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Bureau of Consumer Financial Protection.
Final rule; correction.
The Bureau of Consumer Financial Protection (Bureau) recently published “Qualified Mortgage Definition Under the Truth in Lending Act (Regulation Z): Seasoned QM Loan Definition,” which appeared in the
Effective March 1, 2021.
Amanda Quester, Senior Counsel, Office of Regulations, at (202) 435-7700. If you require this document in an alternative electronic format, please contact
In FR Doc. 2020-27571 appearing on page 86402 in the
U.S. Small Business Administration; Department of the Treasury.
Interim final rule.
This interim final rule implements changes related to the forgiveness and review of loans made under the Paycheck Protection Program (PPP), which was originally established under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide economic relief to small businesses nationwide adversely impacted by the Coronavirus Disease 2019 (COVID-19). On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act) was enacted, extending the authority to make PPP loans through March 31, 2021, revising certain PPP requirements, and permitting second draw PPP loans. This interim final rule consolidates prior rules related to forgiveness and reviews of PPP loans and incorporates changes made by the Economic Aid Act, including with respect to forgiveness of second draw PPP loans.
You may submit comments, identified by number SBA-2021-0006 through the Federal eRulemaking Portal:
SBA will post all comments on
A Call Center Representative at 833-572-0502, or the local SBA Field Office; the list of offices can be found at
On March 13, 2020, President Trump declared the ongoing Coronavirus Disease 2019 (COVID-19) pandemic of sufficient severity and magnitude to warrant an emergency declaration for all States, territories, and the District of Columbia. With the COVID-19 emergency, many small businesses nationwide continue to experience economic hardship as a direct result of the Federal, State, and local public health measures that continue to be taken to minimize the public's exposure to the virus. In addition, based on the advice of public health officials, other voluntary measures continue to be observed, resulting in a decrease in economic activity as the public avoids malls, retail stores, and other businesses.
On March 27, 2020, the President signed the Coronavirus Aid, Relief, and
Section 1102 of the CARES Act temporarily permitted SBA to guarantee 100 percent of 7(a) loans under a new program titled the “Paycheck Protection Program,” pursuant to section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)). Section 1106 of the CARES Act provided for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP). On April 24, 2020, the President signed the Paycheck Protection Program and Health Care Enhancement Act (Pub. L. 116-139), which provided additional funding and authority for the Paycheck Protection Program.
On June 5, 2020, the President signed the Paycheck Protection Program Flexibility Act of 2020 (Flexibility Act) (Pub. L. 116-142), which changed provisions of the PPP relating to the maturity of PPP loans, the deferral of PPP loan payments, and the forgiveness of PPP loans. On July 4, 2020, Public Law 116-147 extended the authority for SBA to guarantee PPP loans to August 8, 2020.
On December 27, 2020, the President signed the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venues Act (Economic Aid Act) (Pub. L. 116-260), which reauthorizes lending under the PPP through March 31, 2021, and among other things, modifies the PPP, including provisions relating to forgiveness of PPP loans. The Economic Aid Act added a new temporary section 7(a)(37) to the Small Business Act, which authorizes SBA to guarantee additional PPP loans to eligible borrowers under generally the same terms and conditions available under section 7(a)(36) of the Small Business Act through March 31, 2021. The Economic Aid Act also redesignates section 1106 of the CARES Act as section 7A and transfers that section to the Small Business Act, to appear after section 7 of the Small Business Act.
As described below, this interim final rule (1) provides borrowers and lenders with guidance on requirements governing forgiveness of PPP loans, and (2) informs borrowers and lenders of SBA's process for reviewing loan applications and loan forgiveness applications. SBA is incorporating and restating the prior interim final rules relating to loan forgiveness and loan reviews and making revisions to conform these prior interim final rules to the amendments made by the Economic Aid Act, including for PPP loans made under section 7(a)(37) of the Small Business Act. The prior interim final rules relating to loan forgiveness and loan reviews that are incorporated in this interim final rule are: The first interim final rule on loan forgiveness (85 FR 33004) (June 1, 2020); the first interim final rule on SBA loan review procedures and related borrower and lender responsibilities (85 FR 33010) (June 1, 2020); the interim final rule incorporating Flexibility Act Amendments (85 FR 38304) (June 26, 2020); the interim final rule on Treatment of Owners and Forgiveness of Certain Nonpayroll Costs (85 FR 52881) (August 27, 2020); and the interim final rule on Additional Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules (85 FR 66214) (October 19, 2020). The rule also incorporates the forgiveness portions of the interim final rules regarding individuals with self-employment income (85 FR 21747 (April 20, 2020) and 85 FR 36997 (June 19, 2020)) and fishing boat owners (85 FR 39066) (June 30, 2020).
This rule should be interpreted consistently with the sets of Frequently Asked Questions (FAQs) regarding the PPP that are posted on SBA's and the Department of the Treasury's (Treasury) websites, the consolidated interim final rule implementing updates to the Paycheck Protection Program (86 FR 3692 (January 14, 2021)) and the interim final rule on second draw PPP loans (86 FR 3712 (January 14, 2021)); however, the Economic Aid Act overrides any conflicting guidance in the FAQs, and SBA will be revising the FAQs to fully conform to the Economic Aid Act as quickly as feasible.
Most of this document restates existing regulatory provisions to provide PPP lenders and new and existing PPP borrowers a single regulation to consult on loan forgiveness and loan review requirements and processes. To enhance the readability of this document, SBA has not reproduced the policy and legal justifications for existing regulatory provisions restated here, except to the extent that those justifications may be helpful to the borrower or lender. However, those justifications from the original interim final rules are adopted here.
Six provisions of this interim final rule are an exercise of rulemaking authority by Treasury either jointly with SBA or by Treasury alone: (1) The additional reference period option provided for seasonal employers, (2) the
This interim final rule is being issued without advance notice and public comment because section 303 of the Economic Aid Act authorizes SBA to issue regulations to implement the Economic Aid Act without regard to notice requirements. In addition, this rule is being issued to allow for immediate implementation of this program. The intent of both the CARES Act and the Economic Aid Act is that SBA provides relief to America's small businesses expeditiously. The Economic Aid Act provided that several of the changes relating to loan forgiveness are effective as if included in the CARES Act and apply to any loan made pursuant to section 7(a)(36) of the Small Business Act before, on, or after December 27, 2020, including forgiveness of such a loan. Accordingly, loans that were made in 2020 but for which SBA has not yet remitted forgiveness to the lender will be forgiven based on changes made in the Economic Aid Act, as implemented in this interim final rule. Given the urgent need to provide borrowers that are eligible for loan forgiveness with timely relief, the Administrator in consultation with the Secretary has determined that it is impractical and not in the public interest to provide a 30-day delayed effective date. An immediate effective date will allow SBA to continue remitting forgiveness payments to
These comments must be submitted on or before March 8, 2021. SBA will consider these comments and the need for making any revisions as a result of these comments.
The CARES Act was enacted to provide immediate assistance to individuals, families, and organizations affected by the COVID-19 emergency. Among the provisions contained in the CARES Act are provisions authorizing SBA to temporarily guarantee loans under the Paycheck Protection Program (PPP). Loans under the PPP will be 100 percent guaranteed by SBA, and the full principal amount of the loans may qualify for loan forgiveness.
Under the CARES Act, as amended by the Economic Aid Act, SBA is authorized to guarantee loans under the PPP, a new temporary 7(a) program, through March 31, 2021. PPP loans made under section 7(a)(36) of the Small Business Act may be referred to as “First Draw PPP Loans,” and PPP loans made under section 7(a)(37) of the Small Business Act may be referred to as “Second Draw PPP Loans.” (Any reference to “PPP loans” or “PPP loan” herein refers to both First Draw PPP Loans and Second Draw PPP Loans.) The intent of the CARES Act and the Economic Aid Act is that SBA provide relief to America's small businesses expeditiously, which is expressed in the CARES Act by giving all lenders delegated authority and streamlining the requirements of the regular 7(a) loan program. This intent is also expressed in the Economic Aid Act through the statutory deadlines requiring that the Administrator issue certain guidance and regulations within 10 days of enactment.
The Small Business Act authorizes the Administrator to conduct investigations to determine whether a recipient or participant in any assistance under a 7(a) program, including the PPP, is ineligible for a loan, or has violated section 7(a), or any rule, regulation or order issued thereunder.
In light of the structure of the PPP program established by the CARES Act and the PPP Interim Final Rules, in which loans and loan forgiveness are provided based on the borrower's certifications and documentation provided by the borrower, the Administrator, in consultation with the Secretary of the Treasury (Secretary), previously determined that it was appropriate to adopt additional procedures and criteria through which SBA will review whether an action by the borrower has resulted in its receipt of a PPP loan that did not meet program requirements.
Section 7A(b) of the Small Business Act provides that, subject to several important limitations, borrowers shall be eligible for forgiveness of their PPP loan in an amount equal to the sum of the following costs incurred and payments made during the covered period (as described in section IV.3. below).
(1) Payroll costs.
(2) Interest payments on any business mortgage obligation on real or personal property that was incurred before February 15, 2020 (but not any prepayment or payment of principal).
(3) Payments on business rent obligations on real or personal property under a lease agreement in force before February 15, 2020.
(4) Business utility payments for the distribution of electricity, gas, water, transportation, telephone, or internet access for which service began before February 15, 2020.
(5) Covered operations expenditures. A covered operations expenditure is a payment for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses.
(6) Covered property damage costs. A covered property damage cost is a cost related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance or other compensation.
(7) Covered supplier costs. A covered supplier cost means an expenditure made by a borrower to a supplier of goods for the supply of goods that—(A) are essential to the operations of the borrower at the time at which the expenditure is made; and (B) is made pursuant to a contract, order, or purchase order—(i) in effect at any time before the covered period with respect to the applicable covered loan; or (ii) with respect to perishable goods, in effect before or at any time during the covered period with respect to the applicable covered loan.
(8) Covered worker protection expenditures. A covered worker protection expenditure:
(A) Means an operating or a capital expenditure to facilitate the adaptation of the business activities of an entity to comply with requirements established or guidance issued by the Department of Health and Human Services, the Centers for Disease Control, or the Occupational Safety and Health Administration, or any equivalent requirements established or guidance issued by a State or local government related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19, during the period beginning on March 1, 2020 and ending the date on which the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601
(B) may include—
(i) the purchase, maintenance, or renovation of assets that create or expand—
(I) a drive-through window facility;
(II) an indoor, outdoor, or combined air or air pressure ventilation or filtration system;
(III) a physical barrier such as a sneeze guard;
(IV) an expansion of additional indoor, outdoor, or combined business space;
(V) an onsite or offsite health screening capability; or
(VI) other assets relating to the compliance with the requirements or guidance described in subsection (A), as determined by the Administrator in consultation with the Secretary of Health and Human Services and the Secretary of Labor; and
(ii) the purchase of—
(I) covered materials described in § 328.103(a) of title 44, Code of Federal Regulations, or any successor regulation;
(II) particulate filtering facepiece respirators approved by the National Institute for Occupational Safety and Health, including those approved only for emergency use authorization; or
(III) other kinds of personal protective equipment, as determined by the Administrator in consultation with the Secretary of Health and Human Services and the Secretary of Labor; and
(C) does not include residential real property or intangible property.
This interim final rule uses the term “nonpayroll costs” to refer to the payments described in (2)-(8) above. Eligible nonpayroll costs cannot exceed 40 percent of the loan forgiveness amount.
The amount of loan forgiveness can be up to the full principal amount of the loan plus accrued interest. The actual amount of loan forgiveness will depend, in part, on the total amount spent during the covered period (as described in section IV.3 below)
i. Payroll costs including salary, wages, and tips, up to $100,000 of annualized pay per employee, as prorated for the period during which the payments are made or the obligation to make the payments is incurred (maximum per individual is $100,000 prorated for the covered period,
ii. owner compensation replacement, calculated based on 2019 or 2020
iii. payments of interest on mortgage obligations on real or personal property incurred before February 15, 2020, to the extent they are deductible on Form 1040 Schedule C or F (business mortgage payments);
iv. rent payments on lease agreements in force before February 15, 2020, to the extent they are deductible on Form 1040 Schedule C or F (business rent payments);
v. utility payments under service agreements dated before February 15, 2020 to the extent they are deductible on Form 1040 Schedule C or F (business utility payments);
vi. any covered operations expenditures to the extent they are deductible on Form 1040 Schedule C or F;
vii. any covered property damage costs to the extent they are deductible on Form 1040 Schedule C or F;
viii. Any covered supplier costs to the extent they are deductible on Form 1040 Schedule C or F;
ix. any covered worker protection expenditures to the extent they are deductible on Form 1040 Schedule C or F.
A borrower may receive forgiveness for the new nonpayroll costs described in vi., vii., viii., and ix. only if SBA had not yet remitted a forgiveness payment on the borrower's loan to the borrower's PPP lender as of December 27, 2020.
To receive loan forgiveness on either a First Draw PPP Loan or a Second Draw PPP Loan, a borrower must complete and submit the Loan Forgiveness Application
As a general matter, the lender will review the application and make a decision regarding loan forgiveness. The lender has 60 days from receipt of a complete application to issue a decision to SBA. If the lender determines that the borrower is entitled to forgiveness of some or all of the amount applied for under the statute and applicable regulations, the lender must request payment from SBA at the time the lender issues its decision to SBA. SBA will, subject to any SBA review of the borrower's loan(s) or loan application(s), remit the appropriate forgiveness amount to the lender, plus any interest accrued through the date of payment, not later than 90 days after the lender issues its decision to SBA. The EIDL Advance Amount received by the borrower will not reduce the amount of forgiveness to which the borrower is entitled and will not be deducted from the forgiveness payment amount that SBA remits to the Lender.
The general loan forgiveness process described above applies only to loan forgiveness applications that are not reviewed by SBA prior to the lender's decision on the forgiveness application. Part V of this interim final rule describes SBA's procedures for reviewing PPP loan applications and loan forgiveness applications.
A borrower may submit a loan forgiveness application any time on or before the maturity date of the loan if the borrower has used all of the loan proceeds for which the borrower is requesting forgiveness, except that a borrower applying for forgiveness of a Second Draw PPP Loan that is more than $150,000 must submit the loan forgiveness application for its First Draw PPP Loan before or simultaneously with the loan forgiveness application for its Second Draw PPP Loan.
In general, payroll costs paid or incurred during the covered period are eligible for forgiveness. For purposes of loan forgiveness, the covered period is the period beginning on the date the lender disburses the PPP loan and ending on a date selected by the borrower that occurs during the period (i) beginning on the date that is 8 weeks after the date of disbursement, and (ii) ending on the date that is 24 weeks after the date of disbursement.
Payroll costs are considered paid on the day that paychecks are distributed or the borrower originates an ACH credit transaction. Payroll costs incurred during the borrower's last pay period of the covered period are eligible for forgiveness if paid on or before the next regular payroll date; otherwise, payroll costs must be paid during the covered period to be eligible for forgiveness. Payroll costs generally are incurred on the day the employee's pay is earned (
Yes. The CARES Act defines the term “payroll costs” broadly to include compensation in the form of salary, wages, commissions, or similar compensation. If a borrower pays furloughed employees their salary,
Yes. Forgiveness is capped at 2.5 months' worth (2.5/12) of an owner-employee or self-employed individual's 2019 or 2020
In particular, C-corporation owner-employees are capped by the prorated amount of their 2019 or 2020
Yes, owner-employees with less than a 5 percent ownership stake in a C- or S-corporation are not subject to the owner-employee compensation rule in subsection IV.3.c. above.
No. If a fishing boat crewmember obtains his or her own PPP loan during the fishing boat owner's covered period and seeks forgiveness of that loan based in part on compensation from a particular fishing boat owner, the fishing boat owner cannot also obtain PPP loan forgiveness based on compensation paid to that same crewmember. This restriction applies only if the crewmember is performing services described in section 3121(b)(20) of the Internal Revenue Code for the particular fishing boat owner. The fishing boat owner is responsible for determining whether any of its crewmembers received their own PPP loans during the fishing boat owner's loan forgiveness covered period.
A nonpayroll cost is eligible for forgiveness if it was:
i. Paid during the covered period; or
ii. incurred during the covered period and paid on or before the next regular billing date, even if the billing date is after the covered period.
No. Advance payments of interest on a covered mortgage obligation are not eligible for loan forgiveness because the CARES Act's loan forgiveness provisions regarding mortgage obligations specifically exclude “prepayments.” Principal on mortgage obligations is not eligible for forgiveness under any circumstances.
No, the amount of loan forgiveness requested for nonpayroll costs may not include any amount attributable to the business operation of a tenant or sub-tenant of the PPP borrower or, for home-based businesses, household expenses. The examples below illustrate this rule.
Yes, as long as (1) the amount of loan forgiveness requested for rent or lease payments to a related party is no more than the amount of mortgage interest owed on the property during the covered period that is attributable to the space being rented by the business, and (2) the lease and the mortgage were entered into prior to February 15, 2020.
Section 7A of the Small Business Act specifically requires certain reductions in a borrower's loan forgiveness amount based on reductions in full-time equivalent employees or in employee salary and wages. It includes an important statutory exemption for borrowers that have eliminated the reduction on or before December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, not later than the last day of the loan's covered period).
No. In calculating the loan forgiveness amount, a borrower may exclude any reduction in full-time equivalent employee headcount that is attributable to an individual employee if:
i. The borrower made a good faith, written offer to restore the reduced hours of such employee;
ii. the offer was for the same salary or wages and same number of hours as earned by such employee in the last pay period prior to the reduction in hours;
iii. the offer was rejected by such employee; and
iv. the borrower has maintained records documenting the offer and its rejection.
In general, a reduction in FTE employees during the covered period reduces the loan forgiveness amount by the same percentage as the percentage reduction in FTE employees. For both First Draw PPP Loans and Second Draw PPP Loans, the borrower must first select a reference period: (i) February 15, 2019 through June 30, 2019; (ii) January 1, 2020 through February 29, 2020; or (iii) in the case of a seasonal employer,
Borrowers are exempted from the loan forgiveness reduction arising from a proportional reduction in FTE employees during the covered period if the borrower is able to document in good faith the following: (1) An inability to rehire individuals who were employees of the borrower on February 15, 2020; and (2) an inability to hire similarly qualified individuals for unfilled positions on or before December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, not later than the last day of the loan's covered period).
Borrowers are also exempted from the loan forgiveness reduction arising from a reduction in the number of FTE employees during the covered period if the borrower is able to document in good faith an inability to return to the same level of business activity as the borrower was operating at before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, not later than the last day of the loan's covered period)
Full-time equivalent employee means an employee who works 40 hours or more, on average, each week. The hours of employees who work less than 40 hours are calculated as proportions of a single full-time equivalent employee and aggregated, as explained further below in subsection IV.5.d.
Borrowers seeking forgiveness must document their average number of FTE employees during the covered period and their selected reference period. If applicable, a borrower must perform this calculation for both its First Draw PPP Loan and Second Draw PPP Loan. For purposes of this calculation, borrowers must divide the average number of hours paid for each employee per week by 40, capping this quotient at 1.0. For example, an employee who was paid 48 hours per week during the covered period would be considered to be an FTE employee of 1.0.
For employees who were paid for less than 40 hours per week, borrowers may choose to calculate the full-time equivalency in one of two ways. First, the borrower may calculate the average number of hours a part-time employee was paid per week during the covered period. For example, if an employee was paid for 30 hours per week on average during the covered period, the employee could be considered to be an FTE employee of 0.75. Similarly, if an employee was paid for ten hours per week on average during the covered period, the employee could be considered to be an FTE employee of 0.25. Second, for administrative convenience, borrowers may elect to use a full-time equivalency of 0.5 for each part-time employee. The Administrator recognizes that not all borrowers maintain hours-worked data, and has decided to afford such borrowers this flexibility in calculating the full-time equivalency of their part-time employees.
Borrowers may select only one of these two methods, and must apply that method consistently to all of their part-time employees for the covered period and the selected reference period. In either case, the borrower shall provide the aggregate total of FTE employees for both the selected reference period and the covered period by adding together all of the employee-level FTE employee calculations. The borrower must then divide the average FTE employees during the covered period by the average FTE employees during the selected reference period, resulting in the reduction quotient.
Under section 7A(d)(3) of the Small Business Act, a reduction in an employee's salary or wages in excess of 25 percent will generally result in a reduction in the loan forgiveness amount, unless an exception applies. Specifically, for each new employee in 2020 and 2021, as well as each existing employee who was not paid more than the annualized equivalent of $100,000
To ensure that borrowers are not doubly penalized, the salary/wage reduction applies only to the portion of the decline in employee salary and wages that is
Yes. Section 7A(d)(5) of the Small Business Act provides that if certain employee salaries and wages were reduced between February 15, 2020 and April 26, 2020 (the safe harbor period) but the borrower eliminates those reductions by December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, by the last day of the loan's covered period), the borrower is exempt from any reduction in loan forgiveness amount that would otherwise be required due to reductions in salaries and wages under section 7A(d)(3) of the Small Business Act. Similarly, if a borrower eliminates any reductions in FTE employees occurring during the safe harbor period by December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, by last day of the loan's covered period), the borrower is exempt from any reduction in loan forgiveness amount that would otherwise be required due to reductions in FTE employees.
This provision implements section 7A(d)(5) of the Small Business Act, which gives borrowers an opportunity to cure reductions in FTEs, salary/wage reductions in excess of 25 percent, or both, using the applicable methodology set forth in section 7A(d)(5). The Small Business Act provides that the reduction in FTEs or the reduction in salary/hourly wages must be eliminated not later than December 31, 2020 (or, for a PPP loan made on or after December 27, 2020, not later than the last day of the loan's covered period). This does not change or affect the requirement that at least 60 percent of the loan forgiveness amount must be attributable to payroll costs.
No. When an employee of the borrower is fired for cause, voluntarily resigns, or voluntarily requests a reduced schedule during the covered period (FTE reduction event), the borrower may count such employee at the same full-time equivalency level before the FTE reduction event when calculating the section 7A(d)(2) FTE employee reduction penalty. Borrowers that avail themselves of this
Yes. A borrower with a loan of $50,000 or less, other than any borrower
The loan forgiveness application form details the documentation requirements; specifically, documentation each borrower must submit with its Loan Forgiveness Application (SBA Form 3508, 3508EZ, 3508S as applicable, or lender equivalent), documentation each borrower is required to maintain and make available upon request, and documentation each borrower may voluntarily submit with its loan forgiveness application. An eligible borrower that received a loan of $150,000 or less should use the SBA Form 3508S and shall not, at the time of its application for loan forgiveness, be required to submit any application or documentation in addition to the certification and information required by section 7A(
For Second Draw PPP Loans, all borrowers must certify on their loan forgiveness application that the borrower used all First Draw PPP Loan amounts on eligible expense prior to disbursement of the Second Draw PPP Loan. For Second Draw PPP Loans in excess of $150,000, the borrower must submit its loan forgiveness application for the First Draw PPP Loan before or simultaneously with the loan forgiveness application for the Second Draw PPP Loan, even if the calculated forgiveness amount for the First Draw PPP Loan is zero.
For borrowers that received loans of $150,000 or less that use the SBA Form 3508S, the borrower must submit the certification and information required by section 7A(
For all loans, the 2019 or 2020 Form 1040 Schedule C or F that the borrower provided at the time of the PPP loan application must be used to determine the amount of net profit allocated to the owner for the covered period.
For any First Draw PPP loan made before December 27, 2020, if the President of the United States, Vice President of the United States, the head of an Executive department, or a Member of Congress, or the spouse of any such person as determined under applicable common law, directly or indirectly held a controlling interest in the borrower on the date of the loan application, the borrower is required to make certain disclosures following submission of the borrower's application for loan forgiveness.
For purposes of this section, the term “controlling interest” means owning, controlling, or holding not less than 20 percent, by vote or value, of the outstanding amount of any class of equity interest in a borrower. For purposes of making this determination, the securities owned, controlled or held by the individual and spouse shall be aggregated. The term “equity interest” means (1) a share in a borrower, without regard to whether the share is transferable or classified as stock or anything similar, (2) a capital or profit interest in a limited liability company or partnership, or (3) a warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share of interest described in (1) or (2), respectively. The term “Executive department” has the meaning given the term in section 101 of title 5, United States Code. The term “Member of Congress” means a Member of the Senate or House of Representatives, a Delegate to the House of
If the borrower submitted a loan forgiveness application to its PPP lender before December 27, 2020, then the principal executive officer, or individual performing a similar function, of the borrower shall submit to its PPP lender an SBA Form 3508D disclosing the controlling interest(s) not later than January 26, 2021. If the PPP lender has already submitted a forgiveness decision to SBA, the lender shall promptly transmit the SBA Form 3508D to SBA. Otherwise, the PPP lender shall transmit the SBA Form 3508D to SBA at the time the lender issues its forgiveness decision to SBA. If the borrower submits a loan forgiveness application to its PPP lender on or after December 27, 2020, then the principal executive officer, or individual performing a similar function, of the borrower shall submit to its PPP lender an SBA Form 3508D disclosing the controlling interest(s) not later than 30 days after submitting the application. The PPP lender shall transmit the SBA Form 3508D to SBA with the PPP lender's forgiveness decision. Alternatively, the PPP lender may transmit the completed Form 3508D to SBA when received.
An entity is prohibited from receiving a PPP loan after December 27, 2020 if a controlling interest is held directly or indirectly by the President of the United States, Vice President of the United States, the head of an Executive department, or a Member of Congress, or the spouse of any of the preceding.
A lender may rely on any certification or documentation submitted by a PPP applicant or an eligible PPP borrower that received a PPP loan that—(a) is submitted pursuant to all applicable statutory requirements, regulations, and guidance related to a PPP loan, including sections 7(a)(36), 7(a)(37), and 7A of the Small Business Act; and (b) attests that the PPP applicant or eligible PPP borrower, as applicable, has accurately provided the certification or documentation to the lender in accordance with the statutory requirements, regulations, and guidance described in (a). With respect to a lender that relies on a borrower certification or documentation meeting the requirements of this subsection, an enforcement action may not be taken against the lender related to the PPP loan, and the lender shall not be subject to any penalties relating to loan origination or forgiveness of the PPP loan, if:
(i) The lender acts in good faith relating to loan origination or forgiveness of the PPP loan based on that reliance; and
(ii) all other relevant Federal, State, local, and other statutory and regulatory requirements applicable to the lender are satisfied with respect to the PPP loan.
Yes. SBA may review any PPP loan, as the Administrator deems appropriate, as described below.
The Administrator is authorized to review the following:
For a PPP loan of any size, SBA may undertake a review at any time in SBA's discretion. For example, SBA may review a loan if the loan documentation submitted to SBA by the lender or any other information indicates that the borrower may be ineligible for a PPP loan, or may be ineligible to receive the loan amount or loan forgiveness amount claimed by the borrower.
Lenders must comply with applicable SBA requirements for records retention, which for Federally regulated lenders means compliance with the requirements of their federal financial institution regulator and for SBA supervised lenders (as defined in 13 CFR 120.10 and including PPP lenders with authority under SBA Form 3507) means compliance with 13 CFR 120.461.
Yes. If loan documentation submitted to SBA by the lender or any other information indicates that the borrower may be ineligible for a PPP loan or may be ineligible to receive the loan amount or loan forgiveness amount claimed by the borrower, SBA will require the lender to contact the borrower in writing to request additional information. SBA may also request information directly from the borrower. The lender will provide any additional information provided to it by the borrower to SBA. SBA will consider all information provided by the borrower in response to such an inquiry.
Failure to respond to SBA's inquiry may result in a determination that the borrower was ineligible for a PPP loan or ineligible to receive the loan amount or loan forgiveness amount claimed by the borrower.
No. If SBA determines that a borrower is ineligible for the PPP loan, SBA will direct the lender to deny the loan forgiveness application. An SBA determination that a borrower is ineligible for a First Draw PPP Loan may also result in an SBA determination that the borrower is ineligible for any Second Draw PPP Loan, and SBA may direct the lender to deny any loan forgiveness application submitted for the Second Draw PPP Loan. Further, if SBA determines that the borrower is ineligible for the loan amount or loan forgiveness amount claimed by the borrower, SBA will direct the lender to deny the loan forgiveness application in whole or in part, as appropriate. SBA may also seek repayment of the outstanding PPP loan balance or pursue other available remedies.
Section 7A(b) of the Small Business Act provides for forgiveness of a PPP loan only if the borrower is an “eligible recipient.” The Administrator has determined that to be an eligible recipient that is entitled to forgiveness under section 7A(b), the borrower must be an “eligible recipient” under section 7(a)(36) and section 7(a)(37) of the Small Business Act and rules and guidance available at the time of the borrower's loan application. This requirement promotes the public interest, aligns SBA's functions with other governmental policies, and appropriately carries out the PPP provisions of the CARES Act and the Economic Aid Act, including by preventing evasion of the requirements for PPP loan eligibility and ensuring program integrity with respect to this emergency financial assistance program. It is also consistent with the CARES Act's nonrecourse provision, 15 U.S.C. 636(a)(36)(F)(v), which limits SBA's recourse against individual shareholders, members, or partners of a PPP borrower for nonpayment of a PPP loan only if the borrower is an eligible recipient of the loan.
Yes. SBA has issued a separate interim final rule addressing this process.
When a borrower submits SBA Form 3508 or lender's equivalent form, the lender shall:
i. Confirm receipt of the borrower certifications contained in the SBA Form 3508 or lender's equivalent form.
ii. Confirm receipt of the documentation the borrower must submit to aid in verifying payroll and nonpayroll costs, as specified in the instructions to the SBA Form 3508 or lender's equivalent form.
iii. Confirm the borrower's calculations on the borrower's SBA Form 3508 or lender's equivalent form, including the dollar amount of the (A) Cash Compensation, Non-Cash Compensation, and Compensation to Owners claimed on Lines 1, 4, 6, 7, 8, and 9 on PPP Schedule A and (B) Business Mortgage Interest Payments, Business Rent or Lease Payments, Business Utility Payments, Covered Operations Expenditures, Covered Property Damage Costs, Covered Supplier Costs, and Covered Worker Protection Expenditures claimed on Lines 2 through 8 on the PPP Loan Forgiveness Calculation Form, by reviewing the documentation submitted with the SBA Form 3508 or lender's equivalent form.
iv. Confirm that the borrower made the calculation on Line 14 of the SBA Form 3508 or lender's equivalent form correctly, by dividing the borrower's Eligible Payroll Costs claimed on Line 1 by 0.60.
When the borrower submits SBA Form 3508EZ or lender's equivalent form, the lender shall:
i. Confirm receipt of the borrower certifications contained in the SBA Form 3508EZ or lender's equivalent form.
ii. Confirm receipt of the documentation the borrower must submit to aid in verifying payroll and nonpayroll costs, as specified in the instructions to the SBA Form 3508EZ or lender's equivalent form.
iii. Confirm the borrower's calculations on the borrower's SBA Form 3508EZ or lender's equivalent form, including the dollar amount of the Payroll Costs, Business Mortgage Interest Payments, Business Rent or Lease Payments, Business Utility Payments, Covered Operations Expenditures, Covered Property Damage Costs, Covered Supplier Costs, and Covered Worker Protection Expenditures claimed on Lines 1 through 8 of the SBA Form 3508EZ or lender's equivalent form, by reviewing the documentation submitted with the SBA Form 3508EZ or lender's equivalent form.
iv. Confirm that the borrower made the calculation on Line 11 of the SBA Form 3508EZ or lender's equivalent form correctly, by dividing the borrower's Eligible Payroll Costs claimed on Line 1 by 0.60.
Providing an accurate calculation of the loan forgiveness amount is the responsibility of the borrower, and the borrower attests to the accuracy of its reported information and calculations on the Loan Forgiveness Application Form. Lenders are expected to perform
As the First Interim Final Rule
When a borrower submits SBA Form 3508S or lender's equivalent form, the lender shall:
i. Confirm receipt of the borrower certifications contained in the SBA Form 3508S or lender's equivalent form.
ii. In the case of a Second Draw PPP Loan for which the borrower did not provide documentation of revenue reduction with its application and the lender did not conduct a review of the documentation at the time of application, confirm the dollar amount and percentage of the borrower's revenue reduction by performing a good faith review, in a reasonable time, of the borrower's calculations and supporting documents concerning the borrower's revenue reduction.
If the lender identifies errors in the borrower's calculation or material lack of substantiation in the borrower's supporting documents regarding revenue reduction, the lender should work with the borrower to remedy the issue. Providing an accurate calculation of the loan forgiveness amount is the responsibility of the borrower, and the borrower attests to the accuracy of its reported information and calculations on the Loan Forgiveness Application. The borrower shall not receive forgiveness without submitting all required documentation to the lender.
As the First Interim Final Rule
The lender must issue a decision to SBA on a loan forgiveness application not later than 60 days after receipt of a complete loan forgiveness application from the borrower. That decision may take the form of an approval (in whole or in part); denial; or (if directed by SBA) a denial without prejudice due to a pending SBA review of the loan for which forgiveness is sought. In the case of a denial without prejudice, the borrower may subsequently request that the lender reconsider its application for loan forgiveness, unless SBA has determined that the borrower is ineligible for a PPP loan. The Administrator has determined that this process appropriately balances the need for efficient processing of loan forgiveness applications with considerations of program integrity, including affording SBA the opportunity to ensure that borrower representations and certifications (including concerning eligibility for a PPP loan) were accurate.
When the lender issues its decision to SBA approving the application (in whole or in part), it must include the following:
i. For applications submitted using the SBA Form 3508 or lender's equivalent form:
(1) The PPP Loan Forgiveness Calculation Form;
(2) PPP Schedule A;
(3) the (optional) PPP Borrower Demographic Information Form (if submitted to the lender); and
(4) the SBA Form 3508D, if applicable.
ii. For applications submitted using the SBA Form 3508EZ, 3508S, or lender's equivalent form:
(1) The SBA Form 3508EZ, 3508S, or lender's equivalent form;
(2) the (optional) Borrower Demographic Information Form (if submitted to the lender); and
(3) the SBA Form 3508D, if applicable.
The lender must confirm that the information provided by the lender to SBA accurately reflects lender's records for the loan, that the lender has made its decision in accordance with the requirements set forth in subsection V.2.a., and for a Second Draw PPP Loan of $150,000 or less, if applicable, the lender has reviewed the revenue reduction documentation provided by the borrower and confirmed the dollar amount and percentage of the borrower's revenue reduction. If the lender determines that the borrower is entitled to forgiveness of some or all of the amount applied for under the statute and applicable regulations, the lender must request payment from SBA at the time the lender issues its decision to SBA. SBA will, subject to any SBA review of the borrower's loan(s) or loan application(s), remit the appropriate forgiveness amount to the lender, plus any interest accrued through the date of payment, not later than 90 days after the lender issues its decision to SBA. The EIDL Advance Amount received by the borrower will not reduce the amount of forgiveness to which the borrower is entitled and will not be deducted from the forgiveness payment amount that SBA remits to the Lender.
When the lender issues its decision to SBA determining that the borrower is not entitled to forgiveness in any amount, the lender must provide SBA with the reason for its denial, together with the following:
i. For applications submitted using the SBA Form 3508 or lender's equivalent form:
(1) The PPP Loan Forgiveness Calculation Form;
(2) PPP Schedule A;
(3) the (optional) PPP Borrower Demographic Information Form (if submitted to the lender); and
(4) the SBA Form 3508D, if applicable.
ii. For applications submitted using the SBA Form 3508EZ, 3508S, or lender's equivalent form:
(1) The SBA Form 3508EZ, 3508S, or lender's equivalent form;
(2) the (optional) Borrower Demographic Information Form (if submitted to the lender); and
(3) the SBA Form 3508D, if applicable.
The lender must confirm that the information provided by the lender to SBA accurately reflects lender's records for the loan, and that the lender has made its decision in accordance with the requirements set forth in subsection V.2.a., and for a Second Draw PPP Loan of $150,000 or less, if applicable, the lender has reviewed the revenue reduction documentation provided by the borrower and confirmed the dollar amount and percentage of the borrower's revenue reduction. The lender must also notify the borrower in writing that the lender has issued a decision to SBA denying the loan forgiveness application and provide SBA with a copy of the notice.
SBA may begin a review of any PPP loan of any size at any time in SBA's discretion. SBA may, in its discretion, review the borrower's First Draw PPP Loan and Second Draw PPP Loan at the same time or at different times. If SBA undertakes such a review, SBA will notify the lender in writing and the lender must notify the borrower in writing within five business days of receipt.
Within five business days of receipt of such notice, the lender shall transmit to SBA electronic copies of the following:
i. The Borrower Application Form (SBA Form 2483, 2483-SD, or lender's equivalent form) and all supporting documentation provided by the borrower, including revenue reduction documentation provided by the borrower on a Second Draw PPP Loan.
ii. The Loan Forgiveness Application (SBA Form 3508, 3508EZ, 3508S, or lender's equivalent form), and all supporting documentation provided by the borrower (if the lender has received such application), including revenue reduction documentation provided by the borrower on a Second Draw PPP Loan of $150,000 or less if not provided at the time of loan application. If the lender receives the borrower's loan forgiveness application after it receives notice that SBA has commenced a loan review, the lender shall transmit electronic copies of the application and all supporting documentation provided by the borrower to SBA within five business days of receipt.
The lender must also request that the borrower provide the lender with the applicable documentation that the instructions to the Loan Forgiveness Application Form (SBA Form 3508, 3508EZ, 3508S, or lender's equivalent) instruct the borrower to maintain but not submit (documentation listed under “Documents that Each Borrower Must Maintain but is Not Required to Submit”).
For Second Draw PPP Loans of $150,000 or less where a loan forgiveness application has not been submitted by the borrower, the lender must also request that the borrower provide the lender with revenue reduction documentation, if not previously provided to the lender.
The lender must submit documents received from the borrower to SBA within five business days of receipt from the borrower.
iii. A signed and certified transcript of account.
iv. A copy of the executed note evidencing the PPP loan.
v. Any memorandum or other analysis that the lender prepared in making its decision on the borrower's loan forgiveness application, if applicable.
vi. Any other documents related to the loan requested by SBA.
If SBA has notified the lender that SBA has commenced a loan review, the lender should issue a forgiveness decision to SBA not later than 60 days after receipt of the complete loan forgiveness application from the borrower, unless otherwise directed by SBA.
The amount of loan forgiveness that a borrower may receive cannot exceed the principal amount of the PPP loan. Whether a borrower submits SBA Form 3508, 3508EZ, 3508S, or lender's equivalent form, a lender should confirm receipt of the documentation the borrower is required to submit to aid in verifying payroll and nonpayroll costs, and, if applicable (for SBA Form 3508, 3508EZ, or lender's equivalent form), confirm the borrower's calculations on the borrower's Loan Forgiveness Application, up to the amount required to reach the requested Forgiveness Amount. Supporting documentation regarding a borrower's payroll and nonpayroll costs is not required to be submitted to the lender with the SBA Form 3508S.
A lender is required to repay the processing fee to SBA if a lender is found guilty of an act of fraud in connection with the PPP loan. In such
SBA may provide further guidance, if needed, through SBA notices that will be posted on SBA's website at
This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. SBA, however, is proceeding under the emergency provision at Executive Order 12866 section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency. This rule's designation under Executive Order 13771 will be informed by public comment.
This rule is necessary to implement the Economic Aid Act in order to provide economic relief to small businesses nationwide adversely impacted under the COVID-19 Emergency Declaration. We anticipate that this rule will result in substantial benefits to small businesses, their employees, and the communities they serve. However, we lack data to estimate the effects of this rule.
The Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) has determined that this is a major rule for purposes of Subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Congressional Review Act or CRA) (5 U.S.C. 804(2)
Notwithstanding this requirement, the CRA allows agencies to dispense with the requirements of section 801 when the agency for good cause finds that such procedure would be impracticable, unnecessary, or contrary to the public interest and the rule shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). Pursuant to § 808(2), SBA for good cause finds that a 60-day delay to provide public notice is impracticable and contrary to the public interest. Likewise, for the same reasons, SBA for good cause finds that there are grounds to waive the 30-day effective date delay under the Administrative Procedure Act. 5 U.S.C. 553(d)(3).
As discussed elsewhere in this interim final rule, the Economic Aid Act provided that several of the changes relating to loan forgiveness are effective as if included in the CARES Act and apply to any loan made pursuant to section 7(a)(36) of the Small Business Act before, on, or after December 27, 2020, including forgiveness of such a loan. Accordingly, loans that were made in 2020 but that have not yet received forgiveness will be forgiven based on changes made in the Economic Aid Act, as implemented in this interim final rule. Given the urgent need to provide borrowers that are eligible for loan forgiveness with timely relief, the Administrator in consultation with the Secretary has determined that it is impractical and not in the public interest to provide a delayed effective date. An immediate effective date will allow SBA to continue remitting forgiveness payments to lenders without disruption and in accordance with the amendments made by the Economic Aid Act.
SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive effect but does have some retroactive effect consistent with specific applicability provisions of the Economic Aid Act.
SBA has determined that this rule 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 layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.
SBA has determined that this rule will require revisions to existing recordkeeping or reporting requirements of the Paycheck Protection Program (PPP) information collection (OMB Control Number 3245-0407) as a result of amendments made to the PPP by the Economic Aid Act and implemented in this interim final rule. The revisions will affect the PPP Loan Forgiveness Application Form 3508, PPP Loan Forgiveness Application Form 3508EZ, and PPP Loan Forgiveness Application Form 3508S.
Further, to address the conflict of interest provisions in section 322 of the Economic Aid Act, SBA has developed a new form, Paycheck Protection Program—Borrower's Disclosure of Certain Controlling Interests Form 3508D, which is required for certain borrowers who have disclosure requirements under the Economic Aid Act.
SBA Form 3508S was amended to conform to section 307 of the Economic Aid Act, which requires a simplified forgiveness application for loans of not more than $150,000. SBA Forms 3508, 3508EZ and 3508S were also amended to address the new Second Draw PPP Loan program under section 311 of the Economic Aid Act, include the additional expenses that are eligible for forgiveness under section 304 of the Economic Aid Act, address the changes to the covered period definition in section 306 of the Economic Aid Act, and implement the EIDL advance deduction repeal in section 333 of the Economic Aid Act. SBA Form 3508D will be used by borrowers where a covered individual, as defined in section 322 of the Economic Aid Act, holds a controlling interest in the borrower.
SBA has requested Office of Management and Budget (OMB) emergency approval of the revisions to the information collection to enable borrowers to begin submitting loan forgiveness applications with the Economic Aid Act changes as quickly as possible and to enable borrowers with disclosure requirements to meet the statutory deadline for disclosure.
The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the Administrative Procedure Act or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the
Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a
15 U.S.C. 636(a)(36); Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, section 1114 and Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Pub. L. 116-260), section 303.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Hélicoptères Guimbal Model Cabri G2 helicopters. This AD was prompted by a report of a crack in a rotating scissor fitting. This AD requires an initial and repetitive inspections of certain rotating and non-rotating scissor fittings, and depending on the results, replacing the affected assembly. This AD also prohibits installing certain main rotor hubs (MRHs) and swashplate guides unless the initial inspection has been accomplished. The FAA is issuing this AD to address the unsafe condition on these products.
This AD becomes effective February 22, 2021.
The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of February 22, 2021.
The FAA must receive comments on this AD by March 22, 2021.
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 final rule, contact Hélicoptères Guimbal, Basile Ginel, 1070, rue du Lieutenant Parayre, Aérodrome d'Aix-en-Provence, 13290 Les Milles, France; telephone 33-04-42-39-10-88; email
You may examine the AD docket at
Fred Guerin, Aerospace Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 2200 South 216th St. Des Moines, WA 98198; telephone (206) 231-3500; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2020-0199, dated September 21, 2020, and corrected September 24, 2020 (EASA AD 2020-0199), to correct an unsafe condition for Hélicoptères Guimbal (HG) Model Cabri G2 helicopters. EASA advises of a report of a crack in a rotating scissor fitting discovered during maintenance. According to EASA, the suspected root cause of the crack was corrosion under residual stress. This condition, if not addressed, could result in failure of the rotating or non-rotating scissor fitting on either the MRH or the swashplate guide, and subsequent loss of control of the helicopter.
Accordingly, EASA AD 2020-0199 requires an initial and repetitive inspections of the rotating and non-rotating scissor fittings part number (P/N) G12-00-200 installed on the MRH or swashplate guide, respectively. If a crack is detected, the EASA AD requires replacing the affected MRH or swashplate guide with a serviceable part. The EASA AD prohibits installing certain MRHs and swashplate guides unless the initial inspection has been accomplished. The EASA AD also requires reporting certain information to HG.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.
The FAA reviewed Guimbal Service Bulletin SB 20-011, Revision C, and SB 20-012, Revision B, each dated October 5, 2020 (SB 20-011 Rev C and SB 20-012 Rev B). SB 20-012 Rev B specifies removing the bolts connecting the two scissor fittings P/N G12-00-200 and accomplishing a one-time detailed inspection for a crack in certain areas. SB 20-012 Rev B also specifies reassembling the two scissor fittings using correct bolt torque limits, installing new cotter pins, and reporting any findings to HG customer service. SB 20-011 Rev C specifies procedures for a recurring inspection after accomplishment of SB 20-012 Rev B of the same areas of the scissor fittings for a crack as SB 20-012 Rev B, except without removing the bolts which connect the two scissor fittings. SB 20-
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 also reviewed Guimbal Service Bulletin SB 20-011, Revision B, and SB 20-012, Revision A, each dated September 1, 2020 (SB 20-011 Rev B and SB 20-012 Rev A). SB 20-012 Rev A specifies the same procedures as SB 20-012 Rev B, except SB 20-012 Rev B revises the compliance time, adds the EASA AD identification information, and updates the Situation section description. SB 20-011 Rev B specifies the same procedures as SB 20-011 Rev C, except SB 20-011 Rev C adds the EASA AD identification information and updates the Situation section description.
This AD requires, within 30 hours time-in-service (TIS) or 30 calendar days, whichever occurs first, inspecting each rotating and non-rotating scissor fitting with the bolts connecting the scissor fittings removed. For this initial inspection, this AD requires removing the cotter pins and bolts that connect the two scissor fittings, cleaning the outside surface of each scissor fitting, and using a flashlight to visually inspect each scissor fitting for a crack.
This AD also requires, at intervals not to exceed 50 hours TIS or 6 months, whichever occurs first, repetitive inspections of each scissor fitting without removing the bolts and separating the two scissor fittings. For these repetitive inspections, this AD requires cleaning each scissor fitting, and while using a flashlight, visually inspecting each scissor fitting for a crack.
If during any inspection there is a crack, this AD requires replacing the MRH or swashplate guide, as applicable, before further flight.
This AD also prohibits installing an MRH or swashplate guide with an affected scissor fitting installed, even if new, unless the initial inspection has been accomplished.
The EASA AD requires detailed inspections, whereas this AD requires cleaning each scissor fitting and visually inspecting each scissor fitting using a flashlight. The EASA AD also requires reporting certain information, whereas this AD does not. The EASA AD allows installing a new (not previously installed) MRH or swashplate guide, whereas this AD prohibits installing a new MRH or swashplate guide unless the initial inspection has been accomplished.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the initial inspection must be completed within 30 hours TIS or 30 calendar days, whichever occurs first, and thereafter, the repetitive inspections must be completed within 50 hours TIS or 6 months, whichever occurs first. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Fred Guerin, Aerospace Engineer, General Aviation and Rotorcraft Section, International Validation Branch (AIR-732), FAA, 2200 South 216th St., Des Moines, WA 98198; telephone (206) 231-3500; email
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 32 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.
Removing and installing the bolt and cotter pins in the initial inspection takes a minimal amount of time. Inspecting each scissor fitting takes about 0.5 work-hour for an estimated cost of $43 per fitting, per inspection cycle. There are 2 scissor fittings installed on a helicopter, for an estimated cost of $85 per helicopter and $2,720 for the U.S. fleet, per inspection cycle. If required, replacing an MRH takes about 5 work-
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.
This AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 22, 2021.
None.
This AD applies to Hélicoptères Guimbal Model Cabri G2 helicopters, certificated in any category, with rotating or non-rotating scissor fitting part number (P/N) G12-00-200, installed on the main rotor hub (MRH) or swashplate guide, respectively.
Joint Aircraft Service Component (JASC) Code: 6700, Rotorcraft Flight Control.
This AD was prompted by a report of a crack in a rotating scissor fitting. The FAA is issuing this AD to detect a crack and prevent failure of a scissor fitting. The unsafe condition, if not addressed, could result in failure of a rotating or non-rotating scissor fitting and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 30 hours time-in-service (TIS) or 30 calendar days, whichever occurs first:
(i) Remove the cotter pins and bolts connecting the rotating and non-rotating scissor fitting by following the Required Actions, IPC 4.1-2(a), of Guimbal Service Bulletin SB 20-012, Revision B, dated October 5, 2020 (SB 20-012 Rev B). Remove the cotter pins from service. Clean each scissor fitting. Using a flashlight, visually inspect each scissor fitting by following the Required Actions, IPC 4.1-2(b), of SB 20-012 Rev B.
(ii) If there is a crack, before further flight, replace the MRH or swashplate guide, as applicable.
(iii) If there is not a crack, reassemble the scissor fittings by following the Required Actions, IPC 4.1-2(c), of SB 20-012 Rev B.
(2) Thereafter, within 50 hours TIS or 6 months, whichever occurs first, and at intervals not to exceed 50 hours TIS or 6 months, whichever occurs first:
(i) Leaving each rotating and non-rotating scissor fitting assembled, clean each scissor fitting. Using a flashlight, visually inspect each scissor fitting by following the Required Actions, IPC 4.1-2(a), of Guimbal Service Bulletin SB 20-011, Revision C, dated October 5, 2020.
(ii) If there is a crack, before further flight, replace the MRH or swashplate guide, as applicable.
(3) As of the effective date of this AD, do not install an MRH or swashplate guide, with rotating or non-rotating scissor fitting P/N G12-00-200 installed, respectively, on any helicopter, even if new, unless the actions required by paragraph (g)(1) of this AD have been accomplished.
(1) This paragraph provides credit for the actions required by paragraph (g)(1) of this AD if you accomplished Guimbal Service Bulletin SB 20-012, Revision A, dated September 1, 2020, before the effective date of this AD.
(2) This paragraph provides credit for the first instance of the actions required by paragraph (g)(2) of this AD if you accomplished Guimbal Service Bulletin SB 20-011, Revision B, dated September 1, 2020, before the effective date of this AD.
A special flight permit may be permitted provided that there are no passengers onboard, and the flight is operating under day Visual Flight Rules, for the purpose of ferrying the helicopter to an authorized maintenance facility.
(1) The Manager, International Validation 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 (k)(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.
(1) For more information about this AD, Fred Guerin, Aerospace Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone (206) 231-3500; email
(2) Guimbal Service Bulletin SB 20-011, Revision B, and SB 20-012, Revision A, each dated September 1, 2020, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Hélicoptères Guimbal, Basile Ginel, 1070, rue du Lieutenant Parayre, Aérodrome d'Aix-en-Provence, 13290 Les Milles, France; telephone 33-04-42-39-10-88; email
(3) The subject of this AD is addressed in European Union Aviation Safety Agency (EASA) AD No. 2020-0199, dated September 24, 2020. You may view the EASA AD on the internet at
(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.
(i) Guimbal Service Bulletin SB 20-011, Revision C, dated October 5, 2020.
(ii) Guimbal Service Bulletin SB 20-012, Revision B, dated October 5, 2020.
(3) For Guimbal service information identified in this AD, contact Hélicoptères Guimbal, Basile Ginel, 1070, rue du Lieutenant Parayre, Aérodrome d'Aix-en-Provence, 13290 Les Milles, France; telephone 33-04-42-39-10-88; email
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) 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:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by a report of deviations concerning the assembly and overhaul of certain crew oxygen mask stowage boxes, including incorrect application of a certain thread-locker on the fitting sensor screws. This AD requires an inspection of certain crew oxygen mask stowage boxes for discrepancies, and replacement if necessary, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD becomes effective February 22, 2021.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 22, 2021.
The FAA must receive comments on this AD by March 22, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material incorporated by reference (IBR) in this AD, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2021-0036-E, dated January 25, 2021 (EASA Emergency AD 2021-0036-E) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Dassault Aviation Model FALCON 7X airplanes.
This AD was prompted by a report of deviations concerning the assembly and overhaul of certain crew oxygen mask stowage boxes, including incorrect application of Loctite 222 thread-locker on the fitting sensor screws. The FAA is issuing this AD to address such deviations, which could lead to blocked oxygen supply flow to flight deck crew oxygen masks. In combination with in-flight depressurization, flight deck smoke, or a smoke evacuation procedure, this lack of oxygen may lead to flightcrew hypoxia and loss of useful consciousness and consequent loss of control of the airplane. See the MCAI for additional background information.
EASA Emergency AD 2021-0036-E describes procedures for an inspection (test) of crew oxygen mask stowage boxes having part number CSD30-005-X-X (`X' can represent any alphanumeric value) for discrepancies (an inability to clearly hear oxygen flowing out of the mask during a functional test or see that the yellow blinker on the stowage box does not illuminate), and replacement.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced
This AD requires accomplishing the actions specified in EASA Emergency AD 2021-0036-E described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA Emergency AD 2021-0036-E is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA Emergency AD 2021-0036-E in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA Emergency AD 2021-0036-E that is required for compliance with EASA Emergency AD 2021-0036-E is available on the internet at
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because deviations during the assembly and overhaul of certain crew oxygen mask stowage boxes could lead to blocked oxygen supply flow to flight deck crew oxygen masks, which, in combination with in-flight depressurization, flight deck smoke, or a smoke evacuation procedure, may lead to flightcrew hypoxia and loss of useful consciousness and consequent loss of control of the airplane. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.
The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under
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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226; email
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 133 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the 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 determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective February 22, 2021.
None.
This AD applies to all Dassault Aviation Model FALCON 7X airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 35, Oxygen.
This AD was prompted by a report of deviations concerning the assembly and overhaul of certain crew oxygen mask stowage boxes, including incorrect application of Loctite 222 thread-locker on the fitting sensor screws. The FAA is issuing this AD to address such deviations, which could lead to blocked oxygen supply flow to flight deck crew oxygen masks, which, in combination with in-flight depressurization, flight deck smoke, or a smoke evacuation procedure, may lead to flightcrew hypoxia and loss of useful consciousness and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) Emergency AD 2021-0036-E, dated January 25, 2021 (EASA Emergency AD 2021-0036-E).
(1) Where EASA Emergency AD 2021-0036-E refers to its effective date, this AD requires using the effective date of this AD.
(2) Where paragraph (2) of EASA Emergency AD 2021-0036-E specifies actions if “any discrepancy is detected,” for this AD a “discrepancy” is defined as an inability to clearly hear oxygen flowing out of the mask during a functional test or see that the yellow blinker on the stowage box does not illuminate.
(3) Although the service information referenced in EASA Emergency AD 2021-0036-E specifies that certain actions may be accomplished by a pilot, this AD does not allow that provision.
(4) The “Remarks” section of EASA Emergency AD 2021-0036-E does not apply to this AD.
Although the service information referenced in EASA Emergency AD 2021-0036-E specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and
(1) The Director of the Federal Register approved the incorporation by reference (IBR) 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 this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) Emergency AD 2021-0036-E, dated January 25, 2021.
