) the overall savings to Medicare Part B would be $6 million. However, we are unsure that IRFs will adopt this change. Commenters suggested that states do not have scope of practice laws that are IRF specific and at least as focused on the clinical training as necessitated through CMS requirements for a physician to practice in an IRF. States have developed scope of practice laws around acute care hospitals, rather than IRFs specifically, to allow NPPs to perform visits to admitted patients. Also, since the average length of stay for an IRF patient is 13 days, there would be limited opportunities for the NPP visit to occur. Considering the broad permissibility under scope of practice laws and average length of stays, we felt it was appropriate to pick a midpoint in formulating our estimation. Therefore, we are estimating that IRFs will adopt this change 50 percent of the time. To obtain more information on which to base our estimates, we solicited feedback from commenters to determine:
• How many IRFs would substitute non-physician practitioners for physicians; and
• Among the IRFs that do substitute non-physician practitioners for physicians, whether it will be for all requirements or only for specific requirements.
We did not receive any comments regarding this request for feedback. Therefore, we are finalizing our projected savings for the portion of the proposal that we are finalizing. In the absence of specific information on which to base a specific estimate of how much IRFs would be expected to substitute non-physician practitioners for one of the required physician visits at § 412.622(a)(3)(iv) beginning the second week of the patient's admission, we are assuming that IRFs will adopt this change about 50 percent of the time. Thus, the estimated overall savings to Medicare Part B will be $3 million. We are estimating that 80 percent of that will remain in the Medicare Trust Fund and 20 percent will be a savings to beneficiaries. Therefore, we estimate $2.4 million in savings to the Medicare program and $600,000 in savings to beneficiaries.
The following is a discussion of the alternatives considered for the IRF PPS updates contained in this final rule.
Section 1886(j)(3)(C) of the Act requires the Secretary to update the IRF PPS payment rates by an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services included in the covered IRF services.
As noted previously in this final rule, section 1886(j)(3)(C)(ii)(I) of the Act requires the Secretary to apply a productivity adjustment to the market basket increase factor for FY 2021. Thus, in accordance with section 1886(j)(3)(C) of the Act, we update the IRF prospective payments in this final rule by 2.4 percent (which equals the 2.4 percent estimated IRF market basket increase factor for FY 2021 reduced by a 0.0 percentage point productivity adjustment as determined under section 1886(b)(3)(B)(xi)(II) of the Act (as required by section 1886(j)(3)(C)(ii)(I) of the Act)).
We considered maintaining the existing CMG relative weights and average length of stay values for FY 2021. However, in light of recently available data and our desire to ensure that the CMG relative weights and average length of stay values are as reflective as possible of recent changes in IRF utilization and case mix, we believe that it is appropriate to update
We considered not implementing the new OMB delineations for purposes of calculating the wage index under the IRF PPS; however, we believe implementing the new OMB delineations will result in wage index values being more representative of the actual costs of labor in a given area.
We considered having no transition period and fully implementing the revisions to the OMB delineations as described in section VI.D. of this final rule. However, this would not provide any time for IRF providers to adapt to their new wage index values. Thus, we believe that it is appropriate to provide for a transition period to mitigate any significant decreases in wage index values and to provide time for IRFs to adjust to their new labor market area delineations.
We considered using a blended wage index for all providers that would be computed using 50 percent of the FY 2021 IRF PPS wage index values under the FY 2020 CBSA delineations and 50 percent of the FY 2021 IRF PPS wage index values under the FY 2021 OMB delineations as was utilized in FY 2016 when we adopted the new CBSA delineations based on the 2010 decennial census. However, the revisions to the CBSA delineations announced in the latest OMB bulletin are not based on new census data; they are updates of the CBSA delineations adopted in FY 2016 based on the 2010 census data. As such, we do not believe it is necessary to implement the multifaceted 50/50 blended wage index transition that we established for the adoption of the new OMB delineations based on the decennial census data in FY 2016.
