Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Centers for Disease Control and Prevention
National Institutes of Health
Federal Emergency Management Agency
Land Management Bureau
National Park Service
Federal Aviation Administration
Foreign Assets Control Office
Internal Revenue Service
Office of Investment Security
United States Mint
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Bureau of Industry and Security, Commerce.
Interim final rule; technical amendment.
On January 6, 2020, the Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) to add Software Specially Designed to Automate the Analysis of Geospatial Imagery to the 0Y521 Temporary Export Control Classification Numbers (ECCN) Series as 0D521. BIS first extended controls on this emerging technology for a second year pursuant to the 0Y521 series extension procedures on January 6, 2021, and in this action extends these controls a second time for an additional year for a total of three years of this control since it was added to the EAR on January 6, 2020.
This rule is effective January 6, 2022.
Aaron Amundson, Director, Information Technology Division, Office of National Security and Technology Transfer Controls, at email
On January 6, 2020, the Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) with an interim final rule to add an emerging technology—Software Specially Designed to Automate the Analysis of Geospatial Imagery—to the 0Y521 Temporary Export Control Classification Numbers (ECCN) Series as 0D521. (85 FR 459, January 6, 2020). More specifically, the software was described as Geospatial imagery “software” “specially designed” for training a Deep Convolutional Neural Network to automate the analysis of geospatial imagery and point clouds. The following year, BIS extended that status for a year. (86 FR 461, January 6, 2021). These actions are consistent with Section 1758 (50 U.S.C. 4801) of the Export Control Reform Act of 2018 (ECRA), which requires the Department of Commerce to establish appropriate controls on the export, reexport, or transfer (in-country) of emerging and foundational technologies.
BIS established the ECCN 0Y521 series (April 13, 2012, 72 FR 22191) to identify items that warrant control on the Commerce Control List (CCL) but are not yet identified in an existing ECCN. Items in the 0Y521 series of ECCNs are added upon a determination by the Department of Commerce, with the concurrence of the Departments of Defense and State, and other agencies as appropriate, that the items warrant control for export because the items may provide a significant military or intelligence advantage to the United States or because foreign policy reasons justify control. The ECCN 0Y521 series is a temporary holding classification.
Under the procedures set forth in Section 742.6(a)(8)(iii) of the EAR, items classified under ECCN 0Y521 remain so classified for one year from the date they are listed in supplement no. 5 to part 774 of the EAR, unless the items are re-classified under a different ECCN or the 0Y521 classification is extended. BIS may extend an item's ECCN 0Y521 classification for two one-year periods, provided that the U.S. Government has submitted a proposal to the relevant multilateral regime(s) (
In this action, BIS extends the status of an item classified under a 0Y521 ECCN for a second time for an additional year, for a total of three years of this control since it was added to the EAR on January 6, 2020, consistent with procedures that allow such an extension. Specifically, in this case the U.S. Government submitted a proposal for multilateral control of software specially designed to automate the analysis of geospatial imagery, as described in the January 6, 2020 interim final rule and in ECCN 0D521, to the relevant multilateral regime (the Wassenaar Arrangement) in a timely manner, within the first year of the item's 0D521 classification. However, due to the pandemic, the Wassenaar Arrangement did not formally convene in 2020 and therefore was unable to consider acceptance of the proposal. Therefore, BIS published the first extension of this 0Y521 control on January 6, 2021. However, the Wassenaar Arrangement's limited deliberations in 2021 due to the pandemic did not allow for sufficient discussion of this proposal. An additional extension of time is appropriate in order for the U.S. Government to continue its effort at the Wassenaar Arrangement in 2022, and is consistent with the requirements of Section 1758(c) of ECRA.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852) that provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety
2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies associated with Federalism as that term is defined under Executive Order 13132.
4. Pursuant to section 1762 of ECRA (
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Exports, Reporting and recordkeeping requirements.
Accordingly, part 774 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
Office of Investment Security, Department of the Treasury.
Determination.
The Department of the Treasury, as Chair of the Committee on Foreign Investment in the United States, is publishing the Committee's determination that two foreign states have established and are effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security.
Effective January 5, 2022.
Laura Black, Director of Investment Security Policy and International Relations, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email:
The list of excepted foreign states and additional information with respect to the Committee on Foreign Investment in the United States (CFIUS or the Committee) are available on the Committee's section of the Department of the Treasury website.
The Committee, taking into consideration the factors identified on the Committee's section of the Department of the Treasury website, has determined, under the authority of section 721 of the Defense Production Act of 1950, as amended, and 31 CFR 800.1001(a), that: (1) Australia has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security; and (2) Canada has established and is effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security.
This determination satisfies the second criterion in the definition of excepted foreign state under 31 CFR 800.218 with respect to Australia and Canada. Therefore, Australia and Canada are and will remain excepted foreign states absent further Committee action and notice in the
Office of Investment Security, Department of the Treasury.
Final rule.
This final rule adopts without change the proposed rule modifying the definitions of “excepted foreign state” and “excepted real estate foreign state” by extending by one year the effective date of one of two criteria set forth in the definitions in the regulations implementing certain provisions of Section 721 of the Defense Production Act of 1950, as amended.
This final rule is effective on February 4, 2022.
For questions about this rule, contact: Laura Black, Director of Investment Security Policy and International Relations, Meena R. Sharma, Deputy Director of Investment Security Policy and International Relations, or Richard Rowe, Senior Policy Advisor, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email:
On November 15, 2021, the Department of the Treasury (Treasury Department) published a proposed rule amending the definitions of “excepted foreign state” and “excepted real estate foreign state” in 31 CFR part 800 and 31 CFR part 802, respectively. 86 FR 62978. These terms operate together with other relevant terms to provide an exception from the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS or the Committee) over covered investments by certain foreign persons who meet specific criteria establishing sufficiently close ties to certain foreign states, as well as certain other provisions of the Foreign Investment Risk Review Modernization Act of 2018.
The preamble to the proposed rule provides background on CFIUS's statutory authority and the rationale for these definitional changes. The public was provided an opportunity to comment on the proposed rule and comments were due by December 10, 2021. The Treasury Department received two comments prior to the deadline, which are described in the next section.
As described in the preamble to the proposed rule, “excepted foreign state” and “excepted real estate foreign state” are each defined by a two-criteria conjunctive test, with delayed effectiveness for the second criterion. This second criterion is a Committee determination under § 800.1001(a) for each eligible foreign state that it has established and “is effectively utilizing” a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security, and a Committee determination under § 802.1001(a) for each eligible foreign state that it has “made significant progress” toward establishing and effectively utilizing the robust process that is described in § 800.1001. The final rule extends the effectiveness of the second criterion with respect to each definition. Instead of becoming effective on February 13, 2022, each such second criterion will become effective on February 13, 2023.
During the public comment period, the Treasury Department received two comments to the proposed rule. The Treasury Department considered each submitted comment. All comments received by the end of the comment period are available on the public rulemaking docket at
One comment supported the proposed rule and asked whether foreign states understand the determination criteria set forth in § 802.1001(a). The Treasury Department notes that there is additional information with respect to the factors that the Committee will consider in making determinations under §§ 800.1001(a) and 802.1001(a) on its website, available at
Another comment asked about the impact of the pandemic and the excepted foreign state determinations. Extending the effective date of the second criterion in each definition provides foreign states with additional time to meet the determination factors. As stated in the preamble to the proposed rule, the Committee had determined that extending the time period before which such requirements become applicable is desirable given certain ongoing changes to foreign investment review regimes. The proposed rule does not make any change to the two-part conjunctive tests or to the factors set forth under §§ 800.1001(a) and 802.1001(a) for the second criterion. These tests and factors continue to provide the basis for CFIUS to designate excepted foreign states and excepted real estate foreign states.
Upon review and consideration of these comments, the Treasury Department has determined that the proposed rule is desirable given certain ongoing changes to foreign investment review regimes. The final rule therefore adopts the proposed rule without change.
These regulations are not subject to the general requirements of Executive Order 12866, which covers review of regulations by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB), because they relate to a foreign affairs function of the United States, pursuant to section 3(d)(2) of that order. In addition, these regulations are not subject to review under section 6(b) of Executive Order 12866 pursuant to section 7(c) of the April 11, 2018, Memorandum of Agreement between the Treasury Department and OMB, which states that CFIUS regulations are not subject to OMB's standard centralized review process under Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule has been submitted to the Office of Information and Regulatory Affairs (OIRA), which has determined that the rule is not a “major” rule under the Congressional Review Act.
Foreign investments in the United States, Investments.
Real estate transactions in the United States, Investments.
For the reasons set forth in the preamble, the Treasury Department amends 31 CFR parts 800 and 802 regarding the definition of excepted foreign state and excepted real estate foreign state as follows:
50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.
50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.
Bureau of Land Management, Interior.
Final supplementary rule.
The Bureau of Land Management (BLM) is finalizing a supplementary rule to reinstate a 14-day camping limit at the Virgin River Canyon Recreation Area within the Arizona Strip Field Office, Arizona Strip District, Mohave County, Arizona. The supplementary rule is needed to protect public health and safety, reduce user conflicts within the designated
The final supplementary rule is effective February 7, 2022.
You may submit inquiries by any of the following methods:
Amanda Sparks, Assistant Field Manager, Arizona Strip Field Office, at 435-688-3271 or by email at
The supplementary rule is needed because an increasing number of users of the Virgin River Canyon Recreation Area have established long-term residency under the pretext of recreational camping. The proliferation of residential use interferes with legitimate recreational use of public lands and creates other health and safety concerns including hygiene and sanitation issues (
Efforts to contain the problems associated with long-term occupancy without imposing a 14-day stay have proven insufficient and concerns with public health and safety have intensified. Establishment of this supplementary rule will: (1) Provide more opportunities for the recreating public to utilize the campground facilities and access the surrounding area; (2) create consistent camping limitations across the Arizona Strip Field Office; (3) allow for management of the site for recreational purposes while preserving the health and safety of visitors; and (4) enable law enforcement personnel to cite persons for unlawful camping and use of public land for residential purposes, thereby increasing campsite availability to the recreating public.
This supplementary rule is consistent with the Arizona Strip Field Office Resource Management Plan (RMP), approved by the BLM (January 29, 2008). The BLM analyzed the proposed change in an environmental assessment (EA) (DOI-BLM-AZ-A010-2018-0030-EA) and issued a Finding of No Significant Impact (FONSI) and Decision Record on February 6, 2019.
The BLM is establishing this supplementary rule under the authority of 43 CFR 8365.1-6, which allows BLM State Directors to establish supplementary rules for “the protection of persons, property, and public lands and resources.” This provision allows the BLM to issue rules of less than national effect by publishing the rule in the
On March 31, 1994, the BLM Arizona State Office established supplementary rules for the Virgin River Canyon Recreation Area (59 FR 15214). The 1994 camping and occupancy rule exempted the Virgin River Canyon Recreation Area from the Arizona Strip District's 14-day camping limit that prohibits camping longer than 14 consecutive days within a 28-day period and requires campers to move at least 30 air miles from a previously occupied camping location. The 1994 supplementary rule therefore allowed for unlimited overnight stays within the Virgin River Canyon Recreation Area. This final supplementary rule will revise the 1994 rule by reinstating the camping limit of 14 consecutive days within a 28-day period on public land within the Virgin River Canyon Recreation Area, making it consistent with all other public lands within the Arizona Strip Field Office area.
No other changes to the 1994 supplementary rules will occur and they will continue to be enforced as described in the 1994 notice. The reinstatement of a camping limit will help the BLM maintain public access for recreational purposes, reduce conflicts among visitors, and preserve public health and safety.
The BLM Arizona State Director proposed the supplementary rule in the
This supplementary rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Orders 12866 or 13563. The rule will not have an effect of $100 million or more on the economy. This rule establishes a duration for camping stays and does not adversely affect, in a material way, the economy, productivity, competition, jobs, environment, public health or safety, or state, local, or tribal governments or communities. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients, nor does the rule raise novel legal or policy issues. This rule will enable law enforcement personnel to efficiently track occupancy and enforce regulations pertaining to unlawful occupancy in a manner consistent with current Arizona State and county laws, where appropriate on public lands.
The BLM prepared an EA and found that the supplementary rule does not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The BLM completed the EA to analyze the effects of the change in the stay limit in the Virgin River Canyon Recreation Area. The Decision Record for this EA was signed on February 6, 2019. The BLM has placed the EA and the FONSI on file in the BLM
Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601,
This supplementary rule does not constitute “major rules” as defined at 5 U.S.C. 804(2). The supplementary rule establishes a 14-day stay limit on overnight camping during a 28-day period and within 30 air miles on lands within the Virgin River Canyon Recreation Area. The limitation is necessary to: (1) Provide more opportunities for the recreating public to utilize the campground facilities and access the surrounding area; (2) create consistent camping limitations across the Arizona Strip Field Office; (3) allow for management of the site for recreational purposes while preserving the health and safety of visitors; and (4) enable law enforcement personnel to cite persons for unlawful camping and use of public land for residential purposes. The supplementary rule will have no effect on business, commercial, or industrial use of the public lands.
This supplementary rule does not impose an unfunded mandate on state, local or Tribal governments or the private sector of more than $100 million per year, nor does the supplementary rule have a significant or unique effect on state, local or Tribal governments or the private sector. The supplementary rule does not require anything of state, local or Tribal governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531,
This supplementary rule does not represent a government action capable of interfering with constitutionally protected property rights. The supplementary rule does not address property rights in any form and does not cause the impairment of anyone's property rights. Therefore, the BLM has determined that this supplementary rule does not cause a taking of private property or require further discussion of takings implications under this Executive Order.
This supplementary rule will not have a substantial, direct effect on the states, on the relationship between the Federal government and the states or on the distribution of power and responsibilities among the various levels of government. The supplementary rule applies in only one state, Arizona, and does not address jurisdictional issues involving the Arizona state government. Therefore, in accordance with Executive Order 13132, the BLM has determined that the supplementary rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that this supplementary rule will not unduly burden the judicial system and that the rule meets the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175, the BLM has found this supplementary rule does not include policies that have tribal implications and will have no bearing on trust lands or on lands for which title is held in fee status by Indian tribes or U.S. Government-owned lands managed by the Bureau of Indian Affairs. Since this supplementary rule does not change BLM policy and does not involve Indian reservation lands or resources, the BLM has determined that the government-to-government relationships remain unaffected. The supplementary rule will only prohibit camping longer than 14 days in any 28-day period and within 30 air miles of the Virgin River Canyon Recreation Area on public lands managed by the BLM Arizona Strip Field Office.
Under Executive Order 13352, the Arizona State Office of the BLM has determined that this supplementary rule will not impede the facilitation of cooperative conservation. The supplementary rule will take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources, properly accommodate local participation in the Federal decision-making process and provide that the programs, projects and activities are consistent with protecting public health and safety.
In developing this supplementary rule, the BLM did not conduct or use a study, experiment or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).
This supplementary rule does not constitute a “significant energy action” as defined in Executive Order 13211. The supplementary rule will not have an adverse effect on energy supplies, production, or consumption. The rule only addresses unauthorized occupancy on public lands and has no connection with energy policy.
This supplementary rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
The principal author of this supplementary rule is Jon Jasper, Outdoor Recreation Planner, Arizona Strip Field Office, Bureau of Land Management.
For the reasons stated in the preamble, and under the authority of 43 CFR 8365.1-6 and 43 U.S.C. 1740, the Arizona State Director establishes the following supplementary rule for public lands managed by the BLM in Mohave County, Arizona, subject to the Arizona Strip Field Office Resource Management Plan, to read as follows:
Unless otherwise authorized, the BLM will enforce the following rule on public lands within the Virgin River Canyon Recreation Area, within the Arizona Strip Field Office, Arizona Strip District, Arizona.
1. You must not remain or camp within the Virgin River Canyon Recreation Area for more than 14 consecutive days in a 28-day period.
2. After the 14th consecutive day, campers must move beyond a 30-mile radius from the boundary of the Virgin River Canyon Recreation Area.
The following persons are exempt from this rule: Any Federal, state, local, and/or military employee acting within the scope of his or her official duties; members of any organized rescue or firefighting force in performance of an official duty; and any person authorized, in writing, by the BLM authorized officer.
Any person who violates this rule may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 8365.1-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Arizona law.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using hook-and-line (HAL) 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 2022 total allowable catch of Pacific cod by catcher vessels using HAL gear in the Western Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), January 3, 2022, through 1200 hours, A.l.t., June 10, 2022.
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 2022 Pacific cod total allowable catch (TAC) apportioned to catcher vessels using HAL gear in the Western Regulatory Area of the GOA is 47 metric tons (mt) as established by the final 2021 and 2022 harvest specifications for groundfish in the GOA (86 FR 10184, February 19, 2021) and inseason adjustment (86 FR 74384, December 30, 2021). The Regional Administrator has determined that the 2022 TAC apportioned to catcher vessels using HAL gear in the Western Regulatory Area of the GOA is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2022 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for catcher vessels using HAL gear in the Western Regulatory Area of the GOA as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for catcher vessels using HAL 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 catcher vessels using HAL gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of December 30, 2021.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) is issuing proposed regulations that would govern Federal antidiscrimination (including retaliation) and whistleblower protection. The proposed rule would implement statutory changes and amend the regulations to incorporate technical revisions and other changes relating to these subjects to make the rule more efficient and effective.
Comments must be received on or before February 7, 2022.
You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by the Federal eRulemaking Portal:
Timothy Curry by email at
The Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (Cummings Act) became law on January 1, 2021. The law amends the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No FEAR Act”), Public Law 107-174. In the No FEAR Act of 2002, Congress entrusted the President with the authority to promulgate rules to carry out Title II of the No FEAR Act and the President, in turn, delegated to OPM the authority to issue regulations to implement these provisions. The regulations at title 5, Code of Federal Regulations, part 724 carry out that authority and, as modified by the proposed rule, will assist agencies in carrying out, consistent with law, these No FEAR Act amendments. First, OPM proposes to rename the title of this part to state the current purpose and content of this part by removing “Implementation of,” which was appropriate for the initial regulations established in 2006. We also propose to amend the authority citation to add a reference to the Cummings Act.
The proposed regulations clarify procedures and add new requirements. In particular, they require an agency to: Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory)
The proposed regulations also will update references and language due to statutory changes and clarify procedures and requirements to support agencies in complying with the requirements of the No FEAR Act. OPM will issue revised language for Notice obligations, § 724.202, which includes the model paragraphs for agency No FEAR notices, in a separate rulemaking.
Finally, OPM proposes to remove references to requirements and deadlines that were established when the law was initially implemented and that have been fulfilled. As noted in the original final rule implementing the No FEAR Act, Congress found that, “[i]n order to maintain a productive workplace that is fully engaged with the many important missions before the Government, it is essential that the rights of employees, former employees, and applicants for Federal employment, under antidiscrimination and whistleblower protection laws, be steadfastly protected and that agencies that violate these rights be held accountable.” 71 FR 27185 (May 10, 2006). Additionally, through the No FEAR Act amendments, it was the sense of Congress that accountability in the enforcement of the rights of Federal employees is furthered when Federal agencies agree to take appropriate disciplinary action against Federal employees who are found to have intentionally committed discriminatory (including retaliatory) acts, but that accountability is not furthered if Federal agencies react to increased accountability for their lawful responsibility by taking unfounded disciplinary actions against Federal employees or by violating the procedural rights of managers who have been accused of discrimination. Accordingly, disciplinary actions against Federal employees alleged to have intentionally committed discriminatory (including retaliatory) acts should not be taken reflexively, but rather as the result of methodical consideration of all the facts and pursuant to the prescribed processes.
This subpart implements the portion of Title II of the No FEAR Act of 2002 concerning the obligation of Federal agencies to reimburse the Judgment Fund for payments. Key terms used throughout title 5, Code of Federal Regulations (CFR), part 724 are defined in this subpart.
Currently in 5 CFR 724.102, the No FEAR Act is defined. OPM proposes to remove the quotation marks from and revise the definition of “No FEAR Act” to reflect that the term means the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, as amended by the Cummings Act. In addition, there are definitions of “Antidiscrimination Laws” and “Payment.” Congress enacted the “Genetic Information Nondiscrimination Act (GINA) of 2008”, effective November 21, 2009, after finding that “Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.” Title II of GINA prohibits employment discrimination on the basis of genetic information. OPM proposes to revise the definitions of “Antidiscrimination Laws” and “Payment” in 5 CFR 724.102 to add sections 2000ff
This subpart implements the portion of Title II of the No FEAR Act concerning the obligation of Federal agencies to notify all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Antidiscrimination Laws and Whistleblower Protection Laws. This subpart also implements Title II concerning the obligation of agencies to train their employees on such rights and remedies. The regulations describe agency obligations and the procedures for written notification and training.
Subpart B of the No FEAR Act, as amended by the Cummings Act, will now provide for two different notices. The notice regulations already existing at 5 CFR 724.202 were derived from section 202 of the original text of the No FEAR Act; the new requirement implements section 1133 of the Cummings Act. The existing regulation applies to the notice of rights agencies are required to provide to current and former Federal employees and applicants for Federal employment. OPM proposes to redesignate § 724.203 for notification of final agency action to implement the new public disclosure obligations an agency must undertake when there has been a finding of discrimination (including retaliation) against the agency and all appeals have been exhausted. (The Cummings Act refers to this as a “notice of violation.”) Specifically, an agency must provide notice in an accessible format linked from its public-facing website of any final decision in which there has been a finding of discrimination (including retaliation) against the agency. Note that a claim of discrimination need not include retaliation as a basis and retaliation can separately be raised as a basis for a claim of discrimination.