(ii) [Reserved]
(3) For EASA Emergency AD 2021-0036-E, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. This material may be found in the AD docket on the internet at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Airbus SAS Model A318, A319, A320, and A321 series airplanes. This AD was prompted by a report that following accomplishment of tap tests on certain modified rudders, disbonding of the rudder was found close to the lightning protection plate. This AD requires inspections of the left- and right-hand rudder side shells for defects, and applicable corrective actions, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD becomes effective February 22, 2021.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 22, 2021.
The FAA must receive comments on this AD by March 22, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material incorporated by reference (IBR) in this AD, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Sanjay Ralhan, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0002, dated January 6, 2021 (EASA AD 2021-0002) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A318 series airplanes; Model A319 series airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N and -273N airplanes; and Model A321 series airplanes. Model A320-215 airplanes are not certified by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.
This AD was prompted by a report that following accomplishment of tap tests on rudders that were modified using the procedures in previously issued service information (Airbus Service Bulletin A320-55-1052 dated July 28, 2017, Revision 01, dated January 28, 2015, and Revision 02, dated July 11, 2019, or Airbus Service Bulletin A320-55-1059, dated March 8, 2018), disbonding of the rudder was found close to the lightning protection plate. Investigation results determined that those procedures may lead to inadequate curing of the affected part after modification. The FAA is issuing this AD to address disbonding of the rudder, which could result in reduced structural integrity of the rudder, and consequent reduced controllability of the airplane.
EASA AD 2021-0002 describes procedures for a one-time general visual inspection and a special detailed inspection (woodpecker or tap test) of the left- and right-hand rudder side shells for defects (including bulging, waviness, and disbonding) and applicable corrective actions. The corrective actions include accomplishing a special detailed inspection of any affected part with defects and a temporary and eventual permanent repair of the defects. EASA AD 2021-0002 also prohibits modification of a rudder using the procedures in previously issued service information. This material is reasonably
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the FAA evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
This AD requires accomplishing the actions specified in EASA AD 2021-0002 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2021-0002 is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2021-0002 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2021-0002 that is required for compliance with EASA AD 2021-0002 is available on the internet at
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because disbonding of the left- and right-hand rudder side shells could result in reduced structural integrity of the rudder, and consequent reduced controllability of the airplane. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.
The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under
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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Sanjay Ralhan, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223; email
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 1,630 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in this AD.
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
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective February 22, 2021.
None.
This AD applies to all Airbus SAS airplanes, certificated in any category, as identified in paragraphs (c)(1) through (4) of this AD.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes.
(3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N and -273N airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes.
Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by a report that following accomplishment of tap tests on rudders that were modified using the procedures in certain previously issued service information, disbonding of the rudder was found close to the lightning protection plate. Investigation results determined that those procedures may lead to inadequate curing of the affected part after modification. The FAA is issuing this AD to address disbonding of the rudder, which could result in reduced structural integrity of the rudder, and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0002, dated January 6, 2021 (EASA AD 2021-0002).
(1) Where EASA AD 2021-0002 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where EASA AD 2021-0002 specifies to comply with “the instructions of the AOT,” this AD requires using the words “the procedures marked as required for compliance (RC) in the AOT.”
(3) The “Remarks” section of EASA AD 2021-0002 does not apply to this AD.
Although the service information referenced in EASA AD 2021-0002 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(3)
For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) 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 this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0002, dated January 6, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0002, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
In rule document 2021-00710 beginning on page 6180 in the issue of Tuesday, January 19, 2021, make the following correction:
On page 6180, in the third column, in the first line of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2021 total allowable catch (TAC) of Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), February 3, 2021, through 1200 hrs, A.l.t., June 10, 2021.
Krista Milani, 907-581-2062.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2021 Pacific cod TAC apportioned to vessels using pot gear in the Western Regulatory Area of the GOA is 1,068 metric tons (mt) as established by the final 2020 and 2021 harvest specifications for groundfish in the GOA (85 FR 13802, March 10, 2020) and inseason adjustment (85 FR 83834, December 23, 2020).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2021 Pacific cod TAC apportioned to vessels using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,060 mt and is setting aside the remaining 8 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 1, 2021.
16 U.S.C. 1801
Federal Energy Regulatory Commission, Department of Energy.
Notice of Proposed Rulemaking.
The Commission is proposing to revise its regulations to establish rules for incentive-based rate treatments for voluntary cybersecurity investments by a public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission, and rates or practices affecting or pertaining to such rates for the purpose of ensuring the reliability of the Bulk-Power System.
Comments are due April 6, 2021. Also, reply comments are due May 6, 2021.
Comments, identified by docket number, may be filed electronically at
1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes under sections 205 and 206 of the Federal Power Act (FPA)
2. First, we propose to allow public utilities making certain cybersecurity investments to request an increase in the rate of return on equity (ROE) applicable to those capital investments. Such cybersecurity investments would include investments following specific CIP Reliability Standards and/or standards and guidelines from the National Institute of Standards and Technology (NIST)
3. Second, we propose to allow a public utility to seek deferred cost recovery for certain cybersecurity investments. We propose that only expenses for activities that go above and beyond actions required to comply with the CIP Reliability Standards be eligible for these incentives. Therefore, expenses incurred to comply with mandatory CIP Reliability Standards that a public utility incurs on a regular or ongoing basis, or that are incurred prior to the incentive request, would not be eligible for such regulatory asset treatment. We propose to allow deferred cost recovery for three categories of expenses: (1) Expenses associated with third-party provision of hardware, software, and computing networking services; (2) expenses for training to implement new cybersecurity enhancements undertaken pursuant to this rule; and (3) other implementation expenses, such as risk assessments
4. Finally, under the proposed regulations, a public utility seeking one or more incentive based-rate treatments proposed in the NOPR must make a filing for Commission approval pursuant to FPA section 205 and receive such approval prior to implementing the proposed incentives in its Commission-jurisdictional rates.
5. On August 8, 2005, Congress enacted the Energy Policy Act of 2005.
6. On February 3, 2006, the Commission issued Order No. 672,
7. On January 18, 2008, the Commission issued Order No. 706,
A Cyber Asset that if rendered unavailable, degraded, or misused would, within 15 minutes of its required operation, misoperation, or non-operation, adversely impact one or more Facilities, systems, or equipment, which, if destroyed, degraded, or otherwise rendered unavailable when needed, would affect the reliable operation of the Bulk Electric System. Redundancy of affected Facilities, systems, and equipment shall not be considered when determining adverse impact. Each BES Cyber Asset is included in one or more BES Cyber Systems.
8. The CIP Reliability Standards currently consist of 12 standards specifying a set of requirements that entities must follow to ensure the cyber and physical security of the Bulk-Power System. There are 10 currently effective cybersecurity standards and one cybersecurity standard that has been approved by the Commission and will become enforceable on July 1, 2022. There is also one physical security standard, which is not the subject of this NOPR:
• CIP-002-5.1a Bulk Electric System Cyber System Categorization: requires entities to identify and categorize BES Cyber Assets for the application of cyber security requirements commensurate with the adverse impact that loss, compromise, or misuse of those BES Cyber Systems could have on the reliable operation of the BES.
• CIP-003-8 Security Management Controls: Requires entities to specify consistent and sustainable security management controls that establish responsibility and accountability to protect BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.
• CIP-004-6 Personnel and Training: Requires entities to minimize the risk against compromise that could lead to misoperation or instability in the BES from individuals accessing BES Cyber Systems by requiring an appropriate level of personnel risk assessment, training, and security awareness in support of protecting BES Cyber Systems.
• CIP-005-6 Electronic Security Perimeter(s): Requires entities to manage electronic access to BES Cyber Systems by specifying a controlled Electronic Security Perimeter in support of protecting BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.
• CIP-006-6 Physical Security of Bulk Electric System Cyber Systems: Requires entities to manage physical access to BES Cyber Systems by specifying a physical security plan in support of protecting BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.
• CIP-007-6 System Security Management: Requires entities to manage system security by specifying select technical, operational, and procedural requirements in support of protecting BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.
• CIP-008-5 Incident Reporting and Response Planning:
• CIP-009-6 Recovery Plans for Bulk Electric System Cyber Systems: Requires entities to recover reliability functions performed by BES Cyber Systems by specifying recovery plan requirements in support of the continued stability, operability, and reliability of the BES.
• CIP-010-3 Configuration Change Management and Vulnerability Assessments: Requires entities to prevent and detect unauthorized changes to BES Cyber Systems by specifying configuration change management and vulnerability assessment requirements in support of protecting BES Cyber Systems from compromise that could lead to misoperation or instability in the BES.
• CIP-011-2 Information Protection: Requires entities to prevent unauthorized access to BES Cyber System Information by specifying information protection requirements in support of protecting BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.
• CIP-012-1 Communications between Control Centers:
• CIP-013-1 Supply Chain Risk Management: Requires entities to mitigate cybersecurity risks to the reliable operation of the BES by implementing security controls for supply chain risk management of BES Cyber Systems.
9. The CIP Reliability Standards, viewed as a whole, implement a defense-in-depth approach to protecting the security of BES Cyber Systems at all impact levels.
10. The Cybersecurity Enhancement Act of 2014 (Cybersecurity Act)
11. As noted above, NIST implements the Cybersecurity Act through its NIST Framework,
12. On March 21, 2019, the Commission issued a Notice of Inquiry seeking comment on the scope and implementation of its electric transmission incentives policy
13. On March 20, 2020, the Commission issued a Notice of Proposed Rulemaking on several topics considered in the 2019 Notice of Inquiry.
14. On June 18, 2020, Commission staff issued a white paper to explore a new framework for providing transmission incentives to public utilities for cybersecurity investments that produce significant cybersecurity benefits for actions taken that exceed the requirements of the CIP Reliability Standards.
15. Commission staff stated that providing transmission incentives for cybersecurity investments would require a new framework for the Commission to evaluate requests from public utilities for transmission incentives. Commission staff opined that a first necessary step would be to establish approaches that examine the effectiveness of cybersecurity investments in enabling the public utility to achieve a level of protection that exceeds the CIP Reliability Standards and also enhances the security of its transmission system. Commission staff stated that a public utility would then be able to identify the cybersecurity investments for which it seeks transmission incentives with the Commission evaluating such transmission incentive requests.
16. In the White Paper, Commission staff provided two potential approaches for identifying cybersecurity investments eligible for transmission incentives. The first approach was based on a public utility voluntarily applying certain CIP Reliability Standard requirements to transmission facilities that are not subject to those requirements,
17. We recognize that the energy sector faces numerous and complex cybersecurity challenges. These growing threats come at a time of both great change in the operation of the transmission system and an increase in the number and nature of attack methods.
18. Section 215 of the FPA and the CIP Reliability Standards promulgated under that statute have served as the Commission's primary tools for mandating changes to cybersecurity practices within the electric sector. As required by FPA section 215, the Commission's mandatory CIP Reliability Standards provide for the reliable operation of the Bulk-Power System.
19. Given that cybersecurity investments can be made to more than a public utility's transmission system, we find that basing our incentives framework under this proposal on our transmission incentives authority under FPA section 219, as considered in the White Paper, may unnecessarily limit the application of an effective cybersecurity incentives framework and, thereby, limit possible cybersecurity investment. Creating an incentive-based approach under FPA sections 205 and 206 that encourages public utilities to undertake cybersecurity investments on a voluntary basis that are above and beyond the requirements of the mandatory CIP Reliability Standards better ensures secure service for ratepayers. This approach would incent a public utility to adopt cybersecurity practices that would not only better protect its own systems but also improve the security of the Bulk-Power System. For example, the expansion of network monitoring provides the potential integration of all aspects of Bulk-Power System security to include physical access control, equipment status indicators, and system performance monitoring. This provides
20. Pursuant to FPA sections 205 and 206,
21. We propose to add § 35.48(b) to the Commission's regulations to authorize incentive-based rate treatments for a public utility that makes voluntary cybersecurity investments in the Bulk-Power System, provided that the proposed incentive is just and reasonable and not unduly discriminatory or preferential.
22. We propose to add § 35.48(b)(1) to the Commission's regulations to provide that a public utility may receive incentive rate treatment for voluntarily applying identified CIP Reliability Standards to facilities that are not currently subject to those requirements (NERC CIP Incentives Approach). Using the existing CIP Reliability Standards as a framework for providing cybersecurity incentives allows the Commission to leverage an existing set of baseline cybersecurity requirements. Further, public utilities and the Commission are already familiar with the CIP Reliability Standards and encouraging public utilities to voluntarily apply known standards to additional facilities will establish a benchmark for determining eligibility for an incentive.
23. As discussed above, CIP-002 (Bulk Electric System Cyber System Categorization) implements a tiered approach to categorizing assets, requiring an entity to categorize its cyber assets as high, medium, or low risk to the reliable operation of the BES if compromised. These impact ratings determine which requirements in the CIP Reliability Standards CIP-003 though CIP-013 apply to BES Cyber Systems.
24. The CIP version 5 Standards became enforceable for high and medium impact BES Cyber Systems on July 1, 2016, and the CIP Reliability Standards applicable to low impact BES Cyber Systems became enforceable on April 1, 2020. In approving the CIP version 5 Standards, the Commission determined that “categorizing BES Cyber Systems based on their low, medium, or high impact on the reliable operation of the BES, with all BES Cyber Systems being categorized as at least low impact, offers more comprehensive protection of the bulk electric system” and that “the new cybersecurity controls improve the security posture of responsible entities.”
25. We propose two ways for a public utility to demonstrate that it is eligible for a cybersecurity incentive through voluntary investment in applying the requirements of the CIP Reliability Standards to additional facilities. Public utilities that choose to request the proposed incentives under the NERC CIP Incentives Approach will receive a rebuttable presumption that the investments materially enhance the security posture of the Bulk-Power System by enhancing the applicants'
26. We propose to add § 35.48(b)(1)(i) to the Commission's regulations to allow a public utility to receive incentive rate treatment for voluntarily applying the requirements for medium or high impact systems to low impact systems, and/or the requirements for high impact systems to medium impact systems (Med/High Incentive).
27. Under the Med/High Incentive, a public utility seeking a cybersecurity incentive for a facility that is classified as a low impact BES Cyber System would invest in ways to make that facility meet all the requirement and sub-requirement protections applicable to medium or high impact BES Cyber Systems. Also, under the Med/High incentive, a public utility seeking a cybersecurity incentive for a facility classified as a medium impact BES Cyber System would invest in ways to make that facility meet all the requirement and sub-requirement protections applicable to high impact BES Cyber Systems. The public utility could choose to apply the medium and/or high impact requirements to some or all of its low or medium impact BES Cyber Systems, and would receive incentives only for the investments it makes to apply the more stringent protections.
28. We propose to add § 35.48(b)(1)(ii) to the Commission's regulations to allow a public utility to receive incentive rate treatment for voluntarily ensuring that all external routable connectivity
29. Under the Hub-Spoke Incentive, all the cyber communications to and from a low impact system location must connect to a medium or high impact BES Cyber System and the cyber communication security controls required for the medium or high impact BES Cyber System must be implemented on the low impact system.
30. Nothing in this proposal modifies a public utility's obligation to comply with all the mandatory NERC Reliability Standard obligations for its low, medium, and high impact BES Cyber Systems. A public utility requesting incentive rate treatment for voluntarily applying the CIP Reliability Standards requirements, as discussed above, will not be subject to penalties from the Commission for failing to voluntarily follow the CIP Reliability Standards. However, if the Commission approves a public utility's request for cybersecurity incentives pursuant to either the Med/High or Hub-Spoke Incentive and the public utility subsequently ceases to implement the CIP Reliability Standards consistent with the order approving the application, we propose that the public utility would not be able to receive the incentive for the period during which it is not implementing the CIP Reliability Standards consistent with the order approving the application.
31. Additionally, since the NERC CIP Incentives Approach is based on a public utility making voluntary cybersecurity investments based on the CIP Reliability Standards as they exist at the time of the investment, we propose that the determination of the types of cybersecurity incentives that a public utility would be eligible for would reflect the currently enforceable version of the CIP Reliability Standards at the time the public utility submits a request for incentives. As discussed in section IV.E.1 (Incentive Duration), where NERC publicly announces that it is considering making certain cybersecurity activities or investments mandatory through issuing a standard authorization request,
32. We propose to add § 35.48(b)(2) to the Commission's regulations to provide that a public utility may receive incentive rate treatment for implementing certain security controls included in the NIST Framework (NIST Framework Approach). The Commission would evaluate a public utility's application for cybersecurity investments that implement security controls in the NIST Framework to determine whether the cybersecurity investments go above and beyond the CIP Reliability Standards and are eligible for incentives. Through the NIST Framework Approach, public utilities have the flexibility of non-prescriptive implementation options to go above and beyond the CIP Reliability Standards.
33. Although the NIST Framework contains many types of security controls, we propose to limit eligibility for cybersecurity incentives to the types of controls that are most likely to provide a significant benefit to the cybersecurity of Commission-jurisdictional transmission facilities, not just the BES. In the White Paper, Commission staff identified five types of security controls included in the NIST Framework that may be considered for incentives under the NIST Framework approach: (1) Automated and continuous monitoring; (2) access control; (3) data protection; (4) incident response; and (5) physical security of cyber systems. Commission staff also acknowledged that, given the continuous and rapid changes in cybersecurity risks, the Commission may need to periodically update the types of security controls eligible for incentives.
34. Under this proposal, one example of an investment that could warrant an incentive as automated and continuous monitoring would be for a public utility to install a dynamic asset management program to improve its ability to quickly detect and address new or previously unknown equipment on its network. Unknown and unattended equipment can present significant vulnerabilities and threats to both the information technology and operational technology networks. Implementing a process that automatically and continuously scans the current inventory of hardware and software across both the information technology and operational technology networks can identify, block, log and report any unauthorized access.
35. Another example of an automated and continuous monitoring investment eligible for an incentive is the implementation of a dynamic file analysis program or a “sandbox.” One deployment of a sandbox is as an automated malware detection environment that continuously scans email attachments and weblinks in the corporate email system for malicious code. When malicious code is detected, a sandbox blocks delivery to the end user in real time and automatically issues an alert to the security team. Malicious code deployed in the sandbox will potentially be activated when placed there, but it will be isolated from the information technology and operational technology networks, thereby protecting the networks while alerting the public utility to the threat. The deployment of sandboxes enhances the ability of a public utility to detect and prevent the delivery of malicious code, disrupts social engineering attacks on users, and tests software for dangerous behavior. Further, the ability to perform post-incident forensic triage and analysis enables public utilities to establish the root causes of an event, identify related vulnerabilities, and mitigate associated risks in an expedited manner to optimize long-term operational capabilities.
36. As discussed below, public utilities seeking an incentive under this approach would need to show how a cybersecurity investment, for example, in physical components, software, licensing for cybersecurity enhancements as well as operational costs such as contracts with security providers, third-party incident responders, and third-party security operations centers, allows the public utility to meet NIST Framework security controls, as identified above, will go above and beyond the requirements of the CIP Reliability Standards, and materially enhance the current cybersecurity posture of the Bulk-Power System by enhancing the applicants' cybersecurity posture substantially above levels required by CIP Reliability Standards, to the benefit of ratepayers. As the Commission evaluates incentive applications, we will remain cognizant of ongoing changes to the CIP Reliability Standards, the NIST Framework, and underlying referenced security controls.
37. As with the NERC CIP Incentives Approach, if a public utility ceases to maintain the cybersecurity posture associated with the Commission's order approving its NIST Framework Approach incentives application, the public utility would not be able to receive the incentive for the period during which it is not implementing the CIP Reliability Standards as described in the Commission's order approving its application.
38. We propose to add § 35.48(c)(1) to the Commission's regulations to allow a public utility that makes eligible cybersecurity capital investments, as more fully described above, to request an ROE adder of 200 basis points (Cybersecurity ROE Incentives) for those eligible cybersecurity investments. This ROE incentive will encourage public utilities to proactively make additional investments in cybersecurity systems. We believe that such a 200-basis point adder is appropriate to provide a meaningful incentive to encourage public utilities to improve their systems' cybersecurity. For example, we note that given the relatively small size of such investments, compared to conventional transmission projects, the dollar amounts provided under the incentives should not have a burdensome effect on the public utility's rates. Yet, the benefit to the system, and ultimately to rate payers, by this additional investment will provide additional cybersecurity protections that could have a large impact on the public utility's system by allowing it to better detect and address cybersecurity threats to the Bulk-Power System. The total cybersecurity incentives requested would be capped at the zone of reasonableness.
39. Transmission-specific investments based on the NERC CIP Incentives Approach and the NIST Framework Approach may be eligible for the Cybersecurity ROE Incentive under this NOPR. In addition, we propose that enterprise-wide costs—which are not specific to transmission but a portion of which are recovered through transmission rates—may also be eligible for incentives if the applicant can demonstrate how the investment will materially enhance the security posture of the Bulk-Power System by enhancing the applicants' cybersecurity posture substantially above levels required by CIP Reliability Standards, to the benefit of ratepayers. While cybersecurity systems that are not subject to the CIP Reliability Standards may be less critical to reliable operations, compromise of these systems may nevertheless allow access to more critical systems and therefore we believe that incentivizing the enhanced protection of these systems is important to the reliability of the Bulk-Power-System.
40. We propose to add § 35.48(c)(2) to the Commission's regulations to allow a public utility to seek deferred cost recovery pursuant to this NOPR. We believe that, in limited circumstances, it may be appropriate to allow a public utility to defer recovery of certain cybersecurity costs that are generally expensed as incurred, and treat them as regulatory assets, while also allowing such regulatory assets to be included in transmission rate base (Regulatory Asset Incentive). Such expenses must be associated with the NERC CIP Incentives Approach or the NIST Framework Approach investments that receive Commission approval for ROE incentives. Like the provision of ROE incentives, discussed above, we propose that only expenses for activities that go above and beyond the CIP Reliability Standards, as discussed above, be eligible for incentives. Under this proposal, expenses that are mandatory, that a public utility incurs on a regular or ongoing basis, or that are incurred prior to the incentive request, would not be eligible for such regulatory asset treatment.
41. More specifically, to implement proposed § 35.48(c)(2) of the Commission's regulations, we propose to allow deferred cost recovery for three categories of expenses: (1) Expenses associated with third-party provision of hardware, software, and computing networking services; (2) expenses for training to implement new cybersecurity enhancements undertaken pursuant to this rule; and (3) other implementation expenses, such as system assessments by third parties or internal system reviews and initial responses to findings of such assessments. In all such cases, eligible costs are limited to costs associated with implementing cybersecurity upgrades and do not include ongoing costs including system maintenance, surveillance, and other labor costs, either in the form of employee salaries or third-party service contracts.
42. Regarding the first category, certain cost categories, such as software, that companies traditionally purchased and could capitalize, are now often procured as services with periodic payments to vendors that is updated as needed. Therefore, to encourage investment in cybersecurity, we believe that it would be appropriate to allow public utilities to defer and amortize eligible costs that are typically recorded as expense that are associated with third party provision of hardware, software, and computing and networking services. Pursuant to our existing regulations, public utilities must maintain sufficient records to support the distinction of any expenses that are afforded incentivized treatment.
43. Regarding the second category, in response to the White Paper, many commenters stated that training is central to improving cybersecurity. We agree that such training is critical to successful implementation of cybersecurity enhancements. Therefore, we propose to allow public utilities to request the Regulatory Asset Incentive for training expenses associated with cybersecurity investments made pursuant to this rule. However, ongoing training expenses, which many organizations provide to employees regularly, would not be eligible because such training is an ongoing rather than implementation type of operating expense for the implementation we seek to incentivize. Pursuant to our existing regulations, public utilities must maintain sufficient records to support the distinction of any training expenses that are afforded incentivized treatment.
44. Regarding the third category, we believe that there may be large one-time expenses associated with implementing cybersecurity upgrades. These may include unusually large internal system evaluations and assessments or analyses by third parties. These expenses may be large relative to the size of the capital investments associated with the cybersecurity upgrades and essential to their proper implementation. We propose that such expenses not include regularly scheduled activities that would occur irrespective of the cybersecurity upgrades. Pursuant to our existing regulations, public utilities must maintain sufficient records to support the distinction of any expenses that are afforded incentivized treatment.
45. Additionally, consistent with the proposal for the ROE incentive for eligible cybersecurity capital investments, only directly assigned transmission costs or the conventionally allocated (
46. Finally, we propose in § 35.48(d)(2) that deferred regulatory assets whose costs are typically expensed should be amortized over a five-year period. We believe that this duration will allow incentive recipients a reasonable amount of time to earn a return on expenditures for which no return is normally allowed. Moreover, the proposed amortization period generally corresponds to the short lifespan and depreciation rates of cybersecurity investments.
47. In this NOPR, we are proposing to grant ROE and deferred cost recovery incentives. Nonetheless, we recognize that other incentives, such as construction work in progress, may be warranted to encourage investment in cybersecurity if adequately supported. To maintain flexibility under this proposal for other types of incentives under these new regulations, we propose to add § 35.48(c)(3) to the Commission's regulations that provides the Commission additional flexibility to grant a public utility any other incentives, pursuant to the requirements of this section, that the Commission deems to be just and reasonable and not unduly discriminatory or preferential for investments undertaken pursuant to
48. Proposed § 35.48(e) of the Commission's regulations would require a public utility's request for one or more incentive based-rate treatments to be made in a filing pursuant to FPA section 205. As proposed, such a request must include a detailed explanation of how the public utility plans to implement one or both of the proposed incentive approaches and the requested rate treatment. We propose that applicants provide detail on the investments or expenses for which they seek incentives, as described in more detail below. An applicant would make a filing showing how its project(s) meet the eligibility requirements described below. In proposing what showing an applicant must make, we balance the need for sufficient information to determine if an applicant is eligible for the incentive against the risk of the applicant providing potentially sensitive information on cybersecurity vulnerabilities in its application. We discuss confidentiality concerns further in section IV.E.3 (Confidentiality Considerations).
49. Finally, under § 35.48(e) of the proposed regulations, a public utility seeking one or more incentive based-rate treatments proposed in the NOPR must make a filing for Commission approval pursuant to FPA section 205 and receive such approval prior to implementing the proposed incentives in its Commission-jurisdictional rates. In order to effectuate the incentives in rates, public utilities would need to propose in their FPA section 205 filing conforming revisions to their formula rates, as appropriate, to reflect incentive rate treatment granted pursuant to these proposed regulations.
50. To implement proposed § 35.48(b) of the Commission's regulations, for capital investments, we propose that an applicant describe the proposed investments as well as their anticipated cost, completion date and geographic location. An applicant would also describe how the proposed investment meets the description of the Med/High Incentive and/or the Hub-Spoke Incentive.
51. We propose that applicants describe the implementation and method of continuing adherence to the actions required to obtain and maintain the incentive, as described in § 35.48(e)(1) of the proposed regulations. The applicant would include in its application, at a minimum, an identification of the scope of assets for which the public utility is requesting the incentive, and the associated BES Cyber Systems that will be protected. Specifically, an applicant would include a list of BES assets for which the public utility is requesting the incentive, the geographical location of the BES assets, the function they support, the incentive method the public utility is requesting for each of the BES assets, the current impact ratings of the BES assets and the impact level(s) that the assets now meet as a result of the investment, and a list of BES Cyber Systems associated with each of the BES assets including details on their use.
52. Unlike conventional transmission investments, which entail completion of a physical transmission project, investments under the NERC CIP Incentives Approach seek to bring BES assets otherwise not required to be subject to certain cybersecurity requirements to a higher cybersecurity level, and that higher level must be maintained for it to continue to provide ratepayer benefits. Consequently, the Commission proposes that, if an investment that receives a Med/High Incentive or Hub-Spoke Incentive ceases to meet the requirements of that incentive, the public utility would be required to update its cost-of-service rates to reflect this change. In addition, the Commission or third parties may initiate FPA section 206 proceedings to revoke such incentives.
53. In Order No. 791, the Commission recognized that categorizing BES Cyber Systems based on their low, medium, or high impact on the reliable operation of the BES, with all BES Cyber Systems being categorized as at least low impact, offers more comprehensive protection of the BES than the prior CIP Reliability Standards.
54. In contrast to applications for incentives based on the NERC CIP Incentives Approach, we propose that a public utility seeking incentives for cybersecurity investments under the NIST Framework Approach would not be entitled to a rebuttable presumption and instead must provide additional information showing that the proposed investment materially enhances the cybersecurity posture of the Bulk-Power System by enhancing the applicants' cybersecurity posture substantially above levels required by CIP Reliability Standards. However, we request comments on what demonstration an applicant should be required to make to show that its NIST Framework Approach investments merit incentives under the FPA section 205 just and reasonable standard.
55. Depending on a public utility's existing attributes; namely the hardware, system configuration, and operating practices that contribute to its overall cybersecurity posture, and the specific characteristics of the proposed cybersecurity investments, proposed cybersecurity investments may or may not materially enhance the cybersecurity posture of the Bulk-Power System by enhancing the applicants' cybersecurity posture substantially above levels required by CIP Reliability Standards to warrant incentives. Under § 35.48(e)(2) of the Commission's regulations, we propose that an
56. Consistent with incentive requests under the NERC CIP Incentives Approach, an applicant seeking incentives under the NIST Framework Approach would be required to provide detail on the investments or expenses for which it seeks incentives. For capital investments, applicants would describe: (1) The required network components; (2) how the sensors connect to the network; (3) how the sensors deployment recognizes the specific attributes of the network; (4) the costs of all investments; and (5) when the costs are expected to be incurred.
57. Under § 35.48(e)(3) of the proposed regulations, applicants requesting an ROE adder of 200 basis points must include the anticipated cost of the capital investment and identify the Commission-jurisdictional rate schedules under which they will recover the ROE adder.
58. For expenses that the applicant seeks to receive regulatory asset treatment associated with either ROE incentive-eligible projects based on either the NERC CIP Incentives Approach or the NIST Framework Approach, under § 35.48(e)(4) of the proposed regulations, the applicant must describe and estimate the nature of such expenses, their costs, and when they are expected to be incurred.
59. We propose to add § 35.48(d) to the Commission's regulations to allow a public utility granted an incentive under this NOPR to receive that incentive for the lesser of: (1) The depreciation life of the underlying asset; (2) 10 years from when the cybersecurity improvements enter service; (3) when the investments or activities that serve as the basis of that incentive become mandatory pursuant to a Reliability Standard approved by the Commission; or (4) when the public utility no longer meets the requirements for receiving the incentive.
60. In addition, we propose that, where cybersecurity investments are mandatory, cybersecurity incentives are inappropriate and would only serve to increase ratepayer costs. However, where NERC publicly announces that it is considering making certain cybersecurity activities or investments mandatory, through issuing a standard authorization request, public utilities may receive incentives until the requirements become mandatory. For a public utility that requests regulatory asset treatment for costs normally recorded to expenses, if such expenditures become mandatory, we propose that the public utility must recover the unamortized portion of expenses through expenses in rates with no further earning of an incentive return on the regulatory asset.
61. In order to ensure that a public utility receiving incentive rate treatment has implemented the requirements for the incentive and to ensure that it continues to adhere to these requirements, we propose to add § 35.48(f) to the Commission's regulations to require public utilities to submit annual informational filings with the Commission.
62. The Transmission Incentives NOPR proposes additional reporting requirements for recipients of transmission incentives under FPA section 219.
63. We preliminarily find that the proposed reporting requirements are necessary to provide the Commission with an understanding of the costs of various types of cybersecurity investments in order to more precisely target future incentives or other policies. However, based on the qualities of such investments, as well as the likely higher sensitivity of the information, we propose to require different reporting requirements under this proposal than those proposed under the Transmission Incentives NOPR.
64. Several aspects of cybersecurity necessitate reporting different information that the Commission has required for conventional transmission facilities receiving incentives pursuant to FPA section 219. First, cybersecurity investments are not observable. Unlike conventional transmission facilities, such as a new transmission line, it is not readily apparent if, and when, such investments are completed and serving customers. Therefore, it is important to confirm the completion of cybersecurity investments by establishing additional reporting requirements. Second, certain cybersecurity investments may require public utilities to undertake subsequent actions or make expenditures to maintain the status for which they receive incentives. Annual reports enable public utilities to demonstrate that they have undertaken such actions or expenditures.
65. Finally, we propose that both the initial and annual informational filings provide a summary of the costs incurred to achieve the higher level of security, including supporting documentation that provides a narrative explanation of the nature of the expenses proposed for deferred cost recovery, and inclusion in rate base as a regulatory asset, including the specific accounts (under the Commission's Uniform System of Accounts) initially charged for the incurred expenses.
66. Also, the Commission may conduct periodic verification to assess cybersecurity investments and expenses for which it has approved incentives. The Commission could perform such verifications through multiple means (
67. To demonstrate that a public utility has implemented the requirements for the Med/High incentive and to ensure that the recipient continues to adhere to these requirements, we propose that the informational filing would describe implementation of the enhanced security controls, as applicable, in all the topics covered by the CIP Reliability Standards. Below is a table of currently effective and Commission-approved CIP Reliability Standards and examples of supporting documentation a public utility may provide to demonstrate incentive adherence to each CIP Reliability Standard. For the first informational filing, we would expect the public utility to provide documents, as indicated below, plus any additional documentation needed to demonstrate voluntary application of identified CIP Reliability Standards to facilities that are not currently subject to those requirements.
68. To demonstrate that a public utility has implemented the requirements for the Hub-Spoke incentive, we propose that the informational filing describe the reconfiguration and assets added to the communication paths to/from locations containing low impact BES Cyber Systems. For the first annual informational filing, we propose that the public utility provide documents demonstrating these changes. For any subsequent annual informational filing, the public utility would only need to provide an updated version of any supporting documentation if a change occurred for the previous informational filing, as well as information on any failure to maintain the communication paths, and any mitigating actions the public utility undertook to resolve the problem.
69. We propose that the reporting requirements to implement proposed § 35.48(f) of its regulations for the NIST Framework Approach differ from those under the NERC CIP Incentives Approach. The Commission would review the informational filings to determine if the proposed changes meet the requirements for incentives by focusing on four areas: Acquisition and installation, system connectivity, security application, and relevance to entity monitoring/response actions. For each subsequent annual informational filing, the public utility would only need to provide an updated version of the supporting documentation showing any changes from the prior informational filing, as well as information on any period of time during the reported year where the public utility ceased to continuously implement specific requirements consistent with the Commission's order approving the application.
70. Step 1 of the review process addresses the acquisition and installation of required network components (
71. Step 2 of the review process addresses the attainment of necessary training and personnel for the implementation of the incentivized action. Training and additional personnel must be necessary and limited to the implementation of the cybersecurity equipment within the affected networks. The Commission would require a public utility to verify training and personnel actions through documentation such as third-party contractor agreements, training program curricula, and official job descriptions.
72. Step 3 of the review process addresses network and sensor node recognition optimization of system deployment, and strategic configuration. This step describes how the sensors are connected to a network and how they substantively improve the visibility and security of the affected networks. The public utility could demonstrate this network and sensor node recognition through such items as configuration files, system logs, configuration settings, and a description of its location on the affected network.
73. Step 4 of the review process addresses the incorporation of sensor nodes in the enterprise level incident monitoring and response plan. This step verifies that the incentivized action is being incorporated into monitoring and response actions to impact overall network security. The utility would need to attest that the information would be included in operational activities such as incident response plans, playbooks, and Standard Operating Procedures.
74. We recognize that the Commission's cybersecurity incentives policy must balance the need to maintain the confidentiality of cybersecurity systems and protocols with the need for transparency in rates when awarding incentive rates to public utilities for cybersecurity investments. The Commission balances these considerations through its confidential
75. Accordingly, we propose that, if a public utility applying for incentive rate treatment under this rule is concerned that the information contained in an application for incentives could lead to the disclosure of confidential information or CEII related to its cybersecurity systems, the public utility could request protection of its information pursuant to these procedures. The Commission's practice, however, is not to allow for the filing of an FPA section 205 rate application under seal. Under this proposal, to the extent an applicant seeks confidential treatment, we expect that the applicant's request for such treatment will be specific and limited. If an applicant requests portions of the application be protected, we expect that the public portion of an application should contain sufficient information for ratepayers to judge the rate impact and scope of the proposed incentives, including the general approach adopted. The Commission will address such requests
76. The information collection requirements contained in this NOPR are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.
77. This NOPR will establish the Commission's regulations and policy with respect to the mechanics and implementation of the Commission's cybersecurity incentives policy and will require an annual report from the recipients of cybersecurity incentives in order to demonstrate compliance with the Commission's cybersecurity incentives regulations and policy.
78. Interested persons may obtain information on the reporting requirements by contacting Ellen Brown, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 via email (
79. The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.
80. Please send comments concerning the collection of information and the associated burden estimates to: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns, comments should be sent electronically to the following email address:
81. Please submit a copy of your comments on the information collections to the Commission via the eFiling link on the Commission's website at
82.
83.
84.
85.
86.
87.
88.
89. The NERC Compliance Registry, as of October 02, 2020, identifies approximately 319 Transmission Owners in the U.S. that are subject to this proposed rulemaking.
90. The Commission estimates that the NOPR would affect the burden
91. For the purposes of estimating burden in this NOPR, in the table above, we conservatively estimate annual numbers of the different possible cybersecurity incentive requests as similar to the historical high experienced for incentives Orders issued under Section 219. For example, to date, the Commission has received
92. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
93. The Regulatory Flexibility Act of 1980
94. We estimate that 319 transmission owners are reported in the NERC registry. Using the list of Transmission Owners from the NERC Registry (dated October 2, 2020), we estimate that approximately 6% of those entities may file for incentives.
95. We estimate additional annual costs associated with the NOPR (as shown in the table above) of:
• $6,640 per filer for 20 new filers.
• These costs are only incurred on a voluntary basis.
96. Therefore, the estimated additional annual cost per entity ranges from $0 to $132,800. According to SBA guidance, the determination of significance of impact “should be seen as relative to the size of the business, the size of the competitor's business, the number of filers received annually (20), and the impact this regulation has on larger competitors.”
97. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due April 6, 2021. Also, reply comments are due May 6, 2021. Comments must refer to Docket No. RM20-3-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
98. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at
99. Commenters that are not able to file comments electronically may mail or hand-deliver an original of their comments. Mailed comments should be addressed to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered comments should be delivered to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
100. In addition to publishing the full text of this document in the
101. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
102. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
Electric power rates, Electric utilities, Reporting and recordkeeping requirements.
By direction of the Commission. Chairman Danly and Commissioner Glick are concurring with a joint separate statement attached. Commissioner Clements is not participating.
In consideration of the foregoing, the Commission is proposing to amend part 35, chapter I, title 18, Code of Federal Regulations, as follows.
16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.
(a)
(b)
(1)
(i) Increasing the Critical Infrastructure Protection Reliability Standard security controls for facilities identified as low or medium impact bulk electric system Cyber Systems by applying the requirements for medium or high impact systems to low impact systems, and/or the requirements for high impact systems to medium impact systems; or
(ii) Ensuring all external routable connectivity to and from the low impact system connect to a high or medium impact bulk electric system Cyber System and the cyber communication security controls required for the medium or high impact bulk electric system Cyber System must be implemented on the low impact system.
(2)
(c)
(1) An increase in rate of return on equity of 200 basis points;
(2) Deferred cost recovery; or
(3) Any other incentives approved by the Commission, pursuant to the requirements of this section that are deemed to be just and reasonable and not unduly discriminatory or preferential.
(d)
(1) A return on equity incentive rate treatment approved pursuant to this section may last the earlier of:
(i) The depreciation life of the underlying asset;
(ii) 10 years from when the cybersecurity improvements enter service;
(iii) when the investments or activities that serve as the basis of that incentive become mandatory pursuant to a Reliability Standard approved by the Commission;
(iv) or when the public utility no longer meets the requirements for receiving the incentive.
(2) A deferred regulatory asset whose costs are typically expensed should be amortized over a five-year period.
(e)
(1) For applications under the Critical Infrastructure Protection Incentive Approach:
(i) The Bulk Electric System assets for which the public utility is requesting the incentive;
(ii) The geographical location of the Bulk Electric System assets;
(iii) The function the Bulk Electric System assets support;
(iv) The incentive method the public utility is requesting for each of the Bulk Electric System assets;
(v) The current and new impact ratings of the Bulk Electric System assets if they change because of the incentive; and
(vi) A list of the Bulk Electric System Cyber Systems associated with each of the Bulk Electric System assets including details on their use.
(2) For applications under the National Institute of Standards and Technology Framework Approach:
(i) A description of the public utility's current cybersecurity posture;
(ii) A description of the public utility's desired cybersecurity posture;
(iii) A description of the quantified risk factors being addressed through the proposed incentive actions.
(3) For applications requesting an increase in rate of return on equity of 200 basis points:
(i) The anticipated cost of the capital investment; and
(ii) The identity of the Commission jurisdictional rate schedule(s) under which it will recover the increased return on equity.
(4) For applications requesting deferred cost recovery:
(i) A description of any expenses, including whether the expenses are:
(A) Expenses associated with third-party provision of hardware, software, and computing networking services;
(B) Expenses for training to implement new cybersecurity enhancements; or
(C) Other transition expenses, such as risk assessments by third parties or internal system reviews, and initial responses to findings of such assessments.
(ii) Estimates of the cost of such expenses;
(iii) When the costs are expected to be incurred;
(iv) A narrative explanation of how the expenses meet the requested Critical Infrastructure Protection Incentive Approach or National Institute of Standards and Technology Framework Approach.
(f)
(1) A public utility that receives incentive-based rate treatment under the Critical Infrastructure Protection Incentive Approach must also describe in its informational filings implementation of the enhanced security controls, as applicable, in all the topics covered by the Critical Infrastructure Protection Reliability Standards. For the first informational filing, the public utility must provide documentation to demonstrate voluntary application of identified Critical Infrastructure Protection Reliability Standards to facilities that are not currently subject to those requirements. For subsequent annual informational filings, the public utility must provide an updated version of the supporting documentation showing any changes from the prior informational filing as well as information on any period of time during the reported year where the public utility ceased to voluntarily apply identified Critical Infrastructure Protection Reliability Standards to facilities that are not currently subject to those requirements.
(2) A public utility that receives incentive-based rate treatments under the National Institute of Standards and Technology Framework Approach must also include information that demonstrates:
(i) The acquisition and installation of required network components, including confirmation that funds have been expended on the necessary equipment through documentation such as purchase orders, receipts, licensing agreements, and installation documentation with specified time periods;
(ii) Attainment of necessary training and personnel, including documentation such as third-party contractor agreements, training program curricula, and official job descriptions;
(iii) Network and sensor node recognition optimization through such items as configuration files, system logs, configuration settings, and a description of its location on the affected network;
(iv) Incorporation of sensor nodes in the enterprise level incident monitoring and response plan including attesting that the information would be included in operational activities such as incident response plans, playbooks, and Standard Operating Procedures.
1. Threats to the cybersecurity of the bulk power system are numerous and growing. Ensuring that the system is adequately protected against those threats is an issue of national importance and one that must remain a priority of this Commission. Accordingly, we support this notice of proposed rulemaking (NOPR) as a means for soliciting further comments on whether this particular incentives-based approach is a just and reasonable and not unduly discriminatory or preferential approach to improving public utilities' cybersecurity posture.
2. We write separately to highlight two general issues that we believe require additional attention. The first issue is whether the Commission can better address cybersecurity threats by directing NERC to expand its critical infrastructure protection (CIP) standards to require some or all of the investments contemplated in this NOPR. Although we appreciate the appeal of an incentives-based approach, the importance of cybersecurity demands us to at least consider whether we should mandate the best practices contemplated in this NOPR rather than simply trying to induce public utilities to adopt them.
3. The second issue goes to the heart of what the NOPR intends to achieve—whether public utilities are not adopting the contemplated measures because the existing financial incentives are insufficient. We encourage commenters to address whether—and, if so, why—additional measures, such as an elevated ROE or deferred cost recovery, are necessary to incentivize public utilities to adopt additional cybersecurity measures.
For these reasons, we respectfully concur.
Wage and Hour Division, Department of Labor.
Proposed delay of effective date.
In accordance with the Presidential directive as expressed in the memorandum of January 20, 2021 from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action proposes to delay until April 30, 2021 the effective date of the rule entitled Tip Regulations Under the Fair Labor Standards Act (“Tip Rule”), published in the
Submit written comments on or before February 17, 2021.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA21, by either of the following methods:
Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this proposal may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
In the Consolidated Appropriations Act of 2018 (“CAA”), Congress amended section 3(m) of the Fair Labor Standards Act (“FLSA” or “Act”) to prohibit employers from keeping tips received by their employees, regardless of whether the employers take a tip credit under section 3(m). On December 30, 2020, the Wage and Hour Division (“WHD”) published Tip Regulations Under the Fair Labor Standards Act (the “Tip Rule”) in the
In a memorandum dated January 20, 2021 and entitled “Regulatory Freeze Pending Review,” (“Regulatory Freeze Memorandum”) published in the
Delaying the effective date of the Tip Rule for 60 days would provide WHD additional opportunity to review and consider the questions of law, policy, and fact raised by the rule, as contemplated by the Regulatory Freeze Memorandum and OMB Memorandum M-21-14, before the rule goes into effect. In particular, WHD could consider whether the Tip Rule properly implements the CAA Amendments to section 3(m) of the FLSA, which prohibit employers from keeping tips for any purpose, whether the Tip Rule adequately considered the possible costs, benefits, and transfers between employers and employees related to the codification of WHD's guidance regarding the tip credit's application to tipped employees who perform tipped and non-tipped duties, and whether the Tip Rule otherwise effectuates the CAA amendments to the FLSA, including the statutory provision for civil money penalties for violations of section 3(m)(2)(B) of the Act. Additionally, on January 19, 2021, eight states and the District of Columbia filed a complaint for declaratory and injunctive relief in the United States District Court for the Eastern District of Pennsylvania, in which they argued that the Department violated the Administrative Procedure Act in promulgating the Tip Rule. The delay of the Tip Rule's effective date would also give WHD the opportunity to review and consider the rule in light of the issues raised by that complaint.
WHD believes that the proposed delay, in accordance with the Regulatory Freeze Memorandum and OMB Memorandum M-21-14, is reasonable given the issues of fact, law, and policy raised by the rule, and will not be disruptive, given that the Tip Rule is not yet effective and WHD has not implemented the rule.
WHD seeks comment on its proposal to delay the Tip Rule's effective date to April 30, 2021 in order to further review and consider the rule. WHD will consider only comments about its proposal to delay the Tip Rule's effective date.
Wage and Hour Division, Department of Labor.
Proposed delay of effective date.
In accordance with the Presidential directive as expressed in the memorandum of January 20, 2021 from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action proposes to delay until May 7, 2021, the effective date of the rule entitled Independent Contractor Status Under the Fair Labor Standards Act (“Independent Contractor Rule”), published in the
Submit written comments on or before February 24, 2021.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA34, by either of the following methods:
Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this proposal may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
On January 7, 2021, the Department of Labor's Wage and Hour Division (“WHD”) published the Independent Contractor Rule in the
In a memorandum dated January 20, 2021 and entitled “Regulatory Freeze Pending Review,” published in the
The delay of the Independent Contractor Rule's effective date would give WHD additional opportunity to review and consider the rule as the Regulatory Freeze Memorandum and OMB Memorandum M-21-14 contemplate. The rule, which would be WHD's first generally applicable regulation addressing the question of who is an independent contractor and, thus, not an employee under the FLSA, would adopt a new legal standard for determining employee and independent contractor status under the FLSA. In light of the significance of this change, WHD is proposing to allow itself more time to further review and consider, among other important issues, the legal, policy, and/or enforcement implications of adopting that standard, such as: Whether the rule effectuates the FLSA's purpose, recognized repeatedly by the Supreme Court, to broadly cover workers as employees;
In addition, WHD believes that the proposed delay is reasonable and would not be disruptive. The Independent Contractor Rule is not yet effective, and WHD has not implemented the rule. For example, WHD's public guidance, including its longstanding Fact Sheet #13, entitled “Employment Relationship under the Fair Labor Standards Act (FLSA),” does not contain the rule's standard for determining whether a worker is an employee or independent contractor and will continue to be available to all. Moreover, Federal courts across the country have developed and applied legal analyses for determining employee and independent contractor status under the FLSA. In sum, employers and workers are already familiar with the standard that WHD and courts will apply when determining a worker's status under the FLSA during any delay of the rule's effective date.
WHD seeks comment on its proposal to delay the Independent Contractor Rule's effective date to May 7, 2021 in order to further review and consider the rule. WHD will consider only comments about its proposal to delay the rule's effective date.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary special local regulation for the 2021 Gasparilla Marine Parade on the waters of Hillsborough Bay in the vicinity of Tampa, Florida. This event is expected to attract over 600 spectator craft along the parade route, with approximately 18 vessels participating in the official flotilla. This regulation is necessary to ensure the safety of public, the official flotilla, and spectator vessels before, during, and after the parade. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before March 8, 2021.
You may submit comments identified by docket number USCG-2020-0703 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Marine Science Technician First Class Michael D. Shackleford, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
On November 23, 2020, Ye Mystic Krewe of Gasparilla notified the Coast Guard that it will be rescheduling the Gasparilla Invasion and Parade from its normal day in Janaury, to April 17, 2021, from 11:30 to 2:00 p.m. The event will occur on certain waters of Hillborough bay, Tampa, Florida. The Captain of the Port St. Petersburg (COTP) has determined that potential hazards associated with the large gathering of vessels during the parade would be a safety concern for anyone within the event area.
The purpose of this rulemaking is to ensure the safety of public, the official flotilla, and spectator vessels on these navigable waters of the United States before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).
The COTP is proposing to establish a special local regulation from 9:00 a.m. to 6:00 p.m. on April 17, 2021. The special local regulation would cover certain waters of Hillsborough Bay in Tampa, Florida and set forth specific requirements for vessels operating within the regulated area during the period of enforcement. Persons and vessels not meeting the requirements of this regulation may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners, Broadcast Notice to Mariners, and/or on-scene designated representatives.
We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on: (1) The special local regulation will be enforced for only nine hours; (2) although certain persons and vessels are prohibited to enter, transit through, anchor in, or remain within the regulated area without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (3) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and/or Broadcast Notice to Mariners; and (4) persons and vessels not meeting the requirements of this regulation may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port or a designated representative.
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 proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121),
This proposed rule would 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation issued in conjunction with a regatta or marine parade. Normally such actions are categorically excluded from further review under paragraph L(60a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(2) All navigable waters within a 100 yards around the vessel JOSE GASPAR while docked at the Tampa Yacht Club and Tampa Convention Center, Tampa, Florida.
(3) When within the marked channels of the parade route, vessels participating in the Gasparilla Marine Parade may not exceed the minimum speed necessary to maintain steerage.
(b)
(2) Jet skis and vessels without mechanical propulsion are prohibited from the parade route.
(3) Vessels less than 10 feet in length are prohibited from the parade route unless capable of safely participating.
(4) Vessels found to be unsafe to participate at the discretion of a present law enforcement officer are prohibited from the parade route.
(5) Northbound vessels in excess of 65 feet in length without mooring arrangement made prior to the date of the event are prohibited from entering Seddon Channel, unless the vessel is officially entered in the Gasparilla Marine Parade.
(6) Vessels not officially entered in the Gasparilla Marine Parade may not enter the parade staging area box within the following coordinates: 27°53′53″ N, 082°27′47″ W; 27°53′22″ N, 082°27′10″ W; 27°52′36″ N, 082°27′55″ W; 27°53′02″ N, 082°28′31″ W.
(7) Designated representatives may control vessel traffic throughout the enforcement area as determined by the prevailing conditions.
(8) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated areas by contacting the COTP St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative.
(d)
Postal Regulatory Commission.
Advance notice of proposed rulemaking.
The Commission is initiating a review seeking input from the public about what additional regulations promulgated by the Commission may be necessary to achieve the objectives of the Postal Accountability and Enhancement Act (PAEA) particularly related to maximizing incentives to increase efficiency and reduce costs, maintaining high-quality service standards, and assuring financial stability (including retained earnings). This advance notice informs the public of the docket's initiation, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Pursuant to 39 U.S.C. 3622(d)(3), the Commission issues this advance notice of proposed rulemaking to seek input from the public about what additional regulations promulgated by the Commission may be necessary to achieve the objectives of the Postal Accountability and Enhancement Act (PAEA)
In Docket No. RM2017-3, the Commission found that the existing Market Dominant ratemaking system did not achieve the PAEA's objectives during the 10 years following the PAEA's enactment.
In response, the Commission modified the ratemaking system's design to encourage and enable the Postal Service to address its complex challenges by making prudent pricing and operational decisions.
However, the objectives of the PAEA related to
Performance-based regulation is a broad concept referring to a regulatory system that applies incentives to promote targeted behavior by the regulated entity.
1. Whether additional regulatory changes are needed to further enhance the Postal Service's incentives to increase efficiency and reduce costs while maintaining high-quality service standards. Why or why not?
2. How to identify and evaluate potential types of regulatory changes that would introduce direct financial consequences that would further enhance the Postal Service's incentives to increase efficiency and reduce costs while maintaining high-quality service standards? Are there any financial consequences that can be drawn from other postal systems or other regulated industries that should be considered?
3. How to identify and evaluate potential types of regulatory changes other than the connection of direct financial consequences that would further enhance the Postal Service's incentives to increase efficiency and reduce costs while maintaining high-quality service standards? Are there any non-financial incentives that can be drawn from other postal systems or other regulated industries that should be considered?
The Commission is interested in exploring whether a regulatory mechanism connecting direct financial consequences with increasing efficiency and reducing costs and maintaining high-quality service standards would benefit the Market Dominant ratemaking system, and how to connect the Postal Service's behavior with the financial incentive introduced. The Commission acknowledges that every proposal has tradeoffs and that it is impossible to refine the connection to a level of absolute precision.
Preliminarily, the Commission is interested in exploring whether and how to introduce a financial incentive by modifying the Postal Service's authority to adjust its rates. Adjustments to rate authority could be upwards (increase rate authority), downwards (reduce rate authority), or both.
One potential method to develop a PIM for both upward and downward adjustments would be to set a “dead-band” around historical performance.
Therefore, to develop a mechanism that would balance simplicity with optimal refinement, the Commission raises the following discussion points:
1. How to identify the percentage of rate authority that would provide a meaningful incentive(s) to the Postal Service, while also not leading to excessive rate increases for mailers nor threatening the financial integrity of the Postal Service?
2. How to identify data and methods available to develop a connection between the amount of the financial incentive(s) at stake with the observed performance (
3. How to identify the relative advantages of applying incentives as upward adjustments (increasing the amount of rate authority(ies)), downward adjustments (reducing the amount of rate authority(ies)), a combination mechanism (both), or another method?
4. How best to administer the chosen method?
The Commission intends to explore whether and how to translate the broad policy goals of the PAEA—incentivizing the Postal Service to increase efficiency and reduce costs—into a specific PIM.
For purposes of evaluating the Postal Service's operational efficiency, total factor productivity (TFP) is a highly comprehensive metric.
The Commission intends to explore whether TFP can be refined to better focus on efficiency gains within the Postal Service's control or whether an alternative metric should be developed. The Postal Service has used the Deliveries per Total Workhours (DPTWH) as an alternative efficiency metric in its annual reports to Congress and to develop its Integrated Financial Plan.
Some of the sources of inefficiency (and the potentially resulting lost opportunities to reduce costs and improve service performance) are known in theory but difficult to correct in practice. The following examples are not intended to exhaustively detail these types of issues and instead are intended to promote thoughtful engagement and exploration of the potential challenges and opportunities to enhance the design of the Market Dominant ratemaking system.
For instance, while the Postal Service acknowledges that it must better align labor with volume, it has stated that this has been difficult to put into practice.