We considered transitioning the wage index to the revised OMB delineations over a number of years to minimize the impact of the wage index changes in a given year. However, we also believe this must be balanced against the need to ensure the most accurate payments possible, which argues for a faster transition to the revised OMB delineations. As discussed above in section VI.D. of this final rule, we believe that using the most current OMB delineations will increase the integrity of the IRF PPS wage index by creating a more accurate representation of geographic variation in wage levels. As such, we believe it will be appropriate to utilize a 5 percent cap on any decrease in an IRF's wage index from the IRF's final wage index in FY 2020 to allow the effects of our policies to be phased in over 2 years.
We considered maintaining the existing outlier threshold amount for FY 2021. However, analysis of updated FY 2019 data indicates that estimated outlier payments would be less than 3 percent of total estimated payments for FY 2021, by approximately 0.4 percent, unless we updated the outlier threshold amount. Consequently, we are adjusting the outlier threshold amount in this final rule to reflect a 0.4 percent increase thereby setting the total outlier payments equal to 3 percent, instead of 2.6 percent, of aggregate estimated payments in FY 2021.
We considered not removing the post-admission physician evaluation requirement at § 412.622(a)(3)(iv). However, we believe that IRFs are more than capable of determining whether a patient meets the coverage criteria for IRF services prior to admission. Additionally, we believe that if IRFs are doing their due diligence while completing the pre-admission screening by making sure each IRF candidate meets all of the requirements to be admitted to the IRF, then the post-admission physician evaluation is unnecessary.
We considered not amending § 412.622(a)(4)(i)(B) and (D) to codify our longstanding documentation instructions and guidance of the preadmission screening in regulation text. However, we believe for the ease of administrative burden and being able to locate the required elements of the preadmission screening documentation and the review and concurrence of a rehabilitation physician prior to the IRF admission needed for the basis of IRF payment in a timely fashion, we are should make the technical codifications in regulation text. Additionally, we considered codifying all of our longstanding required elements of the pre-admission screening documentation. However, as discussed in section IX. of this final rule, we believe that removing some of the pre-admission screening elements that were duplicative of data collected in various other documents in the patient's IRF medical record (such as the history and physical and the individualized overall plan of care) would reduce provider burden.
We considered not amending §§ 412.622(a)(3)(iv) and 412.29(e) to allow, beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation to conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law. However, we believe that it is critical, especially in light of the significant changes in health care that have occurred as a result of the PHE for the COVID-19 pandemic, for Medicare to recognize and expand the valuable role that non-physician practitioners play in assisting the rehabilitation physicians in implementing patients' plan of care in the IRF. We intend to monitor the quality of care in IRFs closely to ensure that the regulatory changes we are implementing improve care provided to vulnerable IRF patients.
In addition, we considered amending § 412.622(a)(3), (4), and (5) to allow non-physician practitioners to perform all of the IRF coverage requirements that are currently required to be performed by rehabilitation physicians, provided that these duties are within the practitioner's scope of practice under applicable state law. However, as discussed in section X. of this final rule, we received many comments from stakeholders expressing significant concerns about the quality of care that the vulnerable IRF patients would receive if we no longer required the rehabilitation physician to lead the care of the patients. Thus, we determined that it would be prudent to finalize only a portion of the proposed policy at this time. Based on extensive clinical input by CMS's medical officers and after careful consideration of these issues, we believe that the measured approach that we are finalizing in this final rule balances the commenters' concerns about maintaining the rehabilitation physician at the core of the patient's plan of care in the IRF with the benefits of expanding the role of non-physician practitioners, who play an important role in the interdisciplinary team and the care of complex patients.
If regulations impose administrative costs on private entities, such as the time needed to read and interpret this final rule, we should estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that the total number of unique commenters on the FY 2021 IRF PPS proposed rule will be the number of reviewers of this final rule. We acknowledge that this assumption may understate or overstate the costs of reviewing this final rule. It is possible that not all commenters reviewed the FY 2021 IRF PPS proposed rule in detail, and it is also possible that some
We also recognize that different types of entities are in many cases affected by mutually exclusive sections of this final rule, and therefore, for the purposes of our estimate we assume that each reviewer reads approximately 50 percent of the rule. We sought comments on this assumption.