Under the proposed § 724.203, the head of the Federal agency subject to the finding must provide notice on the agency's public website within 90 days after the date on which any of the events specified in section 1133 of the Cummings Act occur, that is, the date on which—
• all appeals of a final action by a Federal agency, including when a Federal agency fails to take a final action and the administrative judge's decision becomes final (see 29 CFR 1614.109(i)), involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been exhausted;
• all appeals of a final decision by the EEOC involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been exhausted; or
• a court of jurisdiction issues a final judgment involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act.
OPM interprets the phrase “final judgment” in the description of the third event to mean the date on which the opportunity for further appeal expires, either because the time for any further appeal elapses or because the court issuing the final decision in the case is the final reviewing court from which relief could be sought.
The agency's notification must identify the date on which the finding was made, the date on which each discriminatory act was found to have occurred, and the law found to have been violated by each such discriminatory act, and, once again, advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a) of the No FEAR Act. Where an EEOC decision fails to identify the date on which each act found by the EEOC to be discriminatory occurred, the agency should affirmatively note its inability to specify such dates, for that reason.
In OPM's current regulations, training obligations are addressed at § 724.203. However, due to the addition of the new requirement for notification of final agency action as discussed above at § 724.203, OPM proposes to add a new section designated as § 724.204 for the training obligations. The proposed § 724.204 describes the training that each Federal agency must provide to all of its employees (including supervisors and managers) about the rights and remedies available under the Antidiscrimination Laws and Whistleblower Protection Laws applicable to them. Agencies were required to provide the initial training by December 17, 2006, and, thereafter, on a training cycle of no longer than every two years. Because the deadline for the initial training has passed, OPM proposes to remove that deadline from § 724.204(d) (formerly § 724.203(d)).
Consistent with the No FEAR Act, however, the regulations continue to require agencies to train new employees on the rights and remedies available under the antidiscrimination and whistleblower protection laws as part of its agency orientation program or other training program. Any agency that does not use a new employee orientation program for this purpose must train new employees within 90 calendar days of the new employees' appointment. In this context, “new employees” are those who are new to the agency, including those who transfer from one Federal agency to another. In addition, each agency must continue to train all
This subpart implements the portion of Title II of the No FEAR Act concerning the obligation of Federal agencies to report on specific topics concerning Federal Antidiscrimination Laws and Whistleblower Protection Laws applicable to them, covering Federal employees, former Federal employees, and applicants for Federal employment. Section 1134(b) of the Cummings Act adds a new reporting requirement to section 203 of the No FEAR Act for a disciplinary action report. To incorporate the new disciplinary action report requirement into part 724, OPM proposes to change the subpart C heading from “Annual Report” to “Reporting Obligations.”
OPM proposes to change the heading for § 724.302 from “Reporting obligations” to “Annual report” to clarify that the provisions in § 724.302(a) through (c) are specific to the annual report required by section 203(a) of the No FEAR Act, which requires Federal agencies to create annual reports on a number of items concerning Federal Antidiscrimination Laws and Whistleblower Protection Laws as defined in section 201 of the Act. The annual reports are to be submitted to: The Speaker of the U.S. House of Representatives; President Pro Tempore of the U.S. Senate; U.S. Senate Committee on Homeland Security and Governmental Affairs; U.S. House of Representatives Committee on Oversight and Reform; each committee of Congress with jurisdiction relating to the agency; the EEOC; the Attorney General; and OPM.
Section 1134(a) of the Cummings Act requires that the annual reports mandated by section 203(a) of the No FEAR Act be submitted in an electronic format prescribed by the Director of OPM. OPM proposes to amend paragraphs (a) and (c) of § 724.302 to require that each agency submit its annual report in a Portable Document Format (PDF) or other electronic file format that conforms with the standards of Section 508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d)), and its implementing regulations (36 CFR part 1194). Section 508 of the Rehabilitation Act requires Federal agencies to make their information and communication technology accessible to people with disabilities in a manner that is substantially equivalent to the access provided to people without disabilities. The annual report must be formatted to enable it to be attached to an electronic mail (email) message (or a successor electronic delivery system identified by OPM) addressed to the receiving Congressional office or agency. This electronic format will be required for any annual report submitted under this provision on or after January 1, 2022. Agencies may, however, begin use of the OPM-prescribed electronic format requirements prior to January 1, 2022. Annual report submissions to OPM should be sent to
Under the provisions of the No FEAR Act, each agency's first annual report was due on March 30, 2005, as explained in the current text at 5 CFR 724.302(b). Agencies that had submitted their reports before the original regulations became final were instructed in § 724.302(b) to ensure that their reports contained data elements 1 through 8 of paragraph (a) of this section and to provide any necessary supplemental reports by April 25, 2007. Given that the March 2005 and April 2007 deadlines have passed and the instructions for reports submitted prior to the finalization of the regulations are no longer relevant, OPM proposes to remove those deadlines and instructions from the regulations at § 724.302(b).
Section 1134(a) of the Cummings Act amends Section 203(a) of the No FEAR Act by updating the names of two Congressional committees that must receive the annual report: The U.S. Senate “Committee on Governmental Affairs” is now the U.S. Senate “Committee on Homeland Security and Governmental Affairs”, and the U.S. House “Committee on Government Reform” is now the U.S. House “Committee on Oversight and Reform.” Accordingly, OPM proposes to amend § 724.302(c) to revise the committee names, as well as to encompass any successor committees.
OPM proposes to add § 724.303, a new section for “Disciplinary action report,” in accordance with the establishment of the new reporting requirement in section 1134(b) of the Cummings Act. The provision tracks the statute to the effect that, not later than 120 days from the date on which a Federal agency takes final action (or fails to take a final action and the administrative judge's decision becomes final; see 29 CFR 1614.109(i)), or a Federal agency receives a final decision issued by the EEOC (
As described in 5 CFR 724.401, current subpart D, titled “Best Practices,” implements Title II of the No FEAR Act concerning the obligation of the President or his designee (OPM) to conduct a comprehensive study of best practices in the executive branch for taking disciplinary actions against employees for conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws and the obligation to issue advisory guidelines for agencies to follow in taking appropriate disciplinary actions in such circumstances. As explained further below, the obligations under the subpart have been fulfilled. Therefore, OPM proposes to revise subpart D, by removing the heading and content in its entirety and renaming and redesignating the subpart for new requirements under the Cummings Act. OPM may elect in the future, under its statutory authority, to conduct future studies if necessary.
Pursuant to current § 724.402, OPM conducted a comprehensive study in the executive branch to identify best practices for taking appropriate disciplinary actions against Federal employees for conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws. As required by current § 724.403, OPM developed advisory guidelines for best practices that agencies may follow to take appropriate disciplinary actions against employees for conduct that is inconsistent with Federal Antidiscrimination Laws and Whistleblower Laws. OPM compiled its best practices findings and advisory guidelines and issued them in the report “Disciplinary Best Practices and Advisory Guidelines Under the No FEAR Act” in September 2008. A copy
Under current § 724.404, each Federal agency was required to provide a written statement to Congress, the EEOC, the Attorney General and OPM within 30 working days of the issuance of the advisory guidelines. The written statement was to describe in detail whether the agency had adopted the guidelines and would fully follow them; the reasons for non-adoption, if such agency had not adopted the guidelines; and the reasons for the decision not to fully follow the guidelines, as well as an explanation of the extent to which the agency would not follow them if such agency would not do so. Given that the 30-day deadline for the agency reports has expired and the No FEAR Act does not envision an ongoing obligation for agency statements on the advisory guidelines, this section is no longer needed in the part 724 regulations and will be removed.
The proposed removal of the Best Practices text (because those requirements were previously fulfilled) allows OPM to redesignate subpart D to address two new amendments to the No FEAR Act established by the Cummings Act: A new section 207, concerning the obligation of Federal agencies to track discrimination complaints from filing to resolution (Complaint Tracking), and a new section 208, containing a requirement to place a notation in the personnel record of a Federal employee who is found, following an adverse action, and after all appeals have been exhausted, to have intentionally committed discriminatory (including retaliatory) acts (Notation in Personnel Record). Proposed § 724.401 explains that the purpose of subpart D is to implement these new requirements.
Under proposed § 724.402, OPM incorporates the requirement of the Cummings Act that each agency create a tracking system for discrimination complaints. Not later than January 1, 2022, each Federal agency must establish or leverage an existing system to track each complaint of discrimination arising under section 2302(b)(1) of title 5, United States Code, and adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the Federal agency to resolution of the complaint. In a case where there was a finding of intentionally committed discriminatory (including retaliatory) acts, the agency would also need to track whether a decision has been made regarding any follow-up disciplinary action, and what decision was reached.
Under proposed § 724.403, OPM addresses a new requirement for agencies to document any adverse action taken against a Federal employee found to have intentionally committed discriminatory (including retaliatory) acts. If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the Act, the agency must, after all appeals relating to that action have been exhausted and the finding remains, include a notation of the adverse action, and the reason for the action, in the personnel record of the employee. This requirement of the statute underscores agencies' current responsibility to notate an employee's personnel record if a chapter 75 adverse action is taken and the reason for the action. The obligation for such a notation is fulfilled when the agency processes the Standard Form (SF) 50, “Notification of Personnel Action,” which is located at
OPM proposes to correct the spelling of “Judgment” in the table of contents and the regulatory heading for subpart A. The proposed rule corrects the quotation marks by removing them in the definition of the No FEAR Act in § 724.102. The proposed rule corrects the capitalization in “antidiscrimination” and “whistleblower protection laws” in the Disciplinary Actions model paragraph in § 724.202(g) for consistency with the capitalization of the terms elsewhere in the model paragraphs. Also, the proposed rule adds a period at the end of the last sentence in the Disciplinary Actions model paragraph. Within § 724.202, OPM proposes to revise all references to “web sites” to read “websites” and references to “Web site” to read “website”. Within § 724.302(a)(4), OPM proposes to correctly identify the citation to the Equal Employment Opportunity regulations at subpart G of part 1614 of title 29, Code of Federal Regulations. In 724.302(b) OPM proposes to correct March 30th to appear as March 30.
OPM is issuing the proposed rule to implement the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (hereafter, the Cummings Act), which amends the No FEAR Act of 2002. The No FEAR Act of 2002 states that “[t]he President (or the designee of the President)
The Cummings Act added five new requirements to the original No FEAR Act. (1) Each Federal agency must now post a notice, on a public-facing website, of any final finding of discrimination or retaliation by the agency in violation of applicable law. (2) Agencies will be required to submit their annual reports in a uniform manner to be prescribed by OPM in its regulations. (3) An agency that has been found to have committed discrimination or retaliation must notify the Equal Employment Opportunity Commission (EEOC) whether disciplinary action has been proposed against any agency employee as a result of the finding. (4) Every agency must establish a system to track each complaint of discrimination, arising under one of the statutes listed in 5 U.S.C. 2302(b)(1), through its conclusion, including whether a decision has been made regarding disciplinary action. (5) Each agency that takes an adverse action against an employee under 5 U.S.C. 7512 in relation to a finding of discrimination or retaliation by the agency must add a notation about that action to the employee's personnel record. OPM is implementing these statutory requirements in the least burdensome way it can while still effectuating the congressional purposes of the No FEAR Act, as amended by the Cummings Act.
The rulemaking proposes new regulations that require an agency to provide notice of a finding of discrimination (including retaliation) on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted; submit the annual report in an accessible, electronic format prescribed by the Director of the OPM; submit a disciplinary action report, in an accessible, electronic format, to the EEOC; establish, or leverage, a system to track each complaint of discrimination; and provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally engaged in an act of discrimination, after all appeals are exhausted.
The purpose of the OPM regulations is largely to conform existing regulations to the new statutory requirements. OPM regulations do fill in some policy gaps, but any regulatory decisions will have a marginal impact on transfers, costs, and benefits, and the regulatory amendments proposed in this rulemaking go no further than is necessary to implement the statutory changes. Without these amendments, it will be impossible for OPM to comply with its own obligations under the No FEAR Act, as amended, and agencies will lack guidance concerning how to effectuate their own obligations under the Cummings Act.
Under the existing regulations, it is difficult for members of the public to determine whether an agency has been the subject of a finding of discrimination (including retaliation) against the agency, because such findings are posted only in physical form on agency bulletin boards. The statute now requires an electronic posting on a public-facing website. Agencies already provide notice on their public websites related to No FEAR, so the additional burden should be minimal.
Currently, there is not a uniform method for agencies to submit annual No FEAR Act reports. An agency may submit its annual report in any format and via any means of delivery, which means there is room for improvement in consistency and efficiency in the agency reporting process. OPM aims to provide a format that will simplify reporting for agencies and better enable Congress to review and grasp results from across the Government. The ongoing burden should be minimal once new regulations are published and the new format is adopted at each agency.
OPM assumes that agencies currently have some system for tracking complaint information, if for no other purpose than compiling and preparing the annual report of No FEAR Act data. Agencies with simpler systems may need to develop a more robust tool to meet the statutory requirement for a system that tracks each complaint from filing through resolution and including disciplinary action, if taken as a consequence of a finding of discrimination, but we do not expect that the additional effort will be very burdensome.
The requirement that an agency notify the EEOC whether the agency has proposed disciplinary action against any agency employee as a result of a finding that the agency has violated one or more of the Antidiscrimination or Whistleblower Protection Laws, will add a new burden to agencies, but this burden has been imposed by Congress, and OPM is merely aligning its regulations to the statute to incorporate the new requirement.
The regulation also provides that an agency must include a notation of the adverse action and the reason for the action in the personnel record of the employee if the agency takes an adverse action covered under section 7512 of title 5, U.S. Code, against the employee for an intentional act of discrimination (including retaliation). In order to ease agencies' compliance with this statutory requirement, OPM proposes to establish a new nature of action code and new remark code for agencies to notate and provide the reason for the adverse action. This will enhance transparency as to the basis for agency action and serve the congressional purpose by providing a deterrent to prohibited behavior.
For the most part, the changes reflected in OPM's implementing regulations are required by statute and cannot be avoided or further simplified. The Cummings Act requires that an agency provide notice of a finding of discrimination (including retaliation) on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted; agencies were already posting physical copies at their agency worksites, and now OPM has modified its regulations to incorporate the new electronic posting requirement. In addition, the statute requires that the Director of OPM prescribe an electronic format for agencies to submit annual reports about cases in Federal court pending or resolved in each fiscal year and arising under the Federal Antidiscrimination Laws and Whistleblower Protection Laws applicable to them in which an employee, former Federal employee, or applicant alleged a violation(s) of these laws. We have laid out an approach that we believe is minimally burdensome for agencies. The Cummings Act imposed on agencies a new obligation to submit a disciplinary action report to the Equal Employment Opportunity Commission (EEOC) whenever the agency is found to have violated one of the anti-discrimination or whistleblowing provisions. Our proposed regulations incorporate this new obligation. The Cummings Act requires an agency to track each complaint of discrimination or retaliation; we assume agencies already do this in some fashion, but we now instruct them how to fulfill all the terms of the statutory requirement, which should cause minimal additional burden. Similarly, the statute provides the requirement that the agency insert a
OPM considered alternatives with respect to the electronic format for the annual report. Currently, agencies submit their annual reports electronically or via hard copy. One option was to require agencies to submit the annual report as a Portable Document Format (PDF) via email. The other option was to give agencies flexibility to determine the electronic file format, as long as the format conforms with the standards of Section 508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d) and 36 CFR part 1194), and the means of submission. Under this option, which is preferred by OPM, the regulation would give the agency authority to determine a format within their available means. Submission via another avenue, such as fax or U.S. Postal Service, would require use of more resources, including staff time, than submission via email.
OPM also considered alternatives with regard to the complaint tracking system. One option was for agencies to establish a new system to track complaints. Alternatively, agencies could leverage an existing system. Currently, the existing annual report requirement involves the collection of data elements that are closely related to the data elements agencies must capture in a complaint tracking system as required by the Cummings Act. For example, among other elements, agencies must report annually on the number of cases; the status or disposition (including settlement) of each case; and the number of employees disciplined and the nature of discipline for conduct that is inconsistent with Antidiscrimination Laws and Whistleblower Protection Laws. Similarly, agencies must now track each complaint of discrimination arising under section 2302(b)(1) of title 5, United States Code, and adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the Federal agency to resolution of the complaint. In a case where there was a finding of intentional discrimination, the agency would also need to track whether a decision has been made regarding any follow-up disciplinary action, and what decision was reached. In considering the options for a tracking system, OPM weighed the burden of an agency developing or procuring a new system and determined that regulations should not mandate establishment of a new system if an agency can leverage an existing system.
In considering the regulation for disciplinary action reports, OPM tracked the statute to the effect that, not later than 120 days from the date on which a Federal agency takes final action, or a Federal agency receives a final decision issued by the EEOC (
Regarding the statutory requirement that an agency provide notice linked from its public-facing website of any final decision in which there has been a finding of discrimination (including retaliation) against the agency, OPM has not specified any design requirements. Agencies have the discretion to lay out the required information and links in the most beneficial and cost-effective manner to achieve the outcome of public notice about agency efforts at accountability for applicable violations. In adopting this approach, OPM assumes that covered agencies have public websites that they update regularly with information for the public and that these updates will occur with no more frequency than other changes that an agency may make to its public-facing website.
Finally, there is the statutory requirement that an agency document any adverse action taken against a Federal employee found to have engaged in an act of discrimination. If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for an act of intentional discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the Act, the agency must, after all appeals relating to that action have been exhausted and the finding remains, include a notation of the adverse action, and the reason for the action, in the personnel record of the employee. OPM considered that this requirement could be met by the agency preparing a written statement that describes the adverse action and the reason for the action and filing the written statement in the employee's Official Personnel Folder. A potential disadvantage to this approach is a lack of consistency across agencies on how documentation is prepared. OPM determined that an alternative, more effective approach is to establish a new nature of action code and new remark code for agencies to notate and provide the reason for the adverse action. This preferred option promotes consistency and transparency across Federal agencies in documenting adverse actions taken for acts of intentional discrimination (including retaliation). In addition, establishment of new processing codes specifically for adverse actions that result from violations of the antidiscrimination laws will help to distinguish these actions from adverse actions taken for other types of misconduct. This will facilitate data collection and thereby improve the efficiency of agency reporting processes.
This proposed rule will affect the operations of the Federal agencies in the Executive branch—ranging from cabinet-level departments to small independent agencies. Regarding implementation of the Cummings Act requirements, this proposed rule will require individuals employed by these agencies to revise and rescind policies and procedures to implement certain portions of this proposed rule. The proposed rule mandates that agencies establish or leverage an existing system to track discrimination complaints arising under section 5 U.S.C. 2302(b)(1) and adjudicated through the EEO process from filing through resolution and including disciplinary action, if taken as a consequence of a finding of discrimination.
In order to estimate the costs to implement this requirement, OPM collected information from one large
The remaining requirements of the proposed rule will require no additional costs for agencies or only negligible costs. With respect to the requirement to provide notice on the agency's public website of a finding of discrimination (including retaliation), the additional cost to agencies will be negligible if there are any costs at all. As noted above, agencies already provide notice on their public websites related to No FEAR and thus an additional notice does not present a greater cost. The regulation also requires that agencies report to Congress, the EEOC, Attorney General, and OPM annually in an electronic format via email on cases arising under each of the respective provisions of the Antidiscrimination Laws and Whistleblower Protection Laws in which an employee, former Federal employee, or applicant alleged a violation(s) of these laws. This regulatory change mandates the format of the existing annual report requirement. Currently, agencies primarily submit annual reports electronically. We expect that those few agencies which submit their reports in paper format will experience less cost with the required electronic format given there will be less handling involved in printing and preparing a paper copy for mailing, as well as avoidance of the mailing costs.
Further, the proposed rule requires that agencies submit to the EEOC a report stating whether disciplinary action has been proposed against a Federal employee for a violation of the Antidiscrimination and Whistleblower Protection Laws not later than 120 days after the date on which a Federal agency takes final action, or 120 days after a Federal agency receives a final decision from the EEOC's Office of Federal Operations (OFO) or the time to seek OFO review has elapsed. No additional costs for agencies are required as they already report to the EEOC on discrimination and the report required by the proposed rule does not require additional cost. Similarly, no additional cost is needed to include a notation of the adverse action and the reason for the action in the personnel record of the employee if the agency takes an adverse action covered under section 7512 of title 5, U.S. Code, against the employee for an intentional act of discrimination (including retaliation). Agencies regularly make required notations of adverse actions and the reason in the personnel record of employees.
A significant way the regulation achieves transparency and accountability is through the requirements for agencies to provide notice linked directly from the home page of their public website of a finding of discrimination (including retaliation) and maintain the notice there for one year. Additionally, the regulation's requirement for publication of findings of discrimination (including retaliation) on agency websites gives employees and the general public greater confidence that action is taken for violations. These requirements meet a need for greater accountability and transparency. FY 2020 data show that retaliation remains the most frequently cited claim in discrimination charges.