As another example, while the Postal Service acknowledges that it must better encourage preparation of the mail by mailers and/or mail service providers so as to facilitate more efficient handling by the Postal Service, existing practices do not maximize this opportunity.
Generally, the Commission aims to select targets that are outcome-oriented, consistent with the policy goals of the PAEA, objectively measureable and verifiable, readily interpretable, and achievable. Because the Commission is particularly focused on promoting the Postal Service's longer-term financial viability, the Commission is interested in selecting a metric(s) and target(s) for the PIM that would be consistent with ancillary benefits such as increasing the opportunities for reducing costs and improving service performance. Moreover, the Commission intends to consider potential safeguards to incorporate into the PIM, to ensure that results are adequately safeguarded against manipulation and that selection of a shorter-term target would not perversely incentivize behavior that would be detrimental in the longer-term.
Therefore the Commission raises the following discussion points:
1. How to identify possible refinements to TFP to increase its reliability, accuracy, and representativeness as a measure of efficiency gains within the Postal Service's control?
2. How to identify alternative potential metric(s) other than TFP that could be developed or refined as an accurate, reliable, and representative measure of efficiency gains within the Postal Service's control? Should the Commission consider industry-wide, economy-wide, or similar comparative benchmarks for efficiency? Are there any metrics that the Commission can learn from in adjacent industries, other sectors, or other posts?
3. How to identify potential target(s) for efficiency gains?
4. How to identify potential metric(s) and target(s) related to efficiency gains to promote the longer-term financial viability of the Postal Service, such as by increasing the opportunities for cost reduction and/or improved service performance?
5. How to identify potential safeguards designed to minimize manipulation by the operator and prevent the operator from engaging in behavior that would be detrimental over the longer-term?
Additionally, the Commission intends to explore whether and how to translate the policy goal of the PAEA to maintain high-quality service standards into a specific PIM. This goal is intended to encourage the maintenance of high-quality service standards established pursuant to 39 U.S.C. 3691, and to hold the Postal Service accountable for consistently achieving those standards.
The first aspect underlying this goal is referred to as “service standards,” which are the stated days-to-delivery for different types of mail.
The second aspect underlying this goal implicitly requires consistent achievement of service standards, which is referred to as “service performance.”
An effective price cap system maintains reliable, efficient, and economical service.
1. How to identify potential regulatory changes that may be needed to counterbalance any perverse incentive to degrade service standards and/or service performance that may be created by introducing an operational-efficiency based requirement?
2. How to identify the relative advantages of designing a system that creates a direct financial link to changes in service standards?
3. What data and methods could be used to design a system that creates a direct financial link to changes in service standards?
The Commission establishes Docket No. RM2021-2 for consideration of the matters discussed in the body of this advance notice of proposed rulemaking.
The Commission will accept comments and reply comments concerning the topics identified in this advance notice of proposed rulemaking. Comments are due April 15, 2021. Reply comments are due May 17, 2021. Pursuant to 39 U.S.C. 505, Richard A. Oliver is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
The Postal Service shall file the documentation and linked workpapers for its TFP methodology to aid in the evaluation of TFP by February 16, 2021. Materials filed in this docket will be available for review on the Commission's website (
The Regulatory Flexibility Act requires federal agencies, in promulgating rules, to consider the impact of those rules on small entities.
1. Docket No. RM2021-2 is established for the purpose of considering amendments to Chapter III of title 39 of the Code of Federal Regulations as discussed in this advance notice of proposed rulemaking.
2. The Postal Service shall file the documentation and linked workpapers for its total factor productivity methodology, in a manner that displays the formulae used and links to related spreadsheets by February 16, 2021.
3. If the Postal Service proposes to use a metric other than total factor productivity for a performance incentive mechanism, then it shall file a detailed public explanation of the methodology along with its comments.
4. Pursuant to 39 U.S.C. 505, Richard A. Oliver shall serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
5. Interested persons may submit comments no later than April 15, 2021.
6. Interested persons may submit reply comments no later than May 17, 2021.
7. The Secretary shall arrange for publication of this order in the
By the Commission.
This document was received at the Office of the Federal Register on January 19, 2021.
Federal Emergency Management Agency, Department of Homeland Security.
Announcement of meeting; extension of comment period.
The Federal Emergency Management Agency (FEMA) is extending the public comment period for its proposed rule published December 14, 2020, and will hold a public meeting remotely via web conference to solicit feedback on the proposed rule. The rule proposed to substantively revise the “estimated cost of the assistance” disaster declaration factor that FEMA uses to review a Governor's request for a major disaster under the Public Assistance Program.
Written comments on the proposed rule published at 85 FR 80719 (December 14, 2020) may be submitted until 11:59 p.m. ET on Friday, March 12, 2021.
The meeting will take place on Wednesday, February 24, 2021, from 1 to 3 p.m. Eastern Time (ET).
To register in order to make remarks during the meeting, contact the individual listed in the
The meeting will be held via web conference. Members of the public may view the public portion of the meeting online at
Reasonable accommodations are available for people with disabilities. To request a reasonable accommodation, contact the person listed in the
Written comments must be submitted via the Federal eRulemaking Portal at
Tod Wells, Deputy Division Director, Recovery Directorate, Public Assistance, via email at
On December 14, 2020, FEMA published a proposed rule titled Cost of Assistance Estimates in the Disaster Declaration Process for the Public Assistance Program.
On January 20, 2021, Assistant to the President and Chief of Staff Ronald A. Klain issued a memorandum titled “Regulatory Freeze Pending Review” to ensure that President Biden's appointees or designees have the opportunity to review pending rules.
As published on December 14, 2020, FEMA proposes to amend the estimated cost of the assistance factor in 44 CFR 206.48(a)(1) to raise the per capita indicator and the minimum threshold. As is detailed in the proposed rule, the current per capita indicator and minimum threshold do not provide an accurate measure of States' capabilities to respond to disasters.
DRRA further provided that FEMA shall engage in meaningful consultation with relevant representatives of State regional, local, and Indian tribal government stakeholders.
FEMA will carefully consider all relevant comments received during the meeting, and during the rest of the comment period for the proposed rule, which now runs through March 12, 2021, before issuing a final rule. All verbal comments or remarks provided on the proposed rule during the meeting will be recorded and posted to the rulemaking docket on
Federal Communications Commission.
Petitions for Reconsideration; correction.
This document corrects a date that appeared in the
Effective on February 5, 2021.
Valerie Barrish, Office of Economics and Analytics, Auctions Division, (202) 418-0660, or
This document corrects the date by which by which replies to an opposition to the Petitions for Reconsideration (Petitions) filed in the Commission's rulemaking proceeding must be filed, published at 86 FR 6611 on January 22, 2021, which incorrectly listed that date as February 16, 2021, rather than February 18, 2021.
In FR Doc. 2021-00464 appearing on page 6611 in the
1. On page 6611, in the second column, in the
Surface Transportation Board.
Petition for rulemaking.
The Board institutes a rulemaking proceeding to consider a proposal by the Association of American Railroads to establish a new emergency temporary trackage rights class exemption.
Published in the
Comments and replies may be filed with the Board via e-filing on the Board's website at
Nathaniel Bawcombe at (202) 245-0376. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
On October 9, 2020, the Association of American Railroads (AAR) filed a petition requesting that the Board initiate a rulemaking proceeding to establish a new emergency temporary trackage rights class exemption that could be invoked in specific situations and would allow emergency temporary trackage rights to take effect immediately, without need to waive the 30-day notice requirement under 49 CFR 1180.4(g)(1). AAR argues that the current two-step approach for obtaining temporary trackage rights that take effect on less than 30 days' notice is inefficient, and AAR asserts that its proposed class exemption would benefit shippers, railroads, and the Board by providing a streamlined and simple approach for obtaining temporary trackage rights in emergency situations, ensuring the continued flow of commerce without any decrease in regulatory oversight. (Pet. 1-4.) On November 4, 2020, Samuel J. Nasca, for and on behalf of SMART-Transportation Division-New York State Legislative Board (SMART/TD-NY), filed a reply in opposition to AAR's petition.
The Board concludes that it is appropriate to institute a rulemaking proceeding to consider AAR's proposal. The Board will provide an opportunity for additional public participation in a subsequent decision.
Administrative practice and procedure, Railroads, Reporting and recordkeeping requirements.
1. AAR's request to initiate a rulemaking proceeding is granted, as discussed above.
2. Notice of this decision will be published in the
3. This decision is effective on its service date.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and Schultz.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to 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.
Comments regarding this information collection received by March 8, 2021 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of meeting.
The Flathead Resource Advisory Committee (RAC) will meet in Kalispell, Montana. 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 Title II of the Act. RAC information can be found at the following website: https://www.fs.usda.gov/main/flathead/workingtogether/advisorycommittees.
The meetings will be held on:
Monday, March 8, 2021 at 4:00 p.m. Mountain Standard Time;
Tuesday, March 9, 2021 at 4:00 p.m. Mountain Standard Time;
Wednesday, March 10, 2021 at 4:00 p.m. Mountain Standard Time;
Thursday, March 11, 2021 at 4:00 p.m. Mountain Standard Time.
All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meetings will be held virtually.
Written comments may be submitted as described under
Janette Turk, RAC Coordinator, by phone at 406-758-5335 or via email at
Individuals who use telecommunication devices for the hearing-impaired (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00
The purpose of the meeting is to:
1. Discuss, recommend, and approve new Title II projects
The meetings are 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 at any of the meetings should request in writing by Friday, March 5, to be scheduled on that meeting's 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 any of the meetings. Written comments and requests for time for oral comments must be sent to Janette Turk, RAC Coordinator, 650 Wolfpack Way, Kalispell, Montana 59901; by email to
Forest Service, USDA.
Notice of meeting.
The El Dorado County Resource Advisory Committee (RAC) will hold two virtual meetings. 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 meetings will be held at 4:00p.m., Pacific Standard Time on March 3, 2021 and March 17, 2021.
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
Kristi Schroeder, Public Affairs Specialist by phone at (530) 305-6864 or via email at
Individuals who use telecommunication devices for the hearing-impaired (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 meetings is to:
1. Review FACA regulations, update committee governing documents, review past practices and determine new process for project proposals, and solicit project proposals.
The meetings are 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 7 days before either meeting to be scheduled on that meeting's 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 meetings. Written comments and requests for time to make oral comments must be sent to Kristi Schroeder, Eldorado National Forest, 100 Forni Road, Placerville, California 95667; by email to
Forest Service, USDA.
Notice of meeting.
The Southwest Montana Resource Advisory Committee (RAC) will meet virtually. 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 Title II of the Act. RAC information and virtual meeting information can be found at the following website:
The meeting will be held on Friday, March 19, 2021 at 9:00 a.m., Mountain Standard Time.
All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held virtually.
Written comments may be submitted as described under
Jeanne Dawson, RAC Coordinator, by phone at 406-683-3987 or by email at
Individuals who use telecommunication devices for the hearing-impaired (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 discuss and recommend new Title II projects. This 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 Wednesday, March 10, 2021, 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, requests for time for oral comments or requests for instructions to participate virtually must be sent to Jeanne Dawson, RAC Coordinator, 420 Barrett Street, Dillon, Montana 59725, by email to
Forest Service, USDA.
Notice of meeting.
The Tri-County 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 Title II of the Act. RAC information and virtual meeting information can be found at the following website:
The meeting will be held on Wednesday, March 10, 2021 at 9:00 a.m., Mountain Standard Time.
All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held virtually.
Written comments may be submitted as described under
Jeanne Dawson, RAC Coordinator, by phone at 406-683-3987 or by email at
Individuals who use telecommunication devices for the hearing-impaired (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 discuss and recommend new Title II projects. This 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 Wednesday, February 24, 2021, 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, requests for time for oral comments or requests for instructions to participate virtually must be sent to Jeanne Dawson, RAC Coordinator, 420 Barrett Street, Dillon, Montana 59725, by email to
U.S. Commission on Civil Rights.
Announcement of webhearing.
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 the Montana Advisory Committee (Committee) to the Commission will hold a web hearing from 1:00 p.m. to 3:30 p.m. (MT) on Tuesday, March 2, 2021. The purpose of the Montana Advisory Committee meeting is to hear testimony examining voting issues impacting Native Americans. This is the first of two web hearings focused on this topic. Meeting materials and presentations will be available before and after the event at
Tuesday, March 2, 2021 from 1:00 p.m. to 3:30 p.m. (MT).
Ana Victoria Fortes, Designated Federal Officer (DFO) at
This meeting is available to the public through the following toll-free call-in number: 800-360-9505, Access code: 199 695 6272. Any interested member of the public may call this number and listen to the meeting. 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. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012 or email Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Please click on the “Committee Meetings” tab. Records generated from these meetings may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meetings. Persons interested in the work of this Committee are directed to the Commission's website,
U.S. Commission on Civil Rights.
Announcement of webhearing.
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 the Montana Advisory Committee (Committee) to the Commission will hold a web hearing from 1:00 p.m. to 3:30 p.m. (MT) on Thursday, April 15, 2021. The purpose of the Montana Advisory Committee meeting is to hear testimony examining voting issues impacting Native Americans. This is the second of two web hearings focused on this topic. Meeting materials and presentations will be available before and after the event at
Thursday, April 15, 2021 from 1:00 p.m. to 3:30 p.m. (MT).
Ana Victoria Fortes, Designated Federal Officer (DFO) at
This meeting is available to the public through the following toll-free call-in number: 800-360-9505, Access code: 199 941 4784. Any interested member of the public may call this number and listen to the meeting. 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. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012 or email Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Please click on the “Committee Meetings” tab. Records generated from these meetings may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meetings. Persons interested in the work of this Committee are directed to the Commission's website,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable February 5, 2021.
As a result of these sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on carbazole violet pigment 23 (CVP-23) from India and the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Margaret Collins (India) or Marc Castillo (China), AD/CVD Operations, Office VI, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-6250 or (202) 482-0519, respectively.
On December 29, 2004, Commerce published the antidumping duty orders on CVP-23 from India and China.
The merchandise subject to the
All issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation, and the magnitude of dumping margins likely to prevail if the
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the antidumping duty orders on CVP-23 from India and China would likely lead to continuation or recurrence of dumping, and that the magnitude of the dumping margins likely to prevail is up to 241.32 percent for China and up to 44.80 percent for India.
This notice serves as the only reminder to interested parties subject to an APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
Commerce is issuing and publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218, and 19 CFR 351.221(c)(5)(ii).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
NMFS is issuing an experimental fishing permit (EFP) to the Hawaii Longline Association (HLA) to test the conservation and management usefulness of tori lines (bird scaring streamers) in the Hawaii deep-set longline fishery.
The EFP is authorized from January 27, 2021, through January 26, 2022.
Copies of the EFP, HLA's application, and supporting documents are available at
Sarah Ellgen, Sustainable Fisheries, NMFS Pacific Islands Regional Office, tel (808) 725-5173.
NMFS is issuing an EFP to the HLA under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific, and regulations at 50 CFR 665.17. HLA will use up to four stern-setting vessels to test tori lines north of 23° N. Vessels will not be required to use strategic offal
On December 8, 2020, NMFS published a notice of HLA's EFP application and request for public comments (85 FR 78997); we did not receive any comments. More information about the EFP may be found in that notice, and in HLA's application (see
The EFP is effective for one year, unless revoked, suspended, or modified earlier.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of draft Environmental Assessment for public comment.
Notice is hereby given that a draft Environmental Assessment (EA) is available for public comment on a summer steelhead hatchery program and trap and haul program in the Skykomish River Basin, Washington. A Hatchery and Genetics Management Plan (HGMP) was submitted to NMFS for review and determination under the Endangered Species Act (ESA) 4(d) Rule. The trap and haul program would be permitted under section 10 of the ESA.
Comments must be received at the appropriate address (see
Written responses should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is:
Emi Melton at (503) 736-4739 or by email at
The Tulalip Tribes and Washington Department of Fish and Wildlife (collectively the co-managers) have submitted an HGMP to NMFS pursuant to limit six of the ESA 4(d) Rule for a summer steelhead hatchery program in the Skykomish River Basin, Washington.
The hatchery program is intended to contribute to fulfilling federal tribal trust responsibilities and treaty rights guaranteed through treaties and affirmed in
The Washington Department of Fish and Wildlife also submitted an ESA section 10(a)(1)(A) permit application for operation of a trap and haul program in the Skykomish River Basin. This program collects various species of salmon, steelhead, and trout from the fish ladder at Sunset Falls and transports the fish upstream for release into high quality habitat above the falls.
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that America Films, Ltd., Embassy House, Queens Avenue, Bristol, BS8 1SB, United Kingdom, (Responsible Party: Tom Stephens), has applied in due form for a permit to conduct commercial or educational photography on gray whales (
Written, telefaxed, or email comments must be received on or before March 8, 2021.
These documents are available upon written request via email to
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Amy Hapeman or Jordan Rutland, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to film migrating gray whales in California waters for an episode of a television series celebrating the wildlife of North America. Filmmakers may target up to 204 whales in April 2021 for filming topside from the vessel and from an unmanned aircraft system. Up to 68 California sea lions (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
NMFS manages the groundfish fisheries of the Bering Sea and Aleutian Islands Management Area in the Exclusive Economic Zone off Alaska. The North Pacific Fishery Management Council (Council) prepared the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
The Bering Sea pollock fishery is managed under the American Fisheries Act (AFA). The purpose of the AFA was to tighten U.S. ownership standards for U.S. fishing vessels under the Anti-reflagging Act and to provide the Bering Sea pollock fleet the opportunity to conduct its fishery in a more rational manner while protecting non-AFA participants in the other fisheries. The AFA established sector allocations in the Bering Sea pollock fishery, determined eligible vessels and processors, allowed the formation of cooperatives, set limits on the participation of AFA vessels in other fisheries, and imposed special catch weighing and monitoring requirements on AFA vessels.
This information collection contains the annual and periodic reporting requirements for AFA cooperatives. These requirements include reports about on-going fishing operations of the cooperatives and reports specifically focused on efforts to minimize salmon bycatch in the Bering Sea pollock fishery. These reporting requirements are located at 50 CFR 679.21 and 679.61.
This information is used to manage the BS pollock fishery, to evaluate the salmon bycatch management measures, and to provide the public with information about how the program operates and information about bycatch reduction under this program. This information collection provides the Council and NMFS with information about the organization and fishing operations of the AFA cooperatives, allocations to the AFA cooperatives, and the effectiveness of the Chinook salmon and chum salmon bycatch management measures. This information is necessary to ensure long-term conservation and abundance of salmon and pollock, maintain a healthy marine ecosystem, and provide maximum benefit to fishermen and communities that depend on salmon and pollock.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of Information Collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on
To ensure consideration, comments regarding this proposed information collection must be received on or before April 6, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Katie Denman, National Advisory Council Coordinator, Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, MD 20910, (240) 533-0702, and
This is a request for revision and extension of an approved information collection.
Section 315 of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1445a) allows the Secretary of Commerce to establish one or more advisory councils to provide advice to the Secretary regarding the designation and management of national marine sanctuaries. Executive Order 13178 similarly established a Coral Reef Ecosystem Reserve Council pursuant to the NMSA for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve. Councils are individually chartered for each site to meet its specific needs. Once an advisory council has been chartered, a sanctuary superintendent starts a process to recruit members for that council by providing notice to the public and requesting interested parties to apply for the available seat(s) (
Two application forms are currently associated with this information collection: (a) National Marine Sanctuary Advisory Council Application form; and (b) National Marine Sanctuary Advisory Council Youth Seat Application form. Application form instructions will specify requirements imposed upon the agency when reviewing applicants as potential council members or alternates, including the need to assess potential conflicts of interest (or other issues). Questions posed to applicants are being reviewed and an additional question is being added to solicit new information pertinent to the function of advisory councils. Existing questions may be reordered, reworded, and at times, condensed to improve the organization of applicant responses and, thereby, simplify the applicant review process. We do not believe that revisions to the application would appreciably change the average annual number of respondents or the reporting burden for the information requirements supporting solicitation of new advisory council members.
Complete applications may be submitted electronically via email (with attachments), by mail, or by facsimile transmission.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the procurement list.
This action adds product(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
On 10/2/2020, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List. This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the product(s) listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product(s) to the Government.
2. The action will result in authorizing small entities to furnish the product(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) proposed for addition to the Procurement List.
Accordingly, the following product(s) are added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the procurement list.
The Committee is proposing to add service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes product(s) and service(s) previously furnished by such agencies.
Comments must be received on or before: March 7, 2021.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the service(s) listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following service(s) are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following product(s) and service(s) are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
Notice of meeting.
The Commodity Futures Trading Commission (CFTC) announces that on February 23, 2021, from 9:30 a.m. to 2:00 p.m. (Eastern Standard Time), the Market Risk Advisory Committee (MRAC) will hold a public meeting via teleconference. At this meeting, the MRAC will receive reports from its subcommittees: Climate-related Market Risk, CCP Risk and Governance, Market Structure, and Interest Rate Benchmark Reform. The meeting will also include a discussion regarding diversity, equity, and inclusion in the derivatives markets as well as other related financial markets.
The meeting will be held on February 23, 2021, from 9:30 a.m. to 2:00 p.m. (Eastern Standard Time). Please note that the teleconference may end early if the MRAC has completed its business. Members of the public who wish to submit written statements in connection with the meeting should submit them by February 16, 2021.
The meeting will be held via teleconference. You may submit public comments, identified by “Market Risk Advisory Committee,” through the CFTC website at
Any statements submitted in connection with the committee meeting will be made available to the public, including by publication on the CFTC website,
Alicia L. Lewis, MRAC Designated Federal Officer, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 418-5862.
The meeting will be open to the public. Members of the public may listen to the meeting by telephone by calling a domestic toll-free telephone or international toll or toll-free number to connect to a live, listen-only audio feed. Call-in participants should be prepared to provide their first name, last name, and affiliation.
The meeting agenda may change to accommodate other MRAC priorities. For agenda updates, please visit the MRAC committee site at:
All written submissions provided to the CFTC in any form will also be published on the CFTC's website. Persons requiring special accommodations to attend the meeting because of a disability should notify the contact person identified in the
Office of Management (OM), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before April 6, 2021.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Elise Cook, (202) 401-3769.
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.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension to a currently approved collection.
Interested persons are invited to submit comments on or before April 6, 2021.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
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
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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:
This is a supplemental notice in the above-referenced Silverstrand Grid, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 18, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that on January 25, 2021, pursuant to section 292.205(c) of the Federal Energy Regulatory Commission's (Commission) Rules and Regulations,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
ER10-2400-013; ER11-4592-002; ER11-4593-002.
Red Hills Wind Project, L.L.C., Nevada Solar One, LLC,
Tatanka Wind Power, LLC, Blue Canyon Windpower LLC.
ER12-610-010; ER13-338-008; ER19-592-003.
ER20-2237-002.
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:
This is a supplemental notice in the above-referenced Ventura Energy Storage, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 18, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report 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
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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:
Notice of Institution of Section 206 Proceeding and Refund Effective Date
On January 29, 2021, the Commission issued an order in Docket No. EL21-25-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether Richmond Spider Solar, LLC's proposed rate schedule is unjust, unreasonable, unduly discriminatory, or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL21-25-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL21-25-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2020), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
Commission has suspended access to the Commission's Public Reference Room, due to the proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19), issued by the President on March 13, 2020. For assistance, contact FERC at
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
This is a supplemental notice in the above-referenced Microsoft Energy LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to FR Notice Published 12/18/2020; Extending the Comment Period from 01/28/2020 to 02/12/2021.
Federal Communications Commission.
Notice.
In this document, the Wireline Competition Bureau (Bureau) seeks comments on the metrics the Commission should use to evaluate applications for funding and how the Commission should treat applications filed during the funding rounds for awards from the COVID-19 Telehealth Program using amounts appropriated under the CARES Act.
Comments were initially due by January 19, 2021. The Bureau will continue to accept comments on the metrics at any time.
You may submit comments, identified by WC Docket No. 20-89, by any of the following methods:
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○ Filings can be sent by commercial overnight courier or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ 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 45 L Street, NE, 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.
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Stephanie Minnock, Assistant Division Chief, Telecommunications Access Policy Division, Wireline Competition Bureau,
This is a synopsis of the Commission's Public Notice in WC Docket No. 20-89; DA 21-14 released January 6, 2021. 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. Telehealth is a critical tool in the fight against the ongoing COVID-19 pandemic. It can allow medical professionals to monitor non-critical COVID patients in a non-clinical setting, reduce demands on hospital staff and supplies, and avoid potential exposure to the coronavirus for patients seeking treatment for other conditions. The Commission's COVID-19 Telehealth Program awarded $200 million Congress previously appropriated for that purpose, targeting applications from providers in the hardest hit areas that would have the greatest impact on the pandemic. However, demand for the program significantly exceeded available funding.
2. To build on the success of the Commission's COVID-19 Telehealth Program, in the Consolidated Appropriations Act, 2021 Congress appropriated an additional $249.95 million for the Program. The Act requires the Commission to seek comment on “the metrics the Commission should use to evaluate applications for funding” and “how the Commission should treat applications filed during the funding rounds for awards from the COVID-19 Telehealth Program using amounts appropriated under the CARES Act . . . .” Through the Public Notice, the Bureau seeks comments on these matters, as well as how to meet the Act's other requirements for the COVID-19 Telehealth Program and other improvements to the application, review, and invoicing process.
3. Prioritizing Round 2 Funding. The Act directs the Commission to seek comment on the metrics used to evaluate applications for Round 2 Program funding. During Round 1, the Bureau evaluated the Program applications on a rolling basis, targeting funding to areas that were hardest hit by COVID-19 and where the support would have the most impact on addressing health care needs. Although Round 1 funding was not targeted toward specific medical conditions, patient populations, or geographic areas, the Commission strongly encouraged applicants to target the funding received to high-risk and vulnerable patients to the extent practicable. The Commission encouraged applicants under pre-existing strain (
4. The Bureau seeks comments on whether to continue to target funding to health care providers in areas “hardest hit” by COVID-19 at the time of the funding decision. During Round 1, the pandemic impacted some regions much more severely than others, thus allowing the Bureau to identify particular hotspots that were “hardest hit” in comparison to other parts of the country by referencing data published and collected by Johns Hopkins. Given the broader infection rate currently in the U.S., should the Bureau continue to target funding to hardest hit areas? If so, how should the “hardest hit” areas be defined?
5. Similarly, in Round 1 the Commission targeted funding to health care providers under pre-existing strain, which included health care providers that were facing difficulty providing telehealth services prior to the pandemic. In Round 2, what weight should the Bureau give pre-existing strain faced by applicant health care providers? Should pre-existing strains be distinguished from pandemic-related strains many providers now face?
6. During Round 1 of the Program, the Commission “did not anticipate awarding more than $1 million” per applicant to ensure that as many applicants as possible receive funding. Should the Bureau maintain this approach? How should the Bureau address applications filed by statewide entities, large health care providers or health care provider systems with numerous sites?
7. Are there other equitable limitations that will help the Program spread funding to a greater number of health care providers without sacrificing the needs of larger health care providers struggling to treat patients during the pandemic? Should applicants from Round 1 that did not receive $1 million be eligible to receive additional funding? Should applicants from Round 1 that did receive $1 million be eligible to receive additional support in Round 2?
8. Are there any other metrics the Bureau should use to prioritize applications during the evaluation process? Should the Bureau prioritize health care providers serving a large percentage of COVID-19 patients? Are there specific types of telehealth and connected care services that should be prioritized? Should the Bureau prioritize applications from health care providers that seek funding to treat specific at-risk populations, such as Tribal, low-income, or rural communities? If so, how should those populations be defined? Should these applicants be prioritized only if a
9. Ensuring Nationwide Distribution of Funding. The Act directs the Commission, to the extent feasible, to ensure “that not less than 1 applicant in each of the 50 States and the District of Columbia has received funding” from the Program since the program's inception, “unless there is no such applicant eligible for assistance in a State or in the District of Columbia.” To fulfill this requirement, the Bureau proposes accepting Round 2 applications and establishing an application filing window rather than accepting applications on a rolling basis. Although accepting and evaluating applications on a rolling basis allowed the Bureau to quickly review applications and issue funding commitments for the funding appropriated by the CARES Act, this evaluation method will not ensure that funding will be available for applicants in each State and the District of Columbia. Establishing an application filing window would allow the Bureau to prioritize applications using pre-defined evaluation metrics and ensure that funding is provided, to the extent feasible, to at least one applicant in each of the 50 states and the District of Columbia. This approach would also provide all applicants the same period of time to prepare and file applications. The Bureau seeks comments on this approach. If an application filing window is established, how long should the window remain open?
10. Is there an alternative approach that would ensure that the Commission meets this legislative provision? Should the Bureau instead continue to accept applications on a rolling basis, but set aside a portion of funding,
11. Treatment of Round 1 Applications. The Act directs the Commission to seek comment on “how the Commission should treat applications filed during” Round 1 of the Program. The Act also requires the Commission to allow an applicant who filed an application during Round 1 “the opportunity to update or amend that application as necessary.”
12. The Bureau proposes to require applicants to update and resubmit applications that were filed during Round 1 if they want them to be considered for Round 2. The Bureau proposes that Round 1 applications that are not resubmitted during the filing window will not be considered for Round 2. The Bureau makes this proposal because many of the remaining Round 1 applications need to be refreshed and some require substantial amendments. From April to June 2020, the Commission received thousands of applications for Round 1, and committed funding to 539 applicants before the available funding was exhausted. Many of the remaining applications are from ineligible entities or require substantial supplementation to be considered materially complete. Some applicants no longer need funding because they received support for telehealth services from other sources. And, because these applications were filed between April and June 2020, all the remaining applications contain stale information—COVID-19 infection rates in many areas were dramatically lower at that time than they are today, the pandemic was less widespread, and health care providers have had time to refine their strategies for providing services during the pandemic, making it likely that these applicants would, given the opportunity, request different amounts and types of connected devices and eligible services. The Bureau seeks comments on this approach.
13. The Bureau also proposes this approach because the application system used during Round 1 of the Program, which was developed quickly given the emergency situation, is functionally limited, and is not designed to let applicants amend or update their applications after they have been filed. In addition, certain information required to comply with the Act, such as the new evaluation criteria, was not collected in Round 1. Thus, it would be less burdensome for both Round 1 applicants and Commission staff to have Round 1 applicants submit new applications during the Round 2 filing window than to update Round 1 applications in the existing portal. Requiring Round 1 applicants to submit new applicants will increase the speed at which Commission or Universal Service Administrative Company (USAC) staff are able to process and award Round 2 funding. Therefore, the Bureau proposes requiring Round 1 applicants that continue to seek funding to update or amend their applications by submitting a new application for Round 2.
14. Should the Bureau review Round 2 applications filed by Round 1 applicants before evaluating applications from new entities during the Round 2 review process? Should the Bureau prioritize funding applications submitted during Round 2 by applicants that applied, but did not receive any or all of the requested funding, during Round 1? Relatedly, how should the Bureau treat applicants for Round 2 funding that received the full amount of their requested funding during Round 1?
15. Additional Program Improvements. During the process of standing up this Program, the Bureau learned valuable lessons about the unique needs of connected care and health care providers. To build on the lessons learned during Round 1, the Bureau proposes updating the Program's application and invoicing processes and seeks comments on implementing these proposed improvements during Round 2. Specifically, the Bureau proposes using the Universal Service Administrative Company (USAC) to assist in administering the remaining work necessary to complete Round 1 of the Program as well as Round 2. The Bureau further proposes directing USAC to update the portal that will be used by Round 2 applicants, including Round 1 applicants that wish to renew their request for funding under the Program, to submit applications for the funding appropriated by the Act; to conduct an initial review of Round 2 invoices; and to provide outreach and guidance about the application process to applicants. Updating the portal will ensure that all applicants provide the information needed for review under the updated Round 2 application evaluation metrics, facilitate program administration, and reduce administrative burdens on both applicants and Commission staff. However, under this approach Commission staff would make final funding determinations, subject to the requirements of the Act. The Bureau seeks comments on this approach.
16. During Round 1, applicants were required to file FCC Forms 460 to obtain eligibility determinations for all participating health care provider sites. As part of the eligibility determination process, health care provider sites seeking an eligibility determination were assigned a health care provider number by USAC. The Bureau found that requiring health care providers to file FCC Forms 460 for each site delayed our ability to move quickly on many applications, especially those applications with a large number of sites in need of eligibility determinations. Using a different method to determine whether a site is eligible could reduce the administrative burden on applications, the Commission, and USAC during the application review process. Accordingly, the Bureau seeks
17. Finally, are there additional improvements the Bureau should consider making to the application, review, and invoicing processes? For example, during the Round 1 application process, applicants were required to submit documentation demonstrating that funding requests were for equipment and services eligible for Program support, and funding commitments were made based on the anticipated costs of the eligible services requested on their applications. After receiving Round 1 commitments, however, some health care providers seeking support for eligible services and equipment experienced supply chain disruptions and equipment shortages, while other health care providers determined that, due to shifting pandemic response strategies, they needed different services or equipment than those requested in their application. Anticipating these issues, the Commission gave health care providers flexibility to respond to changing circumstances by not requiring health care providers that received funding commitments to purchase only the services and connected devices identified in their applications. Accordingly, health care providers that received funding commitments may have been allowed to substitute vendors, eligible services, and/or eligible connected devices as long as the substituted items are eligible and the total amount sought for reimbursement does not exceed the commitment amount.
18. Should the Bureau maintain this flexibility, but streamline the application process by requiring applicants demonstrate the eligibility of the connected devices and services purchased using Round 2 support only during the invoicing process? Are health care providers still experiencing supply chain delays or noticing shortages of certain connected devices? Have health care providers' pandemic response strategies solidified to the point where they will be able to accurately identify the telecommunication services, information services, or connected devices needed on their application for Round 2? If the Bureau does not require applicants to demonstrate the eligibility of the services and connected devices for which they seek funding on their applications during Round 2, what documentation or demonstration should the Bureau require the applicant to submit to demonstrate that they will use the funding requested for services and devices that are eligible for support? What safeguards should the Bureau consider implementing to ensure that this proposal does not lead to waste, fraud, or abuse of Program funding? Should additional certifications be required on applications and for each invoice to ensure applicants/awardees understand what is expected of them and the potential penalties for waste, fraud, or abuse? Relatedly, should a list of eligible and ineligible equipment and services to provide applicants with specific guidance on what may be requested for reimbursement be published?
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision and extension of a previously approved information collection requirements regarding improper business practices and personal conflicts of interest.
Submit comments on or before March 8, 2021.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Jennifer Hawes, Procurement Analyst, at telephone 202-969-7386, or
9000-0018, Federal Acquisition Regulation Part 3: Improper Business Practices and Personal Conflicts of Interest.
DoD, GSA, and NASA are combining OMB Control Nos. for the Federal Acquisition Regulation (FAR) by FAR part. This consolidation is expected to improve industry's ability to easily and efficiently identify burdens associated with a given FAR part. The review of the information collections by FAR part allows improved oversight to ensure there is no redundant or unaccounted for burden placed on industry. Lastly, combining information collections in a given FAR part is also expected to reduce the administrative burden associated with processing multiple information collections.
This justification supports the revision and extension of OMB Control No. 9000-0018 and combines it with the previously approved information collections under OMB Control No. 9000-0091, with the new title “Federal Acquisition Regulation Part 3: Improper Business Practices and Personal Conflicts of Interest.” Upon approval of this consolidated information collection, OMB Control No. 9000-0091
This clearance covers the information collection that offerors or contractors must submit to comply with the following requirements in FAR Part 3:
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A 60-day notice was published in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision and renewal concerning combating trafficking in persons. DoD, GSA, and NASA invite comments on: whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through September 30, 2021. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by April 6, 2021.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Ms. Mahruba Uddowla, Procurement Analyst, at telephone 703-605-2868, or
This clearance covers the information that offerors contractors must submit to comply with the following Federal Acquisition Regulation (FAR) requirements:
• Any credible information they receive from any source that alleges a contractor employee, subcontractor, or subcontractor employee, or their agent has engaged in conduct that violates the policy in paragraph (b) of the clause 52.222-50; and
• Any actions taken against a contractor employee, subcontractor, subcontractor employee, or their agent pursuant to this clause.
• Contractors are required to provide the compliance plan to the contracting officer upon request.
• Contractors are required to submit a certification to the contracting officer annually after receiving an award, asserting that they have the required compliance plan in place and that there have been no abuses, or that appropriate actions have been taken if abuses have been found.
• For those subcontractors required to submit a certification (see next bullet on flow down), contractors shall require that submission prior to award of the subcontract and annually thereafter. Portions of this clause flows down to all subcontractors. The requirements related to the compliance plan only flow down to subcontracts exceeding $550,000 for supplies (other than COTS items) acquired and services performed outside the United States.
This clause applies to commercial item acquisitions, except the portions related to the compliance plan do not apply to acquisitions of COTS items.
This provision requires apparently successful offerors to submit a certification, prior to award, that they have implemented a compliance plan and that there have been no abuses, or that appropriate actions have been taken if abuses have been found.
The provision requires this certification for the portion of contracts exceeding $550,000 for supplies (other than COTS items) acquired and services performed outside the United States.
This provision applies to commercial item acquisitions, except acquisitions of COTS items.
Centers for Medicare & Medicaid Services, Health and Human 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 March 8, 2021.
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
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
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The MMA under Sec. 1860D-4 (Information to Facilitate Enrollment) requires CMS to conduct consumer satisfaction surveys of enrollees in MA and Part D contracts and report the results to Medicare beneficiaries prior to the annual enrollment period. This request for approval is for CMS to continue conducting the Medicare CAHPS surveys annually to meet the requirement to conduct consumer satisfaction surveys regarding the experiences of beneficiaries with their health and prescription drug plans.
The primary purpose of the Medicare CAHPS surveys is to provide information to Medicare beneficiaries to help them make more informed choices among health and prescription drug plans available to them. Survey results are reported by CMS in the Medicare & You handbook published each fall and on the Medicare Plan Finder website. Beneficiaries can compare CAHPS scores for each health and drug plan as well as compare MA and FFS scores when making enrollment decisions. The Medicare CAHPS also provides data to help CMS and others monitor the quality and performance of Medicare health and prescription drug plans and identify areas to improve the quality of care and services provided to enrollees of these plans. CAHPS data are included in the Medicare Part C & D Star Ratings and used to calculate MA Quality Bonus Payments.
Centers for Medicare & Medicaid Services, Health and Human 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 (the PRA), federal agencies are required to publish notice in the
Comments must be received by April 6, 2021.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
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
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the 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 requires federal agencies to publish a 60-day notice in the
1.
2.
Section 1874A of the Act describes the functions of the contractor. CMHCs must follow the principles of cost reimbursement, which require they maintain sufficient financial records and statistical data for proper determination of costs. The S series of worksheets collects the provider's location, CBSA, date of certification, operations, and unduplicated census days. The A series of worksheets collects the provider's trial balance of expenses for overhead costs, direct patient care services, and non-revenue generating cost centers. The B series of worksheets allocates the overhead costs to the direct patient care and non-revenue generating cost centers using functional statistical bases. The Worksheet C computes the apportionment of costs between Medicare beneficiaries and other patients. The D series of worksheets are Medicare specific and calculate the reimbursement settlement for services rendered to Medicare beneficiaries. The Worksheet F collects the provider's revenues and expenses data from the provider's income statement.
3.
Form CMS-1763 collects the information necessary to process Medicare enrollment terminations. The Request for Termination of Premium Hospital and/or Supplementary Medical Insurance (Form CMS-1763) provides a standardized means to satisfy the requirements of law, as well as allow both agencies to protect the individual from an inappropriate decision.
4.
The information supplied on the form is reviewed by Medicare claims and appeals adjudicators. The adjudicators make determinations whether the form was completed accurately, and if the form is correct and accepted, the form is appended to the claim or appeal that it pertains to.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this Information Collection Request must be received no later than April 6, 2021.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
Deemed PHS employment provides the covered individual with immunity from lawsuits and related civil actions resulting from the performance of medical, surgical, dental, and related functions within the scope of deemed employment.
The FTCA Program utilizes a web based application system, the Electronic Handbooks. The application includes the following: Contact information; Section 1: Review of Risk Management Systems; Section 2: Quality Improvement/Quality Assurance Attestations; Section 3: Credentialing and Privileging; Section 4: Claims Management; and Section 5: Additional Information, Certification, and Signatures.
HRSA is proposing no changes to the Application for Health Center Program Deemed Public Health Service Employment Status information collection request to be used for health center deeming applications for Calendar Year 2022 and thereafter.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Dr. Patricia Wagner, Program Analyst, Office of Intramural Training & Education (OITE), Office of Intramural Research (OIR),
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 13,858.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Center for Scientific Review Advisory Council.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
URL for virtual access:—
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Dr. Arlyn Garcia-Perez, Director of Policy and Analysis, Office of Intramural Research, Office of the Director, National Institutes of Health, 1 Center Drive, MSC 0140, Building 1, Room 160, MSC-0140, Bethesda, Maryland 20892 or call non-toll-free number (301) 496-1921 or (301) 496-1381 or email your request, including your address to:
This proposed information collection was previously published in the
The Office of Intramural Research (OIR), Office of the Director, National Institutes of Health, may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 652.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Advisory Committee to the Director, National Institutes of Health.
The meeting will be held as a virtual meeting and is open to the public as indicated below. Individuals who plan to view the meeting and need special assistance or other reasonable accommodations to view the meeting should notify the Contact Person listed below in advance of the meeting. The meeting will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before May 6, 2021.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2105, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports,
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 30, 2020, under section 337 of the Tariff Act of 1930, as amended, on behalf of One World Technologies, Inc. of Anderson, South Carolina, and Techtronic Power Tools Technology Ltd. of the British Virgin Islands. A supplement to the complaint was filed on January 12, 2021. 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 batteries and products containing same by reason of infringement of the sole claims of U.S. Patent No. D579,868 (“the '868 patent”); U.S. Patent No. D580,353 (“the '353 patent”); and U.S. Patent No. D593,944 (“the '944 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 general exclusion order, or in the alternative 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.
(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 the sole claim of the '868 patent; the sole claim of the '353 patent; and the sole claim of the '944 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 “rechargeable battery packs intended for use with battery-powered products.”
(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 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
(4) 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
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 the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Evolved Wireless, LLC on February 1, 2021. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain LTE-compliant cellular communication devices. The complainant names as respondents: Samsung Electronics Co., Ltd. of South Korea; Samsung Electronics America, Inc. of Ridgefield Park, NJ; and Motorola Mobility LLC of Chicago, IL. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3531”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Sterling Pharma USA LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before April 6, 2021. Such persons may also file a written request for a hearing on the application on or before April 6, 2021.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on January 5, 2021, Sterling Pharma USA, LLC., 1001 Sheldon Drive, Suite 101, Cary, North Carolina 27513-2078, applied to be registered as an bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture in bulk drug code 7370 (Tetrahydrocannabinols) exclusively from hemp extract, for distribution and sale to its customers. No other activity for this drug code is authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Noramco Inc has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before April 6, 2021. Such persons may also file a written request for a hearing on the application on or before April 6, 2021.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on November 3, 2020, Noramco Inc, 1550 Olympic Drive, Athens Georgia 30601, applied to be registered as an bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture bulk active pharmaceutical ingredients (API) and reference standards for distribution to their customers.
In reference to drug codes 7350 (Marihuana Extract), 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetics. No other activities for these drugs are authorized for this registration.
Executive Office for Immigration Review, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), 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 an additional 30 days until March 8, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
If you need a copy of the proposed information collection or additional information, please contact Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone: (703) 305-0289.
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.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice of certain Federal agency requests for records disposition authority (records schedules). We publish notice in the
NARA must receive comments by March 22, 2021.
You may submit comments by either of the following methods. You must cite the control number, which appears on the records schedule in parentheses after the name of the agency that submitted the schedule.
•
•
Kimberly Keravuori, Regulatory and External Policy Program Manager, by email at
We are publishing notice of records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority.
In addition, this notice lists the organizational unit(s) accumulating the records or states that the schedule has agency-wide applicability. It also provides the control number assigned to each schedule, which you will need if you submit comments on that schedule.
We have uploaded the records schedules and accompanying appraisal memoranda to the
We will post comments, including any personal information and attachments, to the public docket unchanged. Because comments are public, you are responsible for ensuring that you do not include any confidential or other information that you or a third party may not wish to be publicly posted. If you want to submit a comment with confidential information or cannot otherwise use the
We will consider all comments submitted by the posted deadline and
We will post schedules on our website in the Records Control Schedule (RCS) Repository, at
Each year, Federal agencies create billions of records. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. The records schedules authorize agencies to preserve records of continuing value in the National Archives or to destroy, after a specified period, records lacking continuing administrative, legal, research, or other value. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
Agencies may not destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value. Public review and comment on these records schedules is part of the Archivist's consideration process.
1. Department of Defense, Defense Logistics Agency, Records of International Affairs and Foreign Military Sales (DAA-0361-2020-0001).
2. Department of Health and Human Services, Administration for Children and Families, Sexual Risk Avoidance Youth Outreach Records (DAA-0292-2020-0004).
3. Department of State, Bureau of Political-Military Affairs, Consolidated Schedule (DAA-0059-2019-0012).
4. Department of the Treasury, Treasury Inspector General for Tax Administration, Non-Evidentiary Audio-Visual Files (DAA-0056-2018-0001).
5. Federal Trade Commission, Bureau of Competition, Hart-Scott-Rodino (HSR) Files (DAA-0122-2020-0002).
6. National Archives and Records Administration, Agency-wide, Leadership and Operations Management (DAA-0064-2020-0001).
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 on or after the date of publication of this notice.
Comments should be received on or before March 8, 2021 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Dawn Wolfgang at (703) 548-2279, emailing
Regulation Z contains several provisions that impose information collection requirements: The information collection requirements for open-end credit products; the information collection requirements for closed-end credit; the information collection requirements that apply to both open- and closed-end mortgage credit; the information collection requirements for specific residential mortgage types-namely, reverse mortgages and high cost mortgages with rates and fees above specified thresholds; the information collection requirements for private education loans; and information collection requirements related to Regulation Z's advertising and record retention rules.
The collection of information pursuant to Part 1026 is triggered by specific events and disclosures and must be provided to consumers within the time periods established under the regulation. To ease the compliance cost (particularly for small credit unions), model forms and clauses are appended to the regulation.
By Melane Conyers-Ausbrooks, Secretary of the Board, the National Credit Union Administration, on February 2, 2021.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans to renew this collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting Office of Management and Budget (OMB) clearance of this collection for no longer than 3 years.
Written comments on this notice must be received by April 6, 2021 to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to the address below.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite W18200, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
NCSES is the primary sponsor of the Survey of Doctorate Recipients (SDR); the National Institutes of Health (NIH) serves as a co-sponsor. The SDR has been conducted biennially since 1973 and is a longitudinal survey. The 2021 SDR will consist of a sample of individuals under 76 years of age who have earned a research doctoral degree in a science, engineering, or health (SEH) field from a U.S. academic institution. The purpose of this panel survey is to collect data to provide national estimates on the doctoral science and engineering workforce and changes in their employment, education, and demographic characteristics. NCSES uses these data to prepare essential congressionally mandated reports (explained below). Government agencies and academic researchers use SDR data and publications to make planning decisions regarding science and engineering research, training, and employment opportunities. Employers also use the SDR to understand trends in employment sectors, industry types, and salary. Students who want to learn about the relationship between graduate education and careers often obtain valuable information from the SDR. Data and publications from the SDR are available to the public on the NCSES website:
The SDR will collect data by web survey, mail questionnaire, and computer-assisted telephone interviews beginning in July 2021. The survey will be collected in conformance with the Confidential Information Protection and Statistical Efficiency Act of 2002 and the individual's response to the survey is voluntary. NCSES will ensure that all information collected will be kept strictly confidential and will be used only for statistical purposes.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556.
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
This request to extend the information collection for three years is to cover the 2022 and 2023 SED survey cycles. Data are obtained primarily via Web survey from each person earning a research doctorate at the time they receive the degree. Graduate schools help distribute the SED to their graduating doctorate recipients.
The survey will be collected in conformance with the NSF Act of 1950, as amended, and the Privacy Act of 1974. Responses from individuals are voluntary. NCSES will ensure that all individually identifiable information collected will be kept strictly confidential and will be used for research or statistical purposes, analyzing data, and preparing scientific reports and articles.
Nuclear Regulatory Commission.
Draft environmental impact statement; extension of comment period.
On November 13, 2020, the U.S. Nuclear Regulatory Commission (NRC) issued for public comment a draft Environmental Impact Statement (EIS) for United Nuclear Corporation's (UNC) license amendment request. UNC is requesting authorization to amend its license (SUA-1475) to excavate approximately 1 million cubic yards (CY) of mine waste from the Northeast Church Rock Mine Site and dispose of it at the existing mill site in McKinley County, New Mexico. The public comment period was originally scheduled to close on December 28, 2020. On December 23, 2020, the NRC extended the public comment until February 26, 2021. The NRC has decided to further extend the public comment until May 27, 2021 to allow more time for members of the public to develop and submit their comments. The NRC plans to further engage the local communities to promote full understanding of the proposed action and facilitate public comment and will also hold a public comment meeting during the extended comment period.
The due date of comments requested in the document published December 23, 2020 (85 FR 84016) is extended. Comments should be filed no later than May 27, 2021. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal Rulemaking Website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
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Ashley Waldron, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7317; email:
Please refer to Docket ID NRC-2019-0026 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this action by the following methods:
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○ Octavia Fellin Public Library Gallup, NM 87301
The NRC encourages electronic comment submission through the Federal Rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission because the NRC does not routinely edit comment submissions before making the comment submissions available to the public or entering the comment submissions into ADAMS.
On November 13, 2020 (85 FR 72706), the NRC issued for public comment the draft EIS for the UNC license amendment to excavate approximately 1 million CY of mine waste from the Northeast Church Rock Mine Site and dispose of it at the existing mill site in McKinley County, New Mexico.
The draft EIS for UNC's license amendment application includes the
The public comment period was originally scheduled to close on December 28, 2020. On December 23, 2020, the NRC extended the public comment until February 26, 2021 (85 FR 84016). The NRC has decided to further extend the public comment until May 27, 2021 to allow more time for members of the public to submit their comments. Comments of Federal, State, and local agencies, Indian Tribes or other interested persons will be made available for public inspection when received.
Stakeholders should monitor the NRC's public meeting website for information about future public meetings at:
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice.
This provides the consolidated notice of all agency specific excepted authorities, approved by the Office of Personnel Management (OPM), under Schedule A, B, and C, as of June 30, 2020, as required by Civil Service Rule VI, Exceptions from the Competitive Service.
Julia Alford, Senior Executive Resources Services, Senior Executive Service and Performance Management, Employee Services, 202-606-2246.
Civil Service Rule VI (5 CFR 6.1) requires the U.S. Office of Personnel Management (OPM) to publish notice of exceptions granted under Schedule A, B, and C. Under 5 CFR 213.103(a) it is required that all Schedule A, B, and C appointing authorities available for use by all agencies to be published as regulations in the
When making appointments under an agency-specific authority, agencies should first list the appropriate Schedule A, B, or C, followed by the applicable number, for example: Schedule A, 213.3104(x)(x). Agencies are reminded that all excepted authorities are subject to the provisions of 5 CFR part 302 unless specifically exempted by OPM at the time of approval.
OPM maintains continuing information on the status of all Schedule A, B, and C appointing authorities. Interested parties needing information about specific authorities during the year may obtain information by writing to the Senior Executive Resource Services, Office of Personnel Management, 1900 E Street NW, Room 7412, Washington, DC 20415, or by calling (202) 606-2246.
The following exceptions are current as of June 30, 2020.
(a) Office of Administration—
(1) Not to exceed 75 positions to provide administrative services and support to the White House Office.
(b) Office of Management and Budget—
(1) Not to exceed 20 positions at grades GS-5/15.
(2) Not to Exceed 34 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of Smarter Information Technology Delivery Initiative. This authority may be used to make permanent, time-limited and temporary appointments to Digital Services Expert positions (GS-301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-14 to 15 level. No new appointments may be made under this authority after September 30, 2017.
(c) Council on Environmental Quality—
(1) Professional and technical positions in grades GS-9 through 15 on the staff of the Council.
(d)-(f) (Reserved)
(g) National Security Council—
(1) All positions on the staff of the Council.
(h) Office of Science and Technology Policy—
(1) Thirty positions of Senior Policy Analyst, GS-15; Policy Analyst, GS-11/14; and Policy Research Assistant, GS-9, for employment of anyone not to exceed 5 years on projects of a high priority nature.
(i) Office of National Drug Control Policy—
(1) Not to exceed 18 positions, GS-15 and below, of senior policy analysts and other personnel with expertise in drug-related issues and/or technical knowledge to aid in anti-drug abuse efforts.
(a) Office of the Secretary—
(1) All positions, GS-15 and below, on the staff of the Family Liaison Office, Director General of the Foreign Service and the Director of Personnel, Office of the Under Secretary for Management.
(2) (Reserved)
(b)-(f) (Reserved)
(g) Bureau of Population, Refugees, and Migration—
(1) Not to exceed 10 positions at grades GS-5 through 11 on the staff of the Bureau.
(h) Bureau of Administration—
(1) (Reserved)
(2) One position of the Director, Art in Embassies Program, GM-1001-15.
(3) (Reserved)
(a) Office of the Secretary—
(1) Not to exceed 20 positions at the equivalent of GS-13 through GS-15 or Senior Level (SL) to supplement permanent staff in the study of complex problems relating to international financial, economic, trade, and energy policies and programs of the Government, when filled by individuals with special qualifications for the particular study being undertaken. Employment under this authority may not exceed 4 years.
(2) Covering no more than 100 positions supplementing permanent staff studying domestic economic and financial policy, with employment not to exceed 4 years.
(3) Not to exceed 100 positions in the Office of the Under Secretary for Terrorism and Financial Intelligence.
(4) Up to 35 temporary or time-limited positions at the GS-9 through 15 grade levels to support the organization, design, and stand-up activities for the Consumer Financial Protection Bureau (CFPB), as mandated by Public Law 111-203. This authority may be used for the following series: GS-201, GS-501, GS-560, GS-1035, GS-1102, GS-1150, GS-1720, GS-1801, and GS-2210. No new appointments may be made under this authority after July 21, 2011, the designated transfer date of the CFPB.
(b)-(d) (Reserved)
(e) Internal Revenue Service—
(1) Twenty positions of investigator for special assignments.
(f) (Reserved)
(g) (Reserved, moved to DOJ)
(h) Office of Financial Stability—
(1) Positions needed to perform investment, risk, financial, compliance, and asset management requiring unique qualifications currently not established by OPM. Positions will be in the Office of Financial Stability and the General Schedule (GS) grade levels 12-15 or Senior Level (SL), for initial employment not to exceed 4 years. No new appointments may be made under this authority after December 31, 2012.
(a) Office of the Secretary—
(1)-(5) (Reserved)
(6) One Executive Secretary, US-USSR Standing Consultative Commission and Staff Analyst (SALT), Office of the Assistant Secretary of Defense (International Security Affairs).
(b) Entire Department (including the Office of the Secretary of Defense and the Departments of the Army, Navy, and Air Force)—
(1) Dependent School Systems overseas—Professional positions in Military Dependent School systems overseas.
(2) Positions in Attaché 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3) Positions of clerk-translator, translator, and interpreter overseas.