Using the wage information from the BLS for medical and health service managers (Code 11-9111), we estimate that the cost of reviewing this rule is $110.74 per hour, including overhead and fringe benefits (
As required by OMB Circular A-4 (available at
Overall, the estimated payments per discharge for IRFs in FY 2021 are projected to increase by 2.8 percent, compared with the estimated payments in FY 2020, as reflected in column 8 of Table 13.
IRF payments per discharge are estimated to increase by 2.8 percent in urban areas and 3.0 percent in rural areas, compared with estimated FY 2020 payments. Payments per discharge to rehabilitation units are estimated to increase 3.2 percent in urban areas and 3.2 percent in rural areas. Payments per discharge to freestanding rehabilitation hospitals are estimated to increase 2.5 percent in urban areas and increase 2.2 percent in rural areas.
Overall, IRFs are estimated to experience a net increase in payments as a result of the proposed policies in this final rule. The largest payment increase is estimated to be a 5.0 percent increase for rural IRFs located in the Pacific region. The analysis above, together with the remainder of this preamble, provides an RIA.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by OMB.
Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below:
42 U.S.C. 1302 and 1395hh.
(e) Except for care furnished to patients in a freestanding IRF hospital solely to relieve acute care hospital capacity in a state (or region, as applicable) that is experiencing a surge, as defined in § 412.622, during the Public Health Emergency, as defined in § 400.200 of this chapter, have in effect a procedure to ensure that patients receive close medical supervision, as evidenced by at least 3 face-to-face visits per week by a licensed physician with specialized training and experience in inpatient rehabilitation to assess the patient both medically and functionally, as well as to modify the course of treatment as needed to maximize the patient's capacity to benefit from the rehabilitation process except that during the Public Health Emergency, as defined in § 400.200 of this chapter, for the COVID-19 pandemic such visits may be conducted using telehealth services (as defined in section 1834(m)(4)(F) of the Act). Beginning with the second week, as defined in § 412.622, of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation may conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law.
The revisions and addition read as follows:
(a) * * *
(3) * * *
(ii) Except during the emergency period described in section 1135(g)(1)(B) of the Act, generally requires and can reasonably be expected to actively participate in, and benefit from, an intensive rehabilitation therapy program. Under current industry standards, this intensive rehabilitation therapy program generally consists of at least 3 hours of therapy (physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics therapy) per day at least 5 days per week. In certain well-documented cases, this intensive rehabilitation therapy program might instead consist of at least 15 hours of intensive rehabilitation therapy per week. Benefit from this intensive rehabilitation therapy program is demonstrated by measurable improvement that will be of practical value to the patient in improving the patient's functional capacity or adaptation to impairments. The required therapy treatments must begin within 36 hours from midnight of the day of admission to the IRF.
(iv) Except for care furnished to patients in a freestanding IRF hospital solely to relieve acute care hospital capacity in a state (or region, as applicable) that is experiencing a surge during the Public Health Emergency, as defined in § 400.200 of this chapter, requires physician supervision by a rehabilitation physician. The requirement for medical supervision means that the rehabilitation physician must conduct face-to-face visits with the patient at least 3 days per week throughout the patient's stay in the IRF to assess the patient both medically and functionally, as well as to modify the course of treatment as needed to maximize the patient's capacity to benefit from the rehabilitation process, except that during a Public Health Emergency, as defined in § 400.200 of this chapter, such visits may be conducted using telehealth services (as defined in section 1834(m)(4)(F) of the Act). Beginning with the second week of admission to the IRF, a non-physician practitioner who is determined by the IRF to have specialized training and experience in inpatient rehabilitation may conduct 1 of the 3 required face-to-face visits with the patient per week, provided that such duties are within the non-physician practitioner's scope of practice under applicable state law.
(4) * * *
(i) * * *
(B) It includes a detailed and comprehensive review of each patient's condition and medical history, including the patient's level of function prior to the event or condition that led to the patient's need for intensive rehabilitation therapy, expected level of improvement, and the expected length of time necessary to achieve that level of improvement; an evaluation of the patient's risk for clinical complications; the conditions that caused the need for rehabilitation; the treatments needed (that is, physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics); and anticipated discharge destination.
(D) It is used to inform a rehabilitation physician who reviews and documents his or her concurrence with the findings and results of the preadmission screening prior to the IRF admission.
(c) * * *