Another way that the regulation provides transparency and accountability is through mandating that agencies establish a system or leverage an existing system to track discrimination complaints arising under section 5 U.S.C. 2302(b)(1) and adjudicated through the EEO process from filing through resolution, including disciplinary action, if taken as a result of a finding of discrimination. Agencies can greatly benefit by such a change to a digital infrastructure. Using web-based data collection and analytic capabilities can diminish agencies' risks of errors, duplication of effort, and lack of transparency.
In another reporting requirement—the annual report to Congress, the EEOC, Attorney General, and OPM—the regulation instructs that submission of data be made in an accessible, electronic format via email. This improved format for the annual report should facilitate submission, receipt, and review of the data for oversight purposes.
The provision implementing the requirement for a notation in the personnel record of an employee if the agency takes an action covered under 5 U.S.C. 7512 relates to Congress's finding that accountability is furthered when agencies take action against employees found to have committed discriminatory (including retaliatory) acts. In addition, Congress's requirement is no doubt intended to deter such employees from further engaging in activities that are in violation of the antidiscrimination and whistleblower protection laws.
Finally, the regulation will support the Administration's priority to advance comprehensive equity as discussed in E.O. 13985,
E.O. 14035 establishes an initiative on diversity, equity, inclusion, and accessibility (DEIA) in the federal workforce. As part of OPM's work, a Government-Wide Strategic Plan To Advance Diversity, Equity, and Accessibility In The Federal Workforce was released in November 2021, available at
In practice, our current system often places the primary responsibility for enforcing antidiscrimination laws on individual workers, who must file complaints with their employer or a government agency. There is often an asymmetry of information and resources between employers and employees, which can create hurdles for workers to defend their rights. Discrimination should not be tolerated in workplaces. By implementing these new statutory measures, the regulations will help achieve greater accountability in identifying and addressing discrimination (including retaliation) in the Federal workplace, helping to promote a Federal workplace free from discrimination that will attract well-qualified individuals to Federal service and help agencies to retain their employees, regardless of their background. This proposed rule is consistent with the Administrations' efforts to promote equity within the Federal workforce. By enhancing data collection and reducing harm for transparency requirements, the Federal government may be able to better identify patterns and protect those at risk of discrimination, including members of underserved communities. OPM will make data available to the reporting agencies and EEOC under the new nature of action code and new remark code which require agencies to notate and provide the reason for the adverse action as a way of monitoring agency progress. This proposed rule also helps position the Federal Government as a model workplace in its commitment to remove barriers to equal employment opportunity.
I certify that this regulation will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies and employees.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated a “significant regulatory action” under Executive Order 12866.
This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988.
This proposed rule will not result in the expenditure by State, local or tribal governments of more than $100 million annually. Thus, no written assessment of unfunded mandates is required.
The Congressional Review Act (5 U.S.C. 801
This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
Government employees.
Accordingly, for the reasons stated in the preamble, OPM proposes to amend 5 CFR part 724 as follows:
Sec. 204 of Pub. L. 107-174, 116 Stat. 566; Presidential Memorandum dated July 8, 2003, “Delegation of Authority Under Section 204(a) of the Notification and Federal Employee Antidiscrimination Act of 2002”; Sec. 1131-1138 of Pub. L. 116-283.
(a) Not later than 90 days after the date on which an event described in paragraph (b) of this section occurs with respect to a finding of discrimination (including retaliation), the head of the Federal agency subject to the finding shall provide notice, in an accessible format:
(1) On the public website of the agency, in a clear and prominent location linked directly from the home page of that website;
(2) Stating that a finding of discrimination (including retaliation) has been made; and
(3) Which shall remain posted for not less than one year.
(b) An event described in this paragraph is any of the following:
(1) All appeals of a final action by a Federal agency, including when a Federal agency fails to take a final action and the administrative judge's decision becomes final (see 29 CFR 1614.109(i)), involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been exhausted.
(2) All appeals of a final decision by the Equal Employment Opportunity Commission (EEOC) involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been exhausted.
(3) A court of jurisdiction issues a final judgment involving a finding of intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act. “Final judgment” under this event means the date on which the opportunity for further appeal expires, either because the time for any further appeal elapses or because the court issuing the final decision was the final reviewing court from which relief could be sought.
(c) A notification provided under paragraph (a) of this section with respect to a finding of discrimination (including retaliation) shall—
(1) Identify the date on which the finding was made, the date on which each discriminatory act occurred, and the law violated by each such discriminatory act; and
(2) Advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a) of the No FEAR Act.
(d) Each agency must train new employees as part of its agency orientation program or other training program. Any agency that does not use a new employee orientation program for this purpose must train each new employee within 90 calendar days of the new employees' appointment. Each agency must train all employees on a training cycle of no longer than every two years.
The revisions read as follows:
(a) Except as provided in paragraph (b) of this section, each agency must report in an electronic format as prescribed in paragraph (c) of this section no later than 180 calendar days after the end of each fiscal year the following items:
(4) The final year-end data about discrimination complaints for each fiscal year that was posted in accordance with Equal Employment Opportunity Regulations at subpart G of part 1614 of title 29 of the Code of Federal Regulations (implementing section 301(c)(1)(B) of the No FEAR Act);
(b) The first report also must provide information for the data elements in paragraph (a) of this section for each of the five fiscal years preceding the fiscal year on which the first report is based to the extent that such data is available. Under the provisions of the No FEAR Act, agency reports are due annually on March 30. Reports must include data elements 1 through 9 of paragraph (a) of this section.
(c) Agencies must submit the annual report as an attachment in an accessible, electronic format (
(3) U.S. Senate Committee on Homeland Security and Governmental Affairs, or any successor Committee;
(4) U.S. House of Representatives Committee on Oversight and Reform, or any successor Committee;
Not later than 120 days after the date on which a Federal agency takes final action (including when a Federal agency fails to take a final action and the administrative judge's decision comes final; see 29 CFR 1614.109(i)), or 120 days after a Federal agency receives a final decision from the EEOC's Office of Federal Operations (OFO) or the time to seek OFO review has elapsed, involving a finding of intentionally committed discriminatory (including retaliatory) acts, in violation of a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act, as applicable, the applicable Federal agency shall submit to the EEOC a report stating—
(1) whether disciplinary action has been proposed against a Federal employee as a result of the violation; and
(2) the reasons for any disciplinary action proposed as a result of the violation.
10. Revise subpart D to read as follows:
This subpart implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 concerning the obligation of Federal agencies to track discrimination complaints from filing to resolution and notate adverse actions in the personnel record of a Federal employee for intentionally committed discriminatory (including retaliatory) acts.
Not later than January 1, 2022 (one year after the date of enactment of the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020), each Federal agency shall establish or leverage an existing system to track each complaint of discrimination arising under section 2302(b)(1) of title 5, United States Code, and adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the Federal agency to resolution of the complaint; where there is a finding of intentionally committed discriminatory (including retaliatory) acts, the agency shall also track whether a decision has been made regarding disciplinary action as a consequence of this finding.
If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for intentionally committed discriminatory (including retaliatory) acts prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) of the No FEAR Act, the agency shall, after all appeals relating to that action have been exhausted, include a notation of the adverse action and the reason for the action in the personnel record of the employee.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that sales of finished carbon steel flanges (flanges) from Spain were made at less than normal value (NV) during the period of review (POR) June 1, 2019, through May 31, 2020.
Applicable January 6, 2022.
Marc Castillo or Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0519 or (202) 482-6312, respectively.
On July 7, 2021, Commerce published the
The scope of the
All issues raised in the case and rebuttal briefs filed by parties in this review are addressed in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our analysis of the comments received, and for the reasons explained in the Issues and Decision Memorandum, we made certain changes from the
For these final results, we determine that the following weighted-average dumping margins exist for the period June 1, 2019, through May 31, 2020:
For the rate for non-selected respondents in an administrative review, generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
Commerce intends to disclose the calculations performed in connection with these final results of review to parties in this review within five days after public announcement of the final results or, if there is no public announcement, within five days of the date of publication of this notice in the
Commerce shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For ULMA, we calculated importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for each importer's examined sales and the total entered value of those sales in accordance with 19 CFR 351.212(b)(1). Where an importer-specific assessment rate is
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements for estimated antidumping duties will be effective upon publication of this notice for all shipments of flanges from Spain entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for the companies subject to this review will be equal to the company-specific weighted-average dumping margin established in the final results of the review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior completed segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published in the completed segment for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the producer has been covered in a prior completed segment of this proceeding, then the cash deposit rate will be the rate established in the completed segment for the most recent period for the producer of the merchandise; (4) the cash deposit rate for all other producers or exporters will continue to be 18.81 percent, the all-others rate established in the less-than-fair-value investigation of this proceeding.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction or return of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the destruction or return 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 sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
International Trade Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice sets forth the schedule and proposed topics of discussion for the upcoming public meeting of the Advisory Committee on Supply Chain Competitiveness (Committee).
The meeting will be held on January 20, 2022, from 12:00 p.m. to 1:30 p.m., Eastern Standard Time (EST).
The meeting will be held via Webex.
Richard Boll, Office of Supply Chain, Professional & Business Services, International Trade Administration at Email:
The meeting is open to the public and press on a first-come, first-served basis. Space is limited. Members of the public and the press wishing to participate should contact Richard Boll, at
Interested parties may submit written comments to the Committee at any time before and after the meeting by emailing them to
Comments may be considered at the meeting. The transcript of the meeting will be posted on the Committee website within 60 days of the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies were provided to producers and exporters of crystalline silicon photovoltaic cells, whether or not assembled into modules, (solar cells) from the People's Republic of China (China) during the period of review (POR), January 1, 2019, through December 31, 2019. In addition, we intend to rescind this review with respect to 48 companies. We invite interested parties to comment on these preliminary results.
Applicable January 6, 2022.
Robert Copyak, Chien-Min Yang, or Lingjun Wang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3642, (202) 482-5484, or (202) 482-2316.
On February 4, 2021, Commerce initiated this administrative review of the countervailing duty (CVD) order on solar cells from China on 83 companies.
On July 30, September 2, and December 6, 2021, Commerce extended the time limit for completion of these preliminary results until no later than December 30, 2021.
For a complete description of the events that followed the initiation of this review,
The products covered by this order are crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels, and building integrated materials. For a complete description of the scope of this order,
In accordance with 19 CFR 351.213(d)(3), we intend to rescind this review with respect to 48 other companies for which we find no reviewable suspended entries of subject merchandise, based on U.S. Customs and Border Protection (CBP) data.
Trina Solar Energy Co., Ltd. (formerly, Changzhou Trina Solar Energy Co., Ltd.) and its cross-owned companies (collectively, Trina) certified that they had no sales of subject merchandise during the POR and requested rescission of the review.
Commerce is conducting this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs preliminarily found to be countervailable, Commerce preliminarily finds that there is a subsidy,
There are 12 companies for which a review was requested, which had reviewable entries, and which were not selected as mandatory respondents or found to be cross-owned with a mandatory respondent.
Commerce preliminarily determines the net countervailable subsidy rates for the period January 1, 2019, through December 31, 2019, are as follows:
We will disclose to the parties to this proceeding the calculations performed in reaching the preliminary results within five days of publication of these preliminary results.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESSS by 5:00 p.m. Eastern Time within 30 days of the publication date of this notice.
Parties are reminded that briefs and hearing requests are to be filed electronically and received successfully in their entirety through ACCESS by 5:00 p.m. Eastern Time on the due date.
Pursuant to 751(a)(2)(C) of the Act, upon issuance of the final results, Commerce shall determine, and CBP shall assess, countervailing duties on all appropriate entries of subject merchandise in accordance with the final results. If the assessment rate calculated in the final results in zero or
In accordance with section 751(a)(2)(C) of the Act, Commerce intends, upon publication of the final results, to instruct CBP to collect cash deposit of estimated countervailing duties in the amounts shown for each of the respective companies listed above, except, where the rate calculated in the final results is
Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, no later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1), unless this deadline is extended.
These preliminary results are issued and published pursuant to sections 751(a)(l) and 777(i)(l) of the Act, and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this expedited sunset review, the Department of Commerce (Commerce) finds that revocation of the countervailing duty order (CVD) on certain hot-rolled steel flat products (HRS) from Brazil would be likely to lead to continuation or recurrence of countervailable subsidies at the levels as indicated in the “Final Results of Sunset Review” section of this notice.
Applicable January 6, 2022.
Macey Mayes, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4473.
On October 3, 2016, Commerce published in
On September 30, 2021, Commerce received an adequate substantive response to the
The merchandise subject to the
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of subsidization in the event of revocation of the
Pursuant to sections 751(c)(1) and 752(b) of the Act, we determine that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these expedited sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) orders on certain hot-rolled steel flat products (hot-rolled steel) from Australia, Brazil, Japan, the Republic of Korea (Korea), the Netherlands, the Republic of Turkey (Turkey), and the United Kingdom would be likely to lead to continuation or recurrence of dumping as indicated in the “Final Results of Sunset Review” section of this notice.
Applicable January 6, 2022.
Zachary Le Vene, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0056.
On September 1, 2021, Commerce published the notice of initiation of the sunset reviews of the AD orders on hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom
Commerce received adequate substantive responses to the
On October 21, 2021, Commerce notified the U.S. International Trade Commission that it did not receive an adequate substantive response from respondent interested parties.
The merchandise subject to the
All issues raised in this review are addressed in the Issues and Decision Memorandum, 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 orders were revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in the Issues and Decision Memorandum, which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Pursuant to sections 751(c) and 752(c) of the Act, Commerce determines that revocation of the
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). 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 351.221(c)(5)(ii).
National Institute of Standards and Technology, Commerce.
Notice.
The National Voluntary Laboratory Accreditation Program (NVLAP) announces approval of revisions to its Personal Body Armor Laboratory Accreditation Program (LAP) for accreditation of laboratories performing tests on ballistic- and stab-resistant personal body armor. The program has been renamed as the Law Enforcement and Corrections Equipment LAP to better reflect the types of testing being performed within this accreditation program and to allow for future expansion of the program for testing of additional law enforcement and corrections equipment.
Handbook 150-24, 2021 edition, is applicable 30 days after publication on the NVLAP website,
Laboratories may obtain a copy of NIST Handbook 150-24, NVLAP Law Enforcement and Corrections Equipment, by visiting the NVLAP website at
Timothy Rasinski, Program Manager, NIST/NVLAP, 100 Bureau Drive, Stop 2140, Gaithersburg, MD 20899-2140, Phone: (301) 975-4016 or email:
The National Institute of Standards and Technology (NIST) administers NVLAP under regulations found in 15 CFR part 285. NVLAP provides an unbiased third-party evaluation and recognition of laboratory performance, as well as expert technical assistance to upgrade that performance, by accrediting calibration and testing laboratories found competent to perform specific calibrations or tests. NVLAP is comprised of a set of LAPs which are established on the basis of requests and demonstrated need. Each LAP includes specific calibration and/or test standards and related methods and protocols assembled to satisfy the unique needs for accreditation in the field of calibration, field of testing, product or service.
The NVLAP Personal Body Armor LAP was established in 2006 at the request of the U.S. Department of Justice (DOJ) National Institute of Justice (NIJ) Office of Science and Technology. The LAP was developed to accredit laboratories for body armor testing in support of the NIJ Compliance Testing Program (CTP). The LAP currently encompasses accreditation for ballistic-resistant body armor testing, stab-resistant body armor testing, and autoloading pistol testing.
The Chief of NVLAP may approve modifications to a specific LAP when a request to modify the LAP is received. Modifications may include addition of tests, types of tests or standards that are directly relevant to the LAP. NVLAP
A response to this notice was submitted from one entity, an accreditation organization. The comment submitted did not address the specific items of the proposal. The feedback from the organization related specifically to future consideration of the use of ISO/IEC 17065,
The following is a summary and analysis of the comment received during the public comment period, and NIST's response to it:
After considering the request, the Chief of NVLAP has determined that the revision of the LAP name to Law Enforcement and Corrections Equipment better reflects the types of testing that support the NIJ CTP and will allow for future expansion of the types of testing covered under this accreditation program. Therefore, the modification has been approved. Revised NIST Handbook 150-24 is available electronically from the NVLAP website at:
National Institute of Standards and Technology, Commerce.
Notice.
The 2022 Interim Meeting of the National Conference on Weights and Measures (NCWM) will be held using a virtual meeting platform and in-person at the Westin Tampa Waterside Hotel, Tampa Florida, from Sunday, January 9 through Wednesday, January 12, 2022. This notice contains information about significant items on the NCWM Committee agendas but does not include all agenda items. As a result, the items are not consecutively numbered.
The 2022 Interim Meeting will be held from Sunday, January 9, through Wednesday, January 12, 2022. The meeting schedule will be available on the NCWM website at
This meeting will be held using a virtual meeting platform and in-person at the Westin Tampa Waterside Hotel, Tampa Florida.
Dr. Katrice Lippa, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600. You may also contact Dr. Lippa at (301) 975-3116 or by email at
Publication of this notice on the NCWM's behalf is undertaken as a public service and does not itself constitute an endorsement by the National Institute of Standards and Technology (NIST) of the content of the notice. NIST participates in the NCWM as an NCWM member and pursuant to 15 U.S.C. 272(b)(10) and (c)(4) and in accordance with Federal policy (
The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, and representatives from the private sector and federal regulatory agencies. These meetings can bring these government officials together with representatives of business, industry, trade associations, and consumer organizations to discuss proposed laws and regulations and other subjects related to the field of weights and measures technology, administration, and enforcement. NIST hosted the first meeting of the NCWM in 1905. Since then, the conference has provided a model of cooperation between Federal, State, and local governments and the private sector. NIST participates to encourage cooperation between federal agencies and the states in the development of legal metrology requirements. NIST also promotes uniformity in state laws, regulations, and testing procedures used in the regulatory control of commercial weighing and measuring devices, packaged goods, and for other trade and commerce issues.
The NCWM has established multiple committees, task groups, and other working bodies to address legal metrology issues of interest to regulatory officials, industry, consumers, and others. The following are brief descriptions of some of the significant agenda items that will be considered by some of the NCWM Committees at the NCWM Interim Meeting. Comments will be taken on these and other issues during several public comment sessions. At this stage, the items are proposals.
This meeting also includes work sessions in which the Committees may accept comments, and where recommendations will be developed for consideration and possible adoption at the NCWM 2022, 107th Annual Meeting. The Committees may withdraw or carryover items that need additional development.
These notices are intended to make interested parties aware of these development projects and to make them aware that reports on the status of the project will be given at the Interim Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users, and others who may be interested in these efforts.
The following are brief descriptions of some of the significant agenda items that will be considered at the 2022 Interim Meeting. Comments will be taken on these and other recommendations to amend NIST Handbook 44, “Specifications, Tolerances, and other Technical
The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44. Those items address weighing and measuring devices used in commercial applications, that is, devices that are used to buy from or sell to the public or used for determining the quantity of products or services sold among businesses.
The S&T Committee will further consider a proposal that has been designated as an “Informational” item meaning that the committee wants to allow more time for review by stakeholders and possibly further development to address concerns. This “block” proposal includes six individual items related to the application of NIST Handbook 44 requirements based on the values of a scale's verification scale division “e” or the minimum scale division “d”. Adoption of this proposal would have a significant impact on scales, particularly in cases where the values of “e” and “d” are not equal.
The S&T Committee will further consider a proposal to allow for the expanded use of electronically captured tickets and receipts by amending NIST HB 44 Sections 1.10. General, 3.30. LMD, 3.31. VTM, 3.32. LPG, 3.34. CLM, 3.37. MFM, 3.38. CDL, 3.39. HGM, 3.35. Milk Meters, and the definition of “recorded representation” in Appendix D, Definitions. The committee amended this carry-over block of items during the 2020 Interim Meeting based on comments it received expressing a continued need for printed tickets. As a result, the proposal now references NIST HB 44 paragraph G-S.5.6. in various specific codes. At the 2021 NCWM Annual Meeting, the S&T Committee designated this “block” proposal as “developing” for further comment and consideration.
The S&T Committee will further consider a proposal to amend NIST HB 44 Section 3.30. Liquid-Measuring Devices to permit the use of an electronic log, in lieu of a printed copy for devices with Category 3 sealing. The current “Category 3” sealing requirements in HB 44 Liquid-Measuring Devices Code Section 3.30. specify that a printed copy of an event logger must be available on demand through the device or through another on-site device and that the information may also be available electronically. The new proposal would amend the language in Table S.2.2. “Categories of Device and Methods of Sealing” to permit either a printed or electronic form of the event logger be made available. This item, LMD-21.1 was previously a “block” item with LMD 20.1. Both items were similar proposals, so the submitters of both items agreed to withdraw LMD-20.1 and further develop LMD 21.1. At the 2021 NCWM Interim Meeting, the committee agreed to withdraw item LMD-20.1 from the previous block of items and designated LMD-21.1 as a developing item so that the submitters of both items could work together to further develop item LMD-21.1. At the 2021 NCWM Annual Meeting the committee agreed to a developing status for this item for further comments and consideration.