(4) Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5) Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense, when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6) Positions in overseas installations of the DOD when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than 2 months following the transfer from the area or separation of a dependent's sponsor: Provided that
(i) A school employee may be permitted to complete the school year; and
(ii) An employee other than a school employee may be permitted to serve up to 1 additional year when the military department concerned finds that the additional employment is in the interest of management.
(7) Twenty secretarial and staff support positions at GS-12 or below on the White House Support Group.
(8) Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9) (Reserved)
(10) Temporary or time-limited positions in direct support of U.S. Government efforts to rebuild and create an independent, free and secure Iraq and Afghanistan, when no other appropriate appointing authority applies. Positions will generally be located in Iraq or Afghanistan, but may be in other locations, including the United States, when directly supporting operations in Iraq or in Afghanistan. No new appointments may be made under this authority after September 30, 2014.
(11) Not to exceed 3,000 positions that require unique cyber security skills and knowledge to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, investigation, investigative analysis and cyber-related infrastructure inter-dependency analysis. This authority may be used to make permanent, time-limited and temporary appointments in the following occupational series: Security (GS-0080), computer engineers (GS-0854), electronic engineers (GS-0855), computer scientists (GS-1550), operations research (GS-1515), criminal investigators (GS-1811), telecommunications (GS-0391), and IT specialists (GS-2210). Within the scope of this authority, the U.S. Cyber Command is also authorized to hire miscellaneous administrative and program (GS-0301) series when those positions require unique cyber security skills and knowledge. All positions will be at the General Schedule (GS) grade levels 09-15 or equivalent. No new appointments may be made under this authority after December 31, 2017.
(c) (Reserved)
(d) General—
(1) Positions concerned with advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information, including scientific and technical positions in the intelligence function; and positions involved in the planning, programming, and management of intelligence resources when, in the opinion of OPM,
(2) Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical, or technical sciences to intelligence work; and professional as well as intelligence technician positions in which a majority of the incumbent's time is spent in advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information or in the planning, programming, and management of intelligence resources.
(e) Uniformed Services University of the Health Sciences—
(1) Positions of President, Vice Presidents, Assistant Vice Presidents, Deans, Deputy Deans, Associate Deans, Assistant Deans, Assistants to the President, Assistants to the Vice Presidents, Assistants to the Deans, Professors, Associate Professors, Assistant Professors, Instructors, Visiting Scientists, Research Associates, Senior Research Associates, and Postdoctoral Fellows.
(2) Positions established to perform work on projects funded from grants.
(f) National Defense University—
(1) Not to exceed 16 positions of senior policy analyst, GS-15, at the Strategic Concepts Development Center. Initial appointments to these positions may not exceed 6 years, but may be extended thereafter in 1-, 2-, or 3-year increments, indefinitely.
(g) Defense Communications Agency—
(1) Not to exceed 10 positions at grades GS-10/15 to staff and support the Crisis Management Center at the White House.
(h) Defense Acquisition University—
(1) The Provost and professors.
(i) George C. Marshall European Center for Security Studies, Garmisch, Germany—
(1) The Director, Deputy Director, and positions of professor, instructor, and lecturer at the George C. Marshall European Center for Security Studies, Garmisch, Germany, for initial employment not to exceed 3 years, which may be renewed in increments from 1 to 2 years thereafter.
(j) Asia-Pacific Center for Security Studies, Honolulu, Hawaii—
(1) The Director, Deputy Director, Dean of Academics, Director of College, deputy department chairs, and senior positions of professor, associate professor, and research fellow within the Asia Pacific Center. Appointments may be made not to exceed 3 years and may be extended for periods not to exceed 3 years.
(k) Business Transformation Agency—
(1) Fifty temporary or time-limited (not to exceed four years) positions, at grades GS-11 through GS-15. The authority will be used to appoint persons in the following series: Management and Program Analysis, GS-343: Logistics Management, GS-346; Financial Management Programs, GS-501; Accounting, GS-510; Computer Engineering, GS-854; Business and Industry, GS-1101; Operations Research, GS-1515; Computer Science, GS-1550; General Supply, GS-2001; Supply Program Management, GS-2003; Inventory Management, GS-2010; and Information Technology, GS-2210.
(l) Special Inspector General for Afghanistan—
(1) Positions needed to establish the Special Inspector General for Afghanistan Reconstruction. These positions provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated and otherwise made available for the reconstruction of Afghanistan. These positions are established at General Schedule (GS) grade levels for initial employment not to exceed 3 years and may, with prior approval of OPM, be extended for an additional period of 2 years. No new appointments may be made under this authority after January 31, 2011.
(a)-(c) (Reserved)
(d) U.S. Military Academy, West Point, New York—
(1) Civilian professors, instructors, teachers (except teachers at the Children's School), Cadet Social Activities Coordinator, Chapel Organist and Choir-Master, Director of Intercollegiate Athletics, Associate Director of Intercollegiate Athletics, Coaches, Facility Manager, Building Manager, three Physical Therapists (Athletic Trainers), Associate Director of Admissions for Plans and Programs, Deputy Director of Alumni Affairs; and Librarian when filled by an officer of the Regular Army retired from active service, and the Military Secretary to the Superintendent when filled by a U.S. Military Academy graduate retired as a regular commissioned officer for disability.
(e)-(f) (Reserved)
(g) Defense Language Institute—
(1) All positions (professors, instructors, lecturers) which require proficiency in a foreign language or knowledge of foreign language teaching methods.
(h) Army War College, Carlisle Barracks, PA—
(1) Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed 5 years, which may be renewed in 1-,2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i) (Reserved)
(j) U.S. Military Academy Preparatory School, West Point, New York—
(1) Positions of Academic Director, Department Head, and Instructor.
(k) U.S. Army Command and General Staff College, Fort Leavenworth, Kansas—
(1) Positions of professor, associate professor, assistant professor, and instructor associated with courses of instruction of at least 10 months duration, for employment not to exceed up to 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(a) General—
(1)-(14) (Reserved)
(15) Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16) All positions necessary for the administration and maintenance of the official residence of the Vice President.
(b) Naval Academy, Naval Postgraduate School, and Naval War College—
(1) Professors, Instructors, and Teachers; the Director of Academic Planning, Naval Postgraduate School; and the Librarian, Organist-Choirmaster, Registrar, the Dean of Admissions, and Social Counselors at the Naval Academy.
(c) Chief of Naval Operations—
(1) One position at grade GS-12 or above that will provide technical, managerial, or administrative support on highly classified functions to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).
(d) Military Sealift Command—
(1) All positions on vessels operated by the Military Sealift Command.
(e)-(f) (Reserved)
(g) Office of Naval Research—
(1) Scientific and technical positions, GS-13/15, in the Office of Naval Research International Field Office which covers satellite offices within the Far East, Africa, Europe, Latin America, and the South Pacific. Positions are to be filled by personnel having specialized experience in scientific and/or technical disciplines of current interest to the Department of the Navy.
(a) Office of the Secretary—
(1) One Special Assistant in the Office of the Secretary of the Air Force. This position has advisory rather than operating duties except as operating or administrative responsibilities may be exercised in connection with the pilot studies.
(b) General—
(1) Professional, technical, managerial and administrative positions supporting space activities, when approved by the Secretary of the Air Force.
(2) Two hundred positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(c) Norton and McClellan Air Force Bases, California—
(1) Not to exceed 20 professional positions, GS-11 through GS-15, in Detachments 6 and 51, SM-ALC, Norton and McClellan Air Force Bases, California, which will provide logistic support management to specialized research and development projects.
(d) U.S. Air Force Academy, Colorado—
(1) (Reserved)
(2) Positions of Professor, Associate Professor, Assistant Professor, and Instructor, in the Dean of Faculty, Commandant of Cadets, Director of Athletics, and Preparatory School of the United States Air Force Academy.
(e) (Reserved)
(f) Air Force Office of Special Investigations—
(1) Positions of Criminal Investigators/Intelligence Research Specialists, GS-5 through GS-15, in the Air Force Office of Special Investigations.
(g) Wright-Patterson Air Force Base, Ohio—
(1) Not to exceed eight positions, GS-12 through 15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special Activities, Wright-Patterson Air Force Base, Ohio, which will provide logistic support management staff guidance to classified research and development projects.
(h) Air University, Maxwell Air Force Base, Alabama—
(1) Positions of Professor, Instructor, or Lecturer.
(i) Air Force Institute of Technology, Wright-Patterson Air Force Base, Ohio—
(1) Civilian deans and professors.
(j) Air Force Logistics Command—
(1) One Supervisory Logistics Management Specialist, GM-346-14, in Detachment 2, 2762 Logistics Management Squadron (Special), Greenville, Texas.
(k) Wright-Patterson AFB, Ohio—
(1) One position of Supervisory Logistics Management Specialist, GS-346-15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(l) Air National Guard Readiness Center—
(1) One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland.
(a) General—
(1) Deputy U.S. Marshals employed on an hourly basis for intermittent service.
(2) Positions at GS-15 and below on the staff of an office of a special counsel.
(3)-(5) (Reserved)
(6) Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed 2 years, but may be extended in 1-year increments for the duration of the in-country program.
(7) Positions necessary throughout DOJ, for the excepted service transfer of NDIC employees hired under Schedule A, 213.3110(d). Authority expires September 30, 2012.
(b) (Reserved)
(c) Drug Enforcement Administration—
(1) (Reserved)
(2) Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS-132 series, grades GS-9 through GS-15.
(3) Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS-7/11.
(d) (Reserved, moved to Justice)
(e) Bureau of Alcohol, Tobacco, and Firearms—
(1) One hundred positions of Criminal Investigator for special assignments.
(2) One non-permanent Senior Level (SL) Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson).
(a) (Revoked 11/19/2009)
(b) Law Enforcement Policy—
(1) Ten positions for oversight policy and direction of sensitive law enforcement activities.
(c) Homeland Security Labor Relations Board/Homeland Security Mandatory Removal Board—
(1) Up to 15 Senior Level and General Schedule (or equivalent) positions.
(d) General—
(1) Not to exceed 800 positions to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, intelligence analysis, investigation, investigative analysis and cyber-related infrastructure interdependency analysis requiring unique qualifications currently not established by OPM. Positions will be in the following occupations: Security (GS-0080), intelligence analysts (GS-0132), investigators (GS-1810), investigative analyst (GS-1805), and criminal investigators (GS-1811) at the General Schedule (GS) grade levels 09-15. No new appointments may be made under this authority after January 5, 2021 or the effective date of the completion of regulations
(e) Papago Indian Agency—Not to exceed 25 positions of Immigration and Customs Enforcement (ICE) Tactical Officers (Shadow Wolves) in the Papago Indian Agency in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood. (Formerly 213.3105(b)(9))
(f) U.S. Citizenship and Immigration Services
(1) Reserved. (Formerly 213.3110(b)(1))
(2) Not to exceed 500 positions of interpreters and language specialists, GS-1040-5/9. (Formerly 213.3110(b)(2))
(3) Reserved. (Formerly 213.3110(b)(3))
(g) U.S. Immigration and Customs Enforcement—
(1) Not to exceed 200 staff positions, GS-15 and below for an emergency staff to provide health related services to foreign entrants. (Formerly 213.3116(b)(16))
(h) Federal Emergency Management Agency—
(1) Field positions at grades GS-15 and below, or equivalent, which are engaged in work directly related to
(2) Not to exceed 30 positions at grades GS-15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency, or for long-term duties or work not directly necessitated by the emergency response effort. No one may be reappointed under this authority for service in connection with a different emergency unless at least 6 months have elapsed since the individual's latest appointment under this authority. (Formerly 213.3195(b))
(3) Not to exceed 350 professional and technical positions at grades GS-5 through GS-15, or equivalent, in Mobile Emergency Response Support Detachments (MERS). (Formerly 213.3195(c))
(i) U.S. Coast Guard—
(1) Reserved. (Formerly 213.3194(a))
(2) Lamplighters. (Formerly 213.3194(b))
(3) Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the Coast Guard Academy, New London, Connecticut. (Formerly 213.3194(c))
(a) General—
(1) Technical, maintenance, and clerical positions at or below grades GS-7, WG-10, or equivalent, in the field service of the Department of the Interior, when filled by the appointment of persons who are certified as maintaining a permanent and exclusive residence within, or contiguous to, a field activity or district, and as being dependent for livelihood primarily upon employment available within the field activity of the Department.
(2) All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3) Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4) Temporary, intermittent, or seasonal field assistants at GS-7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5) Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6) Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7) All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8) Temporary, intermittent, or seasonal positions at GS-7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9) Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators, and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10) Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11) Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the Interior. Employment under this authority shall not exceed 11 weeks a year except with prior approval of OPM.
(12) Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(b) (Reserved)
(c) Indian Arts and Crafts Board—
(1) The Executive Director
(d) (Reserved)
(e) Office of the Assistant Secretary, Territorial and International Affairs—
(1) (Reserved)
(2) Not to exceed four positions of Territorial Management Interns, grades GS-5, GS-7, or GS-9, when filled by territorial residents who are U.S. citizens from the Virgin Islands or Guam; U.S. nationals from American Samoa; or in the case of the Northern Marianas, will become U.S. citizens upon termination of the U.S. trusteeship. Employment under this authority may not exceed 6 months.
(3) (Reserved)
(4) Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(f) National Park Service—
(1) (Reserved)
(2) Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95-565.
(3) Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95-250.
(4) One Special Representative of the Director.
(5) All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(g) Bureau of Reclamation—
(1) Appraisers and examiners employed on a temporary, intermittent, or part-time basis on special valuation or prospective-entry men-review projects where knowledge of local values on conditions or other specialized qualifications not possessed by regular Bureau employees are required for successful results. Employment under this provision shall not exceed 130 working days a year in any individual case: Provided, that such
(h) Office of the Deputy Assistant Secretary for Territorial Affairs—
(1) Positions of Territorial Management Interns, GS-5, when filled by persons selected by the Government of the Trust Territory of the Pacific Islands. No appointment may extend beyond 1 year.
(a) General—
(1) Agents employed in field positions the work of which is financed jointly by the Department and cooperating persons, organizations, or governmental agencies outside the Federal service. Except for positions for which selection is jointly made by the Department and the cooperating organization, this authority is not applicable to positions in the Agricultural Research Service or the National Agricultural Statistics Service. This authority is not applicable to the following positions in the Agricultural Marketing Service: Agricultural commodity grader (grain) and (meat), (poultry), and (dairy), agricultural commodity aid (grain), and tobacco inspection positions.
(2)-(4) (Reserved)
(5) Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS-7 and WG-10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph may not exceed 180 working days in a service year: Provided, that an employee may work as many as 220 working days in a service year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property. This paragraph does not cover trades, crafts, and manual labor positions covered by paragraph (i) of Sec. 213.3102 or positions within the Forest Service.
(6)-(7) (Reserved)
(b)-(c) (Reserved)
(d) Farm Service Agency—
(1) (Reserved)
(2) Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent (WAE) positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for 1 year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(e) Rural Development—
(1) (Reserved)
(2) County committeemen to consider, recommend, and advise with respect to the Rural Development program.
(3)-(5) (Reserved)
(6) Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(f) Agricultural Marketing Service—
(1) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-9 and below in the tobacco, dairy, and poultry commodities; Meat Acceptance Specialists, GS-11 and below; Clerks, Office Automation Clerks, and Computer Clerks at GS-5 and below; Clerk-Typists at grades GS-4 and below; and Laborers under the Wage System. Employment under this authority is limited to either 1,280 hours or 180 days in a service year.
(2) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-11 and below in the cotton, raisin, peanut, and processed and fresh fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS-5 and below; Clerk-Typists at grades GS-4 and below; and, under the Federal Wage System, High Volume Instrumentation (HVI) Operators and HVI Operator Leaders at WG/WL-2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG-10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS-5, may be employed as trainees for the first appointment for an initial period of 6 months for training without regard to the service year limitation.
(3) Milk Market Administrators
(4) All positions on the staffs of the Milk Market Administrators.
(g)-(k) (Reserved)
(l) Food Safety and Inspection Service—
(1)-(2) (Reserved)
(3) Positions of Meat and Poultry Inspectors (Veterinarians at GS-11 and below and non-Veterinarians at appropriate grades below GS-11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(m) Grain Inspection, Packers and Stockyards Administration—
(1) One hundred and fifty positions of Agricultural Commodity Aid (Grain), GS-2/4; 100 positions of Agricultural Commodity Technician (Grain), GS-4/7; and 60 positions of Agricultural Commodity Grader (Grain), GS-5/9, for temporary employment on a part-time, intermittent, or seasonal basis not to exceed 1,280 hours in a service year.
(n) Alternative Agricultural Research and Commercialization Corporation—
(1) Executive Director
(a) General—
(1)-(2) (Reserved)
(3) Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing.
(b)-(c) (Reserved)
(d) Bureau of the Census—
(1) Positions in support of decennial operations (including decennial pre-tests). Appointments may be made on a time limited basis that lasts the duration of decennial operations but may not exceed 7 years. Extensions beyond 7 years may be requested on a case-by-case basis
(2) Positions of clerk, field representative, field leader, and field supervisor in support of data collection operations (non-decennial operations). Appointments may be made on a permanent or a time-limited basis. Appointments made on a time limited basis may not exceed 4 years. Extensions beyond 4 years may be requested on a case-by-case basis.
(e)-(h) (Reserved)
(i) Office of the Under Secretary for International Trade—
(1) Fifteen positions at GS-12 and above in specialized fields relating to
(2) (Reserved)
(3) Not to exceed 15 positions in grades GS-12 through GS-15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period not to exceed 2 years and may, with prior OPM approval, be extended for an additional 2 years.
(j) National Oceanic and Atmospheric Administration—
(1)-(2) (Reserved)
(3) All civilian positions on vessels operated by the National Ocean Service.
(4) Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed 8 months in any 1 calendar year.
(k) (Reserved)
(l) National Telecommunication and Information Administration—
(1) Thirty-eight professional positions in grades GS-13 through GS-15.
(a) Office of the Secretary—
(1) Chairman and five members, Employees' Compensation Appeals Board.
(2) Chairman and eight members, Benefits Review Board.
(b)-(c) (Reserved)
(d) Employment and Training Administration—
(1) Not to exceed 10 positions of Supervisory Manpower Development Specialist and Manpower Development Specialist, GS-7/15, in the Division of Indian and Native American Programs, when filled by the appointment of persons of one-fourth or more Indian blood. These positions require direct contact with Indian tribes and communities for the development and administration of comprehensive employment and training programs.
(a) General—
(1) Intermittent positions, at GS-15 and below and WG-10 and below, on teams under the National Disaster Medical System including Disaster Medical Assistance Teams and specialty teams, to respond to disasters, emergencies, and incidents/events involving medical, mortuary and public health needs.
(b) Public Health Service—
(1) (Reserved)
(2) Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3) (Reserved)
(4) Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(5)-(6) (Reserved)
(7) Not to exceed 50 positions associated with health screening programs for refugees.
(8) All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9) (Reserved)
(10) Health care positions of the National Health Service Corps for employment of any one individual not to exceed 4 years of service in health manpower shortage areas.
(11)-(15) (Reserved)
(c)-(e) (Reserved)
(f) Reserved
(a) Positions concerned with problems in education financed and participated in by the Department of Education and a cooperating State educational agency, or university or college, in which there is joint responsibility for selection and supervision of employees, and at least one-half of the expense is contributed by the cooperating agency in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(a) All positions
(a) Construction Division—
(1) Temporary construction workers paid from “purchase and hire” funds and appointed for not to exceed the duration of a construction project.
(b) Alcoholism Treatment Units and Drug Dependence Treatment Centers—
(1) Not to exceed 400 positions of rehabilitation counselors, GS-3 through GS-11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(c) Board of Veterans' Appeals—
(1) Positions, GS-15, when filled by a member of the Board. Except as provided by section 201(d) of Public Law 100-687, appointments under this authority shall be for a term of 9 years, and may be renewed.
(2) Positions, GS-15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(d) Vietnam Era Veterans Readjustment Counseling Service—
(1) Not to exceed 600 positions at grades GS-3 through GS-11, involved in the Department's Vietnam Era Veterans Readjustment Counseling Service.
(e) Not to Exceed 75 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of Smarter Information Technology Delivery Initiative. This authority may be used to make permanent, time-limited and temporary appointments to non-supervisory Digital Services Expert positions (GS-301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-15 level. No new appointments may be made under this authority after September 30, 2017.
(a) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in
(b) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in that area under the Small Business Act, as amended. No one may serve under this authority for more than an aggregate of 2 years without a break in service of at least 6 months. Persons who have had more than 2 years of service under paragraph (a) of this section must have a break in service of at least 8 months following such service before appointment under this authority. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(a)-(b) (Reserved)
(c) Temporary or time-limited positions that are directly related with resolving failing insured depository institutions; financial companies; or brokers and dealers; covered by the Dodd-Frank Wall Street Reform and Consumer Protection Act, including but not limited to, the marketing and sale of institutions and any associated assets; paying insured depositors; and managing receivership estates and all associated receivership management activities, up to termination. Time limited appointments under this authority may not exceed 7 years.
(a) (Reserved)
(b) Positions when filled by member-residents of the Home.
(a) Not to Exceed 203 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of Smarter Information Technology Delivery Initiative. This authority may be used nationwide to make permanent, time-limited and temporary appointments to Digital Services Expert positions (GS-301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-11 to 15 level. No new appointments may be made under this authority after September 30, 2017.
(a) State Directors
(a) One hundred and fifty alien scientists having special qualifications in the fields of aeronautical and space research where such employment is deemed by the Administrator of the National Aeronautics and Space Administration to be necessary in the public interest.
(a) Arizona District Offices—
(1) Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(b) New Mexico—
(1) Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(c) Alaska—
(1) Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts).
(a) (Reserved)
(a) (Reserved)
(b) (Reserved)
(a) (Reserved, expired 3/31/2004)
(a) (Reserved, expired 9/30/2007)
(b)
(1) Positions of Resident Country Director and Deputy Resident Country Director, Threshold Director and Deputy Threshold Director. The length of appointments will correspond to the length or term of the compact agreements made between the MCC and the country in which the MCC will work, plus one additional year to cover pre- and post-compact agreement related activities.
(a) (Reserved)
(b) Smithsonian Tropical Research Institute—All positions located in Panama which part are of or which support the Smithsonian Tropical Research Institute.
(c) National Museum of the American Indian—Positions at GS-15 and below requiring knowledge of, and experience in, tribal customs and culture. Such positions comprise approximately 10 percent of the Museum's positions and, generally, do not include secretarial, clerical, administrative, or program support positions.
(a) One Asian Studies Program Administrator, one International Security Studies Program Administrator, one Latin American Program Administrator, one Russian Studies Program Administrator, two Social Science Program Administrators, one Middle East Studies Program Administrator, one African Studies Program Administrator, one Global Sustainability and Resilience Program Administrator, one Canadian Studies Program Administrator; one China Studies Program Administrator, and one Science, Technology and Innovation Program Administrator.
(a) (Reserved, expired 9/23/1998)
(a) Executive Director
(a) National Endowment for the Arts—
(1) Artistic and related positions at grades GS-13 through GS-15 engaged in the review, evaluation and administration of applications and grants supporting the arts, related research and assessment, policy and program development, arts education, access programs and advocacy, or
(a) One Enterprise Development Fund Manager. Appointment is limited to four years unless extended by OPM.
(a)-(c) (Reserved)
(d) Part-time and intermittent positions of test examiners at grades GS-8 and below.
(a)-(d) (Reserved)
(e) Maritime Administration—
(1)-(2) (Reserved)
(3) All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration.
(4)-(5) (Reserved)
(6) U.S. Merchant Marine Academy, positions of: Professors, Instructors, and Teachers, including heads of Departments of Physical Education and Athletics, Humanities, Mathematics and Science, Maritime Law and Economics, Nautical Science, and Engineering; Coordinator of Shipboard Training; the Commandant of Midshipmen, the Assistant Commandant of Midshipmen; Director of Music; three Battalion Officers; three Regimental Affairs Officers; and one Training Administrator.
(7) U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant.
(f) Up to 40 positions at the GS-13 through 15 grade levels and within authorized SL allocations necessary to support the following credit agency programs of the Department: the Federal Highway Administration's Transportation Infrastructure Finance and Innovation Act Program, the Federal Railroad Administration's Railroad Rehabilitation and Improvement Financing Program, the Federal Maritime Administration's Title XI Program, and the Office of the Secretary's Office of Budget and Programs Credit Staff. This authority may be used to make temporary, time-limited, or permanent appointments, as the DOT deems appropriate, in the following occupational series: Director or Deputy Director SL-301/340, Origination Team Lead SL-301, Deputy Director/Senior Financial Analyst GS-1160, Origination Financial Policy Advisor GS-301, Credit Budgeting Team Lead GS-1160, Credit Budgeting Financial Analysts GS-1160, Portfolio Monitoring Lead SL-1160, Portfolio Monitoring Financial Analyst GS-1160, Financial Analyst GS-1160. No new appointments may be made under this authority after December 31, 2014.
(a) (Reserved)
(b) Office of the Special Representative for Trade Negotiations—
(1) Seventeen positions of economist at grades GS-12 through GS-15.
(a) (1) One non-permanent senior level position to serve as Science and Technology Advisor to the Secretary.
(b)-(c) (Reserved)
(d) Seventeen positions on the household staff of the President's Guest House (Blair and Blair-Lee Houses).
(e) (Reserved)
(f) Scientific, professional, and technical positions at grades GS-12 to GS-15 when filled by persons having special qualifications in foreign policy matters. Total employment under this authority may not exceed 4 years.
(a) Positions of Deputy Comptroller of the Currency, Chief National Bank Examiner, Assistant Chief National Bank Examiner, Regional Administrator of National Banks, Deputy Regional Administrator of National Banks, Assistant to the Comptroller of the Currency, National Bank Examiner, Associate National Bank Examiner, and Assistant National Bank Examiner, whose salaries are paid from assessments against national banks and other financial institutions.
(b)-(c) (Reserved)
(d) (Reserved) Transferred to 213.3211(b)
(e) (Reserved) Transferred to 213.3210(f)
(a) Office of the Secretary—
(1) (Reserved)
(2) Professional positions at GS-11 through GS-15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller).
(3)-(4) (Reserved)
(5) Four Net Assessment Analysts.
(b) Interdepartmental activities—
(1) Seven positions to provide general administration, general art and information, photography, and/or visual information support to the White House Photographic Service.
(2) Eight positions, GS-15 or below, in the White House Military Office, providing support for airlift operations, special events, security, and/or administrative services to the Office of the President.
(c) National Defense University—
(1) Sixty-one positions of Professor, GS-13/15, for employment of any one individual on an initial appointment not to exceed 3 years, which may be renewed in any increment from 1 to 6 years indefinitely thereafter.
(d) General—
(1) One position of Law Enforcement Liaison Officer (Drugs), GS-301-15, U.S. European Command.
(2) Acquisition positions at grades GS-5 through GS-11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(e) Office of the Inspector General—
(1) Positions of Criminal Investigator, GS-1811-5/15.
(f) Department of Defense Polygraph Institute, Fort McClellan, Alabama—
(1) One Director, GM-15.
(g) Defense Security Assistance Agency—
All faculty members with instructor and research duties at the Defense Institute of Security Assistance Management, Wright Patterson Air Force Base, Dayton, Ohio. Individual appointments under this authority will be for an initial 3-year period, which may be followed by an appointment of indefinite duration.
(a) U.S. Army Command and General Staff College—
(1) Seven positions of professors, instructors, and education specialists. Total employment of any individual under this authority may not exceed 4 years.
(a) Naval Underwater Systems Center, New London, Connecticut—
(1) One position of Oceanographer, grade GS-14, to function as project director and manager for research in the weapons systems applications of ocean eddies.
(b) Armed Forces Staff College, Norfolk, Virginia—All civilian faculty positions of professors, instructors, and teachers on the staff of the Armed Forces Staff College, Norfolk, Virginia.
(c) Defense Personnel Security Research and Education Center—One Director and four Research Psychologists at the professor or GS-15 level.
(d) Marine Corps Command and Staff College—All civilian professor positions.
(e) Executive Dining facilities at the Pentagon—One position of Staff Assistant, GS-301, whose incumbent will manage the Navy's Executive Dining facilities at the Pentagon.
(f) (Reserved)
(a) Air Research Institute at the Air University, Maxwell Air Force Base, Alabama—Not to exceed four interdisciplinary positions for the Air Research Institute at the Air University, Maxwell Air Force Base, Alabama, for employment to complete studies proposed by candidates and acceptable to the Air Force. Initial appointments are made not to exceed 3 years, with an option to renew or extend the appointments in increments of 1-, 2-, or 3-years indefinitely thereafter.
(b)-(c) (Reserved)
(d) Air University—Positions of Instructor or professional academic staff at the Air University associated with courses of instruction of varying durations, for employment not to exceed 3 years, which may be renewed for an indefinite period thereafter.
(e) U.S. Air Force Academy, Colorado—One position of Director of Development and Alumni Programs, GS-301-13.
(a) Drug Enforcement Administration—Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS-5 through 11. Service under the authority may not exceed 4 years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(b) (Reserved)
(c) Not to exceed 400 positions at grades GS-5 through 15 assigned to regional task forces established to conduct special investigations to combat drug trafficking and organized crime.
(d) (Reserved)
(e) United States Trustees—Positions, other than secretarial, GS-6 through GS-15, requiring knowledge of the bankruptcy process, on the staff of the offices of United States Trustees or the Executive Office for U.S. Trustees.
(f) Bureau of Alcohol, Tobacco, and Firearms—
(1) Positions, grades GS-5 through GS-12 (or equivalent), of Criminal Investigator. Service under this authority may not exceed 3 years and 120 days.
(a) Coast Guard.
(1) (Reserved)
(b) Secret Service—Positions concerned with the protection of the life and safety of the President and members of his immediate family, or other persons for whom similar protective services are prescribed by law, when filled in accordance with special appointment procedures approved by OPM. Service under this authority may not exceed:
(1) A total of 4 years; or
(2) 120 days following completion of the service required for conversion under Executive Order 11203.
(a) Foreign Agricultural Service—
(1) Positions of a project nature involved in international technical assistance activities. Service under this authority may not exceed 5 years on a single project for any individual unless delayed completion of a project justifies an extension up to but not exceeding 2 years.
(b) General—
(1) Temporary positions of professional Research Scientists, GS-15 or below, in the Agricultural Research Service, Economic Research Service, and the Forest Service, when such positions are established to support the Research Associateship Program and are filled by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and the agency. Appointments are limited to proposals approved by the appropriate Administrator. Appointments may be made for initial periods not to exceed 2 years and may be extended for up to 2 additional years. Extensions beyond 4 years, up to a maximum of 2 additional years, may be granted, but only in very rare and unusual circumstances, as determined by the Human Resources Officer for the Research, Education, and Economics Mission Area, or the Human Resources Officer, Forest Service.
(2) Not to exceed 55 Executive Director positions, GM-301-14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative.
(a) Bureau of the Census—
(1) (Reserved)
(2) Not to exceed 50 Community Services Specialist positions at the equivalent of GS-5 through 12.
(b)-(c) (Reserved)
(d) National Telecommunications and Information Administration—
(1) Not to exceed 10 Telecommunications Policy Analysts, grades GS-11 through 15. Employment under this authority may not exceed 2 years.
(a) Administrative Review Board—Chair and a maximum of four additional Members.
(b) (Reserved)
(c) Bureau of International Labor Affairs—
(1) Positions in the Office of Foreign Relations, which are paid by outside funding sources under contracts for specific international labor market technical assistance projects. Appointments under this authority may not be extended beyond the expiration date of the project.
(a) Seventy-five positions, not to exceed GS-13, of a professional or analytical nature when filled by persons, other than college faculty members or candidates working toward college degrees, who are participating in mid-career development programs authorized by Federal statute or regulation, or sponsored by private nonprofit organizations, when a period of work experience is a requirement for completion of an organized study program. Employment under this authority shall not exceed 1 year.
(b) Fifty positions, GS-7 through GS-11, concerned with advising on
(a) Not to exceed 800 principal investigatory, scientific, professional, and technical positions at grades GS-11 and above in the medical research program.
(b) Not to exceed 25 Criminal Investigator (Undercover) positions, GS-1811, in grades 5 through 12, conducting undercover investigations in the Veterans Health Administration (VA) supervised by the VA, Office of Inspector General. Initial appointments shall be greater than 1 year, but not to exceed 4 years and may be extended indefinitely in 1-year increments.
(a) International Broadcasting Bureau—
(1) Not to exceed 200 positions at grades GS-15 and below in the Office of Cuba Broadcasting. Appointments may not be made under this authority to administrative, clerical, and technical support positions.
(a) (Reserved)
(b) Director, Health Care Services; Director, Member Services; Director, Logistics; and Director, Plans and Programs.
(a) Executive Director, National Historical Publications and Records Commission.
(a) Not to exceed 40 positions of Astronaut Candidates at grades GS-11 through 15. Employment under this authority may not exceed 3 years.
(a) One position of Deputy Director; and one position of Associate Director of the Division of Supervision, Enforcement, and Fair Lending.
(a) (Reserved)
(a) (Reserved)
(b) Freer Gallery of Art—
(1) Not to exceed four Oriental Art Restoration Specialists at grades GS-9 through GS-15.
(a) Two Program Coordinators.
(a) Naval Home, Gulfport, Mississippi—
(1) One Resource Management Officer position and one Public Works Officer position, GS/GM-15 and below.
(a) (Reserved)
(b) National Endowment for the Humanities—
(1) Professional positions at grades GS-11 through GS-15 engaged in the review, evaluation, and administration of grants supporting scholarship, education, and public programs in the humanities, the duties of which require in-depth knowledge of a discipline of the humanities.
(a) Not to exceed eight positions of Associate Director at the Executive Seminar Centers at grades GS-13 and GS-14. Appointments may be made for any period up to 3 years and may be extended without prior approval for any individual. Not more than half of the authorized faculty positions at any one Executive Seminar Center may be filled under this authority.
(b) Center for Leadership Development—No more than 72 positions of faculty members at grades GS-13 through GS-15. Initial appointments under this authority may be made for any period up to 3 years and may be extended in 1, 2, or 3-year increments.
5 U.S.C. 3301 and 3302; E.O.10577, 3 CFR, 1954-1958 Comp., p.218.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule. 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 amend its Fees Schedule in connection with Related Future Cross (“RFC”) orders, effective January 19, 2021.
By way of background, from March 16 to June 12, 2020, the Exchange closed its trading floor in response to the coronavirus pandemic. As a result, the Exchange operated in an all-electronic configuration. Because the trading floor was closed during this time, floor brokers could not execute crosses of option combos (
After the Exchange reopened its trading floor, the Exchange submitted a rule filing which permanently adopted RFC orders for trading in the Exchange's normal hybrid trading environment under Rule 5.33(b)(5).
The Exchange proposes to amend the Fees Schedule in light of the adoption of RFC orders on a permanent basis. As noted above, footnote 12 currently provides that the SPX and SPXW Execution Surcharges will be waived for SPX/SPXW RFC orders, and that the RFC Execution Surcharge for SPX/SPXW and VIX will apply to all SPX/SPXW and VIX RFC initiating orders, only when the trading floor is inoperable.
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 rule change is consistent with the Act, in that, it is reasonable, equitable and not unfairly discriminatory. The proposed rule change is reasonable because it does not alter the SPX/SPXW Execution Surcharge fee waiver and SPX/SPXW and VIX RFC Execution Surcharges currently applicable to RFC orders (while the trading floor may be inoperable), but merely updates the waiver and surcharge language to appropriately reflect its application to the permanent RFC orders recently adopted by the Exchange. The Exchange believes that, generally, the SPX/SPXW Execution Surcharge waiver in place for RFC orders is reasonable and equitable because it will encourage market participants to submit volume executed as RFC orders both electronically and on the trading floor, assisting the Exchange in maintaining a robust hybrid environment. Also, the Exchange believes that, generally, the RFC Execution Surcharges currently in place are reasonable and equitable, as they are generally in line with or lower than other execution surcharges assessed under the Fees Schedule,
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the SPX/SPXW Execution Surcharge waiver and the RFC Execution Surcharges will continue to apply to all TPHs that submit RFC orders to the Exchange as it does today, and will uniformly apply to RFC orders executed electronically and in open outcry. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the transaction fee waiver will continue to apply to RFC orders available only for Exchange proprietary products, SPX/SPXW and VIX.
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)
The Exchange proposes to amend Rule 6.86-O (Firm Quotes) to eliminate the use of dark series on the Exchange. The proposed 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 rule change is to eliminate the exclusion of inactive or “dark” series (as described below) from the requirements of Rule 6.86-O (Firm Quotes) and to delete in its entirety Commentary .03 to Rule 6.86-O in its entirety.
Rule 6.86-O describes the obligations of the Exchange to collect, process and make available to quotation vendors the best bid and best offer for each option series that is a reported security.
By way of background, Commentary .03 to Rule 6.86 was adopted over a decade ago in connection with the Penny Pilot Program, which has since been made permanent.
As discussed further below, the Exchange believes that OPRA has the capacity to accommodate any increase in quote traffic from the Exchange arising from the publication of quotes in “dark series.” As an OPRA participant, the Exchange makes capacity requests to OPRA. Notwithstanding Commentary .03 to Rule 6.86-O, when the Exchange makes capacity requests to OPRA, it has always factored the total quote traffic it receives from Market Makers, including quotes in dark series.
The Exchange also believes that the proposed discontinuation of its suppression of quotes in dark series would increase transparency and enhance price discovery. Specifically, as proposed, all Market Maker quotes (including in “inactive series” under the current Rule) would be displayed and reflected in the market to the benefit of all market participants who would be on notice of such liquidity. The Exchange also notes that, over the years, certain market participants have expressed confusion regarding what quotes are being published and which are being suppressed. Therefore, the Exchange believes that the proposal would remove the element of potential confusion among market participants by publishing all quotes (not just those in active series) in the disseminated quote feed.
Importantly, since the adoption of Commentary .03 to Rule 6.86-O, the Exchange has implemented the following measures that serve as additional safeguards against excessive quoting:
Monitoring: The Exchange actively monitors the quotation activity of its Market Makers. When the Exchange detects that a Market Maker is disseminating an unusual number of quotes, the Exchange contacts that Market Maker and alerts it to such activity. Such monitoring may reveal that the Market Maker may have internal system issues or has incorrectly set system parameters that were not immediately apparent. Alerting a Market Maker to the heightened levels of activity will usually result in a change that reduces the number of quotes sent to the Exchange by the Market Maker.
The Exchange believes that these quote mitigation strategies would allow the Exchange to continue to effectively mitigate quote message traffic.
In connection with the foregoing, the Exchange proposes to amend paragraphs (b)(1) and (b)(2) of Rule 6.86-O to delete references to the “Quote Mitigation Plan,” and to delete in its entirety Commentary .03 to Rule 6.86-O.
The Exchange will announce the implementation date of the proposed rule change in a Trader Update within 60 days of rule approval.
The Exchange believes that its proposal is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed elimination of Commentary .03 to Rule 6.86-O (and references to quote mitigation in Rule 6.86-O) would promote just and equitable principles of trade, as well as serve to remove impediments to and perfect the mechanism of a free and open market because the Exchange's systems capacity is more than sufficient to accommodate any increase in quote traffic to OPRA as a result of the proposed rule change. First, the Exchange believes that the proposed rule change would promote just and equitable principles of trade, as well as serve to remove impediments to and perfect the mechanism of a free and open market because the proposed change would increase transparency and enhance price discovery. Specifically, as proposed, all Market Maker quotes (including those in “inactive series” under the current Rule) would be displayed and reflected in the market to the benefit of all market participants who would be on notice of such liquidity. The Exchange also believes that the proposal would remove the element of potential confusion among market participants by publishing all quotes (not just those in active series) in the disseminated quote feed.
In addition, the proposed change would promote just and equitable principles of trade, as well as serve to remove impediments to and perfect the mechanism of a free and open market because the Exchange's capacity requests already presume that all series are active. Hence, the Exchange believes that the existing capacity planning at OPRA already factors in quotes in dark series being lit and therefore does not believe that the elimination of this rule (and any resulting increase in quote traffic) would have a negative impact on capacity.
The Exchange further believes that the existing quote mitigation strategies (
Importantly, the circumstances giving rise to Commentary .03 to Rule 6.86-O—industry-wide concern about “capacity issues related to excessive quoting rates”—has subsided given that OPRA capacity has increased exponentially over the last decade coincident with the influx of new options exchanges. In addition, the proposed increase in quote traffic as a result of this proposal is minimal and therefore unlikely to adversely impact the flow of message traffic and/or harm downstream consumers of OPRA data. As noted above, the increase in quotes message traffic in dark series is already considered in the Exchange's capacity requests to OPRA and already published to downstream users of OPRA data. As such, the Exchange believes the proposed change would not impede the protection of investors and the public interest. Thus, the Exchange believes there is sufficient capacity at OPRA to accommodate any additional quote traffic that will result from elimination of dark series. The Exchange therefore believes that its proposal will not impact the protection of investors and the public interest.
Finally, as discussed above, the Exchange does not anticipate that its proposal would negatively impact systems capacity. However, to the extent it does, the Exchange has analyzed its capacity and represents that it and the OPRA have the necessary systems capacity to handle any incremental additional traffic associated with this proposed rule change.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, as discussed above, the Exchange believes that any increase in quote traffic that might be sent to OPRA as a result of the proposed rule change would be minimal and should not impact any other exchange's capacity at OPRA. The Exchange likewise believes that there would be no adverse impact on any downstream consumers of OPRA data given that any increase in quote traffic would be minimal and has already been included in the Exchange's capacity planning requests to OPRA.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and sections 6-07(2)(a), (b), and (c) of Regulation S-X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers.
The Advisors' Inner Circle Fund (the “Trust”), a Massachusetts business trust registered under the Act as an open-end management investment company that offers the Cornerstone Advisors Core Plus Bond Fund and the Cornerstone Advisors Global Public Equity Fund (the “Existing Funds”), and Pathstone Family Office, LLC (the “Adviser”), a Delaware limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940 (collectively with the Trust, the “Applicants”).
The application was filed on September 29, 2020, and amended on January 15, 2021.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on February 25, 2021, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
The Commission:
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879, or Lisa Reid Ragen, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. The Adviser will serve as the investment adviser to each Sub-Advised Fund pursuant to an investment advisory agreement with the Trust (the “Investment Management Agreement”).
2. Applicants request an order to permit the Adviser, subject to Board approval, to enter into investment sub-advisory agreements with the Sub-Advisers (each, a “Sub-Advisory Agreement”) and materially amend such Sub-Advisory Agreements without obtaining the shareholder approval required under section 15(a) of the Act and rule 18f-2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Sub-Advised Fund shareholders and
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Investment Management Agreements will remain subject to shareholder approval while the role of the Sub-Advisers is substantially equivalent to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Sub-Advised Funds. Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Sub-Advised Funds.
For the Commission, by the Division of Investment Management, under delegated authority.
On December 2, 2020, New York Stock Exchange LLC (“NYSE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposal so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 18, 2020, New York Stock Exchange LLC (“NYSE” or “Exchange”) 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”)
Under the proposal, the Exchange states that the Commission recently adopted Rule 6c-11 under the Investment Company Act of 1940 (“1940 Act”)
The Exchange proposes standards that would pertain to Exchange-Traded Fund Shares to qualify for listing and trading pursuant to Rule 19b-4(e) under the Act, as follows:
Proposed NYSE Rule 5.2(j)(8)(a) would provide that the Exchange would consider for trading, whether by listing or on a UTP basis, Exchange-Traded Fund Shares that meet the criteria of proposed NYSE Rule 5.2(j)(8). Proposed NYSE Rule 5.2(j)(8)(a) is based on NYSE Arca Rule 5.2-E(j)(8)(a) without any differences.
Proposed NYSE Rule 5.2(j)(8)(b) would specify applicability of proposed NYSE Rule 5.2(j)(8) and would provide that it is applicable only to Exchange-Traded Fund Shares. Proposed NYSE Rule 5.2(j)(8)(b) would further provide that, except to the extent inconsistent with proposed NYSE Rule 5.2(j)(8) or unless the context otherwise requires, Exchange rules would be applicable to the trading on the Exchange of such securities and that Exchange-Traded Fund Shares would be included within the definition of NMS Stock as defined in NYSE Rule 1.1. Proposed NYSE Rule 5.2(j)(8)(b) is based on NYSE Arca Rule 5.2-E(j)(8)(b) without any differences.
Proposed NYSE Rule 5.2(j)(8)(c) would set forth the proposed rule's applicable definitions, which are based on NYSE Arca Rule 5.2-E(j)(8)(c) without any differences, as follows:
• Proposed NYSE Rule 5.2(j)(8)(c)(1) would define the term “1940 Act” to mean the Investment Company Act of 1940, as amended.
• Proposed NYSE Rule 5.2(j)(8)(c)(2) would define the term “Exchange-Traded Fund” as having the same meaning as the term “exchange-traded fund” as defined in Rule 6c-11(a)(1) under the 1940 Act.
• Proposed NYSE Rule 5.2(j)(8)(c)(3) would define the term “Exchange-Traded Fund Share” to mean a share of stock issued by an Exchange-Traded Fund.
• Proposed NYSE Rule 5.2(j)(8)(c)(4) would define the term “Reporting Authority” to mean with respect to a particular series of Exchange-Traded Fund Shares, the Exchange, an institution, or a reporting service designated by the Exchange or by the exchange that lists a particular series of Exchange-Traded Fund Shares (if the Exchange is trading such series pursuant to unlisted trading privileges) as the official source for calculating and reporting information relating to such series, including, but not limited to, any current index or portfolio value, the current value of the portfolio of any securities required to be deposited in connection with issuance of Exchange-Traded Fund Shares, the amount of any dividend equivalent payment or cash distribution to holders of Exchange-Traded Fund Shares, net asset value, or other information relating to the issuance, redemption or trading of Exchange-Traded Fund Shares. A series of Exchange-Traded Fund Shares may have more than one Reporting Authority, each having different functions.
Proposed NYSE Rule 5.2(j)(8)(d) would specify the limitations on Exchange liability and relates to limitations of the Exchange, the Reporting Authority, or any agent of the Exchange as a result of specified events and conditions. Specifying such limitations of liability is standard in the Exchange's rules governing the listing of Exchange-Traded Products and the proposed rule text is substantively identical to NYSE Rules 5.2(j)(3)(D), 8.100(f), 8.201(f), 8.200(f), 8.202(f), 8.203(f), 8.204(g), 8.300(f), 8.400(f), 8.500(e), 8.600(e), and 8.700(g). Proposed NYSE Rule 5.2(j)(8)(d) is based on NYSE Arca Rule 5.2-E(j)(8)(d) without any differences.
Proposed NYSE Rule 5.2(j)(8)(e) would provide that the Exchange may approve Exchange-Traded Fund Shares for listing and/or trading (including on a UTP basis) pursuant to Rule 19b-4(e) under the Exchange Act provided that each series of Exchange-Traded Fund Shares must be eligible to operate in reliance on Rule 6c-11 under the 1940 Act and must satisfy the requirements of proposed NYSE Rule 5.2(j)(8)(as described below) upon initial listing and, except for subparagraph (1)(A) of proposed Rule NYSE 5.2(j)(8)(e), on a continuing basis. As further proposed, an issuer of such securities must notify the Exchange of any failure to comply with such requirements. Proposed NYSE Rule 5.2(j)(8)(e) is based on NYSE Arca Rule 5.2-E(j)(8)(e) without any differences.
Proposed NYSE Rule 5.2(j)(8)(e)(1) sets forth the initial and continued listing standards for Exchange-Traded Fund Shares to be listed on the NYSE and would provide that Exchange-Traded Fund Shares will be listed and traded on the Exchange subject to the requirement that the investment
Proposed NYSE Rule 5.2(j)(8)(e)(1)(A) provides that, for each series of Exchange-Traded Fund Shares, the Exchange will establish a minimum number of Exchange-Traded Fund Shares required to be outstanding at the time of commencement of trading on the Exchange. Proposed NYSE Rule 5.2(j)(8)(e)(1)(A) is based on NYSE Arca Rule 5.2-E(j)(8)(e)(1)(A) without any differences.
Proposed NYSE Rule 5.2(j)(8)(e)(2) would set forth the standards for suspension of trading or removal of Exchange-Traded Fund Shares from listing on the Exchange and would provide that the Exchange will consider the suspension of trading in, and will commence delisting proceedings under NYSE Rule 5.5(m) of, a series of Exchange-Traded Fund Shares under any of the following circumstances:
(A) If the Exchange becomes aware that the investment company is no longer eligible to operate in reliance on Rule 6c-11;
(B) if the investment company no longer complies with the requirements set forth in NYSE Rule 5.2(j)(8);
(C) if, following the initial twelve-month period after commencement of trading on the Exchange of a series of Exchange-Traded Fund Shares, there are fewer than 50 beneficial holders of such series of Exchange-Traded Fund Shares; or
(D) if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable (
Proposed NYSE Rule 5.2(j)(8)(e)(2) is based on NYSE Arca Rule 5.2-E(j)(8)(e)(2) without any differences.
Proposed NYSE Rule 5.2(j)(8)(f) would provide that transactions in Exchange-Traded Fund Shares would occur during the trading hours specified in Rule 7.34(a) for Exchange-listed securities. Proposed NYSE Rule 5.2(j)(8)(f) is based on NYSE Arca Rule 5.2-E(j)(8)(f) with a difference to cross reference the Exchange's rule governing the hours of trading. In addition, unlike NYSE Arca, Exchange-listed securities trade on the Exchange only during Core Trading Hours.
Proposed NYSE Rule 5.2(j)(8)(g) would provide that the Exchange would implement and maintain written surveillance procedures for Exchange-Traded Fund Shares. This proposed rule is based, for example, on Commentary .01(f) to NYSE Rule 5.2(j)(3) (for Investment Company Units); Commentary .03 to NYSE Rule 8.600 (for Managed Fund Shares); and Commentary .04 to NYSE Rule 8.700 (for Managed Trust Securities). Proposed NYSE Rule 5.2(j)(8)(g) is based on NYSE Arca Rule 5.2-E(j)(8)(g) without any differences.
Proposed NYSE Rule 5.2(j)(8)(h) would provide that, upon termination of an investment company issuing Exchange-Traded Fund Shares, the Exchange would require that Exchange-Traded Fund Shares issued in connection with such entity be removed from Exchange listing. Proposed NYSE Rule 5.2(j)(8)(h) is based on NYSE Arca Rule 5.2-E(j)(8)(h) without any differences.
Proposed Commentary .01 to NYSE Rule 5.2(j)(8) would provide that a security that has previously been approved for listing on the Exchange pursuant to the generic listing requirements specified in NYSE Rule 5.2(j)(3) or Commentary .01 to NYSE Rule 8.600, or pursuant to a proposed rule change approved or subject to a notice of effectiveness by the Commission, may be considered approved for listing solely under NYSE Rule 5.2(j)(8) if such security is eligible to operate in reliance on Rule 6c-11 under the 1940 Act. Once so approved for listing, the continued listing requirements applicable to such previously-listed security will be those specified in paragraph (e) of NYSE Rule 5.2(j)(8). Any requirements for listing as specified in NYSE Rule 5.2(j)(3) or Commentary .01 to NYSE Rule 8.600, or an approval order or notice of effectiveness of a separate proposed rule change that differ from the requirements of NYSE Rule 5.2(j)(8) will no longer be applicable to such security. Commentary .01 to proposed NYSE Rule 5.2(j)(8) is based on Commentary .01 to NYSE Arca Rule 5.2-E(j)(8) without any differences.
Proposed Commentary .02 to NYSE Rule 5.2(j)(8) is based on Commentary .02 to NYSE Arca Rule 5.2-E(j)(8)(a) without any differences, and would establish the following requirements that each series of Exchange-Traded Fund Shares based on an index would be required to meet on an initial and continued listing basis:
(1) If the underlying index is maintained by a broker-dealer or fund adviser, the broker-dealer or fund adviser will erect and maintain a “fire wall” around the personnel who have access to information concerning changes and adjustments to the index and the index will be calculated by a third party who is not a broker-dealer or fund adviser, and
(2) Any advisory committee, supervisory board, or similar entity that advises a Reporting Authority or that makes decisions on the index composition, methodology and related matters, must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the applicable index.
In addition, with respect to series of Exchange-Traded Fund Shares that are actively managed, if the investment adviser to the investment company issuing Exchange-Traded Fund Shares is affiliated with a broker-dealer, such investment adviser will erect and maintain a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such portfolio. Personnel who make decisions on the portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable portfolio. The Reporting Authority that provides information relating to the portfolio of a series of Exchange-Traded Fund Shares must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of such portfolio.
The Exchange represents that Exchange-Traded Fund Shares will be subject to all Exchange rules applicable to equities trading. With respect to Exchange-Traded Fund Shares, all obligations relating to product description and prospectus delivery requirements will continue to apply in accordance with Exchange rules and federal securities laws, and the Exchange and the Financial Industry Regulatory Authority, Inc. (“FINRA”) will continue to monitor Exchange members for compliance with such requirements, which are not changing as a result of Rule 6c-11 under the 1940 Act.
With respect to trading halts, the Exchange represents that it may consider all relevant factors in
The Exchange proposes to adopt new NYSE Rule 7.18(d)(2) modeled on NYSE Arca Rule 7.18-E(d)(2) that would govern trading halts for listed ETPs (which would include Exchange-Traded Fund Shares). Proposed NYSE Rule 7.18(d)(2) would provide that, with respect to an ETP listed on the Exchange for which a Net Asset Value (“NAV”) (and in the case of Managed Fund Shares under NYSE Rule 8.600 and Managed Trust Securities under NYSE Rule 8.700, a Disclosed Portfolio) is disseminated, if the Exchange becomes aware that the NAV (or in the case of Managed Fund Shares or Managed Trust Securities, the Disclosed Portfolio) is not being disseminated to all market participants at the same time, it will halt trading in the affected Exchange Traded Product on the NYSE until such time as the NAV (or in the case of Managed Fund Shares or Managed Trust Securities, the Disclosed Portfolio, as applicable) is available to all market participants.
The Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the Exchange-Traded Fund Shares in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange will implement and maintain written surveillance procedures to monitor trading in Exchange-Traded Fund Shares on the NYSE.
Pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. As provided for under proposed NYSE Rule 5.2(j)(8)(e)(2), if the investment company or series of Exchange-Traded Fund Shares is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under Rule 5.5(m).
The Exchange will implement and maintain written surveillance procedures to monitor issuer compliance with the requirements of proposed NYSE Rule 5.2(j)(8) for Exchange-Traded Funds on the NYSE. For example, the Exchange will use intraday alerts that will notify Exchange personnel of trading activity throughout the day that may indicate that certain disclosures are not being made accurately or that other unusual conditions or circumstances are present that could be detrimental to the maintenance of a fair and orderly market. The Exchange will require periodic certification from the issuer of a series of Exchange-Traded Fund Shares that it is in compliance with Rule 6c-11 and the requirements of NYSE Rule 5.2(j)(8).
Proposed NYSE Rule 5.2(j)(8)(e)(2)(i) provides that the Exchange will consider the suspension of trading in, and will commence delisting proceedings under NYSE Rule 5.5(m) of, a series of Exchange-Traded Fund Shares if the Exchange becomes aware that the investment company is no longer eligible to operate in reliance on Rule 6c-11. The Exchange's awareness for purposes of determining whether to suspend trading or delist a series of Exchange-Traded Fund Shares may result from notification by the investment company or by the Exchange learning, through its own efforts, of non-compliance with NYSE Rule 5.2(j)(8).