The S&T Committee will further consider this item, which proposes to provide specifications and user requirements for manifold flush systems designed to eliminate product contamination on VTMs used for multiple products. This proposal would add specifications on the design of VTMs under S.3.1.1. “Means for Clearing the Discharge Hose.” and add a new user requirement UR.2.6. “Clearing the Discharge Hose.” During open hearings of previous NCWM meetings, comments were heard about the design of any system to clear the discharge hose of a product prior to the delivery of a subsequent product which could provide opportunities to fraudulently use this type of system. At the 2021 NCWM Annual Meeting the committee agreed to keep this item developing for further comments and consideration.
The S&T Committee will further consider a proposal that would specify the maximum value of the indicated and/or recorded electrical energy unit used in an EVSE (Electric Vehicle Supply Equipment). This proposal would reduce (by a factor of 10) the current specified values of these units. The current maximum values of 0.005 MJ and 0.001 kWh would be changed to 0.0005 MJ and 0.0001 kWh respectively. The submitters contend that testing of these systems would be expedited through these changes and reduce the amount of time necessary to complete official tests. During the 2021 NCWM Annual Meeting, additional changes were proposed to the Electric Vehicle Fueling System Code to add a new paragraph S.1.3.X to address how the value of the quantity unit shall be expressed and at this meeting the committee recommended a developing status for this item for further comments and consideration.
The S&T Committee will further consider a proposal that would reduce the tolerances for the air oven reference method in the Grain Moisture Meter Code. The proposed new tolerances would apply to all types of grains and oil seeds. This item is a carry-over proposal from 2019 and would replace the contents of Table T.2.1. with new criteria. Additional inspection data will be collected and reviewed to assess whether or not the proposed changes to the tolerances are appropriate. At the 2021 Annual Meeting the Committee recommended a developing status for this item to review the results of additional data.
The S&T Committee will further consider changes included in this block affecting the HB 44 Taximeters Code (Section 5.54.) and the Transportation Network Measurement Systems (TNMS) Code (Section 5.60.) that would amend the value of tolerances allowed for distance tests. The changes proposed in this item would change the Taximeters Code requirement T.1.1. “On Distance Tests” by increasing that tolerance to 2.5% when the test exceeds one mile. The change to the TNMS Code affects requirement T.1.1. “Distance Tests” by
The following items are proposals for NIST HB 130 Uniform Method of Sale (MOS) and the Uniform Fuels and Automotive Lubricants Regulation (FLR):
NIST HB 130, PAL-19.1. UPLR, Sec. 2.8. Multiunit Package. NET-19.2. NIST HB 133 Modify “scope” for Chapters 2 through 4, add a note following Sections 2.3.7.1. and 2.7.3., NET-19.3. NIST HB 133 create a Chapter 5. Specialized Test Procedures. The L&R Committee will also be addressing a proposal to include adoption of a test procedure for the total quantity declaration on multiunit or variety packages. In addition, in NIST HB 130, Uniform Packaging and Labeling Regulation, the proposal would clarify Section 2.8. Multiunit.
The L&R Committee will consider a proposal to modify the existing language for the method of sale of Compressed or Liquefied Gases in Refillable Cylinders. The proposed amendments are being considered so that current HB 130 requirements are not in conflict between the tare weight and other labeling requirements for compressed gas cylinders in the Method of Sale of Commodities Regulation and similar Federal regulations published by the U.S. DOT.
The L&R Committee will consider a proposal to modify the existing language for the method of sale of Liquefied Petroleum Gas. Consider changes to the existing language that references a value of “15.6 °C” for temperature determinations in metric units. According to the current industry practice for sales of petroleum products, the reference temperature for sales in metric are based on 15 °C rather than the exact conversion from 60 °F (which is 15.6 °C). Thus, the temperature reference in metric should be 15 °C. This will also add language for metered sales with a maximum capacity equal to or greater than 20 gal/min will have a metering system that automatic temperature compensates. For metering system with a maximum capacity less than 20 gal/min. Effective January 2030, all metered sales, shall be accomplished using a metering system that automatic temperature compensates.
The Committee will consider a proposal to modify the language to clarify the language as to how compressed firewood bricks shall be sold. This also clarifies the terms for plural and singular representation for the units.
The L&R Committee will consider a proposal to add a new regulation into HB 130 for Uniform Labeling for E-commerce for consumer commodities and non-consumer commodities. This regulation will provide guidance to those state that adopt such a regulation. It also provides for required information that shall be provided when the product is delivered. This regulation would also lay out the terms that shall appear on an e-commerce website.
B3: PALS-22.1. Section XX. Cannabis and Cannabis-Containing Products. The Committee will consider a proposal to establish definitions within HB 130 Packaging and Labeling Requirements for Cannabis and Cannabis containing products. In addition, PAL-22.2 Section 10.XX. Cannabis and Cannabis-Containing Products. will establish labeling requirements. B3: NET-22.1. Section 1.XX. Cannabis and Cannabis-Containing Products and 2.XX. Cannabis and Cannabis-Containing Products. provides for a 3% moisture allowance for Cannabis containing more than 0.3% total Delta-9 THC or containing 0.3% less total Delta-9 THC (hemp). B3: MOS-22.2. HB 130 Section 1.XX. and Section 2.XX. Cannabis and Cannabis-Containing Products. The Committee will consider a proposal to amend these two sections to include language for a method of sale for Cannabis. Included within this proposal is also a water activity limit of 0.6 ± −0.5, when unprocessed Cannabis is sold or transferred.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments on proposed renewal incidental harassment authorization (IHA).
NMFS received a request from Ørsted Wind Power North America, LLC, (Ørsted) for the Renewal of their 2020 IHA to take marine mammals incidental marine site characterization surveys, using high-resolution geophysical (HRG) equipment, in coastal waters from New York to Massachusetts. Ørsted is also planning to conduct marine site characterization surveys along one or more potential submarine export cable routes (ECRs). The activities for which Ørsted has requested a Renewal IHA are identical to those covered under the initial IHA, which expired on September 24, 2021. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the initial IHA in 2020, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The Renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed Renewal not previously provided during the initial 30-day comment period. If issued, the Renewal would be effective through September 24, 2022.
Comments and information must be received no later than January 21, 2022.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Written
Carter Esch, Office of Protected Resources, NMFS, (301) 427-8421. Electronic copies of the original application, renewal request, and supporting documents (including NMFS
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 here as “mitigation measures”). Monitoring and reporting of such takings are also required. The meaning of key terms such as “take,” “harassment,” and “negligible impact” can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional period not to exceed one year for each reauthorization. In the notice of proposed IHA for the initial authorization, NMFS described the circumstances under which we would consider issuing a Renewal for this activity and requested public comment on a potential Renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time, one-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Description of the Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Description of the Specified Activities section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a Renewal would allow for completion of the activities beyond that described in the
(1) A request for Renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
(2) The request for Renewal must include the following:
• An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
(3) 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.
An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed Renewal. A description of the Renewal process may be found on our website at:
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA Renewal qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA Renewal request.
On September 25, 2020, NMFS issued an IHA to Ørsted to take marine mammals incidental to marine site characterization survey activities offshore from New York to Massachusetts in the areas of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0486/0517, OCS-A 0487, and OCS-A 0500) (Lease Areas) and along potential submarine ECRs to landfall locations from New York to Massachusetts (85 FR 63508, October 8, 2020), effective from September 25, 2020 through September 24, 2021. On July 8, 2021, NMFS received a request for a Renewal of that initial IHA so that Ørsted can continue survey activities beyond September 24, 2021. Ørsted later communicated that marine site characterization surveys under the Renewal IHA would not begin until 2022. As described in the request for a Renewal IHA, the activities for which incidental take is requested are identical to those covered by the initial authorization. As required, the applicant also provided a monitoring report (available at
NMFS previously issued an IHA to Ørsted for similar activities (84 FR 52464; October 2, 2019); Ørsted complied with all the requirements (
Ørsted proposes to conduct a second year of marine site characterization surveys, using high-resolution geophysical (HRG) equipment, within the Lease Areas, located approximately 14 miles (mi) (22 kilometers (km)) south of Martha's Vineyard, Massachusetts at its closest point, and proposed ECRs from the Lease Areas to potential shore landing locations for submarine cables associated with offshore wind development along the coast from New York to Massachusetts. The purpose of the marine site characterization surveys is to support site characterization, siting, and engineering design of offshore project facilities, including wind turbine generators (WTGs), offshore substation(s), and submarine cables within the Lease and proposed ECR Areas. The activities covered under the initial IHA have been completed. Ørsted requested a Renewal of the initial IHA issued by NMFS in September 2020 on the basis that they plan to conduct up to another year of identical activities in the same area as described in the
In their 2020 IHA application, Ørsted estimated it would conduct surveys at a rate of 70 kilometers (km) per survey day. Ørsted defined a survey day as a 24-hour activity day, which could be the sum of multiple partial surveys if less than 70 km is surveyed in 24 hours. Based on the planned 24-hour operations, the survey activities for all survey areas would require 1,302 survey days if one vessel were surveying continuously. However, Ørsted proposed to use an estimated five vessels simultaneously, with a maximum of no more than nine vessels. Therefore, Ørsted planned to complete all survey effort in one year, prior to the expiration of the initial IHA on September 24, 2021; all of the work addressed under the initial IHA was completed prior to the initial IHA expiration date. The Renewal IHA would authorize take, by Level B harassment only (in the form of behavioral disturbance), of 15 species/stocks of marine mammals for a second year of identical survey activities to be completed in one year, in the same area, using survey methods identical to those described in the initial IHA application; therefore, the anticipated effects on marine mammals and the affected stocks also remain the same. The amount of take, by Level B harassment, requested for the Renewal IHA is also identical to that authorized in the initial IHA. All active acoustic sources, mitigation, and monitoring measures would remain exactly as described in the
A detailed description of the marine site characterization survey activities for which incidental take is proposed here may be found in the
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the
The draft 2021 SARs, available online at:
NMFS has preliminarily determined that neither the updated abundance
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which take is proposed here may be found in the
A detailed description of the methods and inputs used to estimate take for the specified activity are found in the notices of the proposed (85 FR 48179; August 10, 2020) and issued (85 FR 63508; October 8, 2020) IHAs for the initial authorization. The acoustic source types, as well as source levels, applicable to this authorization remain unchanged from the initial IHA. Similarly, the stocks taken, methods of take and type of take (
In the initial authorization for marine site characterization survey activities, Ørsted used the following parameters to estimate the potential for take: (1) Maximum number of survey days that could occur over a 12-month period in each of the identified survey areas; (2) maximum distance each vessel could travel per 24-hour period in each of the identified survey areas; (3) maximum ensonified area; and (4) mean annual marine mammal densities in each of the identified survey areas. The calculated radial distances to the Level B harassment isopleth (160 decibel (dB) root mean square (rms)) from each acoustic source for a subset of representative survey equipment are included in Table 1 (please see the notice of the issued initial IHA for a complete list).
The equation for estimating take for all species remains the same as the initial IHA:
As described in the notices of the proposed (85 FR 48179; August 10, 2020) and issued (85 FR 63508; October 8, 2020) IHAs for the initial authorization, not all noise producing survey equipment/sources will be operated concurrently by each survey vessel on every vessel day. In the initial IHA application, Ørsted calculated conservative ZOIs by applying the maximum radial distance for any category and type of HRG survey equipment considered in its assessment. The maximum distances to the Level B harassment isopleth for impulsive sources (141 m;
The methodology for calculating take in the initial IHA applies to the proposed Renewal IHA for all species. The result is that the amount of take requested in Ørsted's request for a Renewal IHA is identical to that authorized in the initial IHA. NMFS agrees with Ørsted's request for take and proposes to authorize the same amount of take as described in their request.
The proposed mitigation, monitoring, and reporting measures included as requirements in this proposed authorization are identical to those included in the
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As noted previously, NMFS published a notice of the proposed initial IHA (85 FR 48179; August 10, 2020) and solicited public comments on both our proposal to issue the initial IHA for marine site characterization surveys and on the potential for a Renewal IHA, should certain requirements be met.
All public comments were addressed in the notices announcing the issuance of the initial IHA (85 FR 63508, October 8, 2020; 85 FR 71058, November 6, 2020). Below, we describe how we have addressed, with updated information where appropriate, the comment received that specifically pertains to the renewal of the 2020 IHA.
While there are additional documents submitted with a Renewal request, for a qualifying Renewal these are limited to documentation that NMFS will make
In addition to the IHA Renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress's intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for Renewals in the regulations, description of the process and express invitation to comment on specific potential Renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through responses to comments such as this, posting of substantive documents on the agency's website, and provision of 30 or 45 days for public review and comment on all proposed initial IHAs and Renewals, respectively, NMFS has ensured that the public “is invited and encouraged to participate fully in the agency decision-making process.”
In prior responses to comments about IHA Renewals (
The survey activities proposed by Ørsted are identical to those analyzed in the initial IHA, including the planned number of days and location of activity, as are the method of taking and the effects of the action. Therefore, the amount of take proposed is equal to that authorized in the initial IHA. The proposed mitigation measures and monitoring and reporting requirements, as described above, are identical to the initial IHA. The potential effect of Ørsted's activities remains limited to Level B harassment in the form of behavioral disturbance. In analyzing the effects of the activities in the initial IHA, NMFS preliminarily determined that Ørsted's activities would have a negligible impact on the affected species or stocks and that the authorized take numbers of each species or stock were small relative to the relevant stocks (
NMFS has preliminarily concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial IHA. This includes consideration of the estimated abundances of five stocks (North Atlantic right whales, fin whales, minke whales, Risso's dolphins, and harbor seals) decreasing and the estimated abundances of two stocks (common dolphins and gray seals) increasing (Hayes
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531
The NMFS Office of Protected Resources is proposing to authorize the incidental take of four species of marine mammals that are listed under the ESA: The North Atlantic right, fin, sei and sperm whale. We requested initiation of consultation under Section 7 of the ESA with NMFS GARFO on July 1, 2020, for issuance of the initial IHA. Previously, BOEM consulted with NMFS GARFO under section 7 of the ESA on commercial wind lease issuance and site assessment activities on the Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. The NMFS GARFO issued a Biological Opinion in 2013 concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of the North Atlantic right, fin, sei and sperm whale. Upon request from the NMFS Office of Protected Resources, NMFS GARFO issued an amended incidental take statement associated with this Biological Opinion on September 25, 2020, to include the take of the ESA-listed marine mammal species authorized through the initial IHA. The proposed Renewal IHA provides no new information about the effects of the action, nor does it change the extent of effects of the action, or any other basis to require reinitiation of consultation with NMFS GARFO; therefore, the incidental take statement issued for the initial IHA remains valid.
As a result of these preliminary determinations, NMFS proposes to issue a Renewal IHA to Ørsted for conducting marine site characterization survey activities offshore from New York to Massachusetts in the areas of the Commercial Lease of Submerged Lands for Renewable Energy Development on
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public joint meeting of its Habitat Committee via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, January 18, 2022 at 9 a.m.
All meeting participants and interested parties can register to join the webinar at
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee plans a discussion to designate a Habitat Area of Particular Concern in Southern New England: Articulate the problem and rationale for action, discuss potential objectives, and identify information sources to consider. Potentially recommend that the Council initiate a framework adjustment at their next meeting. Also on the agenda is the Northern Edge habitat management: Discuss a white paper documenting new information to consider should the Council wish to revise habitat management areas and restrictions on fishing in this region. The Committee can request additional information or analysis that would support future Council decision making on this issue. Because this action is not a 2022 work priority, the next Council decision on Northern Edge habitat management would be related to future prioritization of this work.
The committee will also review a draft letter expressing Council concerns about the Amitie telecommunications cable project. Other business may be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorizations; request for comments on proposed authorizations and possible renewals.
NMFS has received a request from the United States Department of the Air Force (DAF) for authorization to take marine mammals incidental to 2 years of activity related to testing of the Extended Range Cannon Artillery II (ERCA II) system at Vandenberg Air Force Base (VAFB), California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two consecutive one-year incidental harassment authorizations (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, one-year renewal for each IHA 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. The DAF's activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
Comments and information must be received no later than February 7, 2022.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Written comments should be submitted via email to
Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
The 2004 NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The activity for which incidental take of marine mammals is being requested addressed here qualifies as a military readiness activity. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHAs qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On July 15, 2021, NMFS received a request from the DAF for two consecutive IHAs to take marine mammals incidental to ERCA II testing at VAFB, California. The application was deemed adequate and complete on November 19, 2021. The DAF's request is for take of California sea lions, Steller sea lions, harbor seals, and northern elephant seals by Level B harassment. Neither the DAF nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
The DAF is proposing to conduct test activities of the ERCA II system at VAFB over 2 years and requested the issuance of two consecutive one-year IHAs. The ERCA II system is a multi-element, multi-phase test program of the U.S. Army's (Army's) next-generation artillery systems. Major components of the artillery system include the cannon, gun mount, artillery projectile, and propelling charges. These components would be sited at the existing deactivated Launch Facility (LF)-05 site on VAFB. The proposed activities would include testing of ERCA II by firing non-explosive projectiles over the Pacific Ocean at distances ranging from the shoreline to approximately 1,180 miles (mi) (1,900 kilometers (km)) from the VAFB shoreline onto and beyond the Point Mugu Sea Range (PMSR). A total of 77 projectiles are proposed to be fired over 51 test event days (39 events in year 1 and 12 events in year 2).
The DAF anticipates that testing will occur over 2 years. The first proposed IHA would be effective from October 1, 2023 to September 30, 2024, which would include 39 days of testing activities, and the second proposed IHA would be effective from October 1, 2024 to September 30, 2025, which would include 12 days of testing activities.
VAFB occupies approximately 99,100 acres (400 square kilometers [km
ERCA II testing consists of 77 test events that would be conducted over 51 days within a 24-month period starting in the late calendar year 2023 and continuing into calendar year 2025 (Table 1). In addition to the projectiles, there are components of the projectiles that would land in the water at varying distances from LF-05. Three types of projectiles would be tested. The majority would be the Mass Simulant (Projectile A). Two other projectiles are the Terminal Flight Body Pre-Programmed Maneuver (PPM) Projectile (Projectile B) and the Boost Demo, Capture Demo, and Final Demo projectile (Projectile C). Major components of the artillery system include the cannon, gun mount, artillery projectile, and propelling charges; these components would be sited at the existing deactivated LF-05 site on VAFB. The proposed activities would include testing ERCA II by firing non-explosive projectiles over the Pacific Ocean at distances ranging from the shoreline to approximately 1,180 mi (1,900 km) from the shoreline of VAFB onto and beyond the PMSR.
There would be a total of 35 Weapons Strength of Design (WSD) test events over the course of 30 test days with a maximum of two to three mass simulant (Projectile A) test firings per day. There would be three PPM test days over a 2-week period. For each PPM test day, there would be one mass simulant (Projectile A) fired to confirm instrumentation is working and one PPM configuration (Projectile B) fired. Each of the Boost Demo, Capture Test, and Final Demo test events would involve 6 days of testing over a 2 week period. For each test day, there would be one mass simulant (Projectile A) fired to confirm instrumentation and one Boost Demo, Capture Test, or Final Demo configuration (Projectile C) fired.
In addition to the projectiles, there are components of the projectiles that would land in the water. With the exception of the WSD tests, all other tests include a “pusher plate” (having an approximate 12 inches [in.] diameter) that exits the muzzle along with the rest of the projectile and will splash down in the ocean. There is a chance that during PPM testing, sabot petals (5 in. x 5 in. x 45 in. and made of either aluminum or a carbon fiber composite) that fall from the projectile may fall into nearshore waters from the shoreline to approximately 1,150 feet (ft) (350 m) from shore.
Figure 1-2 through Figure 1-7 in the Navy's application (available at
Characteristics of the debris, such as the size, weight, and composition of materials associated with each test, will determine the potential for debris recovery. The three projectiles and their physical characteristics are provided in Table 1-1 in the application.
The weapon would fire all projectiles due west from the established gun position on the LF-05 site at VAFB (Figure 1-8 in the application). No nighttime tests would be conducted. The flightpath of the projectiles would transit within a narrow corridor into the PMSR (approximately 3 NM from the VAFB shoreline), with impact sites ranging from 3 NM offshore through the extent of the PMSR and beyond (Figure 1-2, Figure 1-3, and Figure 1-6 in the application). However, only Projectile C, used in the Final Demo test, would impact beyond the PMSR, and of the six Final Demo tests, only two the projectiles would impact beyond the PMSR (Figure 1-6 in the application). The impact site would be monitored as part of the testing and include video impact scoring. Off-range DoD assets would participate in later scheduled test events and include the Pacific Tracker, RG-4 Global Hawks or MQ-9 Reapers, and Wave Gliders.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species or stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. SARs (
As indicated above, all four pinniped species (with four managed stocks) in Table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. Additional pinniped species and numerous cetacean species are also known to inhabit the waters near VAFB. The Guadalupe fur seal can be expected to occur in both deeper waters of the open ocean and coastal waters within the ERCA II Project Area. Satellite tracking data from Guadalupe fur seals tagged at Guadalupe Island have demonstrated movements into the offshore waters between 50 and 300 km from the U.S. West Coast (Norris
The in-air noise created by the cannon firing and the supersonic flight of the projectile was analyzed by DAF for the potential transfer of sound energy through the air-water interface, resulting in underwater noise that could affect cetaceans in the Project Area. However, the potential for in-air noise to have any effect on at-sea marine mammals is extremely low. We have reviewed DAF's analysis and conclusions, and concur. Cetaceans spend their entire lives in the water and spend most of their time (>90 percent for most species) entirely submerged below the surface. When at the surface, cetacean bodies are almost entirely below the water's surface, with only the blowhole exposed to allow breathing. This minimizes in-air noise exposure, both natural and anthropogenic, essentially 100 percent of the time, because their ears are nearly always below the water's surface. Furthermore, due to the elevation of the LF-05 site approximately 95 ft. above sea level and the firing angle of the cannon upward and away from the water, the majority of the overpressure from the cannon blast and the sonic boom generated by the projectile would strike the water's surface at angles greater than 14 degrees, and, therefore, the majority of in-air acoustic energy would not be transmitted underwater. Since the majority of the pressure generated by an in-air detonation is reflected at the water's surface and remains in the air, peak pressure levels from the cannon blast and sonic boom from the projectile measured underwater are not likely to result in sound levels that would exceed marine mammal harassment thresholds underwater in the ERCA II Project Area.