After careful review, the Commission finds that the proposed rule change is consistent with the Act and rules and regulations thereunder applicable to a national securities exchange.
The Exchange proposes to adopt new NYSE Rule 5.2(j)(8) to establish generic listing standards pursuant to Rule 19b-4(e) under the Act
In addition, as stated above, the Exchange represents that proposed NYSE Rule 7.18(d)(2) governing trading halts for NYSE-listed ETPs (which would include Exchange-Traded Fund Shares), is based on NYSE Arca Rule 7.18-E(d)(2). The Commission believes that NYSE's proposed Rule 7.18(d)(2) is substantively identical to NYSE Arca Rule 7.18-E(d)(2) and concludes that this proposed rule does not present any novel or unique regulatory issues. The Commission therefore finds that this proposed rule change relating to trading halts is consistent with Section 6(b)(5) of the Act
This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, including the Exchange's representations relating to its surveillance procedures. Specifically, the Exchange represents, among other things, that its surveillance procedures are adequate to properly monitor the trading of the Exchange-Traded Fund Shares in all trading sessions and to deter and detect violations of Exchange rules, and that the Exchange will implement and maintain written surveillance procedures to monitor trading in Exchange-Traded Fund Shares on the NYSE.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Schedule of Fees and Rebates (“Fee Schedule”) related to co-location services to add two Partial Cabinet Solution bundles. 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 Exchange proposes to amend its Fee Schedule related to co-location
Proposed Addition of Option E and Option F PCS Bundles
The Fee Schedule currently lists four PCS bundles, Options A through D. As originally formulated, each PCS bundle option included a partial cabinet powered to a maximum of 2 kilowatts (“kW”); access to the liquidity center network (“LCN”) and internet protocol (“IP”) networks, the local area networks available in the data center; two fiber cross connections; and connectivity to one of two time feeds.
In May 2020, the Exchange amended PCS bundle Options C and D to each include two 10 Gb connections to the NMS Network, an alternate dedicated network connection that Users could use to access the NMS feeds for which the Securities Industry Automation Corporation (“SIAC”) is engaged as the securities information processor (“SIP”).
In response to customer interest, the Exchange now proposes to add two new PCS bundles to the Fee Schedule. Proposed Options E and F would be substantially similar to Options C and D, respectively, with the difference that each connection included in the proposed bundles would be upgraded to 40 Gb from 10 Gb: That is, proposed Options E and F would include a 1 kw (Option E) or 2 kw (Option F) partial cabinet, one 40 Gb LCN connection, one 40 Gb IP network connection, two 40 Gb NMS Network connections, and either the Network Time Protocol Feed or the Precision Timing Protocol. Users selecting an Option E or F bundle would be charged the same initial charge of $10,000 that currently applies to Options C and D. In addition, Users would be charged monthly recurring charges (“MRC”) of $18,000 for an Option E bundle and $19,000 for an Option F bundle. The Exchange proposes that Users that purchase Option E or F bundles on or before December 31, 2021 would receive a 50% reduction in the MRC for the first 12 months.
The amended portion of the Fee Schedule would read as follows (proposed additions
The Exchange proposes that General Note 2 of the Fee Schedule—which currently applies to PCS bundle Options A through D—would also apply to proposed Option E and F bundles, without alteration. Specifically, a User and its Affiliates would be limited to one PCS bundle at a time, and a User and its Affiliates must have an Aggregate Cabinet Footprint of 2 kW or less to qualify for a PCS bundle.
The Exchange is not proposing any changes to PCS bundle Options A through D.
The proposed changes would not apply differently to distinct types or sizes of market participants. Rather, they would apply to all Users equally.
Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, is completely voluntary and the Fee Schedule is applied uniformly to all Users.
A User may host another entity in its space within the data center. Such Users
Based on conversations with Users and potential customers, the Exchange believes that Hosting Users offer bundles (“Hosting User Bundles”) that include cabinet space and space on shared LCN, IP, and NMS network connections, and that the Hosting User Bundles provide their end users with a service similar to that of the PCS bundles.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The proposed changes are not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable and would perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, for the following reasons.
The Exchange believes that it is reasonable to expand its PCS bundle options by offering the proposed Option E and F bundles. Currently, the Exchange offers Users the ability to purchase connectivity to the LCN/NMS and IP/NMS networks in 10 Gb and 40 Gb bandwidths, but within the Exchange's existing PCS bundle options, 40 Gb connections are not available. This means that at present, Users interested in the PCS bundled services—either because they have minimal power and cabinet space demands or because the costs attendant with having a dedicated cabinet are too burdensome—cannot access 40 Gb connections and are limited to the 10 Gb connections offered as part of the Option C and D bundles. Users and potential customers have requested that the Exchange provide them the opportunity to purchase PCS bundles that include 40 Gb connections, which would enable them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have everywhere. The Exchange believes that it is reasonable to offer the proposed Option E and F bundles to satisfy this customer demand, while continuing to offer the existing bundle offerings, in order to provide potential Users of the PCS bundled services an additional 40 Gb option for their network connection requirements.
Additionally, the Exchange believes that the proposed change may make PCS bundles more competitive with the services that Hosting Users offer. Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options.
The Exchange believes that the proposed charges for the Option E and F bundles are reasonable. The Exchange proposes that Users choosing the Option E or F bundles would pay the same $10,000 initial charge that Users currently pay when choosing the Option C or D bundles, which reflects the fact that setting up each of these four cabinet options involves a similar amount of work for the Exchange. It is also reasonable for the Exchange to set MRC charges of $18,000 for an Option E bundle (a $4,000 increase over Option C) and $19,000 for an Option F bundle (a $4,000 increase over Option D) which reflects the fact that the Exchange will have to supply multiple 40 Gb connections in the Option E and F bundles, as opposed to the 10 Gb connections included in the Option C and D bundles.
The Exchange believes that it is reasonable to provide a period of eligibility for a 50% MRC reduction as an incentive to Users to utilize the Option E and F bundles. Similar 50% MRC reductions were proposed and approved for Options A through D when those product offerings were added to the Fee Schedule.
The Exchange believes its proposal is not unfairly discriminatory. The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
The Exchange believes that the proposed charges for Option E and F bundles are not unfairly discriminatory. The proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12
The Exchange believes that its proposal equitably allocates its fees among its market participants.
The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. Specifically, the proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options. Potential Users could benefit from having an additional 40 Gb option for their network connection requirements, which would allow them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have elsewhere.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms, and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange believes that the proposal will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of Section 6(b)(8) of the Act.
The Exchange believes that the proposed changes would not place any burden on intramarket competition that is not necessary or appropriate.
The Exchange's offering of the proposed Option E and F bundles would provide potential Users of PCS bundles a wider range of choices, which would be especially beneficial for potential Users with minimal power and cabinet space demands, but which could nevertheless benefit from an additional 40 Gb option for their network connection requirements. The Exchange believes that the proposed change may make PCS bundles more attractive to potential Users who might otherwise opt to become Hosted Customers, and thus would enhance the competitive environment for potential Users, who would then have more options from which to select. At the same time, however, no potential User would be obligated to purchase a PCS bundle, and it would still have the options offered by Hosting Users.
The Exchange believes that the proposed changes will not impose any burden on intermarket competition that is not necessary or appropriate. The proposed change is not meant to affect competition among national securities exchanges. Rather, the Exchange believes that the proposed change is a reasonable attempt to maintain a more level playing field between the Exchange and the Hosting Users, who compete for Hosted Customer business. Because Hosting Users' services are not regulated, they may offer differentiated pricing and are not required to make their pricing public. The Exchange believes that the proposed change may make PCS bundles more attractive to potential users who might otherwise opt to become Hosted Customers.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining price, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognizing that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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: 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 is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”).
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 the Fee Schedule to: (1) Adopt Port fees; and (2) increase the Exchange's network connectivity fees for its 10 gigabit (“Gb”) ultra-low latency (“ULL”) fiber connection for Members
The Exchange initially filed this proposal on October 1, 2020.
The Exchange proposes to adopt fees for “Ports”, which are used by Members and non-Members to access the Exchange. MIAX Emerald provides four Port types: (i) The Financial Information Exchange (“FIX”) Port,
Since the launch of the Exchange, all Port fees have been waived by the Exchange in order to incentivize market participants to connect to the Exchange, except for additional Limited Service MEI Ports. However, also at launch, the Exchange introduced the structure of Port fees on its Fee Schedule (without proposing the actual fee amounts), in order to indicate to market participants that Port fees would ultimately apply upon expiration of the Waiver Period. The Exchange now proposes to assess monthly Port fees for Members and non-Members in each month the market participant is credentialed to use a Port in the production environment and based upon the number of credentialed Ports that a user is entitled to use. MIAX Emerald has Primary and Secondary Facilities and a Disaster Recovery Facility. Each type of Port provides access to all Exchange facilities for a single fee. The Exchange notes that, unless otherwise specifically set forth in the Fee Schedule, the Port fees include the information communicated through the Port. That is, unless otherwise specifically set forth in the Fee Schedule, there is no additional charge for the information that is communicated through the Port apart from what the user is assessed for each Port.
Since the launch of the Exchange, fees for FIX Ports have been waived for the Waiver Period. The Exchange now proposes to assess a monthly FIX Port fee to Members in each month the Member is credentialed to use a FIX Port in the production environment and based upon the number of credentialed FIX Ports, as follows: $550 for the first FIX Port; $350 for FIX Ports two through five; and $150 for each FIX Port over five.
Below is the proposed table showing the FIX Port fees:
MIAX Emerald offers different options of MEI Ports depending on the services required by Market Makers. Since the launch of the Exchange, fees for MEI Ports have been waived for the Waiver Period. The Exchange now proposes to assess monthly MEI Port Fees to Market Makers based upon the number of classes or class volume accessed by the Market Maker. Market Makers are allocated two (2) Full Service MEI Ports
Specifically, the Exchange proposes to adopt MEI Port fees assessable to Market Makers based upon the number of classes or class volume accessed by the Market Maker. The Exchange proposes to adopt the following MEI Port fees: (i) $5,000 for Market Maker Assignments in up to 5 option classes or up to 10% of option classes by volume; (ii) $10,000 for Market Maker Assignments in up to
The Exchange also proposes to adopt new footnote “” for its MEI Port fees that will apply to the Market Makers who fall within the following MEI Port fee levels, which represent the 4th and 5th levels of the fee table: Market Makers who have (i) Assignments in up to 100 option classes or up to 50% of option classes by volume and (ii) Assignments in over 100 option classes or over 50% of option classes by volume up to all option classes listed on MIAX Emerald. Specifically, the Exchange proposes for these monthly MEI Port tier levels, if the Market Maker's total monthly executed volume during the relevant month is less than 0.025% of the total monthly executed volume reported by OCC in the customer account type for MIAX Emerald-listed option classes for that month, then the fee will be $14,500 instead of the fee otherwise applicable to such level.
The purpose of this proposed lower monthly MEI Port fee is to provide a lower fixed cost to those Market Makers who are willing to quote the entire Exchange market (or substantial amount of the Exchange market), as objectively measured by either number of classes assigned or national ADV, but who do not otherwise execute a significant amount of volume on the Exchange. The Exchange believes that, by offering lower fixed costs to Market Makers that execute less volume, the Exchange will retain and attract smaller-scale Market Makers, which are an integral component of the option industry marketplace, but have been decreasing in number in recent years, due to industry consolidation and lower market maker profitability. Since these smaller-scale Market Makers utilize less Exchange capacity due to lower overall volume executed, the Exchange believes it is reasonable and appropriate to offer such Market Makers a lower fixed cost. The Exchange notes that other options exchanges assess certain of their fees at different rates, based upon a member's participation on that exchange,
For the calculation of the monthly MEI Port Fees that apply to Market Makers, the number of classes is defined as the greatest number of classes the Market Maker was assigned to quote in on any given day within the calendar month and the class volume percentage is based on the total national average daily volume in classes listed on MIAX Emerald in the prior calendar quarter.
Market Maker assignment percentage of national average daily volume = [total volume during the prior calendar quarter in a class in which the Market Maker was assigned]/[total national volume in classes listed on MIAX in the prior calendar quarter].
The Exchange currently charges $50 per month for each additional Limited Service MEI Port per matching engine for Market Makers over and above the two (2) Limited Service MEI Ports per matching engine that are allocated with the Full Service MEI Ports. The Full Service MEI Ports, Limited Service MEI Ports and the additional Limited Service MEI Ports all include access to the Exchange's Primary and Secondary data centers and its Disaster Recovery center. Currently, footnote “*” in the MEI Port Fee table provides that the fees for Additional Limited Service MEI Ports are not subject to the Waiver Period. Accordingly, in connection with this proposal, the Exchange proposes to delete footnote “*” since the Exchange proposes to begin assessing MEI Port fees, which will no longer be subject to the Waiver Period. The Exchange also proposes to increase the monthly fee from $50 to $100 for each additional Limited Service MEI Port per matching engine for Market Makers over and above the two (2) Limited Service MEI Ports per matching engine that are allocated with the Full Service MEI Ports.
Below is the proposed table showing the MEI Port fees:
The Exchange also offers Market Makers the ability to request and be allocated two (2) Purge Ports
The Exchange proposes to assess a CTD Port fee as a monthly fixed amount, not tied to transacted volume of the Member. This fixed fee structure is the same structure in place at Nasdaq PHLX with respect to the proposed CTD Port Fees.
Below is the proposed table for the CTD Port fees:
The Exchange proposes to assess an FXD Port Fee as a monthly fixed amount, not tied to transacted volume of the Member. This fixed fee structure is the same structure in place at Nasdaq PHLX with respect to FXD Port Fees.
The Exchange proposes to amend Sections (5a) and (b) of the Fee Schedule to increase the monthly network connectivity fees for the 10Gb ULL fiber connection, which is charged to both Members and non-Members of the Exchange for connectivity to the Exchange's primary/secondary facility. The Exchange offers to both Members and non-Members two bandwidth alternatives for connectivity to the Exchange, to its primary and secondary facilities, consisting of a 1Gb fiber connection and a 10Gb ULL fiber connection. The 10Gb ULL offering uses an ultra-low latency switch, which provides faster processing of messages sent to it in comparison to the switch used for the other types of connectivity. The Exchange now proposes to increase its monthly network connectivity fee for its 10Gb ULL connection to $10,000 for Members and non-Members.
MIAX Emerald believes that exchanges, in setting fees of all types, should meet very high standards of transparency to demonstrate why each new fee or fee increase meets the requirements of the Act that fees be reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among members and markets. MIAX Emerald believes this high standard is especially important when an exchange imposes various access fees for market participants to access an exchange's marketplace. MIAX Emerald deems Port fees and Connectivity fees to be access fees, and that Ports and Connectivity are inextricably linked components of the network. Accordingly, the Exchange believes that it is reasonable and appropriate that the costs and revenues for both should be considered together, as the services associated with connectivity and ports are linked pieces of the network's infrastructure, both of which are necessary for a market participant to access and use the trading System of the Exchange. Finally, both Connectivity fee and Port fee revenue are consolidated into a single line item (“Access Fees”) on the Exchange's financial statements. The Exchange believes that it is important to demonstrate that these fees are based on its costs to provide access to the Exchange's network and reasonable business needs. Accordingly, the Exchange believes the Proposed Access Fees will allow the Exchange to offset expense the Exchange has and will incur, and that the Exchange is providing sufficient transparency (as described below) into how the Exchange determined to charge such fees. Accordingly, the Exchange is providing an analysis of its revenues, costs, and profitability associated with the Proposed Access Fees. This analysis includes information regarding its methodology for determining the costs and revenues associated with the Proposed Access Fees.
In order to determine the Exchange's costs associated with providing the Proposed Access Fees, the Exchange conducted an extensive cost review in which the Exchange analyzed every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports the services included in the Proposed Access Fees. The sum of all
In order to determine the Exchange's projected revenues associated with providing the Proposed Access Fees, the Exchange analyzed the number of Members and non-Members currently utilizing the Exchange's services associated with the Proposed Access Fees, and, utilizing a recent monthly billing cycle representative of 2020 monthly revenue, extrapolated annualized revenue on a going-forward basis. The Exchange does not believe it is appropriate to factor into its analysis future revenue growth or decline into its projections for purposes of these calculations, given the uncertainty of such projections due to the continually changing access needs of market participants, discounts that can be achieved through reaching certain tiers, market participant consolidation, etc. Additionally, the Exchange similarly does not factor into its analysis future cost growth or decline.
The Exchange is presenting its revenue and expense associated with the Proposed Access Fees in this filing in a manner that is consistent with how the Exchange presents its revenue and expense in its Audited Unconsolidated Financial Statements. The Exchange's most recent Audited Unconsolidated Financial Statement is for 2019. However, since the revenue and expense associated with the Proposed Access Fees were not in place in 2019 or for the first three quarters of 2020, the Exchange believes its 2019 Audited Unconsolidated Financial Statement is not useful for analyzing the reasonableness of the total annual revenue and costs associated with the Proposed Access Fees. Accordingly, the Exchange believes it is more appropriate to analyze the Proposed Access Fees utilizing its 2020 revenue and costs, as described herein, which utilize the same presentation methodology as set forth in the Exchange's previously-issued Audited Unconsolidated Financial Statements. Based on this analysis, the Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit when comparing the Exchange's total annual expense associated with providing the services associated with the Proposed Access Fees versus the total projected annual revenue the Exchange will collect for providing those services.
On March 29, 2019, the Commission issued its Order Disapproving Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC Options Facility to Establish BOX Connectivity Fees for Participants and Non-Participants Who Connect to the BOX Network (the “BOX Order”).
The proposed rule change is immediately effective upon filing with the Commission pursuant to Section 19(b)(3)(A) of the Act.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange launched trading on March 1, 2019. For the month of December 2020, the Exchange had a market share of only approximately 3.58% of the U.S. options industry.
Separately, the Exchange is not aware of any reason why market participants could not simply drop their connections to an exchange (or not connect to an exchange) if an exchange were to establish prices for its non-transaction fees that, in the determination of such market participant, did not make business or economic sense for such market participant to connect to such exchange. No options market participant is required by rule, regulation, or competitive forces to be a Member of the Exchange. As evidence of the fact that market participants can and do disconnect from exchanges based on non-transaction fee pricing, R2G Services LLC (“R2G”) filed a comment letter after BOX's proposed rule changes to increase its connectivity fees (SR-BOX-2018-24, SR-BOX-2018-37, and SR-BOX-2019-04).
The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the Proposed Access Fees will not result in excessive or supra-competitive profit. The costs associated with providing access to Exchange Members and non-Members, as well as the general expansion of a state-of-the-art infrastructure, are extensive, have increased year-over-year, and are projected to increase year-over-year in the future. In particular, the Exchange has experienced a material increase in its costs in 2020, in connection with a project to make its network environment more transparent and deterministic, based on customer demand. This project will allow the Exchange to enhance its network architecture with the intent of ensuring a best-in-class, transparent and deterministic trading system while maintaining its industry leading latency and throughput capabilities. In order to provide this greater amount of transparency and higher determinism, MIAX Emerald has made significant capital expenditures (“CapEx”), incurred increased ongoing operational expenditures (“OpEx”), and undertaken additional engineering research and development (“R&D”) in the following areas: (i) Implementing an improved network design to ensure the minimum latency between multicast market data signals disseminated by the Exchange across the extranet switches, improving the unicast jitter profile to reduce the occurrence of message sequence inversions from Members to the Exchange quoting gateway processors, and introducing a new optical fiber network infrastructure that ensures the optical fiber path for participants within extremely tight tolerances; (ii) introducing a re-architected and engineered participant quoting gateway that ensures the delivery of messages to the match engine with absolute determinism, eliminating the message processing inversions that can occur with messages received nanoseconds apart; and (iii) designing an improved monitoring platform to better measure the performance of the network and systems at extremely tight tolerances and to provide Members with reporting on the performance of their systems. The CapEx associated with only phase 1 of this project in 2020 was approximately $1.85 million. This expense does not include the significant increase in employee time and other resources necessary to maintain and service this network, which expense is captured in the operating expense discussed below. This project, which results in a material increase in expense of the Exchange, is a primary driver for the increase in network connectivity fees proposed by the Exchange.
The Exchange believes the proposed increase to the 10Gb ULL connection is an equitable allocation of reasonable fees because 10Gb ULL purchasers: (1) Consume the most bandwidth and resources of the network; (2) transact the vast majority of the volume on the Exchange; and (3) require the high touch network support services provided by the Exchange and its staff, including more costly network monitoring, reporting and support services, resulting in a much higher cost to the Exchange. Further, the Exchange believes the Proposed Access Fees are equitably allocated because of customer demand for an even more transparent and deterministic network, as described above, which has resulted in higher CapEx, increasingly higher OpEx, and increased costs to engineering R&D. The Proposed Access Fees are equitably allocated in this regard because the majority of customer demand is coming from purchasers of the 10Gb ULL connections, which Member and non-Member firms transact the vast majority of volume on the Exchange. Accordingly, the Exchange believes it is reasonable, equitably allocated and not unfairly discriminatory to recoup the majority of its costs associated with the project to make the network more transparent and deterministic from market participants utilizing 10Gb ULL connections on the Exchange.
The Exchange believes that the proposed increase to the 10Gb ULL fees are equitably allocated among users of the network connectivity alternatives, as the users of the 10Gb ULL connections consume the most bandwidth and resources of the network. Specifically, the Exchange notes that these users account for approximately greater than 99% of message traffic over the network, while the users of the 1Gb connections account for approximately less than 1% of message traffic over the network. In the Exchange's experience, users of the 1Gb connections do not have a business need for the high performance network solutions required by 10Gb ULL users. The Exchange's high performance network solutions and supporting infrastructure (including employee support), provides unparalleled system throughput and the capacity to handle approximately 18 million quote messages per second. On an average day, the Exchange handles over approximately 3 billion total messages. Of those, users of the 10Gb ULL connections generate approximately 3 billion messages, and users of the 1Gb connections generate 500,000 messages. However, in order to achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall network connectivity expense for storage and network transport capabilities. Given this difference in network utilization rate, the Exchange believes that it is reasonable, equitable, and not unfairly discriminatory that the 10Gb ULL users pay for the vast majority of the shared network resources from which all Member and non-Member users benefit, but is designed and maintained from a capacity standpoint to specifically handle the message rate and performance requirements of 10Gb ULL users.
The Exchange also believes that the connectivity fees are equitably allocated amongst users of the network connectivity alternatives, when these fees are viewed in the context of the overall trading volume on the Exchange. To illustrate, the purchasers of the 10Gb ULL connectivity account for approximately 98% of the volume on the Exchange for the month of October 2020. This overall volume percentage (98% of total Exchange volume) is in line with the amount of network connectivity revenue collected from 10Gb ULL purchasers (99% of total Exchange connectivity revenue). For example, utilizing a recent billing cycle, Exchange Members and non-Members that purchased 10Gb ULL connections accounted for approximately 99% of the total network connectivity revenue collected by the Exchange from all connectivity alternatives; and (ii) Members and non-Members that purchased 1Gb connections accounted for approximately 1% of the revenue collected by the Exchange from all connectivity alternatives.
The Exchange further believes that the increased fee for the 10Gb ULL
The Exchange differentiates itself by offering a “premium-product” network experience, as an operator of a high performance, ultra-low latency network with unparalleled system throughput, which network can support access to three distinct options markets and multiple competing market-makers having affirmative obligations to continuously quote over 750,000 distinct trading products (per exchange), and the capacity to handle approximately 18 million quote messages per second. The “premium-product” network experience enables users of 10Gb ULL connections to receive the network monitoring and reporting services for those approximately 750,000 distinct trading products. There is a significant, quantifiable amount of R&D effort, employee compensation and benefits expense, and other expense associated with providing the high touch network monitoring and reporting services that are utilized by the 10Gb ULL connections offered by the Exchange. These value add services are fully-discussed herein, and the actual costs associated with providing these services are the basis for the differentiated amount of the fees for the various connectivity alternatives.
In order to provide more detail and to quantify the Exchange's costs associated with providing access to the Exchange in general, the Exchange notes that there are material costs associated with providing the infrastructure and headcount to fully-support access to the Exchange. The Exchange incurs technology expense related to establishing and maintaining Information Security services, enhanced network monitoring and customer reporting, as well as Regulation SCI mandated processes, associated with its network technology. While some of the expense is fixed, much of the expense is not fixed, and thus increases as the services associated with the Proposed Access Fees increase. For example, new 10Gb ULL connections and Ports require the purchase of additional hardware to support those connections as well as enhanced monitoring and reporting of customer performance that MIAX Emerald and its affiliates provide. Further, as the total number of all connections and Ports increase, MIAX Emerald and its affiliates need to increase their data center footprint and consume more power, resulting in increased costs charged by their third-party data center provider. Accordingly, the cost to MIAX Emerald and its affiliates is not fixed. The Exchange believes the Proposed Access Fees are reasonable in order to offset the costs to the Exchange associated with providing access to its network infrastructure.
Further, because the costs of operating its own data center are significant and not economically feasible for the Exchange at this time, the Exchange does not operate its own data centers, and instead contracts with a third-party data center provider. The Exchange notes that other competing exchange operators own/operate their data centers, which offers them greater control over their data center costs. Because those exchanges own and operate their data centers as profit centers, the Exchange is subject to additional costs. The Proposed Access Fees, which are charged for accessing the Exchange's data center network infrastructure, are directly related to the network and offset such costs.
The Exchange invests significant resources in network R&D to improve the overall performance and stability of its network. For example, the Exchange has a number of network monitoring tools (some of which were developed in-house, and some of which are licensed from third-parties), that continually monitor, detect, and report network performance, many of which serve as significant value-adds to the Exchange's Members and enable the Exchange to provide a high level of customer service. These tools detect and report performance issues, and thus enable the Exchange to proactively notify a Member (and the SIPs) when the Exchange detects a problem with a Member's connectivity. In fact, the Exchange often receives inquiries from other industry participants regarding the status of networking issues outside of the Exchange's own network environment that are impacting the industry as a whole via the SIPs, including inquiries from regulators, because the Exchange has a superior, state-of the-art network that, through its enhanced monitoring and reporting solutions, often detects and identifies industry-wide networking issues ahead of the SIPs. The Exchange also incurs costs associated with the maintenance and improvement of existing tools and the development of new tools.
Additionally, certain Exchange-developed network aggregation and monitoring tools provide the Exchange with the ability to measure network traffic with a much more granular level of variability. This is important as Exchange Members demand a higher level of network determinism and the ability to measure variability in terms of single digit nanoseconds. Also, routine R&D projects to improve the performance of the network's hardware infrastructure result in additional cost. In sum, the costs associated with maintaining and enhancing a state-of-the-art exchange network in the U.S. options industry is a significant expense for the Exchange that also increases year-over-year, and thus the Exchange believes that it is reasonable to offset those costs through the Proposed Access Fees. The Exchange invests in and offers a superior network infrastructure as part of its overall options exchange services offering, resulting in significant costs associated with maintaining this network infrastructure, which are directly tied to the amount of the Proposed Access Fees that must be charged to access it, in order to recover those costs.
The Exchange believes it is reasonable to consider the expense and revenue for ports and connectivity alternatives together because ports and connectivity are inextricably linked components of the network infrastructure, and that both are necessary for a market participant to access the Exchange. The various types of connectivity and port alternatives that the Exchange offers provide a wide array of access alternatives necessary for a market participant to conduct its business using the Exchange, which is a business decision to be made by each particular type of market participant. The different types of connectivity and port
The Exchange offers various types of ports with differing prices because each port accomplishes different tasks, are suited to different types of Members, and consume varying capacity amounts of the network. For instance, MEI ports allow for a higher throughput and can handle much higher quote/order rates than FIX ports. Members that are Market Makers or high frequency trading firms utilize these ports (typically coupled with 10Gb ULL connectivity) because they transact in significantly higher amounts of messages being sent to and from the Exchange, versus FIX port users, who are traditionally customers sending only orders to the Exchange (typically coupled with 1Gb connectivity). The different types of ports cater to the different types of Exchange Memberships and different capabilities of the various Exchange Members. Market Makers have quoting and other obligations that traditional customers do not. Market Makers, therefore, need ports and connections that can handle using far more of the network's capacity for message throughput, risk protections, and the amount of information that has to be assessed. Market Makers account for the vast majority of network capacity utilization and volume executed on the Exchange, as discussed throughout.
The Exchange only has four primary sources of revenue: Transaction fees, access fees (of which the Proposed Access Fees constitute the majority), regulatory fees, and market data fees. Accordingly, the Exchange must cover all of its expenses from these four primary sources of revenue.
The Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit, when comparing the total annual expense that the Exchange projects to incur in connection with providing these services versus the total annual revenue that the Exchange projects to collect in connection with providing these services. For 2020,
As discussed, the Exchange conducted an extensive cost review in which the Exchange analyzed every expense item in the Exchange's general expense ledger (this includes over 150 separate and distinct expense items) to determine whether each such expense relates to the services associated with the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports those services, and thus bears a relationship that is, “in nature and closeness,” directly related to those services. The sum of all such portions of expenses represents the total cost of the Exchange to provide services associated with the Proposed Access Fees.
For 2020, total third-party expense, relating to fees paid by MIAX Emerald to third-parties for certain products and services for the Exchange to be able to provide the services associated with the Proposed Access Fees, is projected to be $1,932,519. This includes, but is not limited to, a portion of the fees paid to: (1) Equinix, for data center services, for the primary, secondary, and disaster recovery locations of the MIAX Emerald trading system infrastructure; (2) Zayo Group Holdings, Inc. (“Zayo”) for network services (fiber and bandwidth products and services) linking MIAX Emerald's office locations in Princeton, NJ and Miami, FL to all data center locations; (3) Secure Financial Transaction Infrastructure (“SFTI”),
For clarity, only a portion of all fees paid to such third-parties is included in the third-party expense herein, and no expense amount is allocated twice. Accordingly, MIAX Emerald does not allocate its entire information technology and communication costs to the services associated with the Proposed Access Fees.
The Exchange believes it is reasonable to allocate such third-party expense described above towards the total cost to the Exchange to provide the services associated with the Proposed Access Fees. In particular, the Exchange believes it is reasonable to allocate the identified portion of the Equinix expense because Equinix operates the data centers (primary, secondary, and disaster recovery) that host the Exchange's network infrastructure. This includes, among other things, the necessary storage space, which continues to expand and increase in cost, power to operate the network infrastructure, and cooling apparatuses to ensure the Exchange's network infrastructure maintains stability. Without these services from Equinix, the Exchange would not be able to operate and support the network and provide the services associated with the Proposed Access Fees to its Members and non-Members and their customers. The Exchange did not allocate all of the Equinix expense toward the cost of providing the services associated with the Proposed Access Fees, only that portion which the Exchange identified as being specifically mapped to providing the services associated with the Proposed Access Fees, approximately 73% of the total Equinix expense (68% allocated towards the cost of providing the provision of network connectivity and 5% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portion of the Zayo expense because Zayo provides the internet, fiber and bandwidth connections with respect to the network, linking MIAX Emerald with its affiliates, Miami International Securities Exchange, LLC (“MIAX”) and MIAX PEARL, LLC (“MIAX PEARL”), as well as the data center and disaster recovery locations. As such, all of the trade data, including the billions of messages each day per exchange, flow through Zayo's infrastructure over the Exchange's network. Without these services from Zayo, the Exchange would not be able to operate and support the network and provide the services associated with the Proposed Access Fees. The Exchange did not allocate all of the Zayo expense toward the cost of providing the services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to providing the Proposed Access Fees, approximately 66% of the total Zayo expense (62% allocated towards the cost of providing the provision of network connectivity and 4% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portions of the SFTI expense and various other service providers' (including Thompson Reuters, NYSE, Nasdaq, and Internap) expense because those entities provide connectivity and feeds for the entire U.S. options industry, as well as the content, connectivity services, and infrastructure services for critical components of the network. Without these services from SFTI and various other service providers, the Exchange would not be able to operate and support the network and provide access to its Members and non-Members and their customers. The Exchange did not allocate all of the SFTI and other service providers' expense toward the cost of providing the services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the services associated with the Proposed Access Fees, approximately 94% of the total SFTI and other service providers' expense (89% allocated towards the cost of providing the provision of network connectivity and 5% allocated towards the cost of providing ports).
The Exchange believes it is reasonable to allocate the identified portion of the other hardware and software provider expense because this includes costs for dedicated hardware licenses for switches and servers, as well as dedicated software licenses for security monitoring and reporting across the network. Without this hardware and software, the Exchange would not be able to operate and support the network and provide access to its Members and non-Members and their customers. The Exchange did not allocate all of the hardware and software provider expense toward the cost of providing the services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the services associated with the Proposed Access Fees, approximately 57% of the total hardware and software provider expense (54% allocated towards the cost of providing the provision of network connectivity and 3% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the services associated with the Proposed Access Fees.
For 2020, total projected internal expense, relating to the internal costs of MIAX Emerald to provide the services associated with the Proposed Access Fees, is projected to be $7,367,259. This includes, but is not limited to, costs associated with: (1) Employee compensation and benefits for full-time employees that support the services associated with the Proposed Access Fees, including staff in network operations, trading operations, development, system operations, business, as well as staff in general corporate departments (such as legal, regulatory, and finance) that support those employees and functions (including an increase as a result of the higher determinism project); (2) depreciation and amortization of hardware and software used to provide the services associated with the Proposed Access Fees, including equipment, servers, cabling, purchased software and internally developed software used in the production environment to support the network for trading; and (3) occupancy costs for leased office space for staff that provide
The Exchange believes it is reasonable to allocate such internal expense described above towards the total cost to the Exchange to provide the services associated with the Proposed Access Fees. In particular, MIAX Emerald's employee compensation and benefits expense relating to providing the services associated with the Proposed Access Fees is projected to be $4,489,924, which is only a portion of the $9,354,009 total projected expense for employee compensation and benefits. The Exchange believes it is reasonable to allocate the identified portion of such expense because this includes the time spent by employees of several departments, including Technology, Back Office, Systems Operations, Networking, Business Strategy Development (who create the business requirement documents that the Technology staff use to develop network features and enhancements), Trade Operations, Finance (who provide billing and accounting services relating to the network), and Legal (who provide legal services relating to the network, such as rule filings and various license agreements and other contracts). As part of the extensive cost review conducted by the Exchange, the Exchange reviewed the amount of time spent by each employee on matters relating to the provision of services associated with the Proposed Access Fees. Without these employees, the Exchange would not be able to provide the services associated with the Proposed Access Fees to its Members and non-Members and their customers. The Exchange did not allocate all of the employee compensation and benefits expense toward the cost of the services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the services associated with the Proposed Access Fees, approximately 48% of the total employee compensation and benefits expense (39% allocated towards the cost of providing the provision of network connectivity and 9% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
MIAX Emerald's depreciation and amortization expense relating to providing the services associated with the Proposed Access Fees is projected to be $2,630,687, which is only a portion of the $3,812,590 total projected expense for depreciation and amortization. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense includes the actual cost of the computer equipment, such as dedicated servers, computers, laptops, monitors, information security appliances and storage, and network switching infrastructure equipment, including switches and taps that were purchased to operate and support the network and provide the services associated with the Proposed Access Fees. Without this equipment, the Exchange would not be able to operate the network and provide the services associated with the Proposed Access Fees to its Members and non-Members and their customers. The Exchange did not allocate all of the depreciation and amortization expense toward the cost of providing the services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to providing the services associated with the Proposed Access Fees, approximately 69% of the total depreciation and amortization expense, as these services would not be possible without relying on such equipment (65% allocated towards the cost of providing the provision of network connectivity and 4% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
MIAX Emerald's occupancy expense relating to providing the services associated with the Proposed Access Fees is projected to be $246,648, which is only a portion of the $474,323 total projected expense for occupancy. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense represents the portion of the Exchange's cost to rent and maintain a physical location for the Exchange's staff who operate and support the network, including providing the services associated with the Proposed Access Fees. This amount consists primarily of rent for the Exchange's Princeton, NJ office, as well as various related costs, such as physical security, property management fees, property taxes, and utilities. The Exchange operates its Network Operations Center (“NOC”) and Security Operations Center (“SOC”) from its Princeton, New Jersey office location. A centralized office space is required to house the staff that operates and supports the network. The Exchange currently has approximately 150 employees. Approximately two-thirds of the Exchange's staff are in the Technology department, and the majority of those staff have some role in the operation and performance of the services associated with the Proposed Access Fees. Without this office space, the Exchange would not be able to operate and support the network and provide the services associated with the Proposed Access Fees to its Members and non-Members and their customers. Accordingly, the Exchange believes it is reasonable to allocate the identified portion of its occupancy expense because such amount represents the Exchange's actual cost to house the equipment and personnel who operate and support the Exchange's network infrastructure and the services associated with the Proposed Access Fees. The Exchange did not allocate all of the occupancy expense toward the cost of providing the services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to operating and supporting the network, approximately 52% of the total occupancy expense (48% allocated towards the cost of providing the provision of network connectivity and 4% allocated towards the cost of providing ports). The Exchange believes this allocation is reasonable because it represents the Exchange's cost to provide the services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange notes that a material portion of its total overall expense is allocated to the provision of services associated with the Proposed Access Fees. The Exchange believes this is reasonable and in line, as the Exchange operates a technology-based business that differentiates itself from its competitors based on its trading systems that rely on its high performance network, resulting in significant technology expense. Over two-thirds of Exchange staff are technology-related employees. The majority of the Exchange's expense is technology-based. As described above, the Exchange has only four primary sources
The Exchange's monthly projected revenue for the Proposed Access Fees is based on the following projected purchases by Members and non-Members, which is based on a recent billing cycle: (i) 63 10Gb ULL connections; (ii) 14 CTD Ports; (iii) 8 FXD Ports; (iv) 113 FIX Ports; (v) 352 Limited Service MEI Ports; (vi) 37 Full Service MEI Ports;
Accordingly, based on the facts and circumstances presented, the Exchange believes that its provision of the services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit. To illustrate, on a going-forward, fully-annualized basis, the Exchange projects that its annualized revenue for providing the services associated with the Proposed Access Fees would be approximately $10.2 million per annum, based on a recent billing cycle. The Exchange projects that its annualized expense for providing the services associated with the Proposed Access Fees would be approximately $9.3 million per annum. Accordingly, on a fully-annualized basis, the Exchange believes its total projected revenue for the providing the services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit, as the Exchange will make only a 9% profit margin on the Proposed Access Fees ($10.2 million−$9.3 million = $900,000 per annum). This profit margin does not take into account the cost of the CapEx the Exchange is projected to spend in 2020 of $1.85 million, or the amounts the Exchange is projected to spend each year on CapEx going forward.
For the avoidance of doubt, none of the expenses included herein relating to the services associated with the Proposed Access Fees relate to the provision of any other services offered by MIAX Emerald. Stated differently, no expense amount of the Exchange is allocated twice. The Exchange notes that, with respect to the MIAX Emerald expenses included herein, those expenses only cover the MIAX Emerald market; expenses associated with the Exchange's affiliate exchanges, MIAX and MIAX PEARL, are accounted for separately and are not included within the scope of this filing. Stated differently, no expense amount of the Exchange is also allocated to MIAX or MIAX PEARL.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to allocate the respective percentages of each expense category described above towards the total cost to the Exchange of operating and supporting the network, including providing the services associated with the Proposed Access Fees because the Exchange performed a line-by-line item analysis of all the expenses of the Exchange, and has determined the expenses that directly relate to operation and support of the network. Further, the Exchange notes that, without the specific third-party and internal items listed above, the Exchange would not be able to operate and support the network, including providing the services associated with the Proposed Access Fees to its Members and non-Members and their customers. Each of these expense items, including physical hardware, software, employee compensation and benefits, occupancy costs, and the depreciation and amortization of equipment, have been identified through a line-by-line item analysis to be integral to the operation and support of the network. The Proposed Access Fees are intended to recover the Exchange's costs of operating and supporting the network. Accordingly, the Exchange believes that the Proposed Access Fee Increases are fair and reasonable because they do not result in excessive pricing or supra-competitive profit, when comparing the actual network operation and support costs to the Exchange versus the projected annual revenue from the Proposed Access Fees, including the increased amount.
The Exchange also points out that it is not seeking to recoup any of its past costs associated with the provision of any Ports during the Waiver Period. The Exchange currently has 35 Members,
The Exchange does not believe that the proposed rule change would place certain market participants at the Exchange at a relative disadvantage compared to other market participants or affect the ability of such market participants to compete.
The Exchange believes that the Proposed Access Fees do not place certain market participants at a relative disadvantage to other market participants because the Proposed Access Fees do not favor certain categories of market participants in a manner that would impose a burden on competition; rather, the allocation of the Proposed Access Fees reflects the network resources consumed by the various size of market participants—lowest bandwidth consuming members pay the least, and highest bandwidth consuming members pays the most, particularly since higher bandwidth consumption translates to higher costs to the Exchange.
The Exchange believes the Proposed Access Fees do not place an undue burden on competition on other SROs that is not necessary or appropriate. In particular, options market participants are not forced to connect to (and purchase market data from) all options exchanges. The Exchange had one of its member firms cancel its membership with the Exchange as a direct result of the Proposed Access Fees. The Exchange also notes that it has far less Members as compared to the much greater number of members at other options exchanges. Not only does MIAX Emerald have less than half the number of members as certain other options exchanges, but there are also a number of the Exchange's Members that do not connect directly to MIAX Emerald. There are a number of large market makers and broker-dealers that are members of other options exchange but not Members of MIAX Emerald. The Exchange is also unaware of any assertion that its existing fee levels or the Proposed Access Fees would somehow unduly impair its competition with other options exchanges. To the contrary, if the fees charged are deemed too high by market participants, they can simply disconnect, as described above.
The Exchange operates in a highly competitive market in which market participants can readily favor one of the 15 competing options venues if they deem fee levels at a particular venue to be excessive. Based on publicly-available information, and excluding index-based options, no single exchange has more than 16% market share. Therefore, no exchange possesses significant pricing power in the execution of multiply-listed equity and ETF options order flow. For the month of December 2020, the Exchange had a market share of approximately 3.58% of executed multiply-listed equity options
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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)
The Exchange proposes to amend its Fee Schedule (the “Fee Schedule”) related to co-location services to add two Partial Cabinet Solution bundles. The proposed 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 Exchange proposes to amend its Fee Schedule related to co-location
The Fee Schedule currently lists four PCS bundles, Options A through D. As originally formulated, each PCS bundle option included a partial cabinet powered to a maximum of 2 kilowatts (“kW”); access to the liquidity center network (“LCN”) and internet protocol (“IP”) networks, the local area networks available in the data center; two fiber cross connections; and connectivity to one of two time feeds.
In May 2020, the Exchange amended PCS bundle Options C and D to each include two 10 Gb connections to the NMS Network, an alternate dedicated network connection that Users could use to access the NMS feeds for which the Securities Industry Automation Corporation (“SIAC”) is engaged as the securities information processor (“SIP”).
In response to customer interest, the Exchange now proposes to add two new PCS bundles to the Fee Schedule. Proposed Options E and F would be substantially similar to Options C and D, respectively, with the difference that each connection included in the proposed bundles would be upgraded to 40 Gb from 10 Gb: That is, proposed Options E and F would include a 1 kw (Option E) or 2 kw (Option F) partial cabinet, one 40 Gb LCN connection, one 40 Gb IP network connection, two 40 Gb NMS Network connections, and either the Network Time Protocol Feed or the Precision Timing Protocol. Users selecting an Option E or F bundle would be charged the same initial charge of $10,000 that currently applies to Options C and D. In addition, Users would be charged monthly recurring charges (“MRC”) of $18,000 for an Option E bundle and $19,000 for an Option F bundle. The Exchange proposes that Users that purchase Option E or F bundles on or before December 31, 2021 would receive a 50% reduction in the MRC for the first 12 months.
The amended portion of the Fee Schedule would read as follows (proposed additions
The Exchange proposes that General Note 2 of the Fee Schedule—which currently applies to PCS bundle Options A through D—would also apply to proposed Option E and F bundles, without alteration. Specifically, a User and its Affiliates would be limited to one PCS bundle at a time, and a User and its Affiliates must have an Aggregate Cabinet Footprint of 2 kW or less to qualify for a PCS bundle.
The Exchange is not proposing any changes to PCS bundle Options A through D.
The proposed changes would not apply differently to distinct types or sizes of market participants. Rather, they would apply to all Users equally.
Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, is completely voluntary and the Fee Schedule is applied uniformly to all Users.
A User may host another entity in its space within the data center. Such Users are called “Hosting Users,” and their customers are “Hosted Customers.”
Based on conversations with Users and potential customers, the Exchange believes that Hosting Users offer bundles (“Hosting User Bundles”) that include cabinet space and space on shared LCN, IP, and NMS network connections, and that the Hosting User Bundles provide their end users with a service similar to that of the PCS bundles.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The proposed changes are not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable and would perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, for the following reasons.
The Exchange believes that it is reasonable to expand its PCS bundle options by offering the proposed Option E and F bundles. Currently, the Exchange offers Users the ability to purchase connectivity to the LCN/NMS and IP/NMS networks in 10 Gb and 40 Gb bandwidths, but within the Exchange's existing PCS bundle options, 40 Gb connections are not available. This means that at present, Users interested in the PCS bundled services—either because they have minimal power and cabinet space demands or because the costs attendant with having a dedicated cabinet are too burdensome—cannot access 40 Gb connections and are limited to the 10 Gb connections offered as part of the Option C and D bundles. Users and potential customers have requested that the Exchange provide them the opportunity to purchase PCS bundles that include 40 Gb connections, which would enable them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have everywhere. The Exchange believes that it is reasonable to offer the proposed Option E and F bundles to satisfy this customer demand, while continuing to offer the existing bundle offerings, in order to provide potential Users of the PCS bundled services an additional 40
Additionally, the Exchange believes that the proposed change may make PCS bundles more competitive with the services that Hosting Users offer. Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options.
The Exchange believes that the proposed charges for the Option E and F bundles are reasonable. The Exchange proposes that Users choosing the Option E or F bundles would pay the same $10,000 initial charge that Users currently pay when choosing the Option C or D bundles, which reflects the fact that setting up each of these four cabinet options involves a similar amount of work for the Exchange. It is also reasonable for the Exchange to set MRC charges of $18,000 for an Option E bundle (a $4,000 increase over Option C) and $19,000 for an Option F bundle (a $4,000 increase over Option D) which reflects the fact that the Exchange will have to supply multiple 40 Gb connections in the Option E and F bundles, as opposed to the 10 Gb connections included in the Option C and D bundles.
The Exchange believes that it is reasonable to provide a period of eligibility for a 50% MRC reduction as an incentive to Users to utilize the Option E and F bundles. Similar 50% MRC reductions were proposed and approved for Options A through D when those product offerings were added to the Fee Schedule.
The Exchange believes its proposal is not unfairly discriminatory. The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
The Exchange believes that the proposed charges for Option E and F bundles are not unfairly discriminatory. The proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021.
The Exchange believes that its proposal equitably allocates its fees among its market participants.
The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. Specifically, the proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options. Potential Users could benefit from having an additional 40 Gb option for their network connection requirements, which would allow them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have elsewhere.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms, and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange believes that the proposal will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of Section 6(b)(8) of the Act.
The Exchange believes that the proposed changes would not place any burden on intramarket competition that is not necessary or appropriate.
The Exchange's offering of the proposed Option E and F bundles would provide potential Users of PCS bundles a wider range of choices, which would be especially beneficial for potential Users with minimal power and cabinet space demands, but which could nevertheless benefit from an additional 40 Gb option for their network connection requirements. The Exchange believes that the proposed change may make PCS bundles more attractive to potential Users who might otherwise opt to become Hosted Customers, and thus would enhance the competitive environment for potential Users, who would then have more options from which to select. At the same time, however, no potential User would be obligated to purchase a PCS bundle, and it would still have the options offered by Hosting Users.
The Exchange believes that the proposed changes will not impose any burden on intermarket competition that is not necessary or appropriate. The proposed change is not meant to affect competition among national securities exchanges. Rather, the Exchange believes that the proposed change is a reasonable attempt to maintain a more level playing field between the Exchange and the Hosting Users, who compete for Hosted Customer business. Because Hosting Users' services are not regulated, they may offer differentiated pricing and are not required to make their pricing public. The Exchange believes that the proposed change may make PCS bundles more attractive to potential users who might otherwise opt to become Hosted Customers.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining price, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognizing that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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: 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)
The Exchange proposes to amend the Exchange's Price List related to co-location services to add two Partial Cabinet Solution bundles. 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,
The Exchange proposes to amend its Price List related to co-location
The Price List currently lists four PCS bundles, Options A through D. As originally formulated, each PCS bundle option included a partial cabinet powered to a maximum of 2 kilowatts (“kW”); access to the liquidity center network (“LCN”) and internet protocol (“IP”) networks, the local area networks available in the data center; two fiber cross connections; and connectivity to one of two time feeds.
In May 2020, the Exchange amended PCS bundle Options C and D to each include two 10 Gb connections to the NMS Network, an alternate dedicated network connection that Users could use to access the NMS feeds for which the Securities Industry Automation Corporation (“SIAC”) is engaged as the securities information processor (“SIP”).
In response to customer interest, the Exchange now proposes to add two new PCS bundles to the Price List. Proposed Options E and F would be substantially similar to Options C and D, respectively, with the difference that each connection included in the proposed bundles would be upgraded to 40 Gb from 10 Gb: That is, proposed Options E and F would include a 1 kw (Option E) or 2 kw (Option F) partial cabinet, one 40 Gb LCN connection, one 40 Gb IP network connection, two 40 Gb NMS Network connections, and either the Network Time Protocol Feed or the Precision Timing Protocol. Users selecting an Option E or F bundle would be charged the same initial charge of $10,000 that currently applies to Options C and D. In addition, Users would be charged monthly recurring charges (“MRC”) of $18,000 for an Option E bundle and $19,000 for an Option F bundle. The Exchange proposes that Users that purchase Option E or F bundles on or before December 31, 2021 would receive a 50% reduction in the MRC for the first 12 months.
The amended portion of the Price List would read as follows (proposed additions
The Exchange proposes that General Note 2 of the Price List—which currently applies to PCS bundle Options A through D—would also apply to proposed Option E and F bundles, without alteration. Specifically, a User and its Affiliates would be limited to one PCS bundle at a time, and a User and its Affiliates must have an Aggregate Cabinet Footprint of 2 kW or less to qualify for a PCS bundle.
The Exchange is not proposing any changes to PCS bundle Options A through D.
The proposed changes would not apply differently to distinct types or sizes of market participants. Rather, they would apply to all Users equally.
Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, is
A User may host another entity in its space within the data center. Such Users are called “Hosting Users,” and their customers are “Hosted Customers.”
Based on conversations with Users and potential customers, the Exchange believes that Hosting Users offer bundles (“Hosting User Bundles”) that include cabinet space and space on shared LCN, IP, and NMS network connections, and that the Hosting User Bundles provide their end users with a service similar to that of the PCS bundles.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The proposed changes are not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable and would perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, for the following reasons.
The Exchange believes that it is reasonable to expand its PCS bundle options by offering the proposed Option E and F bundles. Currently, the Exchange offers Users the ability to purchase connectivity to the LCN/NMS and IP/NMS networks in 10 Gb and 40 Gb bandwidths, but within the Exchange's existing PCS bundle options, 40 Gb connections are not available. This means that at present, Users interested in the PCS bundled services—either because they have minimal power and cabinet space demands or because the costs attendant with having a dedicated cabinet are too burdensome—cannot access 40 Gb connections and are limited to the 10 Gb connections offered as part of the Option C and D bundles. Users and potential customers have requested that the Exchange provide them the opportunity to purchase PCS bundles that include 40 Gb connections, which would enable them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have everywhere. The Exchange believes that it is reasonable to offer the proposed Option E and F bundles to satisfy this customer demand, while continuing to offer the existing bundle offerings, in order to provide potential Users of the PCS bundled services an additional 40 Gb option for their network connection requirements.
Additionally, the Exchange believes that the proposed change may make PCS bundles more competitive with the services that Hosting Users offer. Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options.
The Exchange believes that the proposed charges for the Option E and F bundles are reasonable. The Exchange proposes that Users choosing the Option E or F bundles would pay the same $10,000 initial charge that Users currently pay when choosing the Option C or D bundles, which reflects the fact that setting up each of these four cabinet options involves a similar amount of work for the Exchange. It is also reasonable for the Exchange to set MRC charges of $18,000 for an Option E bundle (a $4,000 increase over Option C) and $19,000 for an Option F bundle (a $4,000 increase over Option D) which reflects the fact that the Exchange will have to supply multiple 40 Gb connections in the Option E and F bundles, as opposed to the 10 Gb connections included in the Option C and D bundles.
The Exchange believes that it is reasonable to provide a period of eligibility for a 50% MRC reduction as an incentive to Users to utilize the Option E and F bundles. Similar 50% MRC reductions were proposed and approved for Options A through D when those product offerings were added to the Price List.
The Exchange believes its proposal is not unfairly discriminatory. The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
The Exchange believes that the proposed charges for Option E and F bundles are not unfairly discriminatory. The proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021.
The Exchange believes that its proposal equitably allocates its fees among its market participants.
The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. Specifically, the proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options. Potential Users could benefit from having an additional 40 Gb option for their network connection requirements, which would allow them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have elsewhere.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms, and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange believes that the proposal will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of Section 6(b)(8) of the Act.
The Exchange believes that the proposed changes would not place any burden on intramarket competition that is not necessary or appropriate.
The Exchange's offering of the proposed Option E and F bundles would provide potential Users of PCS bundles a wider range of choices, which would be especially beneficial for potential Users with minimal power and cabinet space demands, but which could nevertheless benefit from an additional 40 Gb option for their network connection requirements. The Exchange believes that the proposed change may make PCS bundles more attractive to potential Users who might otherwise opt to become Hosted Customers, and thus would enhance the competitive environment for potential Users, who would then have more options from which to select. At the same time, however, no potential User would be obligated to purchase a PCS bundle, and it would still have the options offered by Hosting Users.
The Exchange believes that the proposed changes will not impose any burden on intermarket competition that is not necessary or appropriate. The proposed change is not meant to affect competition among national securities exchanges. Rather, the Exchange believes that the proposed change is a reasonable attempt to maintain a more level playing field between the Exchange and the Hosting Users, who compete for Hosted Customer business. Because Hosting Users' services are not regulated, they may offer differentiated pricing and are not required to make their pricing public. The Exchange believes that the proposed change may make PCS bundles more attractive to potential users who might otherwise opt to become Hosted Customers.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining price, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognizing that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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 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 principal purpose of the proposed rule change is to revise the ICC Operational Risk Management Framework. These revisions do not require any changes to the ICC Clearing Rules (the “Rules”).
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change, security-based swap submission, or advance notice and discussed any comments it received on the proposed rule change, security-based swap submission, or advance notice. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
ICC proposes to revise the Operational Risk Management Framework, which details ICC's dynamic and independent program of risk assessment and oversight that aims to reduce operational incidents, encourage process and control improvement, bring transparency to operational performance standard monitoring, and fulfill regulatory obligations. ICC believes such revisions will facilitate the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts, and transactions for which it is responsible. ICC proposes to make such changes effective following Commission approval of the proposed rule change. The proposed revisions are described in detail as follows.
The proposed amendments incorporate reference to the Intercontinental Exchange, Inc. (“ICE, Inc.”) Enterprise Risk Management Policy (“ERM Policy”) and relevant regulations applicable to ICC as a covered clearing agency. The ICE, Inc. Enterprise Risk Management Department (“ERM”) provides the oversight and framework for identifying, assessing, managing, monitoring and reporting on risk across the ICE, Inc. organization and has dedicated resources focused on the various ICE, Inc. business units, including ICC. ERM, in conjunction with relevant ICC individuals, oversees the management of this Operational Risk Management Framework.
ICC proposes updates to the risk assessment process in the Operational Risk Management Framework, which includes identifying, assessing, monitoring, and mitigating plausible sources of operational risk. Under the “identify” component, ICC proposes to more generally refer to its “risk-scenario-based assessment methodology” as its “risk-based assessment methodology,” which more appropriately describes the methodology. ICC proposes similar changes throughout the risk assessment process to replace “risk scenarios” with “risks.” The proposed changes also cross reference the ERM Policy, noting that ERM maintains an inventory of material risks faced by the clearing house. Under the “assess” component, ICC proposes to incorporate the ERM
ICC proposes updates to Appendix 1 of the Operational Risk Management Framework that summarizes relevant regulatory requirements and industry guidance for ICC. Specifically, ICC proposes to reference its status as a covered clearing agency and to reference relevant regulations applicable to ICC as a covered clearing agency relating to operational risk requirements, namely Rules 17Ad-22(e)(17) and (21).
ICC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
The amendments would also satisfy relevant requirements of Rule 17Ad-22.
Rule 17Ad-22(e)(17)
Rule 17Ad-22(e)(21)
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition. The proposed changes to the Operational Risk Management Framework will apply uniformly across all market participants. Therefore, ICC does not believe the amendments would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICC-2021-003 and should be submitted on or before February 26, 2021.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE American Equities Price List and Fee Schedule and the NYSE American Options Fee Schedule (together, the
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 Exchange proposes to amend its Price List and Fee Schedule related to co-location
The Price List and Fee Schedule currently lists four PCS bundles, Options A through D. As originally formulated, each PCS bundle option included a partial cabinet powered to a maximum of 2 kilowatts (“kW”); access to the liquidity center network (“LCN”) and internet protocol (“IP”) networks, the local area networks available in the data center; two fiber cross connections; and connectivity to one of two time feeds.
In May 2020, the Exchange amended PCS bundle Options C and D to each include two 10 Gb connections to the NMS Network, an alternate dedicated network connection that Users could use to access the NMS feeds for which the Securities Industry Automation Corporation (“SIAC”) is engaged as the securities information processor (“SIP”).
In response to customer interest, the Exchange now proposes to add two new PCS bundles to the Price List and Fee Schedule. Proposed Options E and F would be substantially similar to Options C and D, respectively, with the difference that each connection included in the proposed bundles would be upgraded to 40 Gb from 10 Gb: That is, proposed Options E and F would include a 1 kw (Option E) or 2 kw (Option F) partial cabinet, one 40 Gb LCN connection, one 40 Gb IP network connection, two 40 Gb NMS Network connections, and either the Network Time Protocol Feed or the Precision Timing Protocol. Users selecting an Option E or F bundle would be charged the same initial charge of $10,000 that currently applies to Options C and D. In addition, Users would be charged monthly recurring charges (“MRC”) of $18,000 for an Option E bundle and $19,000 for an Option F bundle. The Exchange proposes that Users that purchase Option E or F bundles on or before December 31, 2021 would receive a 50% reduction in the MRC for the first 12 months.
The amended portion of the Price List and Fee Schedule would read as follows (proposed additions
The Exchange proposes that General Note 2 of the Price List and Fee Schedule—which currently applies to PCS bundle Options A through D—would also apply to proposed Option E and F bundles, without alteration. Specifically, a User and its Affiliates would be limited to one PCS bundle at a time, and a User and its Affiliates must have an Aggregate Cabinet Footprint of 2 kW or less to qualify for a PCS bundle.
The Exchange is not proposing any changes to PCS bundle Options A through D.
The proposed changes would not apply differently to distinct types or sizes of market participants. Rather, they would apply to all Users equally.
Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, is completely voluntary and the Price List and Fee Schedule is applied uniformly to all Users.
A User may host another entity in its space within the data center. Such Users are called “Hosting Users,” and their customers are “Hosted Customers.”
Based on conversations with Users and potential customers, the Exchange believes that Hosting Users offer bundles (“Hosting User Bundles”) that include cabinet space and space on shared LCN, IP, and NMS network connections, and that the Hosting User Bundles provide their end users with a service similar to that of the PCS bundles.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The proposed changes are not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable and would perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, for the following reasons.
The Exchange believes that it is reasonable to expand its PCS bundle options by offering the proposed Option E and F bundles. Currently, the Exchange offers Users the ability to purchase connectivity to the LCN/NMS and IP/NMS networks in 10 Gb and 40 Gb bandwidths, but within the Exchange's existing PCS bundle options, 40 Gb connections are not available. This means that at present, Users interested in the PCS bundled services—either because they have minimal power and cabinet space demands or because the costs attendant with having a dedicated cabinet are too burdensome—cannot access 40 Gb connections and are limited to the 10 Gb connections offered as part of the Option C and D bundles. Users and potential customers have requested that the Exchange provide them the opportunity to purchase PCS bundles that include 40 Gb connections, which would enable them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have everywhere. The Exchange believes that it is reasonable to offer the proposed Option E and F bundles to satisfy this customer demand, while continuing to offer the existing bundle offerings, in order to provide potential Users of the PCS bundled services an additional 40 Gb option for their network connection requirements.
Additionally, the Exchange believes that the proposed change may make PCS bundles more competitive with the services that Hosting Users offer. Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options.
The Exchange believes that the proposed charges for the Option E and F bundles are reasonable. The Exchange proposes that Users choosing the Option E or F bundles would pay the same $10,000 initial charge that Users currently pay when choosing the Option C or D bundles, which reflects the fact that setting up each of these four cabinet options involves a similar amount of work for the Exchange. It is also reasonable for the Exchange to set MRC charges of $18,000 for an Option E bundle (a $4,000 increase over Option C) and $19,000 for an Option F bundle (a $4,000 increase over Option D) which reflects the fact that the Exchange will have to supply multiple 40 Gb connections in the Option E and F bundles, as opposed to the 10 Gb connections included in the Option C and D bundles.
The Exchange believes that it is reasonable to provide a period of eligibility for a 50% MRC reduction as an incentive to Users to utilize the
The Exchange believes its proposal is not unfairly discriminatory. The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
The Exchange believes that the proposed charges for Option E and F bundles are not unfairly discriminatory. The proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021.
The Exchange believes that its proposal equitably allocates its fees among its market participants.
The proposed change would not apply differently to distinct types or sizes of market participants. Rather, it would apply to all Users equally. Specifically, the proposed initial charges and MRCs for Options E and F would apply equally to all Users that purchase an Option E or F bundle, and the proposed 50% reduction of MRC for the first 12 months would apply to any User that orders an Option E or F bundle on or before December 31, 2021. The Exchange would continue to offer the four existing PCS bundles (Options A through D) with different cabinet footprints and network connection options, in addition to the proposed Option E and F bundles. Users that require other sizes or combinations of cabinets, network connections, and cross connects could still request them. As is currently the case, the purchase of any co-location service, including PCS bundles, would be completely voluntary.
Without this proposed rule change, potential Users choosing between a PCS bundle and a Hosting User Bundle would have fewer options. Potential Users could benefit from having an additional 40 Gb option for their network connection requirements, which would allow them to connect to more of the Included Data Products and Third Party Data Feeds or have the same size connection in co-location that they have elsewhere.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms, and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange believes that the proposal will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of Section 6(b)(8) of the Act.
The Exchange believes that the proposed changes would not place any burden on intramarket competition that is not necessary or appropriate.
The Exchange's offering of the proposed Option E and F bundles would provide potential Users of PCS bundles a wider range of choices, which would be especially beneficial for potential Users with minimal power and cabinet space demands, but which could nevertheless benefit from an additional 40 Gb option for their network connection requirements. The Exchange believes that the proposed change may make PCS bundles more attractive to potential Users who might otherwise opt to become Hosted Customers, and thus would enhance the competitive environment for potential Users, who would then have more options from which to select. At the same time, however, no potential User would be obligated to purchase a PCS bundle, and it would still have the options offered by Hosting Users.
The Exchange believes that the proposed changes will not impose any burden on intermarket competition that is not necessary or appropriate. The proposed change is not meant to affect competition among national securities exchanges. Rather, the Exchange believes that the proposed change is a reasonable attempt to maintain a more level playing field between the Exchange and the Hosting Users, who compete for Hosted Customer business. Because Hosting Users' services are not regulated, they may offer differentiated pricing and are not required to make their pricing public. The Exchange believes that the proposed change may make PCS bundles more attractive to potential users who might otherwise opt to become Hosted Customers.
The Exchange operates in a highly competitive market in which exchanges and other vendors (
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining price, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognizing that current regulation of
For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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: 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”)
The Exchange is filing with the Commission a proposed rule change to add proposed Interpretation and Policy .03 to Exchange Rule 4.2 that would provide a waiver of the requirement that members of the Exchange (“Members”) for which the Exchange is not the designated examining authority (“DEA”) provide the Exchange with copies of their broker-dealer annual reports. The text of the proposed rule change is provided in Exhibit 5.
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.
SEC Rule 17a-5(d)
In 2013 the Commission amended certain broker-dealer annual reporting, audit, and notification requirements.
The Exchange is not currently the DEA for any of its Members and does not expect to be the DEA for any of its Members.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that it will be able to properly regulate Members for which it is not the DEA even without the information contained in the Annual Reports currently required to be provided to the Exchange by such Members under SEC Rule 17a-5(d)(6). Firstly, the Exchange is not currently the DEA for any of its Members and does not currently use the information contained in its Members' Annual Reports for any purpose. Additionally, if the Exchange was to determine that the information contained in the Annual Reports of a Member for which it is not the DEA was necessary for any reason, the Exchange can directly request those records from the Member pursuant to Exchange Rule 4.2, which requires a Member to furnish to the Exchange current copies of any financial information filed with the Commission, which includes the Annual Reports and any information contained therein.
Given that Members must furnish the Exchange with Annual Reports or the information contained therein if and when the Exchange so requests, the Exchange does not believe that it is necessary for it to separately receive copies of Annual Reports from its Members for which it is not the DEA pursuant to SEC Rule 17a-5(d)(6). Finally, the proposed Interpretation and Policy .03 of Rule 4.2 is consistent with the Act in that it is adopting a waiver explicitly provided for by the Commission in SEC Rule 17a-5(d)(6).
The Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed Interpretation and Policy .03 is not a competitive proposal as it is concerned solely with the administration of the Exchange and simply creates a more efficient exchange of information between the Exchange and its Members. The Exchange notes that the proposed Interpretation and Policy .03 would apply equally to all Members for which the Exchange is not the DEA, which currently includes all of the Exchange's Members. The Exchange notes that it still believes it is appropriate to require provision of the Annual Reports by any Member for which it is the DEA pursuant to SEC Rule 17a-5(d)(6) as the Exchange believes the information contained in the Annual Reports is important for an SRO that is a broker-dealer's DEA. Furthermore, the Exchange notes that the proposed Interpretation and Policy .03 would be directly implementing a permitted waiver adopted by the Commission in SEC Rule 17a-5(d)(6), and as such, any SRO can adopt such a waiver to the extent permitted by that rule. Consequently, the Exchange does not believe that the proposed rule change would impose any burden on intermarket or intramarket competition.
The Exchange neither solicited nor received comments on the proposed rule change.
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) 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 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 (“Act”),
The Exchange is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”) to establish monthly Trading Permit
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 the Fee Schedule to adopt monthly Trading Permit fees (the “Proposed Access Fees”) depending on the Member's status as either an Electronic Exchange Member (“EEM”)
The Exchange initially filed its proposal to establish the Proposed Access Fees on October 1, 2020.
Trading Permits are issued to Members who are either EEMs or Market Makers. Trading Permits grant access to the Exchange, thus providing the ability to quote and trade on the Exchange, in the manner defined in the relevant Trading Permit. Without a Trading Permit, a Member cannot directly trade on the Exchange. Therefore, a Trading Permit is a means to directly access the Exchange (which offers meaningful value), and the Exchange now proposes to adopt a monthly fee designed to recover a portion of the costs associated with directly accessing the Exchange. The Exchange proposes to assess the Proposed Access Fees depending upon the category of Member that is issued a Trading Permit. Members issued Trading Permits during a calendar month will be assessed monthly Trading Permit Fees. The Exchange notes that the Exchange's affiliate, Miami International Securities Exchange, LLC (“MIAX”), charges a similar, fixed trading permit fee to its EEMs, and a similar, varying trading permit fee to its Market Makers, based upon the number of assignments of option classes or the percentage of volume in option classes.
The Exchange proposes that monthly Trading Permit fees will be assessed, with respect to the calculation of such fee to EEMs (other than clearing firms), in any month the EEM is certified in the membership system and is credentialed to use one or more Financial Information Exchange (“FIX”)
The Exchange proposes to assess EEMs a monthly fee of $1,000 for each Trading Permit. Below is the proposed table showing the Trading Permit fees for EEMs:
The Exchange proposes to assess monthly Trading Permit fees for Market Makers in any month the Market Maker (including a Registered Market Maker, Lead Market Maker, and Primary Lead Market Maker) is certified in the membership system, is credentialed to use one or more MIAX Emerald Express Interface (“MEI”)
The Exchange also proposes to adopt an alternative lower Trading Permit fee for Market Makers who fall within the following Trading Permit fee levels, which represent the 3rd and 4th levels of the Market Maker Trading Permit fee
Below is the proposed table showing the Trading Permit fees for Market Makers:
For the calculation of the monthly Market Maker Trading Permit fees, the number of classes is defined as the greatest number of classes the Market Maker was assigned to quote in on any given day within the calendar month and the class volume percentage is based on the total national ADV in classes listed on MIAX Emerald in the prior calendar quarter. Newly listed option classes are excluded from the calculation of the monthly Market Maker Trading Permit fee until the calendar quarter following their listing, at which time the newly listed option classes will be included in both the per class count and the percentage of total national average daily volume. The Exchange proposes to assess MIAX Emerald Market Makers the monthly Market Maker Trading Permit fee based on the greatest number of classes listed on MIAX Emerald that the Market Maker was assigned to quote in on any given day within a calendar month and the applicable fee rate that is the lesser of either the per class basis or percentage of total national ADV measurement.
The purpose of the alternative lower fee designated in proposed footnote “” is to provide a lower fixed cost to those Market Makers who are willing to quote the entire Exchange market (or substantial amount of the Exchange market), as objectively measured by either number of classes assigned or national ADV, but who do not otherwise execute a significant amount of volume on the Exchange. The Exchange believes that, by offering lower fixed costs to Market Makers that execute less volume, the Exchange will retain and attract smaller-scale Market Makers, which are an integral component of the option marketplace, but have been decreasing in number in recent years, due to industry consolidation and lower market maker profitability. Since these smaller-scale Market Makers utilize less Exchange capacity due to lower overall volume executed, the Exchange believes it is reasonable and equitable to offer such Market Makers a lower fixed cost. The Exchange notes that the Exchange's affiliate, MIAX, provides a similar alternative lower Trading Permit fee for Market Makers who quote the entire MIAX market (or substantial amount of the MIAX market), as objectively measured by either number of classes assigned or national ADV, but who do not otherwise execute a significant amount of volume on MIAX.
MIAX Emerald believes that exchanges, in setting fees of all types, should meet very high standards of transparency to demonstrate why each new fee or fee increase meets the requirements of the Act that fees be reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among members and markets. MIAX Emerald believes this high standard is especially important when an exchange imposes various access fees for market participants to access an exchange's marketplace. MIAX Emerald deems Trading Permit fees to be access fees. It records these fees as part of its “Access Fees” revenue in its financial statements. The Exchange believes that it is important to demonstrate that these fees are based on its costs and reasonable business needs. The Exchange believes the Proposed Access Fees will allow the Exchange to offset expense the Exchange has and will incur, and that the Exchange is providing sufficient transparency (as described below) into how the Exchange determined to charge such fees. Accordingly, the Exchange is providing
In order to determine the Exchange's costs to provide the access services associated with the Proposed Access Fees, the Exchange conducted an extensive cost review in which the Exchange analyzed every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports the access services. The sum of all such portions of expenses represents the total cost of the Exchange to provide the access services associated with the Proposed Access Fees. For the avoidance of doubt, no expense amount was allocated twice. The Exchange is also providing detailed information regarding the Exchange's cost allocation methodology—namely, information that explains the Exchange's rationale for determining that it was reasonable to allocate certain expenses described in this filing towards the cost to the Exchange to provide the access services associated with the Proposed Access Fees.
In order to determine the Exchange's projected revenues associated with the Proposed Access Fees, the Exchange analyzed the number of Members currently utilizing the Trading Permits, and, utilizing a recent monthly billing cycle representative of 2020 monthly revenue, extrapolated annualized revenue on a going-forward basis. The Exchange does not believe it is appropriate to factor into its analysis future revenue growth or decline into its projections for purposes of these calculations, given the uncertainty of such projections due to the continually changing access needs of market participants, discounts that can be achieved due to lower trading volume and vice versa, market participant consolidation, etc. Additionally, the Exchange similarly does not factor into its analysis future cost growth or decline. The Exchange is presenting its revenue and expense associated with the Proposed Access Fees in this filing in a manner that is consistent with how the Exchange presents its revenue and expense in its Audited Unconsolidated Financial Statements. The Exchange's most recent Audited Unconsolidated Financial Statement is for 2019. However, since the revenue and expense associated with the Proposed Access Fees were not in place in 2019 or for the first three quarters of 2020, the Exchange believes its 2019 Audited Unconsolidated Financial Statement is not useful for analyzing the reasonableness of the total annual revenue and costs associated with the Proposed Access Fees. Accordingly, the Exchange believes it is more appropriate to analyze the Proposed Access Fees utilizing its 2020 revenue and costs, as described herein, which utilize the same presentation methodology as set forth in the Exchange's previously-issued Audited Unconsolidated Financial Statements. Based on this analysis, the Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit when comparing the Exchange's total annual expense associated with providing the services associated with the Proposed Access Fees versus the total projected annual revenue the Exchange will collect for providing those services.
On March 29, 2019, the Commission issued its Order Disapproving Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC Options Facility to Establish BOX Connectivity Fees for Participants and Non-Participants Who Connect to the BOX Network (the “BOX Order”).
The proposed rule change is immediately effective upon filing with the Commission pursuant to Section 19(b)(3)(A) of the Act.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange launched trading on March 1, 2019. For the month of December 2020, the Exchange had only a 3.58% market share of the U.S. options industry.
Separately, the Exchange is not aware of any reason why market participants could not simply drop their access to an exchange (or not initially access an exchange) if an exchange were to establish prices for its non-transaction fees that, in the determination of such market participant, did not make business or economic sense for such market participant to access such exchange. No options market participant is required by rule, regulation, or competitive forces to be a Member of the Exchange. As evidence of the fact that market participants can and do drop their access to exchanges based on non-transaction fee pricing, R2G Services LLC (“R2G”) filed a comment letter after BOX's proposed rule changes to increase its connectivity fees (SR-BOX-2018-24, SR-BOX-2018-37, and SR-BOX-2019-04). The R2G Letter stated, “[w]hen BOX instituted a $10,000/month price increase for connectivity;
The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the Proposed Access Fees will not result in excessive or supra-competitive profit. The costs associated with providing access to Exchange Members and non-Members, as well as the general expansion of a state-of-the-art infrastructure, are extensive, have increased year-over-year, and are projected to increase year-over-year in the future. In particular, the Exchange has experienced a material increase in its costs in 2020, in connection with a project to make its network environment more transparent and deterministic, based on customer demand. This project will allow the Exchange to enhance its network architecture with the intent of ensuring a best-in-class, transparent and deterministic trading system while maintaining its industry leading latency and throughput capabilities. In order to provide this greater amount of transparency and higher determinism, MIAX Emerald has made significant capital expenditures (“CapEx”), incurred increased ongoing operational expenditures (“OpEx”), and undertaken additional engineering research and development (“R&D”) in the following areas: (i) Implementing an improved network design to ensure the minimum latency between multicast market data signals disseminated by the Exchange across the extranet switches, improving the unicast jitter profile to reduce the occurrence of message sequence inversions from Members to the Exchange quoting gateway processors, and introducing a new optical fiber network infrastructure that ensures the optical fiber path for participants within extremely tight tolerances; (ii) introducing a re-architected and engineered participant quoting gateway that ensures the delivery of messages to the match engine with absolute determinism, eliminating the message processing inversions that can occur with messages received nanoseconds apart; and (iii) designing an improved monitoring platform to better measure the performance of the network and systems at extremely tight tolerances and to provide Members with reporting on the performance of their systems. The CapEx associated with only phase 1 of this project in 2020 was approximately $1.85 million. This expense does not include the significant increase in employee time and other resources necessary to maintain and service this network, which expense is captured in the operating expense discussed below. This project, which results in a material increase in expense of the Exchange, is, among other things, intended to enhance the overall trading experience at the Exchange, making it a venue that market participants want to access.
The Exchange believes the proposed Trading Permit fees are equitably allocated between EEMs and Market Makers, when these fees are viewed in the context of the overall trading volume on the Exchange, as Market Makers: (1) Consume the most bandwidth and resources of the network; (2) transact the vast majority of the volume on the Exchange; and (3) require the high touch network support services provided by the Exchange and its staff, including more costly network monitoring, reporting and support services, resulting in a much higher cost to the Exchange. Further, the Exchange believes the Proposed Access Fees are equitably allocated because of customer demand for an even more transparent and deterministic network, as described above, which has resulted in higher CapEx, increasingly higher OpEx, and increased costs to engineering R&D. The Proposed Access Fees are equitably allocated in this regard because the majority of customer demand is coming from Market Makers, who transact the vast majority of volume on the Exchange. Accordingly, the Exchange believes it is reasonable, equitably allocated and not unfairly discriminatory to recoup the majority of its costs associated with providing Trading Permits from Market Makers quoting the most classes on the Exchange.
The Exchange believes that the proposed Trading Permit fees are equitably allocated between EEMs and Market Makers, as Market Makers consume the most bandwidth and resources of the network. Specifically, the Exchange notes that these users account for approximately greater than 99% of message traffic over the network, while EEMs account for approximately less than 1% of message traffic over the network. In the Exchange's experience, most EEMs do not have a business need for the high performance network solutions required by Market Makers. The Exchange's high performance network solutions and supporting infrastructure (including employee support), provides unparalleled system throughput and the capacity to handle approximately 18 million quote messages per second. On an average day, the Exchange handles over approximately 3 billion total messages. Of those, Market Makers generate approximately 3 billion messages, and EEMs generate 500,000 messages. However, in order to achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall expense for storage and network transport capabilities. Given this difference in network utilization rate, the Exchange believes that it is reasonable, equitable, and not unfairly discriminatory that Market Makers pay for the vast majority of the access costs designed to be recovered via Trading Permit fees.
In order to provide more detail and to quantify the Exchange's costs associated with providing access to the Exchange in general, the Exchange notes that there are material costs associated with providing the infrastructure and headcount to fully-support access to the Exchange. The Exchange incurs technology expense related to establishing and maintaining Information Security services, enhanced network monitoring and customer reporting, as well as Regulation SCI mandated processes, associated with its network technology. While some of the expense is fixed, much of the expense is not fixed, and thus increases as the services associated with the Proposed Access Fees increase. For example, new Market Makers to the Exchange may require the purchase of additional hardware to support those Members as well as enhanced monitoring and reporting of customer performance that MIAX Emerald and its affiliates provide. Further, as the total number Market Makers increase, MIAX Emerald and its affiliates may need to increase their data center footprint and consume more power, resulting in increased costs charged by their third-party data center provider. Accordingly, the cost to MIAX Emerald and its affiliates to provide access to its Members is not fixed. The Exchange believes the Proposed Access
Market Makers account for the vast majority of network capacity utilization and volume executed on the Exchange, as discussed throughout. Accordingly, the Exchange believes that it is reasonable and appropriate to charge Market Makers more than EEMs for Trading Permits to access the Exchange.
The Exchange only has four primary sources of revenue: transaction fees, access fees (which includes the Proposed Access Fees), regulatory fees, and market data fees. Accordingly, the Exchange must cover all of its expenses from these four primary sources of revenue.
The Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit, when comparing the total annual expense that the Exchange projects to incur in connection with providing these access services versus the total annual revenue that the Exchange projects to collect in connection with the associated Trading Permit fees. For 2020,
As discussed, the Exchange conducted an extensive cost review in which the Exchange analyzed every expense item in the Exchange's general expense ledger (this includes over 150 separate and distinct expense items) to determine whether each such expense relates to the access services associated with the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports those services, and thus bears a relationship that is, “in nature and closeness,” directly related to those services. The sum of all such portions of expenses represents the total cost of the Exchange to provide access services associated with the Proposed Access Fees.
For 2020, total third-party expense, relating to fees paid by MIAX Emerald to third-parties for certain products and services for the Exchange to be able to provide the access services associated with the Proposed Access Fees, is projected to be $190,621. This includes, but is not limited to, a portion of the fees paid to: (1) Equinix, for data center services, for the primary, secondary, and disaster recovery locations of the MIAX Emerald trading system infrastructure; (2) Zayo Group Holdings, Inc. (“Zayo”) for network services (fiber and bandwidth products and services) linking MIAX Emerald's office locations in Princeton, NJ and Miami, FL to all data center locations; (3) Secure Financial Transaction Infrastructure (“SFTI”),
For clarity, only a portion of all fees paid to such third-parties is included in the third-party expense herein, and no expense amount is allocated twice. Accordingly, MIAX Emerald does not allocate its entire information technology and communication costs to the access services associated with the Proposed Access Fees.
The Exchange believes it is reasonable to allocate such third-party expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, the Exchange believes it is reasonable to allocate the identified portion of the Equinix expense because Equinix operates the data centers (primary, secondary, and disaster recovery) that host the Exchange's network infrastructure. This includes, among other things, the necessary storage space, which continues to expand and increase in cost, power to operate the network infrastructure, and cooling apparatuses to ensure the Exchange's network infrastructure maintains stability. Without these services from Equinix, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the Equinix expense toward the cost of providing the access services associated with the Proposed Access Fees, only that portion which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 10% of the total Equinix expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portion of the Zayo expense because Zayo provides the internet, fiber and bandwidth connections with respect to the network, linking MIAX Emerald with its affiliates, MIAX and MIAX PEARL, LLC (“MIAX PEARL”), as well as the data center and disaster recovery locations. As such, all of the trade data, including the billions of messages each day per exchange, flow through Zayo's
The Exchange believes it is reasonable to allocate the identified portions of the SFTI expense and various other service providers' (including Thompson Reuters, NYSE, Nasdaq, and Internap) expense because those entities provide connectivity and feeds for the entire U.S. options industry, as well as the content, connectivity services, and infrastructure services for critical components of the network. Without these services from SFTI and various other service providers, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the SFTI and other service providers' expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 1% of the total SFTI and other service providers' expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees.
The Exchange believes it is reasonable to allocate the identified portion of the other hardware and software provider expense because this includes costs for dedicated hardware licenses for switches and servers, as well as dedicated software licenses for security monitoring and reporting across the network. Without this hardware and software, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the hardware and software provider expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 10% of the total hardware and software provider expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees.
For 2020, total projected internal expense, relating to the internal costs of MIAX Emerald to provide the access services associated with the Proposed Access Fees, is projected to be $2,046,137. This includes, but is not limited to, costs associated with: (1) employee compensation and benefits for full-time employees that support the access services associated with the Proposed Access Fees, including staff in network operations, trading operations, development, system operations, business, as well as staff in general corporate departments (such as legal, regulatory, and finance) that support those employees and functions (including an increase as a result of the higher determinism project); (2) depreciation and amortization of hardware and software used to provide the access services associated with the Proposed Access Fees, including equipment, servers, cabling, purchased software and internally developed software used in the production environment to support the network for trading; and (3) occupancy costs for leased office space for staff that provide the access services associated with the Proposed Access Fees. The breakdown of these costs is more fully-described below. For clarity, only a portion of all such internal expenses are included in the internal expense herein, and no expense amount is allocated twice. Accordingly, MIAX Emerald does not allocate its entire costs contained in those items to the access services associated with the Proposed Access Fees.
The Exchange believes it is reasonable to allocate such internal expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, MIAX Emerald's employee compensation and benefits expense relating to providing the access services associated with the Proposed Access Fees is projected to be $1,403,101, which is only a portion of the $9,354,009 total projected expense for employee compensation and benefits. The Exchange believes it is reasonable to allocate the identified portion of such expense because this includes the time spent by employees of several departments, including Technology, Back Office, Systems Operations, Networking, Business Strategy Development (who create the business requirement documents that the Technology staff use to develop network features and enhancements), Trade Operations, Finance (who provide billing and accounting services relating to the network), and Legal (who provide legal services relating to the network, such as rule filings and various license agreements and other contracts). As part of the extensive cost review conducted by the Exchange, the Exchange reviewed the amount of time spent by each employee on matters relating to the provision of access services associated with the Proposed Access Fees. Without these employees, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the employee compensation and benefits expense toward the cost of the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 15% of the total employee compensation and benefits expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
MIAX Emerald's depreciation and amortization expense relating to providing the access services associated with the Proposed Access Fees is projected to be $571,888, which is only a portion of the $3,812,590 total projected expense for depreciation and amortization. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense includes the actual cost of the computer equipment, such as dedicated servers, computers, laptops, monitors, information security appliances and storage, and network switching infrastructure equipment, including switches and taps that were purchased to operate and support the network and provide the access services associated with the Proposed Access Fees. Without this equipment, the Exchange would not be able to operate the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. The
MIAX Emerald's occupancy expense relating to providing the access services associated with the Proposed Access Fees is projected to be $71,148, which is only a portion of the $474,323 total projected expense for occupancy. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense represents the portion of the Exchange's cost to rent and maintain a physical location for the Exchange's staff who operate and support the network, including providing the access services associated with the Proposed Access Fees. This amount consists primarily of rent for the Exchange's Princeton, NJ office, as well as various related costs, such as physical security, property management fees, property taxes, and utilities. The Exchange operates its Network Operations Center (“NOC”) and Security Operations Center (“SOC”) from its Princeton, New Jersey office location. A centralized office space is required to house the staff that operates and supports the network. The Exchange currently has approximately 150 employees. Approximately two-thirds of the Exchange's staff are in the Technology department, and the majority of those staff have some role in the operation and performance of the access services associated with the proposed Trading Permit fees. Without this office space, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. Accordingly, the Exchange believes it is reasonable to allocate the identified portion of its occupancy expense because such amount represents the Exchange's actual cost to house the equipment and personnel who operate and support the Exchange's network infrastructure and the access services associated with the Proposed Access Fees. The Exchange did not allocate all of the occupancy expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to operating and supporting the network, approximately 15% of the total occupancy expense. The Exchange believes this allocation is reasonable because it represents the Exchange's cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange notes that a material portion of its total overall expense is allocated to the provision of access services (including connectivity, ports, and trading permits). The Exchange believes this is reasonable and in line, as the Exchange operates a technology-based business that differentiates itself from its competitors based on its trading systems that rely on access to a high performance network, resulting in significant technology expense. Over two-thirds of Exchange staff are technology-related employees. The majority of the Exchange's expense is technology-based. As described above, the Exchange has only four primary sources of fees in to recover its costs, thus the Exchange believes it is reasonable to allocate a material portion of its total overall expense towards access fees.
Accordingly, based on the facts and circumstances presented, the Exchange believes that its provision of the access services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit. To illustrate, on a going-forward, fully-annualized basis, the Exchange projects that its annualized revenue for providing the access services associated with the Proposed Access Fees would be approximately $2.5 million per annum, based on a recent billing cycle. The Exchange projects that its annualized expense for providing the access services associated with the Proposed Access Fees would be approximately $2,236,758 per annum. Accordingly, on a fully-annualized basis, the Exchange believes its total projected revenue for the providing the access services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit, as the Exchange will make only a 10% profit margin on the Proposed Access Fees ($2.5 million−$2,236,758 = $263,242 per annum). The Exchange notes that the fee charged to each Market Maker for Trading Permits can vary from month to month depending on the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, and upon certain class volume percentages. The Exchange also provides a further discount for a Market Maker's Trading Permit fees if the Market Maker's total monthly executed volume during the relevant month is less than 0.025% of the total monthly executed volume reported by OCC in the customer account type for MIAX Emerald-listed option classes for that month. As such, the revenue projection is not a static number, with monthly Trading Permit fees likely to fluctuate month to month.
For the avoidance of doubt, none of the expenses included herein relating to the access services associated with the Proposed Access Fees relate to the provision of any other services offered by MIAX Emerald. Stated differently, no expense amount of the Exchange is allocated twice. The Exchange notes that, with respect to the MIAX Emerald expenses included herein, those expenses only cover the MIAX Emerald market; expenses associated with the Exchange's affiliate exchanges, MIAX and MIAX PEARL, are accounted for separately and are not included within the scope of this filing. Stated differently, no expense amount of the Exchange is also allocated to MIAX or MIAX PEARL.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to allocate the respective percentages of each expense category described above towards the total cost to the Exchange of operating and supporting the network, including providing the access services associated with the Proposed Access Fees because the Exchange performed a line-by-line item analysis of all the expenses of the Exchange, and has determined the expenses that directly relate to providing access to the Exchange. Further, the Exchange notes that, without the specific third-party and internal items listed above, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. Each of these expense items, including physical hardware, software, employee compensation and benefits, occupancy costs, and the depreciation and amortization of equipment, have been identified through a line-by-line item analysis to be integral to providing access services. The Proposed Access Fees are intended to recover the Exchange's costs of providing access to Exchange Systems. Accordingly, the Exchange believes that the Proposed Access Fees are fair and reasonable
Further, the Exchange no longer believes it is necessary to waive these fees to attract market participants to MIAX Emerald since this market is now established and MIAX Emerald no longer needs to rely on such waivers to attract market participants. The Exchange believes that the proposal is equitable and not unfairly discriminatory because the elimination of the fee waiver for the Proposed Access Fees will uniformly apply to all EEMs and Market Makers of the Exchange. The Exchange also notes that the Exchange's affiliate, MIAX, charges a similar, fixed trading permit fee to its EEMs, and a similar, varying trading permit fee to its Market Makers, based upon the number of assignments of option classes or the percentage of volume in option classes.
The Exchange believes that the Proposed Access Fees are reasonable, equitable and not unfairly discriminatory because they are within the range of comparable fees at other competing options exchanges.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees for services and products, in addition to order flow, to remain competitive with other exchanges. The Exchange believes that the proposed changes reflect this competitive environment.
The Exchange also points out that it is not seeking to recoup any of its past costs associated with the provision of any Trading Permits during the Waiver Period. The Exchange currently has 35 Members,
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 believes that the Proposed Access Fees do not place certain market participants at a relative disadvantage to other market participants because the Proposed Access Fees do not favor certain categories of market participants in a manner that would impose a burden on competition; rather, the fee rates are designed in order to provide objective criteria for Market Makers of different sizes and business models that best matches their quoting activity on the Exchange. The Exchange notes that trading volume and quoting activity in the options market tends to be concentrated in the top ranked options classes; with the vast majority of options classes being thinly quoted and traded. The Exchange believes that the proposed fee rates and criteria provide an objective and flexible framework that will encourage Market Makers to be assigned and quote in option classes with lower total national average daily volume while also equitably allocating the fees in a reasonable manner amongst Market Maker assignments to account for quoting and trading activity.
The Exchange believes the Proposed Access Fees do not place an undue burden on competition on other SROs that is not necessary or appropriate. In particular, options market participants are not forced to become members of all options exchanges. The Exchange notes that it has far less Members as compared to the much greater number of members at other options exchanges. There are a number of large market makers and broker-dealers that are members of other options exchange but not Members of MIAX Emerald. The Exchange is also unaware of any assertion that its existing fee levels or the Proposed Access Fees would somehow unduly impair its competition with other options exchanges. To the contrary, if the fees charged are deemed too high by market participants, they can simply discontinue their membership with the Exchange.
The Exchange operates in a highly competitive market in which market participants can readily favor one of the 15 competing options venues if they deem fee levels at a particular venue to be excessive. Based on publicly-available information, and excluding index-based options, no single exchange has more than 16% market share. Therefore, no exchange possesses significant pricing power in the execution of multiply-listed equity and ETF options order flow. For the month of December 2020, the Exchange had a market share of approximately 3.6% of executed multiply-listed equity options
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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.
On November 12, 2020, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange lists shares (collectively, “Shares”) of the iShares Gold Trust (formerly the iShares COMEX Gold Trust), the iShares Silver Trust, and the iShares S&P GSCI Commodity-Indexed Trust. The listing and trading of shares of the iShares Gold Trust and the iShares Silver Trust are subject to NYSE Arca Rule 8.201-E, which governs the listing and trading of Commodity-Based Trust Shares on the Exchange; the listing and trading of shares of the iShares S&P GSCI Commodity-Indexed Trust are subject to NYSE Arca Rule 8.203-E, which governs the listing and trading of Commodity Index Trust Shares on the Exchange. The listing and trading of the Shares by the Exchange also are subject to Exchange representations referenced in various Commission releases.
Under the Prior Releases, each of the Trusts is required to disseminate on its respective website a calculation of the premium or discount of the midpoint of the respective bid-ask price against NAV and data in chart form displaying the frequency distribution of discounts and premiums of such price against the NAV, within appropriate ranges for each of the four previous calendar quarters. The Exchange proposes to instead require each Trust to disseminate via its website the premium or discount of the Official Closing Price (rather than the midpoint of the respective bid-ask price) against the NAV as of the prior business day, expressed as a percentage of such NAV.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange states that the proposed alternative disclosures would be both more specific and more comprehensive than the manner by which premium or discount information is currently disseminated by the Trusts. By providing the premium and discount information in a table and line graph as opposed to only in chart form, and for the previous calendar year and the most recently completed quarters following such calendar year as opposed to only for the four previous quarters, the Trusts would provide market participants with additional information to assess market pricing of the Shares against their respective NAVs. Additionally, the Exchange states that, by disseminating the premium or discount of the Official Closing Price (rather than the midpoint of the respective bid-ask price) against the NAV as of the prior business day, the Trusts would utilize more up-to-date and reliable pricing information available for the Shares compared to midpoints of the bid-ask prices.
The Commission believes that the proposed alternative disclosures will be at least as useful to market participants as the currently disclosed data with respect to the Shares. Correspondingly, the Commission believes that the proposed alternative disclosures will not negatively impact arbitrage opportunities in the Shares that align the market prices of the Shares with their NAVs. For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 6(b)(5) of the Act
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 is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”) to establish: (1) One-time membership application fees for new MIAX Emerald Members;
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 the Fee Schedule to establish: (1) One-time membership application fees for new MIAX Emerald Members based upon the applicant's status as either an Electronic Exchange Member (“EEM”)
MIAX Emerald commenced operations as a national securities exchange registered under Section 6 of the Act
On September 15, 2020, the Exchange issued a Regulatory Circular which announced that the Exchange would terminate the Waiver Period for, among other fees, the one-time membership application fee and per-instance API Testing and Certification fees and Network Connectivity Testing and Certification fees for Members and non-Members, beginning October 1, 2020.
The Exchange initially filed its proposals to establish the one-time membership application fee and per-instance API Testing and Certification fees and Network Connectivity Testing and Certification fees on October 1, 2020.
The Exchange proposes to assess a one-time membership application fee based upon the applicant's status as either an EEM or as a Market Maker. The Exchange proposes that applicants for MIAX Emerald membership as an EEM will be assessed a one-time application fee of $2,500. The Exchange proposes that applicants for MIAX Emerald membership as a Market Maker will be assessed a one-time application fee of $3,000. The difference in the proposed membership application fee to be charged to EEMs and Market Makers is because of the additional review and resources involved in processing a Market Maker's application, as Market Makers have greater and more complex obligations with respect to doing business on the Exchange.
The Exchange also proposes to adopt an API Testing and Certification fee for Members. An API makes it possible for Member software to communicate with MIAX Emerald software applications, and is subject to Member testing with, and certification by, MIAX Emerald. API testing and certification includes, for EEMs, testing all available order types, new order entry, order management, order throughput and mass order cancellation. For Market Makers, API testing and certification also includes testing of all available quote types, quote throughput, quote management and cancellation, Aggregate Risk Manager settings and triggers, and confirmation of quotes within the trading engines.
The API Testing and Certification fees for Members are based upon the type of interface that the Member has been credentialed to use. The Exchange proposes to adopt an API testing and certification fee for EEMs (other than Clearing Firms): (i) Initially per API for Financial Information Exchange (“FIX”)
The Exchange proposes to adopt an API testing and certification fee for Market Makers: (i) Initially per API for CTD and MIAX Emerald Express Interface (“MEI”)
The Exchange proposes to adopt an API Testing and Certification fee for Third Party Vendors,
The Exchange proposes to assess non-Member API Testing and Certification fees of $1,200 for Third Party Vendors, Service Bureaus and other non-Members. Below is the proposed table for API Testing and Certification fees for non-Members:
The proposed higher fee charged to Third Party Vendors, Service Bureaus and non-Members reflects the greater amount of time spent by MIAX Emerald employees testing and certifying non-Members. It has been MIAX Emerald's experience that Member testing takes less time than non-Member testing because Members have more experience testing these systems with exchanges, resulting in generally fewer questions and issues arising during the testing and certification process. Also, because Third Party Vendors and Service Bureaus are redistributing data and reselling services to other Members and
The Exchange believes it is necessary to charge an API Testing and Certification fee to Members and non-Members because of the time and resources spent to ensure that Member and non-Member APIs function correctly to prevent any System malfunction. Further, the Exchange believes the price differential in API Testing and Certification fees for Members and non-Members is not unfairly discriminatory because, in the Exchange's experience, Member testing takes less time than non-Member testing as Members have more experience testing these systems with exchanges, resulting generally in fewer questions and issues arising during the testing and certification process.
The Exchange established electronic communication connections with Members and now proposes to assess Members a Network Connectivity Testing and Certification fee for each 1 Gigabit (“Gb”) connection and 10 Gb ultra-low-latency (“ULL”) connection. The Exchange proposes to assess a Member Network Connectivity Testing and Certification fee: (i) Initially per connection in the month the Individual Firm has been credentialed to use any API or market data feeds in the production environment utilizing the tested network connection, and (ii) each time an individual firm initiates a change to its system that requires network connectivity testing and certification. Network Connectivity Testing and Certification fees will not be assessed in situations where the Exchange initiates a mandatory change to the Exchange's system that requires testing and certification. Member Network Connectivity Testing and Certification fees will not be assessed for testing and certification of connectivity to the Exchange's Disaster Recovery Facility.
The Exchange proposes to assess Members a Network Connectivity Testing and Certification Fee of $1,000 per 1Gb connection and $4,000 per 10Gb ULL connection. Below is the proposed table for Member Network Connectivity Testing and Certification fees:
The proposed fee amounts are identical to the fees currently assessed for the same services at the Exchange's affiliate options exchanges, MIAX and MIAX PEARL, LLC (“MIAX PEARL”). The Exchange notes that the Emerald Express Network Interconnect (“EENI”)
MIAX Emerald established electronic communication connections with Service Bureaus, Extranet Providers and other non-Members, and now proposes to assess a Network Connectivity Testing and Certification fee for each 1Gb connection and 10Gb ULL connection. The Exchange proposes to assess a non-Member Network Connectivity Testing and Certification fee: (i) Initially per connection in the month the Service Bureau, Extranet Provider or other non-Member has been credentialed to use any API or market data feeds in the production environment using the tested network connection, and (ii) each time the Service Bureau, Extranet Provider or other non-Member initiates a change to its system that requires network connectivity testing and certification. Network Connectivity Testing and Certification fees will not be assessed in situations where the Exchange initiates a mandatory change to the Exchange's system that requires testing and certification. Non-Member Network Connectivity Testing and Certification fees will not be assessed for testing and certification of connectivity to the Exchange's Disaster Recovery Facility.
The Exchange proposes to assess non-Members a Network Connectivity Testing and Certification Fee of $1,200 per 1Gb connection and $4,200 per 10Gb ULL connection. Below is the proposed table for non-Member Network Connectivity Testing and Certification fees:
The EENI is also available to non-Member subscribers. For non-Member subscribers, when utilizing a Shared cross-connect, the EENI can also be configured to offer network connectivity to the trading platforms, market data systems, test systems, and disaster recovery facilities of the Exchange's affiliate options exchanges, MIAX and MIAX PEARL. Accordingly, non-Members utilizing Shared cross-connects to connect to the trading platforms, market data systems, test systems, and disaster recovery facilities of the Exchange and its affiliates, MIAX and MIAX PEARL, will only be assessed one Network Connectivity Testing and Certification fee per connection tested, regardless of the trading platforms, market data systems, test systems, and disaster recovery facilities accessed via such connection. The Member and non-Member Network Testing and Certification fees represent installation and support costs incurred by the Exchange as it works with each Member and non-Member to make sure there are appropriate electronic communication connections with MIAX Emerald. The Exchange's affiliate options exchanges, MIAX and MIAX PEARL, charge the same fees for the same services for their Members and non-Members.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange launched trading on March 1, 2019. For the month of December 2020, the Exchange had only a 3.58% market share of the U.S. options industry.
The Exchange believes the proposed one-time membership application fee is reasonable, equitable and not unfairly discriminatory because it is a one-time fee that is reasonably related to (and designed to recover) the Exchange's cost associated with reviewing and approving membership applications, which consists primarily of the time and resources of Exchange personnel to process the membership application and conduct the new member on-boarding process. The Exchange's process for reviewing and approving potential new Members involves several steps and participation from personnel in multiple Exchange departments, as follows: (i) Reviewing prospective Member information provided in various membership forms, including, where necessary, possibly consulting with FINRA, pursuant to the Exchange's Regulatory Services Agreement; (ii) the on-boarding process, where Exchange personnel contacts the firm for an introductory meeting with the Exchange's Business Team to discuss goals, answer questions and schedule the technical on-boarding meeting; (iii) the technical on-boarding meeting, where the Exchange's on-boarding team and Trading Operations Team guides the firm through the on-boarding process with Exchange personnel available to discuss network connectivity, APIs, Exchange functionality and operational issues; and (iv) follow-ups with the Trading Operations Team to coordinate testing, as necessary, until the firm is active in the Exchange's live trading environment.
The Exchange tracks the number of hours spent by Exchange personnel providing the aforementioned services per membership application. Based on the average number of person hours spent by the Exchange on processing a typical membership application, and based on the Exchange's average cost per full-time employee (“FTE”) of approximately $250,000 (inclusive of all compensation and employee benefits) per year, the Exchange represents that its cost to provide this service is reasonably related to (and often exceeds) the amount of the membership application fee the Exchange proposes to charge for such service. In particular, it takes approximately 40 person hours to review, on-board and approve a membership application. Therefore, the cost to the Exchange for the review, on-boarding, and approval of each application is, on average, approximately $4,000-$5,000 (with EEM application costs closer to $4,000, versus Market Maker application costs closer to $5,000). Accordingly, the proposed one-time membership application fee would enable the Exchange to recover a material portion of such cost. The Exchange believes this is a conservative cost allocation because the Exchange is not allocating any additional costs beyond the employee compensation costs for employees directly involved in this process, such as costs associated with management review and sign off, compliance team reviews, technology costs of employees, office space costs of employees, costs associated with supporting departments' time for things such as internal meetings, project management coordination among the individuals who indirectly support the membership approval and on-boarding processes, and various other indirectly-related costs.
The Exchange also points out that it is not seeking to recoup any of its past costs associated with reviewing membership applications that took place during the Waiver Period. The Exchange currently has 35 Members,
The Exchange believes the proposed API Testing and Certification fees and Network Connectivity Testing and Certification fees are reasonable, equitable and not unfairly discriminatory. The Exchange tracks the number of hours spent by Exchange personnel providing API testing and certification services per billable instance. Based on the average number of person hours spent by the Exchange on API testing and certification services, and based on the Exchange's average cost per FTE of approximately $250,000 (inclusive of all compensation and employee benefits) per year, the Exchange represents that its costs to provide these services are reasonably related to (and often exceed) the amount of the respective testing and certification fees the Exchange proposes to charge for such services. In particular, it takes approximately 20 person hours to complete the API testing and certification process. Therefore, the cost to the Exchange to provide API testing and certification services is, on average, approximately $2,500 per instance (with EEM and non-Member testing and certification costs closer to $2,000, versus Market Maker testing and certification costs closer to $3,000). Accordingly, the proposed API Testing and Certification fees would enable the Exchange to recover a material portion of such costs. The Exchange believes this is a conservative cost allocation because the Exchange is not allocating any additional costs beyond the employee compensation costs for employees directly involved in this process, such as management review and sign off, technology costs of employees, office space costs of employees, costs associated with supporting departments' time for things such as internal meetings, project management coordination among the individuals who indirectly support the testing and certification process, and various other indirectly-related costs.
The Exchange also points out that it is not seeking to recoup any of its past costs associated with conducting API testing and certification that took place during the Waiver Period. The Exchange currently has 35 Members,
The Exchange also tracks the number of hours spent by Exchange personnel providing network connectivity testing and certification services per billable instance. Based on the average number of person hours spent by the Exchange on network connectivity testing and certification services, and based on the Exchange's average cost per FTE of approximately $250,000 (inclusive of all compensation and employee benefits) per year, the Exchange represents that its costs to provide these services are reasonably related to (and often exceed) the amount of the respective testing and certification fees the Exchange proposes to charge for such services. In particular, it takes approximately 20 person hours to complete the network testing and certification process for 1 Gigabit connections, and approximately 40 person hours to complete the network testing and certification process for 10 Gigabit ULL connections. Therefore, the cost to the Exchange to provide network connectivity testing and certification services is, on average, approximately $2,500 per instance for 1 Gigabit connections, and approximately $5,000 per instance for 10 Gigabit ULL connections. Accordingly, the proposed Network Connectivity Testing and Certification fees would enable the Exchange to recover a material portion of such costs. The Exchange believes this is a conservative cost allocation because the Exchange is not allocating any additional costs beyond the employee compensation costs for employees directly involved in this process, such as management review and sign off, technology costs of employees, office space costs of employees, costs associated with supporting departments' time for things such as internal meetings, project management coordination among the individuals who indirectly support the testing and certification process, and various other indirectly-related costs.
The Exchange believes the difference in the proposed membership application fee to be charged to EEMs and Market Makers is an equitable allocation of reasonable dues and fees pursuant to Section 6(b)(4) of the Act
The Exchange believes its proposal to adopt API Testing and Certification fees and Network Connectivity Testing and Certification fees for Members and non-Members is an equitable allocation of reasonable dues and fees pursuant to Section 6(b)(4) of the Act
Further, the Exchange believes the price differential in API Testing and Certification fees and Network Connectivity Testing and Certification fees for Members and non-Members is not unfairly discriminatory because, in the Exchange's experience, Member testing utilizes less Exchange resources and employee time than non-Member testing as Members have more experience testing these systems with exchanges, resulting generally in fewer questions and issues arising during the testing and certification process. Also, with respect to API testing and certification, because Third Party
The Exchange believes the difference in the proposed 1 Gigabit and 10 Gigabit ULL network connectivity testing and certification fees is an equitable allocation of reasonable dues and fees pursuant to Section 6(b)(4) of the Act
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 believes that the proposed fees do not put any market participants at a relative disadvantage compared to other market participants. The proposed fees would apply to all new Exchange Members and those firms looking to establish APIs and network connectivity in the same manner. Market participants may not only choose whether to become Exchange Members at all, but may choose to become members at competing options exchanges instead.
The Exchange further believes the proposed fees do not place any market participant at a disadvantage compared to other market participants because the proposed API Testing and Certification and Network Connectivity Testing and Certification fees are intended to cover the situations where a Member or non-Member firm makes changes to its own system for its own business purpose (
The Exchange believes that the proposed fees do not dampen innovation because the majority of Exchange Members are members of most, if not all, of the other 15 options exchanges. Those exchanges also require testing and certification any time the Member makes changes to its system at those exchanges, and also charge a fee to recoup the costs associated with testing and certifying members. The Exchange also notes that it has never received a complaint from a Member or non-Member any time a Member or non-Member has made a change to its own system that resulted in the Exchange assessing a testing and certification fee. Without some sort of testing and certification fee, the Exchange believes that Members and non-Members might be less efficient in testing their systems, potentially resulting in excessive time being consumed by the Exchange re-testing and re-certifying Members and non-Members, to the detriment of all market participants as Exchange resources are diverted away from other trading operations.
The Exchange also believes that the proposed fees neither favor nor penalize one or more categories of market participants in a manner that would impose an undue burden on competition. To the extent that various market participants are charged different fees for the one-time membership application and per-instance API and network connectivity testing, those distinctions are not unfairly discriminatory and do not unfairly burden one set of market participants over another. The difference in the proposed membership application fee to be charged to EEMs and Market Makers is because of the additional review and resources involved in processing a Market Maker's application, as Market Makers have greater and more complex obligations with respect to doing business on the Exchange.
The Exchange believes that the proposed API Testing and Certification fees and Network Connectivity Testing and Certification fees do not place certain market participants at a relative disadvantage to other market participants because the fees do not apply unequally to different size market participants, but instead would allow the Exchange to charge for the time and resource necessary for API testing and certification and network connectivity testing and certification for Members and non-Members to ensure proper functioning of all available order types, new order entry, order management, order throughput and mass order cancellation (as well as, for Market Makers, all available quote types, quote
The Exchange believes the proposed API Testing and Certification fees and Network Connectivity Testing and Certification fees do not place an undue burden on competition on other SROs that is not necessary or appropriate. The Exchange believes that the proposed fees do not impose a burden on competition or on other exchanges that is not necessary or appropriate because of the availability of numerous substitute options exchanges. There are 15 other options exchanges where market participants can become members.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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.
All submissions should refer to File Number SR-EMERALD-2021-01. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Secretary of State has imposed sanctions on six individuals pursuant to the President's Executive Order on Hong Kong Normalization.
The Secretary of State's determination regarding the six individuals identified in the
Taylor Ruggles, Director, Office of Economic Sanctions Policy and Implementation, Bureau of Economic and Business Affairs, Department of State, Washington, DC 20520, tel.: (202) 647 7677, email:
Pursuant to Section 4(a)(iii)(A) of Executive Order (E.O.) 13936, the Secretary of State, in consultation with the Secretary of the Treasury, or the Secretary of the Treasury, in consultation with the Secretary of State, may authorize the imposition of sanctions blocking all property or interests in property that are in the United States, that hereafter come within the United States, or that are in or hereafter come within the possession or control of any United States person, of any foreign person upon determining that the person met any criteria set forth in section 4 of E.O. 13936.
The Secretary of State has determined, pursuant to section 4(a)(iii)(A) of E.O. 13936, that You Quan, Sun Wenqing AKA Sun Qingye, and Tam Yiu-Chung, are or have been leaders or officials of entities, including any government entity, that have engaged in, or whose members have engaged in, developing, adopting, or implementing the National Security Law.
The Secretary of State has determined, pursuant to section 4(a)(iii)(A) of E.O. 13936, that Frederic Choi Chin-Pang, Kelvin Kong Hok Lai, and Andrew Kan Kai Yan are foreign persons who are or have been leaders or officials of an entity, including any government entity, that has engaged in, or whose members have engaged in, coercing, arresting, detaining or imprisoning individuals under the authority of, or in developing, adopting, or implementing, the National Security Law.