The DAF also analyzed the potential for a projectile or a component of a projectile to strike a marine mammal in one of the test-specific splash-down areas. The main variables used in the probability estimates include projectile and component dimensions, number of projectiles, size of the splash-down area, marine mammal presence and density within each splash-down area, season, and size (length and width) of representative adult marine mammals. The results of the probability calculations presented in Appendix A of the application show that, with a reasonably high degree of certainty due to the conservative assumptions made, marine mammals are highly unlikely to be struck by the projectiles or components from ERCA II testing. Given this information, the DAF and NMFS have determined that strikes from projectiles as well as underwater noise associated with cannon blasts and sonic booms would have a discountable effect on cetaceans in the ERCA II Project Area.
Biologically Important Areas (BIAs) include areas of known importance for reproduction, feeding, or migration, or areas where small and resident populations are known to occur (Van
The California sea lion occurs in the eastern north Pacific from Puerto Vallarta, Mexico, through the Gulf of California and north along the west coast of North America to the Gulf of Alaska (Barlow
California sea lions can also be found in California open ocean and coastal waters (Barlow
California sea lions haul out at sites in the southern portion of VAFB, which are located more than 20 mi. (32 km) south of LF-05, outside the area that would be impacted by any proposed activities. They have not been observed at any northern VAFB haulout locations, except for rare individuals affected by domoic acid poisoning (U.S. Air Force 2020; Evans 2020). In 2019 a significant die-off of California sea lions, presumed to be caused by domoic acid toxicity associated with red tide algal blooms, was noted—this mortality event included most of Southern and Central California and included more than 80 deceased California sea lions observed on VAFB beaches (U.S. Air Force 2020; Evans 2020). There is no known successful breeding of this species on VAFB. Approximately 3.2 mi. (5.9 km) north of LF-05 and beyond the VAFB boundary but within the Project Area, California sea lions have been observed at Lion Rock during the three most recent aerial surveys (2013, 2016, 2017) performed by NMFS (National Marine Fisheries Service 2020b).
Steller sea lions range along the north Pacific from northern Japan to California (Perrin
In April and May 2012 Steller sea lions were observed at VAFB which was the first time this species had been reported at the Base over the past two decades. Since 2012, Steller sea lions have been observed occasionally in routine monthly surveys, with as many as 16 individuals recorded. In 2019, up to four Steller sea lions were observed on south VAFB during monthly marine mammal counts (U.S. Air Force 2020), and none have been observed during monthly counts in 2020 (U.S. Air Force In Prep.). Note that these locations are more than 20 mi. (32 km) south of LF-05 and are not within an area that would be impacted by any proposed activities. While flying to VAFB from Santa Maria for an unrelated project, contract biologists observed and photographed three Steller sea lions at Lion Rock in October 2017 (Ball 2017). This offshore rock haulout site is within an area exposed to in-air noise levels that may cause behavioral affects to pinnipeds at that haulout.
The harbor seal is one of the most widely distributed seals, found in nearly
Ideal harbor seal habitat includes suitable haulout sites, shelter from high surf during the breeding periods, and sufficient food near haulout sites to sustain the population throughout the year. Haulout sites vary but include intertidal and subtidal rock outcrops, sandbars, sandy beaches, estuaries, and even peat banks in salt marshes (Burns, 2009; Gilbert & Guldager, 1998; Wilson, 1978). Harbor seals generally haul out in greatest numbers at low tides and during the afternoon, when it is usually warmest. The period from late May to early June corresponds with the peak molt season when the maximum number of harbor seals are onshore (Lowry
Harbor seals use haulouts along the shoreline at VAFB. Most haulout sites on VAFB are located on south VAFB, more than 20 mi. (32 km) south of LF-05 and are not within an area that would be impacted by any proposed activities. On north VAFB, there are two haulout locations near LF-05: Lion's Head is 0.45 mi. (0.72 km) northwest and Little Sal is 2.15 mi. (3.45 km) northwest from LF-05. The Purisima Point haulout is 7.43 mi. (11.95 km) southwest of LF-05 and is located outside the area that would be impacted by any proposed activities. During monthly pinniped counts at haulouts during 2019, VAFB observed a maximum of 10 harbor seals at Little Sal and a maximum of 9 harbor seals at Lion's Head (U.S. Air Force 2020). As of November 2020, a maximum of six harbor seals have been observed at Little Sal, and a maximum of four harbor seals have been observed at Lion's head during the 2020 monthly counts (U.S. Air Force In Prep.).
There are two distinct populations of northern elephant seals: One that breeds in Baja California, Mexico; and a population that breeds in California (Garcia-Aguilar
Although northern elephant seals haul out at south VAFB locations, they were not observed at north VAFB haul outs in 2019 (U.S. Air Force 2020) or in 2020 (U.S. Air Force In Prep.) Northern elephant seal occurrence on VAFB has become more frequent over the past decade (U.S. Air Force 2020) and northern elephant seals may begin to use areas where they have not previously been observed. Breeding has been observed on south VAFB since 2017 (Evans 2020).
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 (
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, 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. 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 hertz (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 decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large
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 μPa
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (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 (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
The effects of sounds on marine mammals are dependent on several factors, including the species, size, and behavior (feeding, nursing, resting, etc.) of the animal; the intensity and duration of the sound; and the sound propagation properties of the environment. Impacts to marine species can result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada
Any man-made noise that is strong enough to be heard has the potential to reduce (mask) the ability of marine mammals to hear natural sounds at similar frequencies, including calls from conspecifics and environmental sounds such as surf noise. The infrequent cannon fire and corresponding sonic booms, (77 events on 51 days over 2 calendar years) could cause masking, but it would be expected for no more than a very small fraction of the time during any single day. Occasional brief episodes of masking at VAFB would have no significant effects on the ability of pinnipeds to hear one another or to detect natural environmental sounds that may be relevant. Due to the expected sound levels of the activities proposed and the distance of the activity from marine mammal habitat, the effects of sounds from the proposed activities are unlikely to result in masking. Therefore, masking is not discussed further.
Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. Received sound levels must far exceed the animal's hearing threshold for there to be any temporary hearing impairment or temporary threshold shift (TTS). For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received levels must be even higher for there to be risk of permanent hearing impairment, or permanent threshold shift (PTS). Although it is possible that some pinnipeds may incur TTS during cannon fire and sonic booms from ERCA II testing, hearing impairment has not been measured for pinniped species exposed to these combined sound sources. Auditory brainstem response
In general, if any TTS were to occur to pinnipeds, it is expected to be mild and reversible. It is possible that some artillery fire as measured very close to the firing location may exceed the permanent threshold shift (PTS) criteria, but it is not expected that any pinnipeds would be close enough to the cannons to be exposed to sounds strong enough to cause PTS. Due to the expected sound levels of the activities proposed and the distance of the activity from marine mammal habitat, the effects of sounds from the proposed activities are unlikely to result in PTS and therefore, PTS is not discussed further.
If noise-induced stress does occur in marine mammals, it is expected to occur primarily in those exposed to chronic or frequent noise. It is very unlikely that it would occur in animals, specifically California sea lions, Steller sea lions,
Cannon fire and sonic booms are characterized by sudden onset of sound, moderate to high peak sound levels, and short sound duration. Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could potentially be biologically significant if the change affects growth, survival, or reproduction. 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
While there are no data on pinniped behavioral impacts associated with cannon fire and sonic booms, the results from studies at beaches exposed to acoustic disturbance arising from missile launches and associated sonic booms at VAFB and SNI are highly variable (Holst
Responsiveness also varies with time of year and age class, with juvenile pinnipeds being more likely to react by leaving the haulout site. The probability and type of behavioral response will also depend on the season, the group composition of the pinnipeds, and the type of activity in which they are engaged. For example, in some cases, harbor seals have been found to be more responsive during the pupping/breeding season (Holst
Impacts on marine mammal habitat are part of the consideration in making a finding of negligible impact on the species and stocks of marine mammals. Habitat includes, but is not necessarily limited to, rookeries, mating grounds, feeding areas, and areas of similar significance. We do not anticipate that the proposed activities would result in any temporary or permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
While it is anticipated that the proposed activity may result in marine mammals avoiding certain haulout areas in close proximity to LF-05 due to temporary ensonification of out-of-water habitat, this impact to habitat is temporary and reversible and was considered in further detail earlier in this document, as behavioral modification. No impacts are anticipated to prey species and in-water habitat frequented by pinnipeds. The main impact associated with the proposed activity will be temporarily elevated in-air noise levels and the associated direct effects on marine mammals, previously discussed in this notice.
Debris projectiles or materials associated with firing the projectiles are not expected to impact beaches. The DAF would recover all debris found on land in the vicinity of pinniped haulout sites. Dense debris falling into the water farther offshore, including the projectiles, would sink quickly to the seafloor in deep waters and would not be recovered. Debris would be distributed within the predicted splash-down areas rather than concentrated in a single location, and it is unlikely that
Overall, the proposed test activities are not expected to cause significant impacts or have permanent, adverse effects on pinniped habitats or on their foraging habitats and prey.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform NMFS' negligible impact analysis and determination.
Harassment is the only type of take expected to result from these activities. For this military readiness activity, the MMPA defines “harassment” as (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where the behavioral patterns are abandoned or significantly altered (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to airborne sounds from cannon fire and sonic booms. Based on the nature of the activity, Level A harassment and Level B harassment in the form of TTS are neither anticipated nor proposed to be authorized.
As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
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 (
Each time the ERCA II cannon is fired it would generate blast noise from the cannon firing and a nearly simultaneous sonic boom from the projectile as it travels along its flight path. The blast noise can be described as an overpressure, and would be highest in the immediate vicinity of the cannon and dissipate with distance from the LF-05 site. Peak sound pressure level (SPL) from the blast is predicted to reach 159 decibels related to 20 micropascals dB (re 20 μPa) on the beach due west of the LF-05 site (See Figure 6-1 in application). As the sound propagates farther offshore and away from the cannon, the peak SPL decreases, such that SPL would be less than 140 dB approximately 1 km west of the LF-05 site and less than 135 dB 2 km west of the site. The projectile generates a sonic boom, another high-energy impulsive sound or overpressure. The sound from the cannon fire and blast and the sonic boom would reach the beach nearly simultaneously, and the two sounds would be indistinguishable to pinnipeds on the beach or just offshore.
Modeling predicts that the SPL from the sonic boom would reach 21 pounds per square foot (psf) (equivalent to 153.6 dB re 20 μPa) on the beach due west of the LF-05 site (Figure 6-2). Assuming that the sound from the two acoustic events, the blast from the cannon and the sonic boom from by the projectile, arrives on the beach at the same time, the sound experienced by a pinniped on the beach would be more intense than would be experienced from either source independently. Because SPLs are expressed in decibels, which is based on a logarithmic scale, the SPLs cannot simply be summed. Instead, the SPLs must first be converted from decibels to units of Pascals (Pa) before they are
The in-air SPL generated by the combined cannon blast and sonic boom (160.1 dB re 20 μPa) is likely only to exceed the TTS threshold (155 dB re 20 μPa) shown in Table 5 onshore directly west of LF-05, between the site and the shoreline. The 155 dB re 20 μPa threshold only applies to harbor seals. The TTS threshold for all other pinnipeds is 170 dB re 20 μPa as shown in Table 5 which is well above calculated in-air sound levels. This area consists of approximately 0.15 km of rocky shoreline and 0.20 km of narrow sandy beach, with an approximate maximum of 150 feet of dry sand at low tides, comprising the northern tip of Minuteman Beach. Three pinniped species (California sea lion, northern elephant seal, and Pacific harbor seal) could potentially utilize this location. However, observations of live pinnipeds on Minuteman Beach are very infrequent and have been limited to only California sea lions, and appear coincident with elevated concentrations of domoic acid (red tide) in nearshore waters (Evans 2020). Harbor seals have never been observed at this location. Because of their rare occurrence on Minuteman Beach and the lack of documented use of the coastal strand area between LF-05 and Minuteman Beach, it is very unlikely that any marine mammals, including harbor seals, would be present in that portion of the Project Area. In summary, and based on this analysis, TTS effects would be very unlikely for harbor seals and discountable for all other pinniped species. In addition, no PTS or other direct injury to pinnipeds is anticipated from in-air noise caused by ERCA II testing activities.
The nearest pinniped haulout from LF-05 is Lion's Head, which is approximately 0.5 km distant and is used by harbor seals. California sea lions could also use this location but have not been observed in the past 6 years of monthly counts performed by the DAF (U.S. Air Force 2020; Evans 2020). The maximum in-air SPL received at Lion's Head from the cannon blast is predicted to be 148 dB re 20 μPa (See Figure 6-1 in application), and the SPL from the sonic boom is predicted to be 8.5 psf (146.2 dB re 20 μPa; Figure 6-2 in application). The combined SPL received on the beach at Lion's Head, assuming noise from both sources arrived simultaneously, would be 150.2 dB re 20 μPa (calculated as described in the previous section). This total SPL is less than the TTS threshold for all pinniped hearing groups.
To conservatively estimate the number of pinnipeds that would potentially be exposed to noise levels above the Level B harassment behavioral threshold during test events, the analysis considered the maximum number of pinnipeds observed at haulouts within the predicted 100 dB re 20 µPa
Estimated take of California sea lions by Level B harassment was calculated by taking the highest number of individuals (n=883) observed on a single day during the three most recent aerial surveys (2013, 2016, 2017) of Lion Rock multiplied by the number of days (39 for year 1 and 12 for year 2) over which each test event would occur. Surveys were performed by NMFS (NMFS 2020b). The total number of exposures to in-air noise from the proposed testing would result in an estimated 34,437 takes by Level B harassment during Year 1 and 10,596 takes by Level B harassment during Year 2 (Table 6, Table 7). Therefore the DAF requested, and NMFS proposes to authorize, this amount of Level B harassment by behavioral disruption for the Year 1 and Year 2 IHAs, respectively.
The DAF estimated take by Level B harassment by assuming that the number of Steller sea lions (n=3) observed once at Lion Rock in October 2017 could occur during each day of testing. The total number of exposures to in-air noise from the proposed testing would result in an estimated 117 takes by Level B harassment in Year 1 and 36 takes by Level B harassment in Year 2. The DAF requested and NMFS proposes to authorize 117 takes during Year 1 and 36 takes during Year 2 by Level B harassment from behavioral disruption, as shown in Table 6 and Table 7.
Take of harbor seals was calculated by taking the highest number observed hauled out at Little Sal (n=10) and Lion's Head (n=9) during monthly counts in 2019 and 2020 (U.S. Air Force 2020, In Prep.), resulting in a total of 19 harbor seals for each test event. This resulted in an estimate of 741 takes in Year 1 and 228 takes in Year 2 by Level B harassment. Therefore, the DAF requested and NMFS proposes to authorize 741 takes during Year 1 and 228 takes during Year 2 by Level B harassment from behavioral disruption (Table 6, Table 7).
Northern elephant seals have not been observed hauled out at any locations
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). The NDAA for FY 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) and the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The DAF must employ PSOs at established monitoring locations as described in the Proposed Monitoring and Reporting section. PSOs must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
The DAF, when practicable, would perform ERCA II test activities when tides are greater than 1.0 foot (0.3 m). This is when haulouts tend to be unoccupied by pinnipeds and would reduce the number of exposures.
To prevent unauthorized take of marine mammals, test activities must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that
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.
Protected Species Observers (PSOs) would commence monitoring at Lion's Head, Little Sal, northern end of Minuteman Beach (beach between Minuteman Beach parking area and LF-05), and Lion Rock at least 72 hours prior to ERCA II test events and continue until at least 48 hours after each event. PSO's would be stationed at locations offering the best possible view of individual haulout sites. During each daily monitoring effort, surveys (counts with binoculars and spotting scopes, if necessary) would be conducted hourly for 6 hours (6 counts per day) centered around the late morning or afternoon low tides as much as possible. Monitors will record species; number of animals hauled out; general behavior; presence of pups; age class; and gender. Environmental conditions will also be monitored including tide, wind speed, air temperature, and swell.
PSOs cannot be present to survey Little Sal and Lion's Head when live cannon fire is underway for safety purposes, therefore, video recording of pinnipeds would be conducted during live fire testing in order to record any reaction to the blast noise and sonic boom. Lion Rock is approximately 0.25 mi (0.4 km) from the closest observation location and only half of the offshore rock is visible from land so it may be monitored via drone rather than traditional survey methods (spotting scopes and binoculars). The DAF would prefer to use a drone so that the entire rock can be observed. However, if DAF is unable to secure necessary permits, protected species observers (PSOs) would use a spotting scope to observe reactions during test events as an alternative.
Technical reports will be submitted to the NMFS' Office of Protected Resources within 90 days from the date that each IHA expires. This report will provide full documentation of methods, results, and interpretation pertaining to ERCA II testing activities covered under these proposed IHAs.
The DAF will submit reports that include:
• Summary of test activities (dates and times);
• Summary of mitigation and monitoring measures implemented;
• Number, species, and any other relevant information regarding marine mammals observed and estimated exposed/taken during activities;
• Description of the observed behaviors (in both presence and absence of test activities);
• Environmental conditions when observations were made including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and
• Assessment of the implementation and effectiveness of mitigation and monitoring measures.
If a dead or seriously injured pinniped is found during post-firing monitoring, the incident must be reported to the NMFS Office of Protected Resources and NMFS West Coast Regional Stranding Coordinator immediately. In the unanticipated event that any cases of pinniped mortality are judged to result from ERCA II testing activities at any time during the period covered by these IHAs, this will be reported to NMFS and the West Coast Stranding Coordinator. The report must include the following information:
1. Time and date of the incident;
2. Description of the incident;
3. Environmental conditions (
4. Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;
5. Species identification or description of the animal(s) involved;
6. Fate of the animal(s); and
7. Photographs or video footage of the animal(s).
Testing activities must not resume until NMFS is able to review the circumstances of the prohibited take. If it is determined that the unauthorized take was caused by ERCA II activities, NMFS will work with the Holder to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The DAF may not resume their activities until notified by NMFS.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all the species listed in Table 6, given that the anticipated effects of this activity on these different marine mammal species are expected to be similar. Activities associated with the proposed activities, as outlined previously, have the potential to disturb or displace marine mammals.
The specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from airborne sounds associated with ERCA II cannon fire and accompanying sonic booms. Based on the best available information, including monitoring reports from similar activities (
If a marine mammal responds to a stimulus by changing its behavior (
We do not anticipate that the proposed activities would result in any temporary or permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stocks through effects on annual rates of recruitment or survival:
• No serious injury or mortality is anticipated or authorized;
• No impacts to cetaceans are anticipated;
• No impacts in the form of TTS or PTS are expected or authorized;
• The anticipated incidences of Level B harassment are expected to consist of, at worst, temporary modifications in behavior (
• The proposed activities are expected to result in no long-term changes in the use by pinnipeds of haulouts in the project area, based on over 20 years of monitoring data;
• No impacts to marine mammal habitat/prey are expected; and
• The expected efficacy of planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.
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 for both the Year 1 IHA and the Year 2 IHA the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue two distinct and consecutive one-year IHAs to the Department of the Air Force for conducting Extended Range Cannon Artillery II testing at Vandenberg Air Force Base, California from October 1, 2023 to September 30, 2024 (Year 1) and from October 1, 2024 to September 30, 2025 (Year 2) provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Drafts of the proposed IHAs can be found at
We request comment on our analyses, the proposed authorizations, and any other aspect of this notice of proposed IHAs for the proposed ERCA II testing. We also request at this time comment on the potential renewal of these proposed IHAs as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for these IHAs or subsequent Renewal IHAs.
On a case-by-case basis, NMFS may issue a one-time, 1 year Renewal IHA following notice to the public providing
(1) A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
(2) The request for renewal must include the following:
• An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
(3) Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Pacific Council) Groundfish Subcommittee of the Scientific and Statistical Committee (SSC) will hold an online meeting to review the 2021 groundfish stock assessment process and discuss process improvements for the next stock assessment cycle.