These persons have been added to the list of Specially Designated Nationals and Blocked Persons List and all property and interests in property
Notice of report.
The National Defense Authorization Act for Fiscal Year 2013, (also known as the Iran Freedom and Counter-Proliferation Act of 2012 (IFCA)), as delegated by Presidential Memorandum of June 3, 2013 (“IFCA Delegation Memorandum”), requires the Secretary of State, in consultation with the Secretary of the Treasury, to submit a report to the appropriate congressional committees every 180 days that contains a determination with respect to: (1) Whether Iran is (A) using any of the materials described in IFCA as a medium for barter, swap, or any other exchange or transaction, or (B) listing any of such materials as assets of the Government of Iran for purposes of the national balance sheet of Iran; (2) which sectors of the economy of Iran are controlled directly or indirectly by Iran's Islamic Revolutionary Guard Corps (IRGC); and (3) which of the materials described in subsection (d) are used in connection with the nuclear, military, or ballistic missile programs of Iran. Materials described are graphite, raw or semi-finished metals such as aluminum and steel, coal, and software for integrating industrial processes.
The Secretary of State approved this action January 15, 2021.
On January 9, 2020, the Secretary of State approved the following as noted in 85 FR 3467: For the purpose of implementing the provisions of IFCA delegated to the Secretary of State, including Sections 1245(a)(1)(B), 1245(a)(1)(C), and 1245(e), “raw or semi-finished metals” under IFCA 1245(d) includes, but is not limited to, the following materials (including all types of such materials and all alloys or compounds containing such materials): Aluminum, Americium, Antimony, Barium, Beryllium, Bismuth, Boron, Cadmium, Calcium, Cerium, Cesium, Chromium, Cobalt, Copper, Dysprosium, Erbium, Europium, Gallium, Gadolinium, Germanium, Gold, Hafnium, Hastelloy, Inconel, Indium, Iridium, Iron, Lanthanum, Lithium, Lead, Lutetium, Manganese, Magnesium, Mercury, Molybdenum, Monel, Neodymium, Neptunium, Nickel, Niobium, Osmium, Palladium, Platinum, Plutonium, Polonium, Potassium, Praseodymium, Promethium, Radium, Rhenium, Rhodium, Ruthenium, Samarium, Scandium, Silicon, Silver, Sodium, Steels, Strontium, Tantalum, Technetium, Tellurium, Terbium, Thallium, Thorium, Tin, Titanium, Tungsten, Uranium, Vanadium, Ytterbium, Yttrium, Zinc, and Zirconium.
This report pursuant to Section 1245(e) of IFCA covers the period July 1, 2020 to December 31, 2020.
Following a review of the available information, and in consultation with the Department of the Treasury, the Secretary of State has determined that Iran is not using the materials described in Section 1245(d) as a medium for barter, swap, or any other exchange or transaction.
Following a review of the available information, and in consultation with the Department of the Treasury, the Secretary of State has determined Iran is listing gold as an asset of the Government of Iran for the purposes of the National Balance Sheet of Iran.
Following a review of the available information, and in consultation with the Department of the Treasury, the Secretary of State has determined that the construction sector of Iran is controlled directly or indirectly by the IRGC.
Following a review of the available information, and in consultation with the Department of the Treasury, the Secretary of State has determined that the following certain types of materials are used in connection with the nuclear, military, or ballistic missile programs of Iran:
The Advisory Committee on Historical Diplomatic Documentation will meet on March 1 in a virtual open session to discuss the status of the production of the
The Committee will meet in open session from 10:00 a.m. until noon through a virtual platform TBD. Members of the public planning to attend the virtual meeting should RSVP to Julie Fort at
Questions concerning the meeting should be directed to Adam M. Howard, Executive Secretary, Advisory Committee on Historical Diplomatic Documentation, Department of State, Office of the Historian, Washington, DC 20372,
The Department of State announces meetings of the U.S. State Department's Overseas Security Advisory Council on February 23, June 8, and November 16,
Marsha Thurman, Overseas Security Advisory Council, U.S. Department of State, Washington, DC 20522-2008, phone: 571-345-2214.
Department of State.
Notice of meeting.
We are issuing this notice to announce the location, date, time, and agenda for the next meeting of the Cultural Property Advisory Committee.
The Cultural Property Advisory Committee (“the Committee”) will meet March 17 and 19, 2021, from 10:00 a.m. to 5:00 p.m. (EDT) via videoconference. The Committee will hold an open session on March 17, 2021, at 2:00 p.m. (EDT). It will last approximately one hour.
The meeting will be held by videoconference.
For general questions concerning the meeting, contact Allison Davis or Andrew Cohen, Bureau of Educational and Cultural Affairs—Cultural Heritage Center, by phone (202-632-6305) or email (
In accordance with the Convention on Cultural Property Implementation Act (19 U.S.C. 2601
You do not need to register to observe the open session. You do not have to submit written comments to make an oral comment in the open session. If you do wish to speak, however, you must request to be scheduled by March 10, 2021, via email (
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995 and implementing OMB guidance, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 30 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to March 8, 2021.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at OMB. You may submit comments by the following methods:
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Megan Herndon, Senior Regulatory Coordinator, Visa Services, Bureau of Consular Affairs at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden of this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public records. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Department requests an extension on the collection of following information, from a subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism, national security-related, or other visa ineligibilities:
• Travel history during the last fifteen years, including source of funding for travel;
• Address history during the last fifteen years;
• Employment history during the last fifteen years;
• All passport numbers and country of issuance held by the applicant;
• Names and dates of birth for all siblings;
• Name and dates of birth for all children; and
• Names and dates of birth for all current and former spouses, or civil or domestic partners.
Regarding travel history, applicants may be requested to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(vi). Applicants may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation. While the Department previously required applicants completing the DS-5535 to provide their social media platforms and identifiers, also known as handles, used during the last five years, and phone numbers and email addresses used during the last five years, the form no longer includes those fields, which are now incorporated into the DS-156
This information collection continues implementation of the directive of the President, in the
Failure to provide requested information will not necessarily result in visa denial, if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant's eligibility to receive the visa. The information requested on this form will not be used to deny visas based on applicants' race, religion, ethnicity, national origin, political views, gender, or sexual orientation.
Section 3 of the President's January 20, 2021
Department of State consular officers at visa-adjudicating posts worldwide will ask the additional questions to resolve an applicant's identity or to vet for terrorism, national security-related, or other visa ineligibilities when the consular officer determines that the circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny. The additional questions may be sent electronically to the applicant or be presented orally or in writing at the time of the interview.
Department of State.
Public notice.
Proposal to extend and amend the
Catherine Foster, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: 202-632-6301;
Pursuant to the authority vested in the Assistant Secretary of State for Educational and Cultural Affairs, and pursuant to 19 U.S.C. 2602(f)(1), an extension and amendment of the
A copy of the Memorandum of Understanding, the Designated List of categories of material restricted from import into the United States, and related information can be found at the Cultural Heritage Center website:
Department of State.
Notice.
Notice of receipt of request from Albania for cultural property protection.
Chelsea Freeland, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: 202-632-6301;
The Government of the Republic of Albania made a request to the Government of the United States on November 9, 2020, under Article 9 of the 1970 UNESCO
Tennessee Valley Authority.
Notice of intent.
The Tennessee Valley Authority (TVA) intends to prepare a Programmatic Environmental Impact Statement (PEIS) to address the potential environmental effects associated with the construction, operation, and decommissioning of an advanced nuclear reactor technology park at the Clinch River Nuclear (CRN) Site in Oak Ridge, Roane County, Tennessee. The park would contain one or more advanced nuclear reactors with a cumulative electrical output not to exceed 800 megawatts electric (MWe). TVA plans to evaluate a variety of alternatives including a no-action alternative. Public comments are invited to identify other potential alternatives, information, and analysis relevant to the proposed action.
The public scoping period begins with the publication of this Notice in the
Comments may be submitted in writing to J. Taylor Cates, NEPA Specialist, 1101 Market Street, BR 2C-C, Chattanooga, TN 37402. Comments may also be submitted online at:
Other related questions should be sent to Tennessee Valley Authority, J. Taylor Cates, NEPA Specialist, 1101 Market Street, BR 2C-C, Chattanooga, TN, 37402, 423-751-2732, or
This notice is provided in accordance with the Council on Environmental Quality's (CEQ) regulations for implementing the National Environmental Policy Act (NEPA) at 40 CFR parts 1500-1508 and Section 106 of the National Historic
TVA is a corporate agency and instrumentality of the United States created by and existing pursuant to the TVA Act of 1933 (16 U.S.C. part 831), to, among other things, foster the social and economic welfare of the people of the Tennessee Valley region and promote the proper use and conservation of the Valley's natural resources. TVA generates and distributes electricity for business customers and local power distributors, serving more than 10 million people in parts of seven southeastern states. TVA is fully self-financed without Federal appropriations and funds operations through electricity sales and power system bond financing. In addition to operating and investing its revenues in its electric system, TVA provides flood control, navigation and land management for the Tennessee River system, and assists local power companies and state and local governments with economic development and job creation.
Dependable electrical capacity on the TVA power system is about 33,000 MWe. TVA's current generating assets include one pumped-storage facility, one diesel generator site, three nuclear plants, five coal plants, nine combustion turbine plants, eight combined cycle plants, 14 solar energy sites, 29 hydroelectric dams, and several small renewable generating facilities. A portion of delivered power is obtained through long-term power purchase agreements. About 13 percent of TVA's annual generation is from hydro; 14 percent is from coal; 27 percent is from natural gas; 41 percent is from nuclear; and the remainder is from wind, solar, and energy efficiency programs. TVA transmits electricity from these facilities over almost 16,000 miles of transmission lines. Like other utility systems, TVA has power interchange agreements with utilities surrounding the Tennessee Valley region, and buys and sells power on an economic basis almost daily.
The CRN Site is in Oak Ridge, Roane County, Tennessee, on 935 acres of TVA-managed land on the Clinch River arm of the Watts Bar Reservoir. The site is located adjacent to the U.S. Department of Energy's (DOE) Oak Ridge Reservation, a roughly 33,500 acre reservation with defense, research, and environmental cleanup missions.
In May 2016, TVA submitted an application to the Nuclear Regulatory Commission (NRC) for an Early Site Permit (ESP) at the CRN Site for two or more new nuclear power units demonstrating Small Modular Reactors (SMR) technology with a total combined nuclear generating capacity not to exceed 800 MWe. SMRs provide the benefits of nuclear power in situations where large units, generally considered units with approximate electrical output exceeding 1000 MWe, are not appropriate or practical because of various constraints (
The NRC prepared and released a Final EIS in April 2019 to assess the environmental aspects of their action, to decide whether or not to issue an ESP to TVA for the CRN Site. Following the NRC ESP Final EIS determination, the NRC issued the ESP to TVA in December 2019. The ESP provides NRC approval of the CRN site for considering new nuclear power units demonstrating SMR technology; the ESP does not authorize TVA to construct or operate a nuclear facility. TVA must apply for and receive additional licenses from the NRC prior to initiating construction or operation of advanced nuclear reactors at the CRN Site.
In June 2019, TVA released the Final 2019 Integrated Resource Plan (IRP) and the associated IRP Final EIS. The IRP identified the various resources that TVA intends to pursue to meet the energy needs of the Valley over the 20-year planning period in accordance with TVA's mission. The 2019 IRP recommends that TVA continue to evaluate emerging nuclear technologies, including SMRs, as part of technology innovation efforts aimed at developing future electricity generation capabilities.
TVA's purpose and need for the CRN Advanced Nuclear Reactor Technology Park is two-fold. First is to evaluate and demonstrate the feasibility of deploying advanced nuclear reactors to support TVA's mission of providing safe, clean, reliable, and low-cost energy to the Tennessee Valley. Second is to evaluate emerging nuclear technologies as part of technology innovation efforts aimed at developing future generation capacities.
TVA will consider the potential environmental effects associated with the proposed construction, operation, and decommissioning of one or more advanced nuclear reactors, with a cumulative electrical output not to exceed 800 MWe at the CRN Site. In addition to producing energy, advanced reactors could support a low carbon future, including demonstration of technologies such as microgrids, grid resiliency, waste heat energy storage for grid support, and the production of isotopes of hydrogen and other elements.
The PEIS will address a range of alternatives for construction, operation, and decommissioning of an advanced nuclear reactor technology park at the CRN Site. Action alternatives include construction of light water reactor (LWR) alternatives and/or non-LWR alternatives at the CRN Site. There are two areas within the 935-acre CRN Site that are best suitable for development; these are designated as Area 1 and Area 2. Therefore, TVA plans to evaluate four discrete alternatives (A-D) for these proposed actions including the No-Action Alternative (A) and an advanced nuclear reactor technology park at Area 1 (B); at Area 2 (C); at Area 1 and Area 2 (D). Two additional alternatives E and F were considered but eliminated.
The PEIS will include a detailed evaluation of all environmental, social, and economic impacts associated with implementation of the proposed action. Resource areas to be addressed in the PEIS include, but are not limited to: Air quality; aquatics; botany; climate change; cultural resources; emergency planning; floodplains; geology and groundwater; hydrothermal; land use; navigation; noise and vibration; radiological safety; soil erosion and surface water; socioeconomics and environmental justice; threatened and endangered species; transportation; visual; waste; water use; wetlands; and wildlife. Measures to avoid, minimize, and mitigate adverse effects will be identified and evaluated in the PEIS.
TVA anticipates consulting on the required authorities including, but not limited to: The Endangered Species Act; Bald and Golden Eagle Protection Act; Rare Species Protection and Conservation Act; National Historic
TVA anticipates seeking required permits or authorizations, from the following governmental entities: The Nuclear Regulatory Commission; Federal Aviation Administration; U.S. Department of Transportation; Tennessee Department of Transportation; U.S. Army Corps of Engineers; U.S. Coast Guard; U.S. Environmental Protection Agency; Tennessee Department of Environment and Conservation; U.S. Fish and Wildlife Service; the City of Oak Ridge; Tennessee State Historic Preservation Officer; Tribal Historic Preservation Officers; and Texas Department of State Health Services, Radiation Control Program, Radiation Safety Licensing Branch. This is not an exhaustive list, other permits or authorizations may be sought as required or appropriate.
TVA seeks comment and participation from all interested parties for the proposed action, including, but not limited, to assisting TVA in determining the scope of issues for analysis in the PEIS. Information about this project is available at
To accommodate social distancing guidelines and public health recommendations related to the COVID-19 pandemic, TVA will host a virtual open house during the scoping period. The virtual open house will be held on March 1, 2021, from 6:00-8:00 p.m. EST. Visit
TVA will consider comments received during the scoping period and develop a scoping report, which will be published at
TVA will consider the substantive comments received on the Draft PEIS, financial assessments, engineering evaluations, risk evaluations, and other applicable evaluations in the Final PEIS before selecting one or more alternatives. TVA projects completing a Final PEIS in Spring 2022. Subsequently, a final determination on proceeding with the CRN Site will be documented in a Record of Decision.
40 CFR 1501.9.
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, I-10 Blythe Pavement Rehabilitation Project in the County of Riverside, 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: Antonia Toledo, Senior Environmental Planner, California Department of Transportation-District 8, 464 W 4th Street, MS-820, San Bernardino, CA 92401. Office Hours: 8:00 a.m.—5:00 p.m., Pacific Standard Time, telephone, (909) 501-5741 or email
Effective July 1, 2007, the 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(
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(
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a letter dated December 14, 2020, Brightline West (Brightline) petitioned the Federal Railroad Administration (FRA) for a waiver from certain provisions of the Federal railroad safety regulations contained at 49 CFR parts 221, 229, 231, and 238, and an exemption from certain requirements of chapter 203, title 49 of the United States Code (U.S.C). FRA assigned the petition Docket Number FRA-2020-0096.
Brightline's requests for relief relate to its planned operation of new high-speed trainsets on a new high-speed rail line between Victorville, California, and Las Vegas, Nevada. Brightline indicates that the fully electric trainsets will be capable of operating up to 186 miles per hour. Further, Brightline indicates that Siemens Mobility will manufacture eight trainsets (referred to as “Valero Trainsets”), and Brightline will have the option of ordering an additional twelve. Manufacturing of the Valero Trainsets is scheduled to start in January 2022 in the Siemens plant in Krefeld, Germany, with a planned delivery of the trains to the United States for testing in April 2023. The projected start of passenger service is March 2024.
According to Brightline, the subject rail corridor will be built within the right-of-way of Interstate Highway 15 and will be electrified, thus ensuring the rail line can operate in an energy efficient and sustainable manner. Because the infrastructure will be built and operated as a dedicated right-of way, Brightline further indicates that no mixed traffic with Tier I or II passenger trains will occur and the rail corridor will have no public highway-rail nor rail-rail at-grade crossings. FRA also understands that no freight traffic will be moved on the track.
Brightline indicates that the Valero Trainsets will be built to FRA's existing Tier III passenger equipment safety standards, codified under 49 CFR part 238, subpart H, and will meet certain consensus recommendations from the Railroad Safety Advisory Committee (RSAC) to FRA related to high-speed passenger equipment (those consensus recommendations to FRA are attached as Annex A to Brightline's waiver petition). Accordingly, Brightline's waiver request asks FRA to waive the existing applicable regulatory requirements of 49 CFR parts 221, 229, 231, and 238, and instead apply to the Valero Trainsets, the alternative standards outlined in the referenced RSAC recommendations.
Brightline also specifically requests that FRA waive the requirements of 49 CFR 238.112 related to door emergency egress and rescue access systems and approve an alternative solution proposed in its waiver request.
Finally, Brightline requests that FRA exercise its authority under 49 U.S.C. 20306 (Section 20306) to exempt the Valero Trainsets from the requirement of 49 U.S.C. 20302 (Section 20302), which mandates that railroad vehicles be equipped with (1) secure sill steps and an efficient hand brake; (2) secure grab irons or handholds on the vehicle's ends and sides for greater security to individuals coupling and uncoupling the vehicle; and (3) the standard height of drawbars.
In support of its request for relief, Brightline asserts that the Valero Trainsets have specific technologically advanced features that justify an exemption from Section 20302. First, Brightline notes that individual units in the trainset cannot be uncoupled except within a maintenance facility, protected by blue signal rules, and under the direction of trained maintenance personnel. This eliminates the need for train crews to perform traditional “switching” operations. Second, for the trainset's ends, which may be coupled to another trainset during regular service in double traction mode or during an emergency rescue operation, Brightline indicates there is a fully automatic coupler with a remote-controlled uncoupling mechanism in the operating cab, providing electric and pneumatic connections, making uncoupling levers unnecessary. Third, as it is not required for a person to step between the vehicle's end to connect jumper cables or air hoses, end handholds are not needed. Finally, because there are operating cabs on both ends of the trainset, “reverse moves” are performed with a conductor or brakeman riding inside the opposite, or non-controlling, cab and not riding the exterior of the trainset.
Section 20306 authorizes FRA to exempt rail equipment from the requirements of 49 U.S.C. chapter 203, including Section 20302, when those requirements “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations under existing law.” Section 20306 requires FRA to base any such exemption on either (1) findings developed at a hearing; or (2) an agreement between labor and the developer of the equipment.
As Brightline indicates in its Petition, FRA has previously held Section 20306 hearings for equipment substantially similar to the Valero Trainsets.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. Although, for the reasons discussed above, FRA does not anticipate scheduling a public hearing, if any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by March 22, 2021 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable. Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on December 3, 2020, Union Pacific Railroad Company (UPRR) petitioned the Federal Railroad Administration (FRA) for an extension of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 229, Railroad Locomotive Safety Standards, and part 232, Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment; End-Of-Train Devices. FRA assigned the petition Docket Number FRA-2005-21179.
Specifically, UPRR requests to extend its relief from 49 CFR 229.49,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by March 22, 2021 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the OCC, the Board, and the FDIC (the agencies)
Comments must be submitted on or before April 6, 2021.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the “Call Report and FFIEC 002 Deposit-Related Revisions,” will be shared among the agencies.
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You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the following method:
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• For assistance in navigating
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All public comments are available on the Board's website at
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• Mail: Manuel E. Cabeza, Counsel, Attn: Comments, Room MB-3128, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the proposed revisions to the information collections discussed in this notice, please contact any of the agency staff whose names appear below. In addition, copies of the report forms for the Call Reports can be obtained at the FFIEC's website (
The proposed changes discussed below affect the Call Reports and the FFIEC 002.
The agencies propose to extend for three years, with revision, their information collections associated with the FFIEC 031, FFIEC 041, and FFIEC 051 Call Reports.
The estimated average burden hours collectively reflect the estimates for the FFIEC 031, the FFIEC 041, and the FFIEC 051 reports for each agency. When the estimates are calculated by type of report across the agencies, the estimated average burden hours per quarter are 86.45 (FFIEC 031), 55.52 (FFIEC 041), and 35.38 (FFIEC 051). The changes to the Call Report forms and instructions proposed in this notice result in an increase in estimated average burden hours per quarter by type of report of 0.64 (FFIEC 031), 0.32 (FFIEC 041) and 0.11 (FFIEC 051). The estimated burden per response for the quarterly filings of the Call Report is an average that varies by agency because of differences in the composition of the institutions under each agency's supervision (
The Call Report information collections are mandatory: 12 U.S.C. 161 (national banks), 12 U.S.C. 324 (state member banks), 12 U.S.C. 1817 (insured state nonmember commercial and savings banks), and 12 U.S.C. 1464 (federal and state savings associations). At present, except for selected data items and text, these information collections are not given confidential treatment.
Banks and savings associations submit Call Report data to the agencies each quarter for the agencies' use in monitoring the condition, performance, and risk profile of individual institutions and the industry as a whole. Call Report data serve a regulatory or public policy purpose by assisting the agencies in fulfilling their shared missions of ensuring the safety and soundness of financial institutions and the financial system and protecting consumer financial rights, as well as agency-specific missions affecting federal and state-chartered institutions, such as conducting monetary policy, ensuring financial stability, and administering federal deposit insurance. Call Reports are the source of the most current statistical data available for identifying areas of focus for on-site and off-site examinations. Among other purposes, the agencies use Call Report data in evaluating institutions' corporate applications, including interstate merger and acquisition applications for which the agencies are required by law to determine whether the resulting institution would control more than 10 percent of the total amount of deposits of insured depository institutions in the United States. Call Report data also are used to calculate the risk-based assessments for insured depository institutions.
The Board proposes to extend for three years, with revision, the FFIEC 002 and FFIEC 002S reports.
On a quarterly basis, all U.S. branches and agencies of foreign banks are required to file the FFIEC 002, which is a detailed report of condition with a variety of supporting schedules. This information is used to fulfill the supervisory and regulatory requirements of the International Banking Act of 1978. The data also are used to augment the bank credit, loan, and deposit information needed for monetary policy and other public policy purposes. In addition, FFIEC 002 data are used to calculate the risk-based assessments for FDIC-insured U.S. branches of foreign banks.
The FFIEC 002S is a supplement to the FFIEC 002 that collects information on assets and liabilities of any non-U.S. branch that is managed or controlled by a U.S. branch or agency of the foreign bank. A non-U.S. branch is managed or controlled by a U.S. branch or agency if a majority of the responsibility for business decisions, including but not limited to decisions with regard to lending or asset management or funding or liability management, or the responsibility for recordkeeping in
These information collections are mandatory (12 U.S.C. 3105(c)(2), 1817(a)(1) and (3), and 3102(b)). Except for select sensitive items, the FFIEC 002 is not given confidential treatment; the FFIEC 002S is given confidential treatment (5 U.S.C. 552(b)(4) and (8)). The data from both reports are used for (1) monitoring deposit and credit transactions of U.S. residents; (2) monitoring the impact of policy changes; (3) analyzing structural issues concerning foreign bank activity in U.S. markets; (4) understanding flows of banking funds and indebtedness of developing countries in connection with data collected by the International Monetary Fund and the Bank for International Settlements that are used in economic analysis; and (5) assisting in the supervision of U.S. offices of foreign banks. The Federal Reserve System collects and processes these reports on behalf of all three agencies.
On October 20, 2020, the agencies announced the adoption of a final rule implementing the NSFR relevant for certain large U.S. banking institutions with $100 billion or more in total consolidated assets.
This proposal to capture new Call Report data items for sweep deposits would provide the agencies with several benefits for its understanding of liquidity risks relevant to institutions of all sizes. First, the agencies would be able to better observe funding dynamics, between insured and partially insured sweep deposits, thereby providing data on the funding stability of partially insured sweep deposits. Second, by having institutions with $100 billion or more in total assets report sweep deposits for different types of counterparties, any material differences in the stability of different types of counterparties that transact in sweep deposits would be more transparent for monitoring over time to determine their appropriate treatment under liquidity regulations.
Further, as noted in the NSFR final rule, sweep deposits received from affiliates have different stability characteristics than sweep deposits received from non-affiliates based on the varying priority and reliability of each affiliate and non-affiliate sweep deposits. The proposed new data items would provide the agencies with observations about the varying liquidity and other risk characteristics of these different types of sweep deposits.
On December 15, 2020, the FDIC issued the brokered deposits final rule.
Relevant for brokered deposits, Section 29 of the FDI Act provides that an agent or nominee meets the primary purpose exception to the “deposit broker” definition when the primary purpose of the agent or nominee is not the placement of funds with depository institutions. In the brokered deposits final rule, the FDIC adopted revised criteria for the primary purpose exception based on the relationship between the agent or nominee and its customers. Specifically, the primary purpose exception applies when the primary purpose of the agent's or nominee's business relationship with its customers is not the placement of funds with depository institutions. The following business relationships were identified in the brokered deposits final rule as “designated exceptions” from the deposit broker definition and are business relationships in which, with respect to a particular business line:
(1) Less than 25 percent of the total assets that the agent or nominee has under administration for its customers is placed at depository institutions (25 percent test);
(2) 100 percent of depositors' funds that the agent or nominee places, or assists in placing, at depository institutions are placed into transactional accounts that do not pay any fees, interest, or other remuneration to the depositor;
(3) a property management firm places, or assists in placing, customer funds into deposit accounts for the primary purpose of providing property management services;
(4) the agent or nominee places, or assists in placing, customer funds into deposit accounts for the primary purpose of providing cross-border clearing services to its customers;
(5) the agent or nominee places, or assists in placing, customer funds into deposit accounts for the primary purpose of providing mortgage servicing;
(6) a title company places, or assists in placing, customer funds into deposit accounts for the primary purpose of facilitating real estate transactions;
(7) a qualified intermediary places, or assists in placing, customer funds into deposit accounts for the primary purpose of facilitating exchanges of
(8) a broker-dealer or futures commission merchant places, or assists in placing, customer funds into deposit accounts in compliance with 17 CFR 240.15c3-3(e) or 17 CFR 1.20(a);
(9) the agent or nominee places, or assists in placing, customer funds into deposit accounts for the primary purpose of posting collateral for customers to secure credit-card loans;
(10) the agent or nominee places, or assists in placing, customer funds into deposit accounts for the primary purpose of paying for or reimbursing qualified medical expenses under section 223 of the Internal Revenue Code;
(11) the agent or nominee places, or assists in placing, customer funds into deposit accounts for the primary purpose of investing in qualified tuition programs under section 529 of the Internal Revenue Code;
(12) the agent or nominee places, or assists in placing, customer funds into deposit accounts to enable participation in the following tax-advantaged programs: individual retirement accounts under section 408(a) of the Internal Revenue Code, Simple individual retirement accounts under section 408(p) of the Internal Revenue Code, and Roth individual retirement accounts under section 408A of the Internal Revenue Code;
(13) a Federal, State, or local agency places, or assists in placing, customer funds into deposit accounts to deliver funds to the beneficiaries of government programs; and
(14) the agent or nominee places, or assists in placing, customer funds into deposit accounts pursuant to such other relationships as the FDIC specifically identifies as a designated business relationship that meets the primary purpose exception.
The brokered deposits final rule discussed the FDIC's consideration, as part of the rulemaking process, for requiring reporting of deposits that are excluded from being reported as brokered deposits because of the application of the primary purpose exception, which may include sweep deposits placed at insured depository institutions. Supervision and deposit insurance assessments evaluate risk, in part, based on data institutions report on the Call Report. Institutions report total brokered deposits but generally do not distinguish between different types of deposits that are currently classified as brokered. As a result of the final rule, the FDIC expects that some sweep deposits that are currently brokered deposits placed by third parties will meet the revised primary purpose exception and therefore no longer be reported on the Call Report as brokered. Sweep deposits placed by a third party that meet the primary purpose exception may, in some cases, still pose varying levels of funding risk as well as elevated risk of loss to the deposit insurance fund in the event of an insured depository institution's failure.
As noted above, under the NSFR Final Rule and the brokered deposits final rule, the agencies stated their intent to update the Call Report to obtain data that will assist in better evaluations of funding stability for sweep deposits over time to determine their appropriate treatment under applicable liquidity regulations and to assess the risk factors associated with sweep deposits for determining their deposit insurance assessment implications, if any. Accordingly, the agencies propose to add the following data items applicable to all institutions that file the Call Report and all insured institutions that file the FFIEC 002. Specifically, the following five data items would be added to Schedule RC-E, Deposit Liabilities, on all three versions of the Call Report (FFIEC 031, FFIEC 041, and FFIEC 051) and would be applicable to insured depository institutions of all sizes. These five data items would be collected quarterly on the FFIEC 031 and 041 Call Reports and semiannually on the FFIEC 051 Call Report.
• Memorandum item 1.h.(1) for fully insured, affiliate sweep deposits to capture sweep deposits that are deposited in accordance with a contract between a customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where the entire amount of the deposit is covered by deposit insurance;
• Memorandum item 1.h.(2) for not fully insured, affiliate sweep deposits to capture sweep deposits that are deposited in accordance with a contract between a customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where less than the entire amount of the deposit is covered by deposit insurance;
• Memorandum item 1.h.(3) for fully insured, non-affiliate sweep deposits to capture sweep deposits that are not deposited in accordance with a contract between a customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a
• Memorandum item 1.h.(4) for not fully insured, non-affiliate sweep deposits to capture sweep deposits that are not deposited in accordance with a contract between a customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where less than the entire amount of the deposit is covered by deposit insurance;
• Memorandum item 1.i for total sweep deposits that are not brokered due to a primary purpose exception, which corresponds to the 25 percent test exception above.
In addition, the following four data items would be added to Schedule RC-E, Deposit Liabilities, on the FFIEC 031 Call Report only and would be completed quarterly only by institutions with $100 billion or more in total assets.
• Memorandum item 1.h.(1)(a) to capture the portion of fully insured, affiliate sweep deposits reported in Memorandum item 1.h.(1) that are deposited in accordance with a contract between a retail customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where the entire amount of the deposit is covered by deposit insurance;
• Memorandum item 1.h.(2)(a) to capture the portion of not fully insured, affiliate sweep deposits reported in Memorandum item 1.h.(2) that are deposited in accordance with a contract between a retail customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where less than the entire amount of the deposit is covered by deposit insurance;
• Memorandum item 1.h.(3)(a) to capture the portion of fully insured, non-affiliate sweep deposits reported in Memorandum item 1.h.(3) that are deposited by a retail customer or counterparty and not in accordance with a contract between the retail customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where the entire amount of the deposit is covered by deposit insurance; and
• Memorandum item 1.h.(4)(a) to capture the portion of not fully insured, non-affiliate sweep deposits reported in Memorandum item 1.h.(4) that are deposited by a retail customer or counterparty and not in accordance with a contract between the retail customer or counterparty and the reporting institution, a controlled subsidiary of the reporting institution, or a company that is a controlled subsidiary of the same top-tier company of which the reporting institution is a controlled subsidiary, where less than the entire amount of the deposit is covered by deposit insurance.
On the FFIEC 002, the first five data items identified above would be added to Schedule O, Other Data for Deposit Insurance Assessments, as Memorandum items 8.a through 8.d and 9 and would be reported quarterly by insured U.S. branches of foreign banks of all sizes.
The agencies propose to revise the Call Report and FFIEC 002 instructions to add the following definition for “sweep deposit”: A sweep deposit means a deposit held at the reporting institution by a customer or counterparty through a contractual feature that automatically transfers to the reporting institution from another regulated financial company at the close of each business day amounts identified under the agreement governing the account from which the amount is being transferred.
Furthermore, consistent with the discussion of the data items proposed to be collected in the Call Report and the FFIEC 002 in section II.B. above, “affiliate sweep deposits” would be defined as sweep deposits that are deposited in accordance with a contract between a customer or counterparty and a reporting institution, a reporting institution's consolidated subsidiary, or a company that is a consolidated subsidiary of the same top-tier company of which the reporting institution is a consolidated subsidiary. “Non-affiliate sweep deposits” would be defined as sweep deposits that are
The agencies also propose to revise the Call Report instructions to add the LCR rule's definition
(1) An individual; or
(2) A business customer, but solely if and to the extent that: (i) The reporting institution manages its transactions with the business customer, including deposits, unsecured funding, and credit facility and liquidity facility transactions, in the same way it manages its transactions with individuals; (ii) Transactions with the business customer have liquidity risk characteristics that are similar to comparable transactions with individuals; and (iii) The total aggregate funding raised from the business customer is less than $1.5 million.”
In addition, the Call Report instructions would add the LCR rule's definition of “wholesale customer or counterparty,” which reads, “A wholesale customer or counterparty means a customer or counterparty that is not a retail customer or counterparty.”
As such, would the LCR rule's definition of retail customer or counterparty be appropriate to apply to reporting by institutions with less than $100 billion in total assets, including that (i) the reporting institution manages its transactions with a business customer, including deposits, unsecured funding, and credit facility and liquidity facility transactions, in the same way it manages its transactions with individuals; and (ii) transactions with the business customer have liquidity risk characteristics that are similar to comparable transactions with individuals?
Beginning with the June 30, 2021, report date, the agencies propose all institutions filing the FFIEC 031, FFIEC 041, and FFIEC 051 Call Reports would complete Schedule RC-E, Memorandum items 1.h.(1) through 1.h.(4) and 1.i, to report the deposit data discussed in section II.B. of this Supplementary Information section. Thereafter, as noted above, these data items would be collected quarterly on the FFIEC 031 and 041 Call Reports and semiannually on the FFIEC 051 Call Report. Beginning as of the same report date, all institutions filing the FFIEC 031 Call Report with $100 billion or more in total assets would complete Schedule RC-E, Memorandum items 1.h.(1)(a), 1.h.(2)(a), 1.h.(3)(a), and 1.h.(4)(a) to report the additional deposit data discussed in section II.B.
Beginning with the June 30, 2021, report date, insured U.S. branches of foreign banks would complete the five Memorandum items applicable to all institutions filing Call Reports in FFIEC 002 Schedule O quarterly as discussed in section II.B. above.
The brokered deposits final rule takes effect April 1, 2021. Full compliance with this final rule is extended to January 1, 2022. The extended compliance date is intended to provide sufficient time for institutions to put in place systems to implement the new regulatory regime. The Call Report will provide two sets of instructions that will allow institutions to either (1) comply with the new regulation starting on the June 30, 2021, report date, or (2) continue to rely upon existing FDIC staff advisory opinions or other interpretations that predated the brokered deposits final rule in determining whether deposits placed by or through an agent or nominee are brokered deposits for purposes of reporting brokered deposit data in the Call Report through the December 31, 2021, report date.
The specific wording of the captions for the proposed new Call Report Schedule RC-E Memorandum items and FFIEC 002 Schedule O Memorandum items discussed in this proposal and the numbering of these Memorandum items should be regarded as preliminary.
Public comment is requested on all aspects of this joint notice including the questions that were provided in the earlier sections. In addition to the questions included above comment is specifically invited on:
(a) Whether the proposed revisions to the collections of information that are the subject of this notice are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies.
Board of Governors of the Federal Reserve System.
Department of Veterans Affairs.
Announcement for Public Meetings Regarding VA Health Care.
Pursuant to the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks (MISSION) Act of 2018 (the VA MISSION Act), the Veterans Health Administration (VHA) Chief Strategy Office (CSO) will be holding public virtual listening sessions with Veterans, Veterans Service Organizations, Community Veterans Engagement Boards (CVEBs) and other interested stakeholders. The primary objectives of the sessions are to learn about Veterans' experiences with VA health care and how Veterans want care to be delivered in the future. Feedback will be used to develop recommendations regarding the modernization or realignment of VHA facilities. The recommendations will be submitted to the Asset and Infrastructure Review (AIR) Commission after approval by the Secretary.
Valerie Mattison Brown, Chief Strategy Officer, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 202-461-7115. This is not a toll-free number.
The listening sessions will start in early calendar year 2021 and continue for several months. The dates, times, and links to the listening sessions will be publicly posted. A link to the posting can be obtained by contacting
The sessions will be held virtually as a WebEx Event, and it will be open to the public to participate. Information about the meeting and registration to attend can be obtained by emailing
The sessions are being held to meet requirements in the VA MISSION Act of 2018, related to developing recommendations for the modernization or realignment of VHA facilities and conducting market assessments. VA is required to conduct market assessments under 7330C of title 38, United States Code, as added by Section 106(a) of the VA MISSION Act and Section 203 of the VA MISSION Act. The market assessments will inform recommendations for the modernization or realignment of VHA facilities to be approved by the Secretary and submitted to the AIR Commission, established by the VA MISSION Act. The law requires the President to submit nominations for the AIR Commission to the Senate not later May 31, 2021, prior
As part of the market assessment process and the development of recommendations, VA is required to consider input from local stakeholders and to consult with Veterans and VSOs served by each Veterans Integrated Service Network and medical facility. Feedback collected during the public listening sessions will be used to develop recommendations regarding the modernization or realignment of VHA facilities. Notice is being placed in the
All members of the public are invited to attend the local listening sessions. Each session will correspond to a group of VA medical centers or a specific region. VA is seeking to gather the thoughts and feedback from local Veterans, VSOs, and public stakeholders.
Dat P. Tran, Acting Secretary of Veterans Affairs approved this document on January 26, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
(b) The Root Causes Strategy shall identify and prioritize actions to address the underlying factors leading to migration in the region and ensure coherence of United States Government positions. The Root Causes Strategy shall take into account, as appropriate, the views of bilateral, multilateral, and private sector partners, as well as civil society, and it shall include proposals to:
(A) combating corruption, strengthening democratic governance, and advancing the rule of law;
(B) promoting respect for human rights, labor rights, and a free press;
(C) countering and preventing violence, extortion, and other crimes perpetrated by criminal gangs, trafficking networks, and other organized criminal organizations;
(D) combating sexual, gender-based, and domestic violence; and
(E) addressing economic insecurity and inequality;
(c) The Collaborative Management Strategy shall identify and prioritize actions to strengthen cooperative efforts to address migration flows, including by expanding and improving upon previous efforts to resettle throughout the region those migrants who qualify for humanitarian protection. The Collaborative Management Strategy should focus on programs and infrastructure that facilitate access to protection and other lawful immigration avenues, in both the United States and partner countries, as close to migrants' homes as possible. Priorities should include support for expanding pathways through which individuals facing difficult or dangerous conditions in their home countries can find stability and safety in receiving countries throughout the region, not only through asylum and refugee resettlement, but also through labor and other non-protection-related programs. To support the development of the Collaborative Management Strategy, the United States Government shall promptly begin consultations with civil society, the private sector, international organizations, and governments in the region, including the Government of Mexico. These consultations should address:
(b) As part of the review conducted pursuant to section 3(a) of this order, the Secretary of Homeland Security shall:
(c) The Secretary of State and the Secretary of Homeland Security shall promptly evaluate and implement measures to enhance access for individuals from the Northern Triangle to visa programs, as appropriate and consistent with applicable law.
(A) The Secretary of HHS and the Director of CDC, in consultation with the Secretary of Homeland Security, shall promptly review and determine whether termination, rescission, or modification of the following actions is necessary and appropriate: “Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists,” 85 FR 65,806 (October 13, 2020); and “Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes,” 85 FR 56,424 (September 11, 2020) (codified at 42 CFR 71.40).
(B) The Secretary of Homeland Security shall promptly review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP), including by considering whether to rescind the Memorandum of the Secretary of Homeland Security titled “Policy Guidance for Implementation of the Migrant Protection Protocols” (January 25, 2019), and any implementing guidance. In coordination with the Secretary of State, the Attorney General, and the Director of CDC, the Secretary of Homeland Security shall promptly consider a phased strategy for the safe and orderly entry into the United States, consistent with public health and safety and capacity constraints, of those individuals who have been subjected to MPP for further processing of their asylum claims.
(C) The Attorney General and the Secretary of Homeland Security shall promptly review and determine whether to rescind the interim final rule titled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,” 83 FR 55,934 (November 9,
(D) The Attorney General and the Secretary of Homeland Security shall promptly review and determine whether to rescind the interim final rule titled “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” 84 FR 63,994 (November 19, 2019), as well as any agency memoranda or guidance issued in reliance on that rule. In the interim, the Secretary of State shall promptly consider whether to notify the governments of the Northern Triangle that, as efforts to establish a cooperative, mutually respectful approach to managing migration across the region begin, the United States intends to suspend and terminate the following agreements:
(E) The Secretary of Homeland Security shall promptly cease implementing the “Prompt Asylum Case Review” program and the “Humanitarian Asylum Review Program” and consider rescinding any orders, rules, regulations, guidelines or policies implementing those programs.
(F) The following Presidential documents are revoked:
(G) The Secretary of State, the Attorney General, and the Secretary of Homeland Security shall promptly take steps to rescind any agency memoranda or guidance issued in reliance on or in furtherance of any directive revoked by section 4(a)(ii)(F) of this order.
(b)
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(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(b) The Chair shall convene and preside at meetings of the Task Force. The Chair, in consultation with the Vice Chairs, shall direct its work and, as appropriate, establish and direct subgroups of the Task Force.
(a) Identifying all children who were separated from their families at the United States-Mexico border between January 20, 2017, and January 20, 2021, in connection with the operation of the Zero-Tolerance Policy;
(b) To the greatest extent possible, facilitating and enabling the reunification of each of the identified children with their families by:
(A) recommendations regarding the possible exercise of parole under section 212(d)(5)(A) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1182(d)(5)(A)), or the issuance of visas or other immigration benefits, as appropriate and consistent with applicable law;
(B) recommendations regarding the provision of additional services and support to the children and their families, including trauma and mental health services; and
(C) recommendations regarding reunification of any additional family members of the children who were separated, such as siblings, where there is a compelling humanitarian interest in doing so;
(c) Providing regular reports to the President, including:
(b) To the extent permitted by law, including the Economy Act (31 U.S.C. 1535), and subject to the availability of appropriations, additional agencies represented on the Task Force may detail staff to the Task Force, or otherwise provide administrative support, as necessary to implement this order, as determined by the respective heads of agencies.
(c) The Task Force shall coordinate, as appropriate and consistent with applicable law, with relevant stakeholders, including domestic and international non-governmental organizations, and representatives of the children and their families.
(d) The Task Force, at the direction of the Chair, may hold public meetings and engagement sessions as necessary to carry out its mission.
(e) The Task Force shall terminate 30 days after it provides its final report to the President under section 4(c)(iv) of this order.
(a) The term “children” includes all persons who were under the age of 18 at the time they were separated from their families at the border.
(b) The term “Zero-Tolerance Policy” means the policy discussed in the Attorney General's memorandum of April 6, 2018, entitled, “Zero-Tolerance for Offenses Under 8 U.S.C. 1325(a),” and any other related policy, program, practice, or initiative resulting in the separation of children from their families at the United States-Mexico border.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(a) In conducting this review, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall:
(b) Within 90 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a plan to the President describing the steps their respective agencies will take to advance the policy set forth in section 1 of this order.
(c) Within 180 days of submitting the plan described in subsection (b) of this section, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing the progress of their respective agencies towards implementing the plan developed pursuant to subsection (b) of this section and recognizing any areas of concern or barriers to implementing the plan.
(a) This review should:
(b) Within 60 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing any agency actions identified pursuant to subsection (a)(ii) of this section and any steps their agencies intend to take or have taken, consistent with subsection (a)(iii) of this section.
(a)
(b)
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(d) Within 90 days of the date of this order, the Naturalization Working Group shall submit a strategy to the President outlining steps the Federal Government should take to promote naturalization, including the potential development of a public awareness campaign.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(b) FEMA shall provide a 100 percent Federal cost share for all work eligible for assistance under Public Assistance Category B, pursuant to sections 403 (42 U.S.C. 5170b), 502 (42 U.S.C. 5192), and 503 (42 U.S.C. 5193) of the Stafford Act, but not including that authorized by section 3(a) of my memorandum of January 21, 2021, performed from January 20, 2020, through January 20, 2021.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Administrator of FEMA is authorized and directed to publish this memorandum in the
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 South Fork Wind, LLC (South Fork Wind) to take marine mammals incidental to construction of a commercial wind energy project southeast of Rhode Island, within the Rhode Island-Massachusetts Wind Energy Area (RI/MA WEA). 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 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 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 March 10, 2021.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be sent to
Carter Esch, Office of Protected Resources, NMFS, (301) 427-8421. 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.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
NMFS 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.
This project is covered under Title 41 of the Fixing America's Surface Transportation Act, or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. The dashboard for this project is available at
On March 15, 2019, NMFS received a request from South Fork Wind for an IHA to take marine mammals incidental to construction of an offshore wind energy project southeast of Rhode Island. Following a delay of the project, South Fork Wind submitted an updated version of the application on June 3, 2020, and then a revised version September 14, 2020. The application was deemed adequate and complete on September 15, 2020. However, on December 15, 2020, South Fork Wind
South Fork Wind proposes to construct a 90-180 megawatt (MW) offshore wind energy project in Lease Area OCS-A 0517, southeast of Rhode Island. The project would consist of installation of up 16 monopiles to support 15 offshore wind turbine generators (WTGs) and one offshore substation (OSS) (Figure 1). The project also includes offshore and onshore cabling, and onshore operations and maintenance facilities. Take of marine mammals may occur incidental to the construction of the project due to in-water noise exposure resulting from impact pile driving activities associated with installation of WTG and OSS foundations, vibratory pile driving associated with the installation and removal of a temporary cofferdam nearshore, and high-resolution geophysical (HRG) surveys of the inter-array cable and export cable construction area.
Construction of the project is planned to commence between April 2022 and May 2022; however, as with many construction projects, permitting and construction delays may occur and the activity may take place at any point during the period of effectiveness for the IHA, subject to the following timing constraints. Up to 30 days of impact pile driving to install the WTGs and OSS may occur between May 1, 2022 and December 31, 2022; no impact pile driving activities would occur from January 1, 2023 through April 30, 2023. A cofferdam may potentially be installed for the sea-to-shore cable connection and, if required, would be installed between October 1, 2022 and May 31, 2023. Installation and extraction of the cofferdam are each expected to take 1 to 3 days of vibratory pile driving. Up to 60 days of HRG surveys would be conducted throughout the 12-month construction timeframe.
South Fork Wind's proposed activity would occur in the 55.4 square kilometer (km
South Fork Wind is proposing to construct a 90-180 MW commercial wind energy project in Lease Area OCS-A 0517, southeast of Rhode Island. The Project would consist of the installation of up to 16 monopiles to support 15
Cable burial operations will occur both in the SFWF for the inter-array cables connecting the WTGs to the OSS and in the SFEC for the cables carrying power from the OSS to land. Inter-array cables will connect the 15 WTGs to the OSS. A single offshore export cable will connect the OSS to the shore. The offshore export and inter-array cables will be buried beneath the seafloor at a target depth of up to 1.2-2.8 m (4-6 ft). Installation of the offshore export cable is anticipated to last approximately 2 months. The estimated installation time for the inter-array cables is approximately 4 months. All cable burial operations will follow installation of the monopile foundations, as the foundations must be in place to provide connection points for the export cable and inter-array cables. Installation days are not continuous and do not include equipment preparation or down time that may result from weather or maintenance. Equipment preparation is not considered a source of marine mammal disturbance or harassment.
Some dredging may be required prior to cable laying due to the presence of sand waves. The upper portions of sand waves may be removed via mechanical or hydraulic means in order to achieve the proper burial depth below the stable sea bottom. The majority of the export and inter-link cable is expected to be installed using simultaneous lay and bury via jet plowing. Jet plowing entails the use of an adjustable blade, or plow, which rests on the sea floor and is towed by a surface vessel. The plow creates a narrow trench at the desired depth, while water jets fluidize the sediment within the trench. The cable is then fed through the plow and is laid into the trench as it moves forward. The fluidized sediments then settle back down into the trench and bury the cable. The majority of the inter-array cable is also expected to be installed via jet plowing after the cable has been placed on the seafloor. Other methods, such as mechanical plowing or trenching, may be needed in areas of coarser or more consolidated sediment, rocky bottom, or other difficult conditions in order to ensure a proper burial depth. The jet plowing tool may be based from a seabed tractor or a sled deployed from a vessel. A mechanical plow is also deployed from a vessel. More information on cable laying associated with the proposed project is provided in South Fork Wind's Construction and Operations Plan (SFWF COP; South Fork Wind, 2020). As the only potential impacts from these activities is sediment suspension, the potential for take of marine mammals to result from these activities is so low as to be discountable and South Fork Wind did not request, and NMFS does not propose to authorize, any takes associated with cable laying. Therefore, cable laying activities are not analyzed further in this document.
During construction of the project, South Fork Wind anticipates that an average of approximately 5-10 vessels will operate during a typical work day in the SFWF and along the SFEC. Many of these vessels will remain in the SFWF or SFEC for days or weeks at a time, potentially making only infrequent trips to port for bunkering and provisioning, as needed. The actual number of vessels involved in the project at one time is highly dependent on the project's final schedule, the final design of the project's components, and the logistics needed to ensure compliance with the Jones Act, a Federal law that regulates maritime commerce in the United States.
Existing vessel traffic in the vicinity of the project area southeast of Rhode Island is relatively high and marine mammals in the area are expected to be habituated to vessel noise. In addition, construction vessels would be stationary on site for significant periods of time and the large vessels would travel to and from the site at relatively low speeds. Project-related vessels would be required to adhere to several mitigation measures designed to reduce the potential for marine mammals to be struck by vessels associated with the project; these measures are described further below (see Proposed Mitigation). As part of various construction related activities, including cable laying and construction material delivery, dynamic positioning thrusters may be utilized to hold vessels in position or move slowly. Sound produced through use of dynamic positioning thrusters is similar to that produced by transiting vessels, and dynamic positioning thrusters are typically operated either in a similarly predictable manner or used for short durations around stationary activities. Sound produced by dynamic positioning thrusters would be preceded by, and associated with, sound from ongoing vessel noise and would be similar in nature; thus, any marine mammals in the vicinity of the activity would be aware of the vessel's presence, further reducing the potential for startle or flight responses on the part of marine mammals. Construction-related vessel activity, including the use of dynamic positioning thrusters, is not expected to result in take of marine mammals and South Fork Wind did not request, and NMFS does not propose to authorize, any takes associated with construction related vessel activity. Accordingly, these activities are not analyzed further in this document.
Monopiles are the only foundation type proposed for the project. A monopile is a single, hollow cylinder fabricated from steel that is secured in the seabed. The 16 monopiles installed to support the 15 WTG and single OSS would be 11.0 m (33.0 ft) in diameter, up to 95 m (311.7 ft) in length and driven to a maximum penetration depth of 50 m (164 ft). A schematic diagram showing potential heights and dimensions of the various components of a monopile foundation are shown in Figure 3.1-2 of the SFWF COP (South Fork Wind, 2020), available online at:
The monopile foundations would be installed by one or two heavy lift or jack-up vessels. The main installation vessel(s) will likely remain at the SFWF during the installation phase (approximately 30 days) and transport vessels, tugs, and/or feeder barges would provide a continuous supply of foundations to the SFWF. If appropriate vessels are available, the foundation
Within the SFWF, the main installation vessel would upend the monopile with a crane, and place it in the gripper frame, before lowering the monopile to the seabed. The gripper frame, depending upon its design, may be placed on the seabed scour protection materials to stabilize the monopile's vertical alignment before and during piling. Scour protection is included to protect the foundation from scour development, which is the removal of the sediments near structures by hydrodynamic forces, and consists of the placement of stone or rock material around the foundation. The scour protection would consist of engineered rock placed around the base of each monopole in a 68 m (222 ft) diameter circle, using either a fallpipe vessel or stone dumping vessel. Once the monopile is lowered to the seabed, the crane hook would be released, and the hydraulic hammer would be picked up and placed on top of the monopile.
All monopoles would be installed with an impact hammer. Impact pile driving entails the use of a hammer that utilizes a rising and falling piston to repeatedly strike a pile and drive it into the ground. Using a crane, the installation vessel would upend the monopile, place it in the gripper frame, and then lower the monopile to the seabed. The gripper frame would stabilize the monopile's vertical alignment before and during piling. Once the monopile is lowered to the seabed, the crane hook would be released and the hydraulic hammer would be picked up and placed on top of the monopile. A temporary steel cap called a helmet would be placed on top of the pile to minimize damage to the head during impact driving. The largest hammer South Fork Wind expects to use for driving monopiles produces up to 4,000 kilojoules (kJ) of energy (however, required energy may ultimately be far less than 4,000 kJ). As described in the Proposed Mitigation section below, South Fork Wind would utilize a sound attenuation device (
The intensity (
Impact pile driving activities at SFWF will take place between May 1, 2022 and December 31, 2022. There are two piling scenarios that are considered possible within the current engineering design. The standard scenario assumes that a pile is driven every other day such that 16 monopiles piles would be installed over a 30-day period. A more aggressive schedule is considered for the maximum design scenario in which six piles are driven in a week (7 days) such that the 16 piles are installed over a 20-day period. Only one pile would be driven per 24 hours (hrs), irrespective of the selected scenario. Please see Table 1 for a summary of impact pile driving activity.
Before cable-laying HDD begins, a temporary cofferdam may be installed at the endpoint of the HDD starting point, where the SFEC conduit exits from the seabed. The cofferdam would be less than 600 m (1,969 ft) offshore from the mean high water line (MHWL), in 7.6 to 12.2 m (25 to 40 ft) water depth, depending on the final siting point. The cofferdam, up to 22.9 m (75 ft) by 7.7 m (25 ft), would serve as containment for the drilling returns during the HDD installation to keep the excavation free of debris and silt. The cofferdam may be installed as either a sheet pile structure into the seafloor or a gravity cell structure placed on the seafloor using ballast weight. Installation of a gravity cell cofferdam would not result in incidental take of marine mammals and is, therefore, not analyzed further in this document. Installation of the 19.5 m (64 ft) long, 0.95 centimeters (cm) (0.375 inches (in)) thick Z-type sheet pile cofferdam and drilling support would be conducted from an offshore barge anchored near the cofferdam.
If the potential cofferdam is installed using sheet pile, a vibratory hammer will be used to drive the sidewalls and endwalls into the seabed to a depth of approximately 1.8 m (6 ft); sections of the shoreside endwall will be driven to a depth of up to 9 m (30 ft) to facilitate the HDD entering underneath the endwall. Cofferdam removal would consist of pile removal using a vibratory hammer, after HDD operations are complete and the conduit is installed (see Table 1 for a summary of potential vibratory pile driving activity).
Vibratory hammering is accomplished by rapidly alternating (~250 Hertz (Hz)) forces to the pile. A system of counter-rotating eccentric weights powered by hydraulic motors are designed such that horizontal vibrations cancel out, while vertical vibrations are transmitted into the pile. The vibrations produced cause liquefaction of the substrate surrounding the pile, enabling the pile to be driven into the ground using the weight of the pile plus the impact hammer. If the gravity cell installation technique is not practicable, South Fork Wind anticipates that any vibratory pile driving of sheet piles would occur for a total of 36 hrs (18 hrs for installation, 18 hrs for removal).
The source levels and source characteristics associated with vibratory driving would be generally similar to those produced through other concurrent use of vessels and related construction equipment. Any elevated noise levels produced through vibratory driving are expected to be of relatively short duration, and with low source level values. However, it is possible that if marine mammals are exposed to sound from vibratory pile driving, they may alert to the sound and potentially exhibit a behavioral response that rises to the level of take.
Installation of the Z-type sheet piles would occur primarily in daylight; however, it is possible that vibratory pile driving may continue past sunset if required by the construction schedule.
The HRG survey activities would be supported by vessels of sufficient size to accomplish the survey goals in each of the specified survey areas. Up to four vessels may work concurrently throughout the area considered in this proposal. HRG surveys would occur throughout the 12-month period of effectiveness for the proposed IHA. 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 knots (kn) (7.4 km) per hour. The geophysical survey activities proposed by South Fork Wind would include the following:
• Shallow Penetration Sub-bottom Profilers (SBPs; Compressed High-Intensity Radiated Pulses (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 creates acoustic pulses from 50 Hz to 4 kHz omni-directionally from the source that can penetrate several hundred meters into the seafloor. These are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals.
• 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 kilohertz (kHz) (
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. Selection of equipment combinations is based on specific survey objectives.
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;
There are 36 marine mammal species that could potentially occur in the proposed project area and that are included in Table 16 of the IHA application. However, the temporal and/or spatial occurrence of 20 of these species is such that take is not expected to occur, and they are therefore not discussed further beyond the explanation provided here. The following species are not expected to occur in the project area due to the location of preferred habitat outside the SFWF and SFEC, based on the best available information: The beluga whale (
In addition, the Florida manatee (
Between October 2011 and June 2015 a total of 76 aerial surveys were conducted throughout the MA and RI/MA Wind Energy Areas (WEAs) (the SFWF is contained within the RI/MA WEA along with several other offshore renewable energy lease areas). Between November 2011 and March 2015, Marine Autonomous Recording Units (MARU; a type of static passive acoustic monitoring (PAM) recorder) were deployed at nine sites in the MA and RI/MA WEAs. The goal of the study was to collect visual and acoustic baseline data on distribution, abundance, and temporal occurrence patterns of marine mammals (Kraus
NMFS expects that the 16 species listed in Table 3 will potentially occur
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' U.S. Atlantic SARs. All values presented in Table 3 are the most recent available at the time of publication and are available in the draft 2020 Atlantic SARs, available online at:
Four marine mammal species that are listed under ESA may be present in the project area and may be taken incidental to the proposed activity: The North Atlantic right whale, fin whale, sei whale, and sperm whale.
Below is a description of the species that are likely to occur in the project area and are thus expected to potentially
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 (Hayes
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
In addition, elevated North Atlantic right whale mortalities have occurred since June 7, 2017 along the U.S. and Canadian coast. As of January 2021, a total of 32 confirmed dead stranded whales (21 in Canada; 11 in the United States) and 14 serious injury (including entanglement and vessel strike) cases have been documented. Full necropsies have been conducted on 20 of the dead North Atlantic right whales and, in the 18 cases for which a preliminary cause of death could be determined, 8 and 10 were attributed to entanglement and vessel strike, respectively. This event has been declared an Unusual Mortality Event (UME); the leading cause of death for this UME is “human interaction”, specifically from entanglements or vessel strikes. More information is available online at:
During the aerial surveys conducted in the RI/MA and MA WEAs from 2011-2015, the highest number of North Atlantic right whale sightings occurred in March (n=21), with sightings also occurring in December (n=4), January (n=7), February (n=14), and April (n=14), and no sightings in any other months (Kraus
NMFS' regulations at 50 CFR 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S.
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. NMFS recently evaluated the status of the species, and 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 project 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
Fin whales are common in waters of the U.S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward (Hayes
New England waters represent a major feeding ground for fin whales; a feeding BIA for the species exists just west of the proposed project area, stretching from just south of the eastern tip of Long Island to south of the western tip of Martha's South Fork (LeBreque
The Nova Scotia stock of sei whales can be found in deeper waters of the continental shelf edge waters of the northeastern United States 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, a region now considered a portion of a feeding BIA for sei whales from May through November (LeBreque
Minke whales occur 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 (Hayes
Since January 2017, elevated minke whale mortalities have occurred along the Atlantic coast from Maine through South Carolina, with a total of 103 strandings recorded when this document was written. This event has been declared a UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings in several of the whales have shown evidence of human interactions or infectious disease, but these findings are not consistent across all of 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 (Hayes
Long-finned pilot whales are found from North Carolina and north to Iceland, Greenland and the Barents Sea (Hayes
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 (Hayes
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 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 (Hayes
There are two distinct bottlenose dolphin morphotypes in the western North Atlantic: The coastal and offshore forms (Hayes
Risso's dolphins are distributed worldwide in tropical and temperate seas, and in the Northwest Atlantic occur from Florida to eastern Newfoundland (Leatherwood
Harbor porpoises occur from the coastline to deep waters (>1800 m; Westgate
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 (Hayes
There are three major populations of gray seals found in the world: Eastern Canada (western North Atlantic stock), northwestern Europe, and the Baltic Sea. Gray seals in the project area belong to the western North Atlantic stock. The range for this stock is from New Jersey to Labrador. Current population trends show that gray seal abundance is likely increasing in the U.S. Atlantic EEZ (Hayes
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 details concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid species)) have the reasonable potential to co-occur with the proposed activities (Table 3). Of the cetacean species that may be present, six 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.
This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see,
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in Hz or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the dB. A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square 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 (Hastings and Popper, 2005). 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 than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 micropascal-squared second (μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for sound produced by the pile driving activity considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels
The sum of the various natural and anthropogenic sound sources that comprise ambient sound at any given location and time depends not only on the source levels (as determined by current weather conditions and levels of biological and human 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
Sounds are often considered to fall into one of two general types: Impulsive and non-impulsive (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Impulsive sound sources (
Non-impulsive sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these non-impulsive sounds can be transient signals of short duration but without the essential properties of pulses (
General background information on marine mammal hearing was provided previously (see Description of Marine Mammals in the Area of the Specified Activities). Here, the potential effects of sound on marine mammals are discussed.
Richardson
We describe the more severe effects (
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40-dB threshold shift approximates PTS onset;
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with conspecifics, and 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 (
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 songs (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 stressors, 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). Disruption 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
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 (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment if disrupting behavioral patterns. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Acoustic effects on marine mammals during the specified activity can occur from impact pile driving, vibratory pile driving/removal, and HRG surveys. The effects of underwater noise from construction of the SFWF and SFEC have the potential to result in PTS (Level A harassment) or disruption of behavioral patterns (Level B harassment) of marine mammals in the action area.
The effects of pile driving on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the type (impact or vibratory), depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the distance between the pile and the animal; and the sound propagation properties of the environment.
When piles are driven with impact hammers, they deform, sending a bulge travelling down the pile that radiates sound into the surrounding air, water, and seabed. This sound may be received by biological receivers such as marine mammals through the water, as the result of reflected paths from the surface, or re-radiated into the water from the seabed (See Figure 3 Appendix J1 of the SFWF COP for a schematic diagram illustrating sound propagation paths associated with pile driving).
Noise generated by impact pile driving consists of regular, impulsive sounds of short duration. These impulsive sounds are typically high energy with fast rise times. Exposure to these sounds may result in harassment depending on proximity to the sound source and a variety of environmental and biological conditions (Dahl
Available information on impacts to marine mammals from pile driving associated with offshore wind is limited to information on harbor porpoises and seals, as the vast majority of this research has occurred at European offshore wind projects where large whales are uncommon. Harbor porpoises, one of the most behaviorally sensitive cetaceans, have received particular attention in European waters due to their protection under the European Union Habitats Directive (EU 1992, Annex IV) and the threats they face as a result of fisheries bycatch. Brandt
Monitoring of harbor porpoises before and after construction at the Egmond aan Zee offshore wind project in the Dutch North Sea showed that more porpoises were found in the wind project area compared to two reference areas post-construction, leading the authors to conclude that this effect was linked to the presence of the wind project, likely due to increased food availability as well as the exclusion of fisheries and reduced vessel traffic in the wind project (Lindeboom
Harbor seals are also a particularly behaviorally sensitive species. A harbor seal telemetry study off the East coast of England found that seal abundance was significantly reduced up to 25 km from WTG pile driving during construction, but found no significant displacement resulted from construction overall as the seals' distribution was consistent with the non-piling scenario within 2 hours of cessation of pile driving (Russell
Overall, the available literature suggests harbor seals and harbor porpoises have shown avoidance of pile driving at offshore wind projects during the construction phase in some instances, with the duration of avoidance varying greatly, and with re-population of the area generally occurring post-construction. The literature suggests that marine mammal responses to pile driving in the offshore environment are not predictable and may be context-dependent. It should also be noted that the only studies available on marine mammal responses to offshore wind-related pile driving have focused on species which are known to be more behaviorally sensitive to auditory stimuli than the other species that occur in the project area. Therefore, the documented behavioral responses of harbor porpoises and harbor seals to pile driving in Europe should be considered as a worst case scenario in terms of the potential responses among all marine mammals to offshore pile driving, and these responses cannot reliably predict the responses that will occur in other marine mammal species. Harwood
Noise generated from vibratory pile driving is mostly concentrated at lower frequencies. Rise time is slower, and sound energy is distributed over a great amount of time, reducing the probability and severity of injury (Nedwell and Edwards, 2002; Carlson
Masking, which occurs when the receipt of a sound is interfered with by a coincident sound at similar frequencies and similar or higher levels, may occur during the short periods of vibratory pile driving; however, this is unlikely to become biologically significant. It is possible that vibratory pile driving resulting from construction and removal of the temporary cofferdam may mask acoustic signals important to low frequency marine mammals, but the short-term duration (approximately 36 hours over 3 non-consecutive days, 18 hours each for installation and removal) would result in limited impacts from masking. In this case, vibratory pile driving durations are relatively short and no significant seal rookeries or haulouts, or cetacean foraging habitats are located near the inshore proposed cofferdam locations.
While thresholds for auditory impairment consider exposure time, the metrics used for the behavioral harassment threshold do not consider the duration of the animal's exposure to a sound level. Therefore, the traditional assessment for behavioral exposures is dependent solely on the presence or absence of a species within the area ensonified above the threshold. Also, animals are less likely to respond to sounds from more distance sources, even when equivalent sound levels elicit responses at closer ranges; both proximity and received levels are important factors in aversion responses (Dunlop et al., 2017).
HRG surveys may temporarily impact marine mammals in the area due to elevated in-water sound levels. Animals exposed to active acoustic sources during the HRG survey are unlikely to incur TTS hearing impairment due to the characteristics of the sound sources, which include relatively narrow beamwidths (
The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall
In the case of impact pile driving, sound sources would be active for relatively short durations (2 to 3 hours per pile), and only one pile would be driven per day. The acoustic frequencies produced during pile driving activity are lower than those used by most species for communication or foraging expected to be present in the project area. Given the short duration and the frequency spectra produced by pile driving, NMFS expects minimal masking impacts from these activities. Further, any masking events that might qualify as Level B harassment under the MMPA would be expected to occur concurrently within the zones of behavioral harassment already estimated for pile driving, and have, therefore, already been taken into account in the exposure analysis. The zones of behavioral harassment estimated for vibratory pile driving are large (see Estimated Take), but the short duration of this activity coupled with the ephemeral use by LF cetaceans (the group most susceptible to potential masking from these activities) of the nearshore habitat will limit masking impacts. Finally, masking effects from HRG survey activities are not anticipated due to the characteristics of the acoustic sources (intermittent and higher frequency signals), the small isopleths generated by those signals, and the influence of the proposed mitigation.
The proposed activities would result in the placement of 16 permanent structures (
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 impact and vibratory 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. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the expected short daily duration of individual pile driving events and the relatively small areas being affected.
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. Based on the information discussed herein, NMFS concludes that impacts of South Fork Wind's activities are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to marine mammal habitat are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.
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 primarily be by Level B harassment, as noise from pile driving and HRG surveys has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result from impact pile driving. The proposed mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable (see Proposed Mitigation).
As described previously, no mortality is anticipated or proposed to be authorized for these activities. The approach by which take is estimated is described below.
Generally speaking, NMFS estimates 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. NMFS notes 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).
Level B Harassment—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
Level A harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The components of South Fork Wind's proposed activity that may result in take of marine mammals include the use of impulsive and non-impulsive sources.
These thresholds are provided in Table 5. 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, NMFS describes 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.
As described above, South Fork Wind is proposing to install up to 15 WTGs and one OSS in the SFWF (
In recognition of the need to ensure that the range of potential impacts to marine mammals from the various potential scenarios are accounted for, piling scenarios were modeled separately in order to conservatively assess the impacts of each. The two monopile installation scenarios modeled are:
(1) The “maximum design” consisting of fifteen piles requiring ~4,500 strikes per pile (per 24 hrs), and one difficult to drive pile requiring ~8,000 strikes (per 24 hrs).
(2) The “standard design” consisting of sixteen piles requiring ~4,500 strike per pile (per 24 hrs).
Representative hammering schedules of increasing hammer energy with increasing penetration depth were modeled, resulting in, generally, higher intensity sound fields as the hammer energy and penetration increases (Table 6).
Monopiles were assumed to be vertical and driven to a penetration depth of 45 m. While pile penetrations across the site would vary, this value was chosen as a reasonable penetration depth. All acoustic modeling was performed assuming that only one pile is driven at a time.
Additional modeling assumptions for the monopiles were as follows:
• One pile installed per day.
• 10.97 m steel cylindrical piling with wall thickness of 10 cm.
•
•
Sound fields produced during impact pile driving were modeled by first characterizing the sound signal produced during pile driving using the industry-standard GRLWEAP (wave equation analysis of pile driving) model and JASCO Applied Sciences' (JASCO) Pile Driving Source Model (PDSM). The full JASCO modeling report can be found at
Underwater sound propagation (
At frequencies less than 2 kHz, MONM computes acoustic propagation via a wide-angle parabolic equation (PE) solution to the acoustic wave equation based on a version of the U.S. Naval Research Laboratory's Range-dependent Acoustic Model (RAM) modified to
The sound field radiating from the pile was simulated using a vertical array of point sources. Because sound itself is an oscillation (vibration) of water particles, acoustic modeling of sound in the water column is inherently an evaluation of vibration. For this study, synthetic pressure waveforms were computed using the full-wave range-dependent acoustic model (FWRAM), which is JASCO's acoustic propagation model capable of producing time-domain waveforms.
Models are more efficient at estimating SEL than SPL
Two locations within the SFWF were selected to provide representative propagation and sound fields for the project area (see Figure 1 in SFWF COP, Appendix J1). The two locations were selected to span the region from shallow to deeper water and varying distances to dominant bathymetric features (
The sound propagation modeling incorporated site-specific environmental data that describes the bathymetry, sound speed in the water column, and seabed geoacoustics in the construction area. Sound level estimates are calculated from three-dimensional sound fields and then at each horizontal sampling range, the maximum received level that occurs within the water column is used as the received level at that range. These maximum-over-depth (R
The modeled source spectrum is provided in Figure 7 of the SFWF COP (Appendix J1). The dominant energy for both pile driving scenarios (“maximum” and “standard”) is below 100 Hz. Please see Appendix J1 of the SFWF COP for further details on the modeling methodology (Denes
South Fork Wind will employ a noise mitigation system during all impact pile driving of monopiles. Noise mitigation systems, such as bubble curtains, are sometimes used to decrease the sound levels radiated from a source. Bubbles create a local impedance change that acts as a barrier to sound transmission. The size of the bubbles determines their effective frequency band, with larger bubbles needed for lower frequencies. There are a variety of bubble curtain systems, confined or unconfined bubbles, and some with encapsulated bubbles or panels. Attenuation levels also vary by type of system, frequency band, and location. Small bubble curtains have been measured to reduce sound levels but effective attenuation is highly dependent on depth of water, current, and configuration and operation of the curtain (Austin, Denes, MacDonnell, & Warner, 2016; Koschinski & Lüdemann, 2013). Bubble curtains vary in terms of the sizes of the bubbles and those with larger bubbles tend to perform a bit better and more reliably, particularly when deployed with two separate rings (Bellmann, 2014; Koschinski & Lüdemann, 2013; Nehls, Rose, Diederichs, Bellmann, & Pehlke, 2016).
Encapsulated bubble systems (
The updated acoustic thresholds for impulsive sounds (such as impact pile driving) contained in the Technical Guidance (NMFS, 2018) were presented as dual metric acoustic thresholds using both SEL
Tables 7 and 8 shows the modeled acoustic ranges to the Level A harassment thresholds, with 0, 6, 10, 12 and 15 dB sound attenuation incorporated. For the peak level, the greatest distances expected within a given hearing group are shown, typically occurring at the highest hammer energies (Table 7). The SEL
Table 9 shows the acoustic ranges to the Level B harassment threshold with no attenuation, 6, 10, 12, and 15 dB sound attenuation incorporated. Acoustic propagation was modeled at two representative sites in the SFWF as described above. The radial distances shown in Table 8 are the mean distance to the Level B harassment threshold from the piles, derived by averaging the R
Modeled acoustic ranges to threshold levels may overestimate the actual distances at which animals receive exposures meeting the Level A (SEL
For vibratory pile driving (non-impulsive sounds), sound source characteristics were generated by JASCO using GRLWEAP 2010 wave equation model (Pile Dynamics, Inc., 2010). Installation and removal of the cofferdam were modeled from a single location. The radiated sound waves were modeled as discrete point sources over the full length of the pile in the water and sediment (9.1 m [30 ft] water depth, 9.1 m [30 ft] penetration) with a vertical separation of 0.1 m (0.32 ft). Removal of the cofferdam using a vibratory extractor is expected to be acoustically comparable to installation activities. No noise mitigation system will be used during vibratory piling. Summaries of the maximum ranges to Level A harassment thresholds and Level B harassment thresholds resulting from propagation modeling of vibratory pile driving are provided in Table 11. Peak thresholds were not reached for any marine mammal hearing group.
The large Level B harassment isopleths resulting from vibratory piling installation and removal are a reflection of the threshold set for behavioral disturbance from a continuous noise (
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), which provides a conservative approach to exposure estimation.
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 harassment 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 South Fork Wind 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 12). For the purposes of the exposure analysis, it was conservatively assumed that sparkers would be the dominant acoustic source for all survey days. Thus, the distances to the isopleths corresponding to the threshold for Level B harassment for sparkers (141 m) was used as the basis of the take calculation for all marine mammals.
This section provides information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. The best available information regarding marine mammal densities in the project area is provided by habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts
Densities of marine mammals and their subsequent exposure risk are different for the wind farm area (where impact pile driving will occur), the near shore export cable area (where vibratory pile driving will occur), and the HRG survey area. Therefore, density blocks (Roberts
Mean monthly densities for all animals were calculated using a 60 km (37.3 mi) square centered on SFWF and overlaying it on the density maps from Roberts
The mean density for each month was determined by calculating the unweighted mean of all 10 x 10 km (6.2 x 6.2 mi) grid cells partially or fully within the buffer zone polygon. Mean values from the density maps were converted from units of abundance (animals/100 km
Marine mammal densities in the near shore export cable area were estimated from the 10 × 10 km habitat density blocks that contained the anticipated location of the cofferdam. Monthly marine mammal densities for the potential construction locations of the cofferdam are provided in Table 14. The maximum densities (denoted by an asterisk) were incorporated in the exposure modeling to obtain the most conservative estimates of potential take by Level A harassment or Level B harassment.
The species listed in each respective density table represent animals that could be reasonably expected within the propagated Level B harassment threshold distances at each location, in the months during which the cofferdam may be installed and extracted (
Densities for HRG surveys were combined for the wind farm area (inter-array cables) and the export cable route using density blocks that encompassed those areas. The densities used for HRG surveys are provided in Table 15. Average annual, rather than maximum monthly, densities were estimated to account for spatial variability in the distribution of marine mammals throughout the SFWF and SFEC and temporal variability in distribution over the 12-month timeframe during which HRG surveys would occur.
Below is a description of how the information provided above is brought together to produce a quantitative take estimate. The following steps were performed to estimate the potential numbers of marine mammal exposures above Level A harassment and Level B harassment thresholds as a result of the proposed activities.
JASCO's Animal Simulation Model Including Noise Exposure (JASMINE) animal movement model was used to predict the probability of marine mammal exposure to impact pile driving sound. Sound exposure models like JASMINE use simulated animals (also known as “animats”) to forecast behaviors of animals in new situations and locations based on previously documented behaviors of those animals. The predicted 3D sound fields (
The precise location of animats (and their pathways) are not known prior to a project, therefore a repeated random sampling technique (Monte Carlo) is used to estimate exposure probability with many animats and randomized starting positions. The probability of an
The output of the simulation is the exposure history for each animat within the simulation, and the combined history of all animats gives a probability density function of exposure during the project. Scaling the probability density function by the real-world density of animals (Table 13) results in the mean number of animats expected to be exposed over the duration of the project. Due to the probabilistic nature of the process, fractions of animats may be predicted to exceed threshold. If, for example, 0.1 animats are predicted to exceed threshold in the model, that is interpreted as a 10% chance that one animat will exceed a relevant threshold during the project, or equivalently, if the simulation were re-run ten times, one of the ten simulations would result in an animat exceeding the threshold. Similarly, a mean number prediction of 33.11 animats can be interpreted as re-running the simulation where the number of animats exceeding the threshold may differ in each simulation but the mean number of animats over all of the simulations is 33.11. A portion of an individual marine mammal cannot be taken during a project, so it is common practice to round mean number animat exposure values to integers using standard rounding methods. However, for low-probability events it is more precise to provide the actual values.
Sound fields were input into the JASMINE model and animats were programmed based on the best available information to “behave” in ways that reflect the behaviors of the 16 marine mammal species expected to occur in the project area during the proposed activity. The various parameters for forecasting realistic marine mammal behaviors (
The mean number of animats that may be exposed to noise exceeding acoustic thresholds were calculated for two construction schedules; one representing the most likely schedule, and one representing a more aggressive, or maximum schedule (Denes
In summary, exposures were estimated in the following way:
(1) The characteristics of the sound output from the proposed pile-driving activities were modeled using the GRLWEAP (wave equation analysis of pile driving) model and JASCO's PDSM;
(2) Acoustic propagation modeling was performed within the exposure model framework using JASCO's MONM and FWRAM that combined the outputs of the source model with the spatial and temporal environmental context (
(3) Animal movement modeling integrated the estimated sound fields with species-typical behavioral parameters in the JASMINE model to estimate received sound levels for the animals that may occur in the operational area; and
(4) The number of potential exposures above Level A and Level B harassment thresholds was calculated for each potential piling scenario (standard, maximum).
All scenarios were modeled with no sound attenuation and 6, 10, 12, and 15 dB sound attenuation. The results of marine mammal exposure modeling for the potentially more impactful maximum piling scenarios are shown in Tables 16 and 17, as these form the basis for the take authorization proposed in this document.
Again, only the estimated Level B harassment exposures for the maximum design pile driving schedule are presented here (Table 17).
Although exposures are presented according to a range of attenuation levels, proposed take numbers are based on an assumption of 10 dB attenuation and are shown below in Table 18. South Fork Wind considers an attenuation level of 10 dB achievable using a single big bubble curtain (BBC), which is the most likely noise mitigation system that will be used during construction of SFWF. Recently reported in situ measurements during installation of large monopiles (~8 m) for more than 150 WTGs in comparable water depths (>25 m) and conditions in Europe indicate that attenuation levels of 10 dB are readily achieved (Bellmann, 2019; Bellmann
South Fork Wind conservatively based their exposure modeling on the maximum piling scenario, including one difficult-to-drive monopile (out of 16) and a compressed buildout schedule (16 piles installed over 20 days).
In addition, the acoustic modeling scenario represents only that which produced the largest harassment zones and does not reflect all the mitigation measures that will be employed during piling operations that will serve to reduce the Zone of Influence (ZOI) or increase mitigation actions, which may reduce take (see the Proposed Mitigation section for details on the measures proposed for implementation).
Variability in monthly species densities is not considered in South Fork Wind's take estimates for monopile driving, which are based on the highest mean density value for any month for each species. Given that less than 30 days of pile driving will occur, it is unlikely that maximum monthly densities would be encountered for all species.
Finally, start delays and shutdowns of pile hammering are not considered in the exposure modeling parameters for monopile driving. However, South Fork Wind will delay pile driving if a North Atlantic right whale is observed within the Level B harassment zone prior to initiating pile driving to avoid take and if a marine mammal is observed entering or within the respective exclusion zones after pile driving has commenced, an immediate shutdown of pile driving will be implemented unless South Fork Wind and/or its contractor determines shutdown is not practicable due to an imminent risk of injury or loss of life to an individual; or risk of damage to a vessel that creates risk of
Although the exposure modeling indicated that Level A harassment takes are only expected for a three species of baleen whales (fin whale, minke whale, and humpback whale), South Fork Wind requested authorization of take by Level A harassment of one sei whale based on the occurrence of sei whales in the project area documented during prior and ongoing HRG surveys of the SFWF.
South Fork Wind requested authorization of take equal to the mean group size for Level B harassment, based on the best available data (seals, Herr
Animal movement and exposure modeling was not used to determine potential exposures from vibratory pile driving. Rather, the modeled acoustic range distances to isopleths corresponding to the Level A harassment and Level B harassment threshold values were used to calculate the area around the cofferdam predicted to be ensonified daily to levels that exceed the thresholds, or the ZOI. ZOI is calculated as the following:
The daily area was then multiplied by the maximum monthly density of a given marine mammal species. Roberts
Finally, the resulting value was multiplied by the number of proposed activity days which is, for cofferdam installation and removal, conservatively estimated as two days. Modeling of the Level A harassment exposures resulting from two 18-hrs periods of vibratory pile driving and removal resulted in less than one exposure for all species for each month between October 1 and May 31. Modeled potential Level B harassment exposures resulting from installation and extraction of the cofferdam are shown in Table 19.
Modeled vibratory pile driving activities for the SFEC (SFWF COP Appendix J1 [Denes
Vibratory pile driving during cofferdam installation and removal for the SFEC does have the potential to elicit behavioral responses in marine mammals. However, predicting Level B harassment exposure estimates resulting from vibratory pile driving is complicated by the nearshore location, short duration of cofferdam installation and removal, and static species density data that are not indicative of animals transiting the nearshore environment. Marine mammal densities at the near shore export cable area were estimated from the 10 x 10 km habitat density block from Roberts
Given the possibility that vibratory pile driving could occur anytime between October and May, the maximum modeled exposure for each species (across months) was used to conservatively predict take numbers and assess impacts resulting from vibratory pile driving (Table 20).
Potential exposures of marine mammals to acoustic impacts from HRG survey activities were estimated using an approach similar to that described for installation and removal of a cofferdam. For HRG surveys, however, the ZOI was calculated as follows:
The daily area was then multiplied by the mean annual density of a given marine mammal species. Finally, the resulting value was multiplied by the number of proposed survey days (60).
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 (
The proposed number of takes by Level B harassment resulting from HRG survey activities are shown in Table 22. Again, as 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 and South Fork Wind did not request any take by Level A harassment associated with HRG surveys, NMFS does not propose to authorize take by Level A harassment of any marine mammals.
The seasonal mean number of minke whales sighted during HRG surveys conducted by South Fork Wind in 2017 and 2018 was 19; therefore, South Fork increased the number of takes requested for minke whales from 1 to 19. Preliminary Protected Species Observer (PSO) reports from SFWF during 2019 and 2020 HRG surveys show a high number of common dolphin detections within the estimated Level B harassment zones. Using a mean group size of 25, South Fork Wind multiplied the mean group size by the number of Level B harassment exposures modeled (47) to produce the number of takes they requested by Level B harassment (1,175). There were no exposures estimated for several species; however, as a precautionary measure, South Fork Wind requested Level B harassment takes for those species based on published values of mean group sizes (sei whale, Kenney and Vigness-Raposa, 2010; sperm whale, Barkaszi and Kelly, 2018; Atlantic spotted dolphin, Barkaszi and Kelly, 2018; Risso's dolphin, Barkaszi and Kelly, 2018). The number of minke whale Level B harassment takes requested by South Fork Wind is based on the seasonal mean number of minke whales sighted during HRG surveys of SFWF in 2017 and 2018.
Level A harassment and Level B harassment proposed takes for the combined activities of impact pile driving using a noise attenuation device, vibratory pile driving, and HRG surveys are provided in Table 23. NMFS also presents the percentage of each stock taken based on the total amount of take. The mitigation and monitoring measures provided in the Proposed Mitigation and Proposed Monitoring and Reporting sections are activity-specific and are designed to minimize acoustic exposures to marine mammal species.
The take numbers NMFS proposes for authorization (Table 23) are considered
• Proposed take numbers for impact pile driving assume a maximum piling schedule (16 monopiles installed in 20 days);
• Proposed take numbers for vibratory pile driving assume that a sheet pile temporary cofferdam will installed (versus the alternative installation of a gravity cell cofferdam, for which no take is anticipated);
• Proposed take numbers for pile driving are conservatively based on maximum densities across the proposed construction months;
• Proposed Level A harassment take numbers do not fully account for the likelihood that marine mammals will avoid a stimulus when possible before the individual accumulates enough acoustic energy to potentially cause auditory injury;
• Proposed take numbers do not fully account for the effectiveness of proposed mitigation and monitoring measures in reducing the number of takes to effect the least practicable adverse impact (with the exception of the seasonal restriction on impact pile driving, which is accounted for in the proposed take numbers).
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, NMFS carefully considers 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 and impact on operations.
The mitigation strategies described below are consistent with those required and successfully implemented under previous incidental take authorizations issued in association with in-water construction activities. Additional measures have also been incorporated to account for the fact that the proposed construction activities would occur offshore. Modeling was performed to estimate harassment zones, which were used to inform mitigation measures for pile driving activities to minimize Level A harassment and Level B harassment to the extent practicable.
In addition to the specific measures described later in this section, South Fork Wind would conduct briefings for construction supervisors and crews, the marine mammal and acoustic monitoring teams, and South Fork Wind staff prior to the start of all pile driving and HRG survey activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.
No impact pile driving activities would occur January 1 through April 30. This seasonal restriction would minimize the potential for North Atlantic right whales to be exposed to pile driving noise. Based on the best available information (Kraus
South Fork Wind would use PSOs to establish clearance zones around the pile driving equipment to ensure these zones are clear of marine mammals prior to the start of pile driving. The purpose of “clearance” of a particular zone is to prevent potential instances of auditory injury and potential instances of more severe behavioral disturbance as a result of exposure to pile driving noise (serious injury or death are unlikely outcomes even in the absence of mitigation measures) by delaying the activity before it begins if marine mammals are detected within certain pre-defined distances of the pile driving equipment. The primary goal in this case is to prevent auditory injury (Level A harassment), and the proposed clearance zones are larger than the modeled distances to the isopleths (assuming an effective 10 dB attenuation of pile driving noise) corresponding to Level A harassment for all marine mammal species (excluding humpback whales). These zones vary depending on species and are shown in Table 24. All distances to the perimeter of clearance zones are the radius from the center of the pile. The pre-start clearance zones for large whales, harbor porpoises, and seals are based upon the maximum distance to the Level A harassment isopleth for each group (excluding humpback whales) plus a 20 percent buffer, rounded up for PSO clarity. The North Atlantic right whale Level A harassment zone is conservatively based on the Level B harassment zone, and the distance to the perimeter of the clearance zone is rounded up from 4,684 m to 5,000 m. Although the Level A harassment zones are small, mid-frequency cetacean (except sperm whales) zones were established using a precautionary distance of 100 m and will extend to that distance or just beyond the placement of the noise mitigation system, whichever is further.
The exclusion zones for large whales, North Atlantic right whale, porpoise, and seals are based upon the maximum Level A harassment zone for each group (excluding humpback whales), increased by a 10 percent buffer and rounded up for PSO clarity. Similar to clearance zones, mid-frequency cetacean (except sperm whale) exclusion zones will extend to the larger of two distances: 50 m or just outside the noise mitigation system.
The Level A harassment zone is larger for humpback whales than other low frequency baleen whales because animal movement modeling used to estimate the associated isopleth relies on behavior-based exposures with no aversion (based on the best available data that inform the animat models); specific movement parameters help drive the larger zone size for humpbacks, including a modeled preference for slightly deeper water than the depths in the SFWF. This modeled preference resulted in fewer exposures, but each exposure was farther from the impact piling location, producing the larger Level A harassment zone. While the clearance zone (2,200 m) for humpback whales is smaller than the Level A harassment zone (3,642 m), visual monitoring would be conducted from both the construction vessel and a secondary, smaller vessel (on which dedicated PSOs would be deployed) surveying the circumference of the construction vessel at a radius approximate to the pre-start clearance zone for large whales (2,200 m). NMFS expects that this additional visual monitoring would facilitate detection of humpback whales within the Level A harassment zone.
South Fork Wind would establish a clearance zone for North Atlantic right whales slightly larger than the Level B harassment zone to minimize all take. If a North Atlantic right whale is detected nearing the exclusion zone, shutdown would be triggered. NMFS agrees that, under typical conditions, South Fork Wind would be capable of monitoring this zone using a combination of visual monitoring from both the construction vessel and secondary monitoring vessel (described above), and real-time PAM, which would occur before, during, and after driving using a combination of acoustic detection systems (
If a marine mammal is observed approaching or entering the relevant clearance zones prior to the start of pile driving, pile driving activity will be delayed until either the marine mammal has voluntarily left the respective clearance zone and been visually confirmed beyond that clearance zone, or, 30 minutes have elapsed without re-detection of the animal in the case of mysticetes, sperm whales, Risso's dolphins and pilot whales, or 15 minutes have elapsed without re-detection of the animal in the case of all other marine mammals.
Prior to the start of pile driving activity, the clearance zones will be monitored for 60 minutes using a combined effort of passive acoustic monitoring and visual observation to ensure that they are clear of the relevant species of marine mammals. Pile driving would only commence once PSOs have declared the respective clearance zones clear of marine mammals. Marine mammals observed within a clearance zone will be allowed to remain in the clearance zone (
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning marine mammals or providing them with a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. South Fork Wind will utilize soft start techniques for impact pile driving including by performing 4-6 strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes. NMFS notes that it is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes”; however, as mentioned previously, South Fork Wind has proposed that they will target less than 20 percent of total hammer energy for the initial hammer strikes during soft start. Soft start would be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer.
The purpose of a shutdown is to prevent some undesirable outcome, such as auditory injury or severe behavioral disturbance of sensitive species, by halting the activity. If a marine mammal is observed entering or within the respective exclusion zone (Table 24) after pile driving has begun, the PSO will request a temporary cessation of pile driving.
In situations when shutdown is called for but South Fork Wind determines shutdown is not practicable due to imminent risk of injury or loss of life to an individual, or risk of damage to a vessel that created risk of injury or loss of life for individuals, reduced hammer energy would be implemented when practicable. After shutdown, pile driving may be initiated once all clearance zones are clear of marine mammals for the minimum species-specific time periods, or, if required to maintain installation feasibility. Installation feasibility refers to ensuring that the pile installation results in a usable foundation for the WTG (
Pile driving would not be initiated at night, or, when the full extent of all relevant clearance zones cannot be confirmed to be clear of marine mammals, as determined by the lead PSO on duty. The clearance zones may only be declared clear, and pile driving started, when the full extent of all clearance zones are visible (
South Fork Wind would implement sound attenuation technology designed to result in an average of 10 dB attenuation of impact pile driving noise (see
If South Fork Wind uses a bubble curtain, 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. South Fork Wind would require that construction contractors train personnel in the proper balancing of airflow to the bubblers, and would require that construction contractors submit an inspection/performance report for approval by South Fork Wind within 72 hours following the performance test. Corrections to the attenuation device to meet the performance standards would occur prior to impact driving. If South Fork Wind uses a noise attenuation device other than a BBC, similar quality control measures would be required.
South Fork Wind would implement visual monitoring of the clearance zones for 30 minutes prior to the initiation of ramp-up of vibratory piling equipment (Table 25). During this period, the clearance zone will be monitored by the PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is detected within its respective exclusion zone. If a marine mammal is observed within a clearance zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective clearance zone or until an additional time period has elapsed with no further sighting (
An immediate shutdown of vibratory pile driving equipment must be implemented if a marine mammal is sighted entering or within its respective exclusion zone after cofferdam installation has commenced. Resumption of vibratory pile driving can begin if the animal has been observed exiting its respective exclusion zone or an additional time period has elapsed without a resighting
South Fork Wind would implement a 30-minute pre-clearance period of the clearance zones prior to the initiation of ramp-up of HRG equipment (Table 26). During this period, the clearance 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 clearance zone. If a marine mammal is observed within a clearance zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective clearance zone or until an additional time period has elapsed with no further sighting (
When practicable, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or restart 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 practicable, 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 (
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, shutdown would occur.
If the acoustic source is shut down for reasons other than mitigation (
The shutdown requirement would be waived for small delphinids of the following genera:
Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. 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 greater than or equal to 65 ft (19.8 m) in overall length must comply with the 10 knot speed restriction in any Seasonal Management Area (SMA) per the NOAA ship strike reduction rule (73 FR 60173; October 10, 2008).
• Vessels of all sizes will operate port to port at 10 knots or less between November 1 and April 30, except for vessels transiting inside Narragansett Bay or Long Island Sound.
• A trained, dedicated visual observer and alternative visual detection system (
• Vessels of all sizes will operate at 10 knots or less in any North Atlantic right whale Dynamic Management Area (DMA).
• Outside of DMAs, SMAs, and the November 1 through April 30 time period, localized detections of North Atlantic right whales, using passive acoustics, would trigger a slow-down to 10 knots or less in the area of detection (zone) for the following 12 hours (hrs). Each subsequent detection would trigger a 12-hr reset. A slow-down in that zone expires when there has been no further visual or acoustic detection in the past 12-hr within the triggered zone.
• For all vessels greater than or equal to 65 ft (19.8 m) in overall length, vessel speeds must 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 North Atlantic 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 exception made for those that approach the vessel.
• When marine mammals are sighted while a vessel is underway, the vessel must 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.
• When not on active watch duty, members of the monitoring team must consult NMFS' North Atlantic right whale reporting systems for the presence of North Atlantic right whales in the project area.
• Project-specific training must be conducted for all vessel crew prior to the start of in-water construction activities. Confirmation of the training and understanding of the requirements must be documented on a training course log sheet.
NMFS has carefully evaluated South Fork Wind's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Based on NMFS' evaluation of these measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal 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 stock for subsistence uses.
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.
Monitoring would be conducted before, during, and after impact pile driving, vibratory pile driving and during HRG surveys. In addition, observers will record all incidents of marine mammal occurrence at any distance from the piling location or active HRG acoustic source, and monitors will document any behavioral reactions in concert with distance from an acoustic source. Observations made outside the clearance zones will not result in delay of project activities.
A pile segment or HRG survey trackline may be completed without cessation, unless the marine mammal approaches or enters the clearance zone, at which point pile driving or survey activities would be halted when practicable, as described above.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified, trained PSOs, who will be placed on the installation (monopile and cofferdam installation), secondary observation (monopile installation only), or HRG survey vessels, which represents the best vantage point to monitor for marine mammals and implement shutdown procedures when applicable;
(2) PSOs may not exceed 4 consecutive watch hours; must have a minimum 2 hour break between watches; and may not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(3) PSOs will have no other construction-related tasks while conducting monitoring;
(4) PSOs should have the following minimum 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;
• Ability to conduct field observations and collect data according to assigned protocols;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to document 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 and times when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone; and marine mammal behavior; and
• 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.
Observer teams employed by South Fork Wind in satisfaction of the mitigation and monitoring requirements described herein must meet the following additional requirements:
• Independent observers (
• At least one observer must have prior experience working as an observer;
• Other observers may substitute education (degree in biological science or related field) or training for experience;
• One observer will be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
• NMFS will require submission and approval of observer curriculum vitae.
South Fork Wind will collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. PSOs would monitor all clearance zones at all times. PSOs would also monitor Level B harassment zones and would document any marine mammals observed within these zones, to the extent practicable (noting that some distances to these zones are too large to fully observe). South Fork Wind would conduct monitoring before, during, and after pile driving, with observers located at the best practicable vantage points on the pile driving vessel.
South Fork Wind would implement the following procedures for pile driving:
• A minimum of two PSOs on the impact pile driving vessel will maintain watch at all times when pile driving is underway.
• A minimum of two PSOs on a secondary PSO vessel located at the outer edge of the 2,200 m clearance zone will maintain watch at all times when pile driving is underway.
• PSOs would be located at the best vantage point(s) on the impact pile driving and secondary vessels to ensure that they are able to observe the entire clearance zones and as much of the Level B harassment zone as possible.
• During all observation periods, PSOs will use binoculars and the naked eye to search continuously for marine mammals.
• PSOs will be provided reticle binoculars, NVDs, and a thermal/IR camera system.
• If the clearance zones are obscured by fog or poor lighting conditions, pile driving will not be initiated until clearance zones are fully visible. Should such conditions arise while impact driving is underway, the activity would be halted when practicable, as described above.
• The clearance zones will be monitored for the presence of marine mammals for 60 mins before, throughout the installation of the pile, and for 30 mins after all pile driving activity.
When monitoring is required during vessel transit (as described above), the PSO(s) will be stationed on vessels at the best vantage points to ensure maintenance of standoff distances between marine mammals and vessels (as described above). South Fork Wind would implement the following measures during vessel transit when there is an observation of a marine mammal:
• PSOs or dedicated observers will record the vessel's position and speed, water depth, sea state, and visibility at the beginning and end of each observation period, and whenever there is a change in any of those variables that materially affects sighting conditions.
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. PSOs will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and South Fork Wind.
The visual monitoring requirements for installation of the cofferdam would be consistent with those described for monopile installation, differing as follows:
• A minimum of two PSOs on the vibratory pile driving platform or construction vessel will maintain watch at all times when vibratory pile driving is underway.
• During daytime (
• During daytime low visibility conditions, one PSO will monitor the exclusion zone with a mounted IR camera, while the second PSO maintains visual watch using naked eye/reticle binoculars.
• If nighttime observations are required, two PSOs will monitor the exclusion zone using a mounted IR camera and hand-held/wearable NVDs.
The visual monitoring requirements for HRG surveys would be consistent with those described for monopile installation, differing as follows:
• At least one PSO must be on duty during daylight operations on each survey vessel, conducting visual observations at all times on all active survey vessels during daylight hours (
• A minimum of two PSOs must be on watch during nighttime operations.
• PSO(s) would ensure 360° visual coverage around the vessel from the most appropriate observation posts and would conduct visual observations using binoculars and/or NVDs and the naked eye.
• In cases where multiple vessels are surveying concurrently, any observations of marine mammals would be communicated to PSOs on all nearby survey vessels.
Among other pieces of information, South Fork Wind will record detailed information about any implementation of delays or shutdowns, including the distance of animals to the pile and a description of specific actions that ensued and resulting behavior of the animal, if any. NMFS requires that, at a minimum, the following information be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavioral patterns, including:
○ Bearing and direction of travel and distance from pile driving activity,
○ changes in behavioral patterns, noting when/if they correspond to change in activity (
○ amount of time spent within Level A and Level B harassment zones
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Type of construction activity (
• Description of implementation of mitigation measures (
• Locations of all marine mammal observations; and
• Other human activity in the area.
South Fork Wind would utilize a PAM system to supplement visual monitoring during all pre-clearance, WTG and OSS impact piling operations, and post visual monitoring periods. The PAM system would be monitored by a minimum of one acoustic PSO beginning at least 60 minutes prior to soft start of pile driving and at all times during pile driving. Acoustic PSOs would immediately communicate all detections of marine mammals to visual PSOs, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination. PAM would be used to inform visual monitoring during construction. The PAM system would not be located on the pile installation vessel.
Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches, and for a maximum of twelve hours per day. Acoustic PSOs would be required to complete specialized training for operating PAM systems. PSOs can act as acoustic or visual observers (but not simultaneously) as long as they demonstrate that their training and experience are sufficient to perform each task.
During the first monopile installation, South Fork Wind would be required to empirically determine the distances to the isopleths corresponding to Level B harassment thresholds either by extrapolating from in situ measurements conducted at distances approximately 100 m (or less, depending on the position of the noise mitigation system), 750 m, 1500 m, 3000 m, and 6000 m from the pile being driven, or by direct measurements to locate the distance where the received levels reach the relevant thresholds or below. Additionally, measurements conducted at multiple distances from the pile will be used to estimate propagation loss. Isopleths corresponding to the Level B harassment threshold would be verified for comparison with the acoustic propagation range and R
If initial acoustic field measurements indicate distances to the isopleths corresponding to Level B harassment thresholds are greater than the distances predicted by modeling (as presented in the IHA application), South Fork Wind must implement additional sound attenuation measures prior to conducting additional pile driving. Initial additional measures may include improving the efficacy of the implemented noise attenuation technology and/or modifying the piling schedule to reduce the sound source. If implementation of these corrective actions does not result in distances to the Level B harassment isopleths that are similar to or less than those used to calculate take, South Fork Wind would install a second noise mitigation system to achieve the modelled ranges. Each sequential modification would be evaluated empirically by acoustic field measurements.
If acoustic measurements indicate that distances to isopleths corresponding to the Level B harassment threshold are less than the distances predicted by modeling (as presented in the IHA application), South Fork Wind may request a modification to the clearance and exclusion zones for impact pile driving. If modifications are approved by NMFS, each sequential modification to decrease zone sizes would also be evaluated empirically by acoustic field measurements.
A draft report would be submitted to NMFS within 90 days of the completion of monitoring for each installation's in-water work window. The report would include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and would also provide descriptions of any changes in marine mammal behavioral patterns resulting from construction activities. The report would detail the monitoring protocol, summarize the data recorded during monitoring including an estimate of the number of marine mammals that may have been harassed during the period of the report, and describe any mitigation actions taken (
South Fork Wind would be required to submit a preliminary acoustic monitoring report to NMFS within 24 hrs of completing sound source verification (SSV) on the first monopile. In addition to in situ measured distances to the Level A harassment and Level B harassment thresholds, the acoustic monitoring report would include: SPLpk, SPLrms that contains 90 percent of the acoustic energy, single strike sound exposure level, integration time for SPLrms, SELss spectrum (
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 and HRG survey activities associated with the proposed project, as described previously, have the potential to disturb or temporarily displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A harassment (potential injury; from impact pile driving only) or Level B harassment (potential behavioral disturbance) from underwater sounds generated from pile driving (impact and vibratory) and certain HRG active acoustic sources. Potential takes could occur if individual marine mammals are present in the ensonified zone when pile driving or HRG survey activities are occurring.
To avoid repetition, the majority of our analyses apply to all the species listed in Table 3, given that many of the anticipated effects of the proposed project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks—as is the case of the North Atlantic right whale—they are included as separate subsections below.
North Atlantic right whales are currently threatened by low population abundance, higher than normal mortality rates and lower than normal reproductive rates. As described above, the project area represents part of an important migratory area for North Atlantic right whales, which make annual migrations up and down the Atlantic coast. Due to the current status of North Atlantic right whales, and the spatial overlap of the proposed project with an area of biological significance for North Atlantic right whales, the potential impacts of the proposed project on North Atlantic right whales warrant particular attention.
As described above, North Atlantic right whale presence in the project area is largely seasonal. As a result of several years of aerial surveys and PAM deployments in the area, NMFS has confidence that North Atlantic right whales are expected in the project area predominately during certain times of year while at other times of year North Atlantic right whales are expected to occur less frequently in the project area. During aerial surveys conducted from 2011-2015 in the project area, North Atlantic right whale sightings occurred only December through April, with no sightings from May through November (Kraus
Due to this seasonal pattern in North Atlantic right whale occurrence in the project area, NMFS expects the most significant measure in minimizing impacts to North Atlantic right whales to be the proposed seasonal closure that would occur from January through April, when North Atlantic right whale abundance in the project area is greatest. In addition, proposed mitigation measures outside of those months—including a 5 km clearance zone facilitated through PAM and PSOs—will greatly minimize any takes that may otherwise occur outside of the months of peak abundance in the area. As a result of these mitigation measures, NMFS expects the already small potential for North Atlantic right whales to be exposed to project-related sound above the Level A harassment threshold to be eliminated. Therefore, South Fork did not request nor is NMFS proposing to authorize take by Level A harassment. NMFS also expects these proposed measures to greatly reduce the amount of exposures to project-related noise above the Level B harassment threshold, and the duration and intensity of any exposures above the Level B harassment threshold that do occur. No serious injury or mortality of North Atlantic right whales would be expected even in the absence of the proposed mitigation measures.
Instances of Level B harassment of North Atlantic right whales will be reduced to the level of least practicable adverse impact through use of proposed mitigation measures, including soft start
Prey for North Atlantic right whales are mobile and broadly distributed throughout the project area; therefore, North Atlantic right whales that may be temporarily displaced during construction 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 North Atlantic right whales and the food sources that they utilize are not expected to cause significant or long-term consequences for individual North Atlantic right whales or their population. In addition, there are no North Atlantic right whale mating or calving areas within the proposed project area.
As described above, North Atlantic right whales are experiencing an ongoing UME. However, as described above, no injury of North Atlantic right whales as a result of the proposed project is expected or proposed for authorization, and Level B harassment takes of North Atlantic right whales are expected to be in the form of avoidance of the immediate area of construction. As no injury or mortality is expected or proposed for authorization, and Level B harassment of North Atlantic right whales will be reduced to the level of least practicable adverse impact through use of proposed mitigation measures, the proposed authorized takes of North Atlantic right whales would not exacerbate or compound the effects of the ongoing UME in any way.
NMFS concludes that the additional proposed mitigation measures would ensure that any exposures above the Level B harassment threshold would result in only short-term effects to individuals exposed. With implementation of the proposed mitigation requirements, take by Level A harassment is unlikely and is therefore not proposed for authorization. Potential impacts associated with Level B harassment would include only low-level, temporary behavioral modifications, most likely in the form of avoidance behavior or potential alteration of vocalizations.
Although acoustic masking may occur, based on the acoustic characteristics of noise associated with impact pile driving (
In order to evaluate whether or not individual behavioral responses, in combination with other stressors, impact animal populations, scientists have developed theoretical frameworks which can then be applied to particular case studies when the supporting data are available. One such framework is the population consequences of disturbance model (PCoD), which attempts to assess the combined effects of individual animal exposures to stressors at the population level (NAS 2017). Nearly all PCoD studies considering multiple marine mammal species and experts agree that infrequent exposures of a single day or less are unlikely to impact individual fitness, let alone lead to population level effects (Booth
Impact pile driving has source characteristics (short, sharp pulses with higher peak levels and sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. No Level A harassment from HRG surveys or vibratory pile driving is expected, even in the absence of mitigation; therefore, our discussion regarding auditory injury is limited to impact pile driving.
NMFS expects that any exposures above the Level A harassment threshold would be in the form of slight PTS,
Additionally, the number of Level A harassment takes proposed for authorization are relatively low for all marine mammal stocks and species: For three of the stocks, only one take by Level A harassment is proposed for authorization (
Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of proposed mitigation measures and, if sound produced by project activities is sufficiently disturbing, marine mammals are likely to simply avoid the area while the activity is occurring. Therefore, NMFS expects that animals disturbed by project sound would likely move away from the sound source during project activities in favor of other, similar habitats. NMFS expects that any avoidance of the project area by marine mammals would be temporary in nature and that any marine mammals that avoid the project area during construction would not be permanently displaced.
Feeding behavior is not likely to be significantly impacted, as prey species are mobile and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during construction 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. There are no areas of notable biological significance for marine mammal feeding known to exist in the project area. In addition, there are no rookeries or mating or calving areas known to be biologically important to marine mammals within the proposed project area.
NMFS concludes that exposures to marine mammals due to the proposed project would result in only short-term effects to individuals exposed. Marine mammals may temporarily avoid the immediate area but are not expected to permanently abandon the area. Impacts to breeding, feeding, sheltering, resting, or migration are not expected, nor are shifts in habitat use, distribution, or foraging success. NMFS does not anticipate the marine mammal takes that would result from the proposed project would impact annual rates of recruitment or survival.
As described above, humpback whales, minke whales, and gray and harbor seals are experiencing ongoing UMEs. For minke whales, although the ongoing UME is under investigation (as occurs for all UMEs), this event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales. With regard to humpback whales, 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 DPS) remains healthy. The West Indies DPS, which consists of the whales whose breeding range includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland, was delisted. The status review identified harmful algal blooms, vessel collisions, and fishing gear entanglements as relevant threats for this DPS, but noted that all other threats are considered likely to have no or minor impact on population size or the growth rate of this DPS (Bettridge
In summary and as described above, the following factors primarily support NMFS' 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 proposed for authorization;
• No Level A harassment of North Atlantic right whales would occur and Level B harassment will be minimized via extended mitigation measures;
• The anticipated impacts of the proposed activity on marine mammals would be temporary behavioral changes (primarily avoidance of the project area) and limited instances of Level A
• Potential instances of exposure above the Level A harassment threshold are limited to four of the 16 species expected to occur in the project area and are expected to be relatively low, and the severity of any PTS would be minimized by proposed mitigation measures including clearance zones;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the project area during the proposed project to avoid exposure to sounds from the activity;
• Effects on species that serve as prey species for marine mammals from the proposed project are expected to be short-term and are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations;
• There are no known important feeding, breeding or calving areas in the project area. A biologically important migratory area exists for North Atlantic right whales; however, the proposed seasonal moratorium on construction is expected to largely avoid impacts to the North Atlantic right whale migration, as described above.
• The proposed mitigation measures, including visual and acoustic monitoring, clearance and exclusion zones, soft start (pile driving only), ramp up (HRG only), shutdown, are designed to reduce frequency and intensity of exposures and are, therefore, expected to minimize potential impacts to marine mammals.
• Total proposed authorized takes as a percentage of population are very low for all species and stocks (
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. When the predicted number of individuals to be taken is less 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.
NMFS proposes to authorize incidental take of 16 marine mammal stocks. The total amount of taking proposed for authorization is less than 3.5 percent for four of these stocks, and less than 1 percent for the 12 remaining stocks (Table 23), which NMFS preliminarily finds are small numbers of marine mammals relative to the estimated overall population abundances for those stocks.
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 ESA (16 U.S.C. 1531
NMFS is proposing to authorize take of North Atlantic right, fin, sei, and sperm whales, which are listed under the ESA. The NMFS Office of Protected Resources has requested initiation of Section 7 consultation with the NMFS Greater Atlantic Regional Fisheries Office for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to South Fork Wind for conducting construction activities southeast of Rhode Island for a period of one year, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at:
NMFS requests comment on the analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for the proposed construction of the South Fork Wind offshore wind project. NMFS also requests comment on the potential for 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 NMFS' final decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a one-time, 1 year IHA renewal with an expedited public comment period (15 days) when: (1) Another year of identical or nearly identical activities as described in the Specified Activities section is planned or (2) the activities would not be completed by the time the IHA expires and a second IHA 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 expiration of the current IHA;
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the proposed Renewal 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
• 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.