The online meeting will be held Tuesday, January 25, 2022, from 12:30 p.m. to 5:30 p.m., Pacific Standard Time (PST) or until business for the day is completed.
This meeting will be held online. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
John DeVore, Staff Officer, Pacific Council; telephone: (503) 820-2413.
Participants in the Pacific Council's 2021 groundfish stock assessment process will hold a meeting via webinar to review and evaluate the 2021 stock assessment review (STAR) process. The goal of the webinar is to solicit process improvements to recommend for future groundfish stock assessments and STAR panel reviews. Process recommendations will be provided to the Pacific Council at their March 2022 meeting.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
United States Patent and Trademark Office, Department of Commerce.
Notice.
The United States Patent and Trademark Office (USPTO or Office) is implementing a pilot program to evaluate the effects of permitting applicants to defer responding to subject matter eligibility (SME) rejections in certain patent applications. Under this pilot program, applicants may receive invitations to participate if their applications meet the criteria for the program as specified in this notice, including a criterion that the claims in the application necessitate rejections on SME and other patentability-related grounds. An applicant who accepts the invitation to participate in this pilot program must still file a reply to every Office action mailed in the application, but is permitted to defer responding to SME rejections until the earlier of final disposition of the application, or the withdrawal or obviation of all other outstanding rejections. This notice outlines the conditions, eligibility requirements, and guidelines of the pilot program.
Comments must be received by March 7, 2022 to ensure consideration.
For reasons of Government efficiency, comments must be submitted through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal website (
For questions or comments regarding this pilot program in general, please contact Nalini Mummalaneni, Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patents, USPTO, at 571-270-1647. Questions regarding a specific application should be directed to the Technology Center examining the application.
Patent examiners at the USPTO customarily practice compact prosecution when examining patent applications. See section 2103 of the Manual of Patent Examining Procedure (MPEP, Ninth Edition, Revision 10.2019). Under the principles of compact prosecution, as described in the MPEP, an examiner reviews each claim for compliance with every requirement for patentability in the initial review of the application, and identifies all the applicable grounds of rejection in the first Office action. See MPEP 2100 for a discussion of the requirements for patentability, including the SME, utility, inventorship, and double patenting requirements of 35 U.S.C. 101; the enablement, written description, and definiteness requirements of 35 U.S.C. 112; and the prior art-based novelty and non-obviousness requirements of 35 U.S.C. 102 and 35 U.S.C. 103, respectively. The applicant must then respond to every ground of rejection in the Office action in order to continue prosecution and avoid abandonment of the application. 37 CFR 1.111(b); MPEP 714.02.
On March 22, 2021, Senators Thom Tillis and Tom Cotton sent a letter to the Commissioner for Patents suggesting that the USPTO modify the compact prosecution process with respect to SME issues. This letter is available at
In response to the Senators' requests, the USPTO is implementing the DSMER Pilot Program. Under this program, an applicant must still file a reply to every Office action mailed regarding a participating application, but is permitted to defer responding to SME rejections until the earlier of final disposition of the application, or the withdrawal or obviation of all other outstanding rejections. The DSMER Pilot Program thus deviates from traditional compact prosecution, because participating applicants may defer engaging with examiners on SME issues until after non-SME issues have been addressed.
This pilot program provides the USPTO with the opportunity to evaluate how deferred applicant responses to SME rejections affect examination efficiency and patent quality as compared to traditional compact prosecution practice. Because satisfaction of non-SME conditions for patentability (
The USPTO may identify an application as a prospective pilot application if it satisfies the following conditions during the invitation phase: (1) The application is assigned to a participating examiner, as explained in section I.A.; (2) the application meets the procedural criteria specified in section I.B.; and (3) the claims meet the patentability-related criteria specified in section I.C. Such identification will be made in the first Office action on the merits, which will include a form paragraph identifying the application as a prospective pilot application, inviting the applicant to participate, and informing the applicant about how to accept or decline the invitation. See section II for more information on the invitation process. The USPTO will not accept requests to have a particular application identified as a prospective pilot application.
This pilot program is open to primary examiners across the patent examining corps. While examiner participation is not mandatory, the USPTO will make efforts to ensure that a representative number of primary examiners are participating from each applicable Technology Center.
A prospective pilot application must be an original nonprovisional utility application filed under 35 U.S.C. 111(a) or an international application that has entered the national stage under 35 U.S.C. 371, and must not claim the benefit of the earlier filing date, under 35 U.S.C. 120 or 121, of any prior nonprovisional application. The application may claim the benefit of the earlier filing date, under 35 U.S.C. 120, 121, 365(c), or 386(c), of any prior international application or international design application designating the United States, and may claim priority, under 35 U.S.C. 119, 365(a), 365(b), 386(a), or 386(b), to any prior application filed in the United States or in a foreign country, including provisional applications, international applications, and international design applications that designate at least one country other than the United States. Plant and design applications do not qualify for participation in this pilot program because they are not governed by the SME requirements of 35 U.S.C. 101.
Because this pilot program is being implemented to study how applicant deferrals of responses to SME rejections affect examination efficiency, applications that have been advanced out of turn (accorded special status) do not qualify for participation in this pilot. Thus, applications that have been accorded special status under 37 CFR 1.102, or via participation in initiatives or pilot programs that advance applications out of turn and/or provide fast-track examination (
Applications participating in this pilot program may participate in initiatives that expedite processing after final disposition, for example, the Fast-Track Appeals Pilot Program. Applicants of participating applications may also request prioritized examination under 37 CFR 1.102(e)(2) in connection with the filing of a request for continued examination (RCE). Additionally, applications participating in this pilot program may take part in other USPTO initiatives or pilot programs that do not advance applications out of turn, including the After Final Consideration Pilot 2.0 (AFCP 2.0) Program, the Pre-Appeal Brief Conference Pilot Program, and the Quick Path Information Disclosure Statement (QPIDS) Program. For more information about after-final practice, please refer to section III.C below.
The claims of the prospective pilot application must raise both SME issues and non-SME issues that necessitate rejections, and the first Office action on the merits must make both SME and non-SME rejections. The inclusion of SME rejections in this action will ensure that the applicant has sufficient information on which to make an educated decision about whether to participate in the pilot program. This program does not require that any individual claim be the subject of both SME and non-SME rejections. For the purposes of this pilot program, an “SME rejection” is a rejection under 35 U.S.C. 101 for lack of SME, and includes both step 1 rejections, where the claim as a whole does not fall within a statutory category, and step 2B rejections, where the claim as a whole is directed to a judicial exception without also including additional limitations amounting to significantly more than the exception. See MPEP 2106.07 for a discussion of SME rejections. Additional information about patent SME and the USPTO's evaluation of this requirement is provided in MPEP 2106
As explained in section I, participating examiners may invite the applicant of a prospective pilot application to participate in the pilot program by including a form paragraph in the first Office action on the merits. The form paragraph will identify the application as a prospective pilot application, invite the applicant to participate, and inform the applicant about how to accept or decline the invitation. For purposes of issuing an invitation to participate in this program, the term “first Office action on the merits” does not include actions containing only a requirement for restriction and/or election of species. A copy of the invitation form paragraph is available on the pilot program website at
An applicant receiving an invitation to participate in the DSMER Pilot Program may elect to accept the invitation and participate in the program or to decline participation.
If an applicant wishes to participate in the program, they must file a properly completed request form PTO/SB/456 concurrently with a timely response to the first Office action on the merits. The request form must be signed, in accordance with 37 CFR 1.33(b), by a person having the authority to prosecute the application, and must be submitted via the USPTO's patent electronic filing systems (EFS-Web or Patent Center). Use of this form will help the Office to quickly identify applications participating in this pilot program and improve the data generated on the effectiveness of the program. The form is available on the pilot program website at
If the applicant does not timely file a properly completed PTO/SB/456, the application will not be entered into the program. In this case, the application will undergo the normal prosecution process as described in MPEP chapter 700, and the applicant must file a complete reply to the first Office action on the merits, as required by 37 CFR 1.111(b) and as described in MPEP 714.02.
Once an applicant has elected to participate in the pilot program, there is no provision for them to withdraw a participating application. However, applicants may, at any time, choose not to avail themselves of the program's benefit (the ability to defer responding to SME rejections in certain circumstances) and may voluntarily reply to any outstanding SME rejections. Such action does not remove the application from the pilot program or terminate the waiver for that application.
Participation in this pilot program provides the applicant with a limited waiver of 37 CFR 1.111(b) with respect to SME rejections in the participating application, as set out below. Although the applicant must still file a reply to every Office action mailed in the participating application, the limited waiver permits the applicant to defer presenting arguments, evidence, or amendments in response to the SME rejection(s) until the earlier of final disposition of the participating application or the withdrawal or obviation of all other outstanding rejections. Other than this permitted deferral of responding to the SME rejection(s), the applicant's replies must be fully responsive to the Office action, as described in MPEP 714.02, and must be timely filed within the applicable period for reply, as extended under 37 CFR 1.136(a).
The phrase “final disposition” should be understood for a particular application as occurring upon the earliest of the: (1) Mailing of a notice of allowance, (2) mailing of a final Office action, (3) filing of a notice of appeal, (4) filing of an RCE, or (5) abandonment of the application. The phrase “withdrawal or obviation of all other outstanding rejections” refers to the situation in which a second or subsequent non-final Office action containing only the SME rejection(s) is mailed in a participating application, because the applicant has overcome, or the examiner has withdrawn, all the non-SME rejections that were previously made. Although such actions are not final dispositions, they are effective in terminating the limited waiver of 37 CFR 1.111(b) for that participating application. This termination is necessary because the applicant is required by 35 U.S.C. 132 and 133 to respond to Office actions in order to prevent abandonment of the application.
Prior to termination of the waiver (whether by final disposition or by the withdrawal or obviation of all other outstanding rejections), the applicant may defer responding to any particular SME rejection in a participating application. For example, if the applicant accepts the invitation to participate in the pilot program, in compliance with section II.B above, for an application having a first Office action on the merits setting forth a step 1 SME rejection, a step 2B SME rejection, and an anticipation rejection, an applicant may exercise any of the following options when filing a reply to the action:
• Respond only to the anticipation rejection and remain silent on the SME rejections, pursuant to the limited waiver of 37 CFR 1.111(b);
• Respond to the anticipation rejection and one of the SME rejections, and remain silent on the other SME rejection, pursuant to the limited waiver of 37 CFR 1.111(b); or
• Respond to all three rejections.
Any of these three replies will be considered as an adequate reply to the SME rejection(s) for purposes of evaluating whether the applicant has made a
Upon final disposition, or the withdrawal or obviation of all other outstanding rejections (which would normally occur in a final Office action but may, in some circumstances, occur in a second or subsequent non-final Office action), the limited waiver of 37 CFR 1.111(b) provided by this pilot program ends, and the applicant may no longer defer responding to any outstanding SME rejection(s). See section III.C below for more information on after-final practice.
In the event that circumstances require the USPTO to remove an application from this pilot program, the limited waiver of 37 CFR 1.111(b) ends, and the applicant may no longer defer responding to any outstanding SME rejection(s). Such circumstances may occur, for instance, if the application must be transferred upon the retirement of the original examiner. In the event of removal, the applicant will be notified that the application no longer qualifies for the pilot program.
An examiner's or applicant's participation in this pilot program does not alter the normal prosecution process, as described in MPEP chapter 700, except for the SME response deferral outlined above in section III.A. Thus, for example, interviews conducted in participating applications must be made of record, in accordance with the normal interview procedure (see MPEP 713), and the written statement of the substance of the interview must capture all matters discussed (including any SME rejection-related discussions) between the applicant and the examiner, in accordance with normal interview practice (see MPEP 713.04).
Even though the limited waiver of 37 CFR 1.111(b) permits the applicant to defer responding to an SME rejection, the examiner will consider whether the applicant's responses to other rejections (
In cases where the applicant's reply does not overcome all outstanding rejections, the examiner will issue a subsequent Office action setting forth all applicable rejections, including any applicable SME rejection(s), and addressing all amendments, arguments, and evidence provided by the applicant. In accordance with normal prosecution practice and as explained in MPEP 706.07(a), the subsequent action will typically be a final action, except in limited circumstances. Issuance of a final rejection is a final disposition that concludes the limited waiver of 37 CFR 1.111(b) for that particular application. If the subsequent Office action is a non-final action, and a non-SME rejection(s) remains outstanding, the applicant may continue deferring their response to any outstanding SME rejection(s) set forth in the subsequent Office action, as described above in section III.A. If the subsequent Office action is a non-final action, and there are no non-SME rejections outstanding, the limited waiver is terminated, and the applicant must respond to the outstanding SME rejection(s), as described above in section III.A.
As stated earlier, a final disposition of the application ends the limited waiver of 37 CFR 1.111(b) provided by this pilot program. Thus, the applicant may not defer responding to any outstanding SME rejection(s) after final disposition (
If the applicant chooses to file an RCE, they must submit a complete response to the final Office action, including a response to any outstanding SME rejection(s), with the RCE as required by normal rules of practice.
Because abandonment is a final disposition, it also ends the limited waiver of 37 CFR 1.111(b) provided by this pilot program. Thus, if a participating application is abandoned, the applicant may not defer responding to any outstanding SME rejection(s) if
An application participating in this pilot program may participate in other USPTO initiatives after final disposition of the application if it satisfies the conditions of those other initiatives. Such initiatives include, for example, the AFCP 2.0 Program, the Fast-Track Appeals Pilot Program, the Fast-Track for COVID-19-Related Appeals Pilot Program, the Pre-Appeal Brief Conference Pilot Program, and the QPIDS Program. An application participating in this pilot program may also request special status or expedited processing in connection with the filing of an RCE (
U.S. Election Assistance Commission (EAC).
Request for public comment on standardized EAC Federal Financial Report (EAC-FFR) to be used for both interim and final financial reporting for all EAC grants.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the U.S. Election Assistance Commission (EAC) gives notice that it is requesting from the Office of Management and Budget (OMB) approval for the information collection EAC Federal Financial Report (EAC-FFR).
Comments must be received by 5 p.m. Eastern on Tuesday, March 8, 2022.
To view the proposed EAC-FFR format, see:
For information on the EAC-FFR, contact Kinza Ghaznavi, Office of Grants, Election Assistance Commission,
Written comments and recommendations for the proposed information collection should be sent directly to
All requests and submissions should be identified by the title of the information collection.
The EAC Office of Grants Management (EAC/OGM) is responsible for distributing, monitoring, and providing technical assistance to states and grantees on the use of federal funds. EAC/OGM also reports on how the funds are spent, negotiates indirect cost rates with grantees, and resolves audit findings on the use of HAVA funds.
The EAC-FFR is employed for all financial reports for grants issued under HAVA authority. This revised format builds upon that report for the various grant awards given by EAC. A “For Comment” version of the draft format for use in submission of the FFR is posted on the EAC website at:
After obtaining and considering public comment, the EAC will prepare the format for final clearance. Comments are invited on (a) ways to enhance the quality, utility, and clarity of the information collected from respondents, including through the use of automated collection techniques or other forms of information technology; and (b) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The requirement for grantees to report on performance is OMB grants policy. Specific citations are contained in Code of Federal Regulations TITLE 2, PART 200—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS.
The estimated cost of the annualized cost of this burden is: $2,863.98, which is calculated by taking the annualized burden (126 hours) and multiplying by an hourly rate of $22.73 (GS-8/Step 5 hourly basic rate).
Tuesday, January 11, 2022 at 10 a.m. and its continuation at the conclusion of the open meeting on January 13, 2022.
1050 First Street NE, Washington, DC (This meeting will be a virtual meeting).
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Information for which disclosure would constitute an unwarranted invasion of privacy.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Maritime Commission.
Notice of Order of Investigation and Hearing.
The Order of Investigation and Hearing was served December 30, 2021.
On December 30, 2021, the Federal Maritime Commission instituted an Order of Investigation and Hearing entitled Wan Hai Lines, Ltd. and/or Wan Hai Lines (U.S.A.) Ltd. Possible Violations of 46 U.S.C. 41102(c). Acting pursuant to Section 41102(c) of Title 46 of the United States Code, that investigation is instituted to determine:
(1) Whether Wan Hai Lines, Ltd. and/or Wan Hai Lines (USA) Ltd. are violating or have violated section 41102(c) of the Shipping Act by failing to establish, observe, and enforce just and reasonable regulations and practices relating to its assessment of charges on containers when return locations with corresponding appointments were unavailable.
The Order may be viewed in its entirety at
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 7, 2022.
1.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC) announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public. Time will be available for public comment. The meeting will be webcast live via the World Wide Web.
The meeting will be held on January 5, 2022, from 1:00 p.m. to 5:00 p.m. EST (dates and times subject to change; see the ACIP website for updates
You may submit comments identified by Docket No. CDC-2022-0002 by any of the following methods:
•
•
Stephanie Thomas, ACIP Committee Management Specialist, Centers for Disease Control and Prevention, National Center for Immunization and Respiratory Diseases, 1600 Clifton Road NE, MSH24-8, Atlanta, GA 30329-4027; Telephone: 404-639-8367; Email:
In accordance with 41 CFR 102-3.150(b), less than 15 calendar days' notice is being given for this meeting due to the exceptional circumstances of the COVID-19 pandemic and rapidly evolving COVID-19 vaccine development and regulatory processes. The Secretary of Health and Human Services has determined that COVID-19 is a Public Health Emergency. A notice of this ACIP meeting has also been posted on CDC's ACIP website at:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
If the number of persons requesting to speak is greater than can be reasonably accommodated during the scheduled time, CDC will conduct a lottery to determine the speakers for the scheduled public comment session. CDC staff will notify individuals regarding their request to speak by email by 12:00 p.m. EST, January 5, 2022. To accommodate the significant interest in participation in the oral public comment session of ACIP meetings, each speaker will be limited to 3 minutes, and each speaker may only speak once per meeting.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
National Institutes of Health, HHS.
Notice.
The National Heart, Lung and Blood Institute (NHLBI), National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to Inversago Pharma, Inc., located in Montreal, Quebec, Canada, to practice the inventions embodied in the patent applications listed in the Supplementary Information section of this notice.
Only written comments and/or applications for a license which are received by the NHLBI Office of Technology Transfer and Development January 21, 2022 will be considered.
Requests for copies of the patent applications, inquiries, and comments relating to the contemplated exclusive patent license should be directed to: Michael Shmilovich, Esq., CLP Senior Licensing and Patenting Manager, phone number 301-435-5019 or
The following and all continuing U.S. and foreign patents/patent applications thereof are the intellectual properties to be licensed under the prospective license to Inversago Pharma, Inc.:
The patent rights in these inventions have been assigned to the Government of the United States of America. The prospective exclusive patent license territory may be worldwide and in a field of use limited to human therapeutics for fibrotic disease.
The invention covered by the patents and patent applications pertaining to NIH Ref. No. E-282-2012-0 and -1 pertain to cannabinoid receptor 1 (CB
The inventions covered by HHS Ref. E-140-2014-0 also pertain to pyrazole CB
This notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive patent license will be royalty bearing and may be granted unless within fifteen (15) days from the date of this published notice, the NHLBI receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the prospective field of use that are timely filed in response to this notice will be treated as objections to the grant of the contemplated exclusive patent license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
Announcement of meetings.
The Federal Emergency Management Agency (FEMA) is holding a series of meetings, under the Plan of Action to Establish a National Strategy for the Coordination of National Multimodal Healthcare Supply Chains to Respond to COVID-19, to implement the Voluntary Agreement for the Manufacture and Distribution of Critical Healthcare Resources Necessary to Respond to a Pandemic.
• Wednesday, January 5, 2022, from 1 p.m. to 3 p.m. Eastern Time (ET).
• Wednesday, January 12, 2022, from 1 p.m. to 3 p.m. ET.
• Wednesday, January 19, 2022, from 1 p.m. to 3 p.m. ET.
• Wednesday, January 26, 2022, from 1 p.m. to 3 p.m. ET.
Robert Glenn, Office of Business, Industry, Infrastructure Integration, via email at
Notice of these meetings is provided as required by section 708(h)(8) of the Defense Production Act (DPA), 50 U.S.C. 4558(h)(8), and consistent with 44 CFR part 332.
The DPA authorizes the making of “voluntary agreements and plans of action” with representatives of industry, business, and other interests to help provide for the national defense.
On August 17, 2020, after the appropriate consultations with the Attorney General and the Chairman of the Federal Trade Commission, FEMA completed and published in the
On December 7, 2020, the first plan of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Personal Protective Equipment (PPE) to Respond to COVID-19 (PPE Plan of Action)—was finalized.
On May 24, 2021, four additional plans of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Diagnostic Test Kits and other Testing Components to respond to COVID-19, the Plan of Action to
On October 15, 2021, the sixth plan of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Coordination of National Multimodal Healthcare Supply Chains to Respond to COVID-19—was finalized.
The meetings are chaired by the FEMA Administrator's delegates from the Office of Response and Recovery (ORR) and Office of Policy and Program Analysis (OPPA), attended by the Attorney General's delegates from the U.S. Department of Justice, and attended by the Chairman of the Federal Trade Commission's delegates. In implementing the Voluntary Agreement, FEMA adheres to all procedural requirements of 50 U.S.C. 4558 and 44 CFR part 332.
1. Convene the Sub-Committee to Define Requirements under the National Multimodal Healthcare Supply Chains Plan of Action to establish priorities related to the COVID-19 response under the Voluntary Agreement.
2. Gather Sub-Committee Participants and Attendees to ask targeted questions for situational awareness.
3. Identify pandemic-related supply chain issues, information gaps, and areas for potential additional discussion.
4. Identify potential Objectives and Actions which correspond to Sub-Committees. These will be held for further discussion under those Sub-Committees.
The Sponsor of the Voluntary Agreement, the FEMA Administrator, found that these meetings to implement the Voluntary Agreement involve matters which fall within the purview of matters described in 5 U.S.C. 552b(c) and the meetings are therefore closed to the public.
Specifically, these meetings may require participants to disclose trade secrets or commercial or financial information that is privileged or confidential. Disclosure of such information allows for meetings to be closed to the public pursuant to 5 U.S.C. 552b(c)(4).
The success of the Voluntary Agreement depends wholly on the willing participation of the private sector participants. Failure to close these meetings to the public could reduce active participation by the signatories due to a perceived risk that sensitive company information could be released to the public. A public disclosure of a private sector participant's information executed prematurely could reduce trust and support for the Voluntary Agreement.
A resulting loss of support by the participants for the Voluntary Agreement would significantly hinder the implementation of the Agency's objectives. Thus, these meeting closures are permitted pursuant to 5 U.S.C. 552b(c)(9)(B).
Bureau of Land Management, Interior.
Notice of proposed withdrawal.
At the request of the Bureau of Land Management (BLM) and subject to valid existing rights, the Secretary of the Interior proposes to withdraw 351,479.97 acres of public lands from location and entry under the United States mining laws and from leasing under the mineral leasing laws, but not disposal under the mineral materials laws, for a 20-year term. This notice segregates the lands for up to 2 years from location and entry under the United States mining laws and from leasing under the mineral leasing laws, subject to valid existing rights, initiates a 90-day public comment period on the withdrawal application, and notifies the public that one or more public meetings will be held regarding the application.
Comments and public meeting requests must be received by April 6, 2022. In-person public meetings regarding the withdrawal application will be held on February 23, 2022, from 3:00-4:30 p.m. and 6:00-7:30 p.m. at San Juan College Henderson Fine Arts Building, 4601 College Boulevard, Farmington, New Mexico. All current guidelines issued by the Centers for Disease Control and Prevention and Department of the Interior COVID-19 safety precautions will be strictly enforced. Members of the public are required to pre-register for the in-person event by using the information provided in the
All comments should be sent to Sarah Scott, CCNHP Area Withdrawal, Bureau of Land Management Farmington Field Office, 6251 College Blvd. Suite A, Farmington, NM 87402.
A map and other information related to the withdrawal application are available at the Bureau of Land Management Farmington Field Office, 6251 College Blvd., Suite A, Farmington, New Mexico 87402. Details are also available on the project ePlanning website:
Sarah Scott, BLM Farmington Field
The BLM has filed a petition/application requesting the Secretary of the Interior to withdraw public lands and interests in lands (excluding lands with federally owned fractional mineral interests) situated within the boundaries of the area depicted on the map submitted with the application, titled Appendix B: Chaco Culture National Historical Park Area Withdrawal, dated November 30, 2021. The Secretary has approved the BLM's petition for approval to file its withdrawal application and proposed the withdrawal as requested. Following consideration of environmental and other analyses prepared by the BLM in support of its application, the Secretary will decide whether to establish the withdrawal.
The purpose of the proposed withdrawal would be to protect these public lands and the greater connected landscape with a rich Puebloan, Tribal Nations, and cultural legacy in northwestern New Mexico from industrial impacts associated with oil and gas development activities and from adverse effects of locatable mineral exploration and mining, subject to valid existing rights. This proposed withdrawal area holds a deep meaning for the Indigenous peoples whose ancestors lived, worked, traded, and thrived in this high-desert community. Existing uses of the public lands may continue in accordance with their terms and conditions (except for the location or relocation of mining claims and the sale of new oil and gas leases) during the segregation period, including but not limited to livestock grazing, and lawful ingress and egress to any valid or patented mining claims and mineral leases that may exist on these lands. There may be continued use of all public lands and lawful access to non-Federal lands and interest in lands; current recreational uses including hunting, camping and day use; and all commercial uses being conducted under special use permits. Temporary uses that may be permitted during the segregation period are leases, licenses, permits, rights-of-way, and other uses consistent with the 2003 Farmington Resource Management Plan, as amended.
The legal description is as follows:
The area aggregates 351,479.97 acres in San Juan County, New Mexico.
There are no suitable alternative sites, and no water rights will be needed for this withdrawal.
For a period until April 6, 2022, persons who wish to submit comments, suggestions, or objections related to the withdrawal application may present their views in writing to the individual listed in the
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 BLM in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A notice for public meeting(s) regarding the withdrawal application will be announced in the local newspaper and on the agency websites at least 30 days before the meeting(s). For a period until January 6, 2024,
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before December 25, 2021, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by January 21, 2022.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before December 25, 2021. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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 can 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.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resource:
National Science Foundation.
Notice of Permit Applications Received.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act in the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by February 7, 2022. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314 or
Polly Penhale, ACA Permit Officer, at the above address, 703-292-8030.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541, 45 CFR 670), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Postal Regulatory Commission.
Notice.
The Postal Service has filed an Annual Compliance Report on the costs, revenues, rates, and quality of service associated with its products in fiscal year 2021. Within 90 days, the Commission must evaluate that information and issue its determination as to whether rates were in compliance with title 39, chapter 36, and whether service standards in effect were met. To assist in this, the Commission seeks public comments on the Postal Service's Annual Compliance Report.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On December 29, 2021, the United States Postal Service (Postal Service) filed with the Commission its Annual Compliance Report (ACR) for fiscal year (FY) 2021, pursuant to 39 U.S.C. 3652.
The filing begins a review process that results in an Annual Compliance Determination (ACD) issued by the Commission to determine whether Postal Service products offered during FY 2021 were in compliance with applicable title 39 requirements.
The FY 2021 ACR includes a discussion by class of each market dominant product, including costs, revenues, and volumes, workshare discounts, and passthroughs responsive to 39 U.S.C. 3652(b), and FY 2021 promotions.
In response to the Commission's FY 2010 ACD directives,
The Commission also invites public comment on the cost coverage matters the Postal Service addresses in its filing; service performance results; levels of customer satisfaction achieved; and such other matters that may be relevant to the Commission's review.
1. The Commission establishes Docket No. ACR2021 to consider matters raised by the United States Postal Service's FY 2021 Annual Compliance Report.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Kenneth E. Richardson as an officer of the Commission (Public Representative) in this proceeding to represent the interests of the general public.
3. Comments on the United States Postal Service's FY 2021 Annual Compliance Report to the Commission are due on or before January 31, 2022.
4. Reply comments are due on or before February 14, 2022.
5. The Secretary shall arrange for publication of this Order in the
By the Commission.
Department of State.
Public notice.
Proposal to extend and amend the
Anne Compton, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (202) 377-9783;
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.
Public notice.
Proposal to extend the
Andrew Zonderman, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (202) 718-9481;
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 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:
Notice of meeting.
The Department of State announces the location, dates, times, and agenda for the next meeting of the Cultural Property Advisory Committee.
The Cultural Property Advisory Committee (“the Committee”) will meet January 25-27, 2022, from 9:00 a.m. to 5:00 p.m. (EST) via videoconference. The Committee will hold an open session on January 25, 2022, at 11:00 a.m. (EST), which will last approximately one hour.
For general questions concerning the meeting, contact Allison Davis, Bureau of Educational and Cultural Affairs—Cultural Heritage Center, by phone (202-702-1166) 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 January 18, 2022, via email (
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of availability, notice of public comment period, and request for comment.
The FAA is announcing the availability of and requesting comments on the Draft Environmental Assessment for the Sierra Space Dream Chaser Vehicle Operator License at the Shuttle Landing Facility, Brevard County, Florida (Draft EA).
Comments must be received on or before January 24, 2022.
Comments should be mailed to Ms. Chelsea Clarkson, Sierra Space at SLF EA, c/o ICF, 9300 Lee Highway, Fairfax, VA 22031. Comments may also be emailed to
Ms. Chelsea Clarkson, Environmental Protection Specialist, Federal Aviation Administration, c/o ICF, 9300 Lee Highway, Fairfax, VA 22031; phone (202) 267-4745; and email
The FAA is the lead agency. The National Aeronautics and Space Administration (NASA), U.S. Space Force (USSF), U.S. Fish and Wildlife Service (USFWS), the National Park Service (NPS), and the U.S. Coast Guard (USCG) are cooperating agencies for the Draft EA. The FAA is evaluating Sierra Space's proposal to conduct Dream Chaser reentry operations at the Shuttle Landing Facility in Brevard County, Florida. Sierra Space's reentry operations would require an FAA Vehicle Operator License.
The FAA has posted the Draft EA and a presentation describing the project and potential environmental impacts on the project website:
At this time, the FAA does not intend to host a public meeting regarding the Draft EA. If you would like to request a public meeting, email
The FAA encourages all interested parties to provide comments concerning the scope and content of the Draft EA. Before including your address, phone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask the FAA in your comment to withhold from public review your personal identifying information, the FAA cannot guarantee that we will be able to do so.
The FAA prepared the Draft Environmental Assessment (EA) for public review pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), as amended (42 United States Code 4321,
Build America Bureau, Department of Transportation (DOT).
Notice of funding opportunity.
The Fixing America's Surface Transportation (FAST) Act, enacted in December 2015, authorized the establishment of a Regional Infrastructure Accelerators Demonstration Program (the Program) to assist entities in developing improved infrastructure priorities and financing strategies for the accelerated development of a project that is eligible for funding under the Transportation Infrastructure Finance and Innovation Act (TIFIA) Credit Program. The Consolidated Appropriations Act, 2021,
Each section of this notice contains information and instructions relevant to the application process for the RIA grants. All applicants should read this notice in its entirety so that they have the information they need to submit eligible and competitive applications.
1.
Section 1441 of the FAST Act
The intent of this Program is to demonstrate and evaluate the viability and effectiveness of a small number of accelerators in expediting the development and delivery of specific transportation projects within the geographic area of each RIA designated by the Bureau. It is the intent of the Bureau to expand the Program coverage building on the earlier designation of five RIAs in Cleveland, Chicago, Fresno, San Diego, and Seattle as result of the NOFO issued in December 31, 2020. Therefore, the Bureau continues to be keenly interested in testing several RIA models to address needs based on common transportation infrastructure make-up and challenges within regions, particularly those with less capacity or experience in using innovative financing and project delivery methods, and those supporting eligible entities that are likely to be first time users of the Bureau's credit programs, such as the TIFIA credit program. The Bureau plans to select between one and five RIAs for awards under this program based on proposals submitted by eligible applicants in response to this notice. Ideally, when considering both the first and the second rounds of awards under this program, there will be a diversity of RIAs selected for awards based on geography (
2.
a.
b.
c.
d.
3.
a. Project planning;
b. Studies and analysis, including feasibility, market analysis, project costs, cost-benefit analysis, value for money, public benefit, economic assessments, and environmental reviews;
c. Revenue forecasting, funding and financing options analyses, application of best practices, innovative financing/procurement, and public-private partnerships, where appropriate:
d. Preliminary engineering and design work;
e. Statutory and regulatory compliance analyses;
f. Evaluation of opportunities for private financing, project bundling and/or phasing;
g. Enhancement of rural project sponsors' capacity to use the TIFIA credit program and to the extent applicable, the RRIF credit program, PABs, and other innovative financing methods, helping to bundle projects across multiple smaller jurisdictions to create a project at a scale that is more appropriate for the Bureau's credit assistance, and pool the jurisdictions' resources to apply for TIFIA credit assistance and, to the extent applicable, RRIF credit assistance and PABs, as well as leveraging DOT's Rural Opportunities to Use Transportation for Economic Success (ROUTES) Initiatives'
h. Other direct, project-specific support as appropriate.
Funding, in the form of and pursuant to a cooperative agreement, will be provided for a single year, with an
4.
The Bureau hereby requests applications from all interested parties to result in the award of between one and five cooperative agreement(s), each containing substantial involvement on the part of the Federal government in accordance with Section 6305 of title 31, United States Code. The Bureau anticipates substantial Federal involvement between it and the recipient during this Program will include among others:
a. Technical assistance and guidance to the recipients;
b. Close monitoring of performance;
c. Involvement in technical decisions; and
d. Participation in status meetings including kick off meeting and annual technical and budget reviews.
1.
a.
b.
2.
1.
If more than one public entity is applying in a single proposal, one of the entities must be designated as the lead applicant. Such applicant will be authorized to negotiate and enter into a cooperative agreement with the Government on behalf of the entities, will be responsible for performance, and will be accountable for Federal funds. Applications will be accepted from a partnership between one or more eligible applicants and another U.S. party, such as a private entity, consulting or engineering firms, etc., as long as one of the eligible public entities is designated as the lead applicant and that entity will enter into the cooperative agreement, with the shared goal of establishing and operating the RIA. The location of all RIA application parties, their entire jurisdictions and all proposed projects must be located solely in the United States and its territories. Proposed projects and project sponsors must meet the eligibility requirements for TIFIA credit assistance as further defined in Chapter 3 of the Bureau's Credit Program Guide (
2.
3.
a.
b. A proposed region whose geographic authority is in both an urban and a rural area will be designated as urban if the majority of the projects listed in the proposal are located in urban areas. Conversely, a proposed region located in both an urban area and a rural area will be designated as rural if the majority of the projects listed in the proposal are in rural areas.
c.
1.
2.
a.
b.
The application narrative should include the information necessary for the Bureau to determine that the applicant(s) proposed regional focus, the overall accelerator proposal, list of intended projects, budget, and other information satisfy the eligibility requirements set forth in this notice as described in Section C and to assess the selection criteria specified in Section E.1. To the extent practicable, applicants should provide supporting data and documentation in a form that is directly verifiable by the Bureau. The Bureau may ask any applicant to supplement data in its application but expects applications to be complete upon submission.
In addition to the information requested elsewhere in this notice, the proposal should include a table of contents, maps, and graphics, as appropriate, to make the information easier to review. The Bureau recommends that the proposal be prepared with standard formatting preferences (a single-spaced document, using a standard 12-point font such as Times New Roman, with 1-inch margins). The proposal narrative may not exceed 30 pages in length, excluding cover pages and table of contents. The only substantive portions that may exceed the 30-page limit are documents supporting assertions or conclusions made in the 30-page project narrative. If possible, applicants should provide website links to supporting documentation rather than copies of these supporting materials. If supporting documents are submitted, applicants should clearly identify within the project narrative the relevant portion of the project narrative that each supporting document supports. The Bureau recommends using appropriately descriptive file names (
I.
II.
III.
a. Project name and location;
b. Project sponsor;
c. Description;
d. Bureau program most likely to apply (TIFIA, RRIF, PABs);
e. Support activities the applicant envisions the RIA would provide
f. Project costs; and
g. Project timeline.
IV.
V.
The Bureau encourages applicants to either address each criterion or expressly state that the project does not address the criterion. Applicants are not required to follow a specific format, but the outline suggested addresses each criterion separately and promotes a clear discussion that assists project evaluators. To minimize redundant information in the application, the Bureau encourages applicants to cross-reference from this section of their application to relevant substantive information in other sections of the application. The guidance in this section is about how the applicant should organize their application.
3.
4.
a.
To apply through
(1) Obtain a Data Universal Numbering System (DUNS) number;
(2) Register with the System Award for Management (SAM) at
(3) Create a
(4) The E-business Point of Contact (POC) at the applicant's organization must also respond to the registration email from
Please note that the
5.
(a)
(b)
(c)
(1) Details of the technical issue experienced;
(2) Screen capture(s) of the technical issues experienced along with corresponding
(3) The “Legal Business Name” for the applicant that was provided in the SF-424;
(4) The AOR name submitted in the SF-424;
(5) The DUNS number associated with the application; and
(6) The
To ensure a fair competition of limited discretionary funds, the following conditions are not valid reasons to permit late submissions: (1) Failure to complete the registration process before the deadline; (2) failure to follow
6. Applications under this NOFO are not subject to the State review under E.O. 12372.
7.
1.
A.
(1) Possess the ability to evaluate and promote innovative financing methods for local projects including the use of TIFIA and RRIF and other Federal assistance programs where applicable;
(2) Possess the ability to provide technical assistance on best practices with respect to financing projects;
(3) Have experience in increasing transparency with respect to infrastructure project analysis and using innovative financing for public infrastructure projects;
(4) Have experience in deploying predevelopment capital programs designed to facilitate the creation of a pipeline of infrastructure projects available for investment;
(5) Have a history of successfully bundling smaller-scale and rural projects into larger proposals that may be more attractive for private investment;
(6) Have demonstrated success in reducing transaction costs for public project sponsors;
(7) Demonstrate the capacity to accelerate projects eligible for the TIFIA credit program through the use of innovative financing strategies such as the TIFIA and RRIF credit programs, and PABs, but also other strategies such as project bundling, grant anticipation revenue vehicles, and incorporating private capital;
(8) Have experience in the development of project financial plans, including developing capital structures
(9) Have experience in working with private sector project sponsors disadvantaged communities, including but not limited to rural and low resources communities as well as working on revitalization projects.
An applicant that demonstrates substantial experience of 10 years or more in the development and delivery of projects, including the use of alternative delivery methods such as design-build and/or public private partnerships (P3) as related to items (1) through (9) above, and innovative financing particularly the use of TIFIA and RRIF or PABs will receive a STRONG rating in this criterion.
B.
An applicant that can demonstrate effective partnerships with public, private sector and/or academic entities will receive a STRONG rating in this criterion.
C.
D.
(1) The effort, cost, and actions necessary to initially establish the proposed RIA, including workspaces, fixed and variable costs, staffing, and the development of relationships necessary to function effectively in the proposed region.
(2) How the proposed RIA will operate once established, including costs, organization, efficiency, availability of the technical expertise and resources needed to accelerate project delivery, work plan, and time required to achieve operational status.
An applicant that can demonstrate the ability to stand up the RIA and achieve operations status within 6 months of executing a cooperative agreement will receive a STRONG rating in this criterion.
E.
F.
(1) Availability of facilities and equipment necessary to function;
(2) Existing governance structure as compared to proposed future structure; and
(3) Ability of existing relationships to rapidly deliver results.
G.
H.
Where applicable, the Bureau will evaluate the degree to which the proposal can support individual rural project sponsors. The Bureau will consider opportunities proposed to overcome common barriers to using TIFIA and RRIF credit assistance and other innovative financing methods for rural project sponsors, such as project size or type, financial or institutional capabilities, and other issues. Consistent with the Department's ROUTES Initiative (
I.
An applicant that can demonstrate a model of self-sustainability and continued benefits beyond the effective period of Federal funding will receive a STRONG rating in this criterion.
J.
An applicant that can demonstrate the development of, at minimum, qualitative risk assessments of proposed projects in meeting Federal eligibility requirements (see Chapter 3 of the Bureau Credit Programs Guide:
K.
(1)
(2)
(3)
(4)
(5)
An applicant that can demonstrate a pipeline of viable projects that address at least four of the above listed Department priorities (in this Section E.1.K(1) through (5)) will receive a STRONG rating in this criterion.
2.
3.
Following the evaluation process outlined in Section E.2, the Secretary will announce awarded projects by posting a list of selected RIA at
Performance under the cooperative agreement will be governed by and in compliance with the following requirements as applicable to the type of organization of the recipient and any applicable sub-recipients:
All awards will be administered pursuant to the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards found in 2 CFR part 200, as adopted by DOT at 2 CFR part 1201.
Other terms and condition as well as performance requirements will be addressed in the cooperative agreement with the recipient. The full terms and conditions of the resulting cooperative agreements may vary and are subject to discussions and negotiations.
In connection with any program or activity conducted with or benefiting from funds awarded under this notice, recipients of funds must comply with all applicable requirements of Federal law, including, without limitation, the Constitution of the United States, statutory, regulatory, and public policy requirements, including without limitation, those protecting free speech, religious liberty, public welfare, the environment, and prohibiting discrimination; the conditions of performance, non-discrimination requirements, and other assurances made applicable to the award of funds in accordance with regulations of the Department of Transportation; and applicable Federal financial assistance and contracting principles promulgated by the Office of Management and Budget. In complying with these requirements, recipients must ensure that no concession agreements are denied, or other contracting decisions made based on speech or other activities protected by the First Amendment. If the Bureau determines that a recipient has failed to comply with applicable Federal requirements, the Bureau may terminate the award of funds and disallow previously incurred costs, requiring the recipient to reimburse any expended award funds. Additionally, Executive Order 13858 directs the Executive Branch Departments and agencies to maximize the use of goods, products, and materials produced in the United States through the terms and conditions of Federal financial assistance awards. If selected for an award, grant recipients must be prepared to demonstrate how they will maximize the use of domestic goods, products, and materials, as applicable, in establishing and operating the RIA.
Each applicant selected for RIA grant funding must submit semi-annual progress reports as agreed to in the cooperative agreement to monitor RIA progress and ensure accountability and financial transparency in the RIA grant program.
Each applicant selected for RIA grant funding must collect and report to the Bureau information on the RIA's performance. The specific performance information and reporting period will be determined on an individual basis. It is anticipated that the Bureau and the grant recipient will hold monthly progress meetings or calls during which the Bureau will review project activities, schedule, and progress toward mutually agreed upon performance targets in the cooperative agreement. If the award is greater than $500,000 over the period of performance, applicants must adhere to the post award reporting requirements reflected in 2 CFR part 200 Appendix XII—Award Term and Condition for Recipient Integrity and Performance Matters.
If the total value of a selected applicant's currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then the applicant during that period of time must maintain the currency of information reported to the SAM that is made available in the designated integrity and performance system (currently FAPIIS) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available.
For further information concerning this notice please contact the Bureau via email at
1.
2.
3.
4.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of three individuals and two entities that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On December 22, 2021, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. AL-KHATIB, Ahmad (a.k.a. AL KHATIB, Ahmad; a.k.a. EL KHATIB, Ahmad), Sao Paulo, Brazil; DOB 03 Jul 1969; nationality Egypt; alt. nationality Lebanon; Gender Male; Tax ID No. 234.904.268-51 (Brazil) (individual) [SDGT].
Designated pursuant to section 1(a)(iii)(C) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, MOHAMED AHMED ELSAYED AHMED IBRAHIM, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
2. AL-MAGHRABI, Haytham Ahmad Shukri Ahmad (a.k.a. ELMAGHRABY, Haytham Ahmed S.A.; a.k.a. ELMAGHRABY, Haytham Ahmed Shokry Ahmed; a.k.a. ELMAGHRABY, Haytham Ahmed Shukri Ahmad), Brazil; DOB 07 Sep 1986; POB Egypt; nationality Egypt; Gender Male; Passport A09538178 (Egypt); Tax ID No. 238.624.338-97 (Brazil) (individual) [SDGT].
Designated pursuant to section 1(a)(iii)(C) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, AL-QA'IDA, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
3. AWADD, Mohamed Sherif Mohamed Mohamed (a.k.a. AWAAD, Mohamedsherif Mohamed Mohamed; a.k.a. AWAAD, Muhammad Sharif Muhammad Muhammad), Brazil; DOB 08 Jul 1973; nationality Egypt; alt. nationality Syria; Gender Male; Passport A17058452 (Egypt); Tax ID No. 713.286.841-13 (Brazil) (individual) [SDGT].
Designated pursuant to section 1(a)(iii)(C) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, MOHAMED AHMED ELSAYED AHMED IBRAHIM, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
1. ENTERPRISE COMERCIO DE MOVEIS E INTERMEDIACAO DE NEGOCIOS EIRELI (Latin: ENTERPRISE COMÉRCIO DE MOVEIS E INTERMEDIAÇÃO DE NEGOCIOS EIRELI) (a.k.a. “CASO E CASA”), Rua Ernesto Nazareth 18, Jardim Paraventi, Guarulhos, Sao Paulo 07120-230, Brazil; Rua Tapaciquara 54, Sala 01, Parque Renato Maia, Guarulhos, Sao Paulo 07114-220, Brazil; Organization Established Date 08 Oct 2019; Tax ID No. 35.116.112/0001-97 (Brazil) [SDGT] (Linked To: AL-KHATIB, Ahmad).
Designated pursuant to section 1(a)(iii)(A) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for being owned, controlled, or directed by, or to have acted or purported to act for or on behalf of, directly or indirectly, AHMAD AL-KHATIB, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
2. HOME ELEGANCE COMERCIO DE MOVEIS EIRELI (Latin: HOME ELEGANCE COMÉRCIO DE MOVEIS EIRELI) (a.k.a. DAIANA PORTELLA COELHO COMERCIO DE MOVEIS E COLCHOES; a.k.a. MARROCOS MOVEIS E COLCHOES; a.k.a. MOHAMED AWAAD COMERCIO DE MOVEIS EIRELI; a.k.a. “HOME ELEGANCE”), Rua Dorezopolis, 669, Casa 03, Jardim Santa Clara, Guarulhos, Sao Paulo 07123-120, Brazil; Organization Established Date 11 Oct 2018; Tax ID No. 31.746.200/0001-11 (Brazil) [SDGT] (Linked To: AWADD, Mohamed Sherif Mohamed Mohamed).
Designated pursuant to section 1(a)(iii)(A) of Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” 66 FR 49079, as amended by Executive Order 13886 of September 9, 2019, “Modernizing Sanctions To Combat Terrorism,” 84 FR 48041 (E.O. 13224, as amended), for being owned, controlled, or directed by, or to have acted or purported to act for or on behalf of, directly or indirectly, MOHAMED SHERIF MOHAMED MOHAMED AWADD, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning guidance on the distilled spirits credit.
Written comments should be received on or before March 7, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or to
Requests for additional information or copies of the form should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, Treasury.
Notice.
For the period beginning January 1, 2022, and ending on March 31, 2022, the U.S. Immigration and Customs Enforcement Immigration Bond interest rate is .06 per centum per annum.
Rates are applicable January 1, 2022 to March 31, 2022.
Comments or inquiries may be mailed to Will Walcutt, Supervisor, Funds Management Branch, Funds Management Division, Fiscal Accounting, Bureau of the Fiscal Services, Parkersburg, West Virginia 26106-1328.
You can download this notice at the following internet addresses: <
Ryan Hanna, Manager, Funds Management Branch, Funds Management Division, Fiscal Accounting, Bureau of the Fiscal Service, Parkersburg, West Virginia 261006-1328 (304) 480-5120; Will Walcutt, Supervisor, Funds Management Branch, Funds Management Division, Fiscal Accounting, Bureau of the Fiscal Services, Parkersburg, West Virginia 26106-1328, (304) 480-5117.
Federal law requires that interest payments on cash deposited to secure immigration bonds shall be “at a rate determined by the Secretary of the Treasury, except that in no case shall the interest rate exceed 3 per centum per annum.” 8 U.S.C. 1363(a). Related Federal regulations state that “Interest on cash deposited to secure immigration bonds will be at the rate as determined by the Secretary of the Treasury, but in no case will exceed 3 per centum per annum or be less than zero.” 8 CFR 293.2. Treasury has determined that interest on the bonds will vary quarterly and will accrue during each calendar quarter at a rate equal to the lesser of the average of the bond equivalent rates on 91-day Treasury bills auctioned during the preceding calendar quarter, or 3 per centum per annum, but in no case less than zero. [80 FR 45018]. In addition to this Notice, Treasury posts the current quarterly rate in Table 2b—Interest Rates for Specific Legislation on the TreasuryDirect website.
The Deputy Assistant Secretary for Public Finance, Gary Grippo, having reviewed and approved this document, is delegating the authority to electronically sign this document to Heidi Cohen, Federal Register Liaison for the Department, for purposes of publication in the
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing pricing for the 2022 Negro Leagues Baseball and Purple Heart Hall of Honor Commemorative Coin Programs as shown below in
Ann Bailey; Sr. Program Manager for Sales and Marketing; United States Mint; 801 9th Street NW, Washington, DC 20220; or call 202-354-7500.
Products containing gold coins will be priced according to the Pricing of Numismatic and Commemorative Gold and Platinum Products Grid posted at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. app.2, that the Research Advisory Committee on Gulf War Veterans' Illnesses (RAC-GWVI) will meet by teleconference on January 27, 2022. The open session will convene at 11:00 a.m. (EST) and end at 4:00 p.m. (EST). The open session will be available to the public by connecting to: Webex URL:
The purpose of the Committee is to provide advice and make recommendations to the Secretary of Veterans Affairs on proposed research studies, research plans, and research strategies relating to the health consequences of military service in the Southwest Asia Theater of operations during the Gulf War in 1990-1991.
The Committee will review VA program activities related to Gulf War Veterans' illnesses and updates on relevant scientific research published since the last Committee meeting. This meeting will focus on the effects of environmental and military exposures on genetics, epigenetics and Gulf War Veteran health. Public comment will be open starting at 3:30 p.m. (EST).
The meeting will include time reserved for public comments 30 minutes before the meeting closes. Individuals who wish to address the Committee may submit a 1-2 page summary of their comments for inclusion in the official meeting record. Members of the public may submit written statements for the Committee's review or seek additional information by contacting Dr. Karen Block, Designated Federal Officer, at 202-443-5600, or at
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Written comments and recommendations for the proposed Reinstatement of a Previously Approved Information Collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to South Fork Wind, LLC (South Fork Wind) to take, by Level A harassment and Level B harassment, marine mammals during construction of a commercial wind energy project offshore New York, Rhode Island, and Massachusetts.
This IHA is valid from November 15, 2022 through November 14, 2023.
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.
On March 15, 2019, NMFS received a request from South Fork Wind for an IHA to take marine mammals incidental to construction of an wind energy project offshore of New York, Rhode Island, and Massachusetts. 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 submitted a subsequent application due to changes to the project scope. NMFS deemed the application adequate and complete on December 16, 2020. A notice of the proposed IHA was published in the
South Fork Wind plans to construct a 90-180 megawatt (MW) commercial offshore wind energy project in the South Fork Wind Farm (SFWF) Lease Area OCS-A 0517 (SFWF; Figure 1 here, and see Figure 1 in the IHA application for more detail), southeast of Rhode Island within the Rhode Island-Massachusetts Wind Energy Area (RI/MA WEA), including an export cable corridor connecting the SFWF to one of two landing locations on Long Island, New York. The project would consist of the installation of up to 15 offshore wind turbine generators (WTGs) and one offshore substation (OSS), an onshore substation, offshore and onshore cabling, and onshore operations and maintenance facilities (Figure 1). Each WTG would interconnect with the OSS via an inter-array submarine cable system. The offshore export cable transmission system would connect the OSS to an existing mainland electric grid in East Hampton, New York. A temporary sheet pile cofferdam may be installed where the offshore export cable conduit exits from the seabed to contain drilling returns and prevent the excavated sediments from silting back into the Horizontal Directional Drill (HDD) exit pit. The final location of the cofferdam will be dependent upon the selected cable landing site. Alternatively, a temporary casing pipe may be used in place of the cofferdam at the same location.
Take of marine mammals may occur incidental to the construction of the project due to in-water noise exposure resulting from (1) impact pile-driving activities associated with installation of WTG and OSS foundations, (2) vibratory pile driving associated with the installation and removal of a temporary cofferdam nearshore, or impact hammering and vibratory pile driving associated with installation of a casing pipe, and (3) surveys, using high-resolution geophysical (HRG) equipment, of the inter-array cable and export cable construction area (construction surveys).
South Fork Wind plans to install the WTGs and OSS in the 55.4 square kilometer (km
Since publication of the proposed IHA, South Fork Wind communicated to NMFS that construction of the project, beginning with the nearshore cofferdam or casing pipe, is now planned to commence in November 2022, rather than between April and May 2022 (as indicated in the proposed IHA). Either the temporary cofferdam or casing pile and support piles may be installed for the sea-to-shore cable connection and, if required, would likely be installed between November 2022 and May 2023 (removal could occur anytime through the expiration of the IHA). If used, installation and removal of the cofferdam are each expected to take 18 hours of vibratory pile driving. Alternatively, installation and removal of the casing pipe and support piles are each expected to take approximately four hours.
Up to 16 days of impact pile driving to install the WTGs and OSS may occur on any day between May 1, 2023 and November 14, 2023. The monopiles supporting the WTGs and OSS (the maximum number would be 16 to correspond to 1 OSS and the maximum of 15 WTGs) will be installed between May 1, 2023, and November 14, 2023. For monopile installation, a typical pile-driving operation is expected to take approximately 2-4 hours to achieve the target penetration depth. No more than one monopile could potentially be driven into the seabed per day. Accordingly, concurrent driving (
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 in the seabed at a target depth of up to 1.2-2.8 m (4-6 ft). Installation of the offshore export cable is anticipated to take 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 downtime 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-array 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 seafloor 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
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. Although South Fork Wind estimates that 20 one-way transits between the SFWF and port(s) will be required per month, the actual number of vessels involved in the project at one time will be 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 somewhat habituated to vessel noise. In addition, construction vessels would be stationary on site for significant periods 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 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 authorize, any takes associated with construction-related vessel activity. Accordingly, these activities are not discussed further in this document.
A monopile, the only type of foundation that will be installed, is a single, hollow cylinder fabricated from steel that is secured in the seabed. The monopiles installed would support up to 15 WTGs and single OSS, and would be 11 m (36 ft) in diameter, up to 95 m (312 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:
All monopiles would be installed with a hydraulic 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 seafloor. The gripper frame would stabilize the monopile's vertical alignment before and during piling. Once the monopile is lowered to the seafloor, 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 Mitigation section below, South Fork Wind would utilize a single big bubble curtain (BBC) paired with an additional noise mitigation device, or a double big bubble curtain (dBBC) during all impact pile driving of monopiles.
The intensity (
Before cable-laying HDD begins, a temporary cofferdam could 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 driven into the seabed 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 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 piles), a vibratory hammer would 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 would be
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 is 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 hours (18 hours for installation, 18 hours for removal).
The source levels and source characteristics associated with vibratory pile driving would generally be similar to those produced through other concurrent use of South Fork Wind's vessels and related construction equipment. Any elevated noise levels produced through vibratory pile 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.
The temporary casing pipe could be installed at the currently planned exit pit location. The casing pipe would be driven into the seabed at the approach angle of the HDD, and would extend from the seabed up through the water column to the sea surface where a work vessel would be able to access the open end of the pipe. The casing pipe may require that temporary support piles be installed to ensure pipe stability. Temporary support piles would consist of up to 8 steel sheet piles temporarily driven into the seabed using a vibratory pile driver. It is anticipated that the casing pipe would consist of a steel pipe pile, approximately 48- to 60-inch diameter and approximately 300 feet in length; installation would likely be accomplished using a small pneumatic impact hammer (
The construction surveys would be supported by up to four vessels working concurrently throughout the project area. Construction surveys would occur throughout the 12-month period of effectiveness for the IHA. HRG survey equipment would 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 (kts) (7.4 km) per hour.
Table 2 identifies all the representative HRG survey equipment that operates below 180 kilohertz (kHz) (
A detailed description of South Fork Wind's planned construction activities is provided in the notice of the proposed IHA (86 FR 8490; February 5, 2021). Since that time, South Fork Wind has not proposed any changes to its construction activities through the IHA process, other than the casing pipe alternative to installation of a temporary cofferdam at the exit pit location of the export cable (as described above and below). Therefore, a detailed description is not provided here. Please refer to that notice for the detailed description of the specified activity. Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting below). Modifications and additions to the mitigation and monitoring measures have occurred since the proposed IHA was published. All changes since the proposed IHA have been summarized in the Changes from Proposed IHA to Final IHA section and described in detail in their respective sections and/or the comment responses below.
NMFS agrees that there can generally be utility in comparing the results of analogous models, but the
The Commission seeks clarity regarding the models used by JASCO. The force at the top of each monopile, associated with the typical hammers, was computed using the GRLWEAP 2010 wave equation model (GRLWEAP, Pile Dynamics 2010), which produced forcing functions. The source signatures of each monopile were predicted using the TDFD PDSM to compute the monopile vibrations caused by hammer impact. To accurately calculate propagation metrics of an impulsive sound, a time-domain representation of the pressure wave in the water was used. To model the sound waves associated with the monopile vibration in an acoustic propagation model, the monopiles are represented as vertical arrays of discrete point sources. The discrete sources are distributed throughout the length of the monopile below the sea surface and into the sediment with vertical separation of 3 m. The length of the acoustic source is adjusted for the site-specific water depth and penetration at each energy level, and the section length of the monopile within the sediment is based on the monopile hammering schedule (Table 6). Pressure signatures for the point sources are computed from the particle velocity at the monopile wall up to a maximum frequency of 2,048 Hz. This frequency range is suitable because most of the sound energy generated by impact hammering of the monopiles is below 1 kHz.
As mentioned above, to calculate predicted propagation of sounds produced during impact pile driving of monopiles below 2 kHz, JASCO used it's FWRAM, which is an acoustic model based on the wide-angle parabolic equation (PE) algorithm (Collins 1993). FWRAM computes synthetic pressure waveforms versus range and depth for range-varying marine acoustic environments. It takes environmental inputs (
The acoustic source signature of vibratory driving of sheet piles was modeled following the same steps used to model impact pile driving of monopiles. The forcing function was modeled for a single cycle of the vibrating hammer using the GRLWEAP 2010 wave equation model (Pile Dynamics 2010). The TDFD PDSM model was used to compute the resulting sheet pile vibrations from the stress wave that propagates down the sheet pile. The radiated sound waves were modeled as discrete point sources over the 18 m (60 ft) of the sheet pile in the water and sediment (9 m [30 ft] water depth, 9 m [30 ft] penetration) with a vertical separation of 10 cm. Sound propagation of the discrete point sources was predicted with JASCO's Marine Operations Noise Model (MONM). MONM computes received sound energy, the SEL, for directional sources. MONM uses a wide-angle parabolic equation solution to the acoustic wave equation (Collins 1993) based on a version of the U.S. Naval Research Laboratory's Range-dependent Acoustic Model (RAM). Similar to FWRAM and BELLHOP, MONM incorporates site-specific environmental properties. MONM treats frequency dependence by computing acoustic transmission loss at the center frequencies of 1/3-octave-bands. At each center frequency, the transmission loss is modeled as a function of depth and range from the source. Composite broadband received SELs are then computed by summing the received 1/3-octave-band levels across the modeled frequency range.
The accuracy of JASCO's TDFD PDSM has been verified by comparing its output against benchmark scenarios (Lippert
The Commission suggests that South Fork Wind's use of an impact hammer with 7.3 times more energy intensity than the impact hammer used for CVOW (4,000 kJ versus 550 kJ) spread over a 1.4 times larger circumference than the pile size used in CVOW, would result in approximately five-fold (or 7 dB) higher sound energy level than was determined for CVOW. Based on DCSM, a 7-dB difference in source levels, the measured Level B harassment zone of more than 3,800 m at Dominion, and environmental conditions for Dominion, the Commission claims that the measured Level B harassment zone would increase by 81 percent, resulting in a Level B harassment zone of approximately 6,890 m based on the increased hammer energies and pile size. Further, the Commission suggests using DCSM to relate this range to the Level B harassment isopleth to the acoustic propagation conditions in the South Fork Wind project area, which the Commission states would result in a Level B harassment zone of more than 9,600 m for the South Fork Wind project.
Regarding the Commission's estimates of zone sizes using the DCSM, these are approximations but, in general, NMFS agrees with the logic presented by the Commission, if one were to use that model. However, as described above, JASCO's predictions are for the expected (median) SPL, while the predictions for CVOW use the maximum measured SPL values. If a 7-dB difference in source level is expected with the larger hammer and larger pile (compared to CVOW) South Fork Wind plans to use, it should be noted that there is an approximately 5-dB difference between the measured maximum SPL and the 50th percentile SPL for the CVOW project, so JASCO's approximately 20-percent increase in the range to the Level B harassment isopleth (relative to the range measured for the CVOW project) seems reasonable for a source level difference of 2 dB. It should also be noted that there is greater than 5-dB difference in the levels measured at closest location to the pile reported for the CVOW projects, indicating that concepts like source level do not really apply to distributed sources and that propagation may not be captured well with simple models like DCSM.
Given that South Fork Wind already conservatively requested (and NMFS proposed to authorize) 3 Level B harassment takes of sperm whales (or one group size; Barkaski and Kelly, 2018) despite animal exposure modeling resulting in zero Level B harassment takes of sperm whales, NMFS determined that no further increases in authorized take are warranted.
Upon further review of scientific literature, NMFS updated the reference for average group size for long-finned pilot whales (n=20; CETAP 1982) and increased authorized take by Level B harassment from 12 to 20 (Table 18). Atlantic spotted dolphins were sighted on two occasions (approximately 20 individuals total; average group size of 10) during recent monitoring efforts near the South Fork Wind project area conducted over a 7-month period and covering over 11,000 km of survey trackline (Smultea Sciences, 2020). Similar monitoring efforts within the South Fork Wind project area covering 9,597 km from June through September 2020 detected zero Atlantic spotted dolphins (Gardline 2021). Barkaski and Kelly (2018) report an average group size of 13 for Atlantic spotted dolphins, which is similar to the average group size based on sighting data near the South Fork Wind project area (10; CSA 2021). To account for group size, NMFS has conservatively increased take, by Level B harassment, of Atlantic spotted dolphins from 2 to 13 (Table 18).
NMFS does not agree that take, by Level A harassment, of blue whales should be increased. Rather, upon further review, and based on the lack of blue whale sightings during previous monitoring efforts within and near the South Fork Wind project area (Smultea Sciences, 2020; Gardline 2021), NMFS has determined that any take, by Level A harassment or Level B harassment, of blue whales resulting from the project's construction activities is
South Fork Wind requested, and NMFS proposed to authorize, one take, by Level A harassment, and 6 takes, by Level B harassment, of fin whales incidental to impact pile driving. The Level A harassment zone, assuming 10-dB attenuation, is 1,769 m for fin whales. Given that the shutdown zone for fin whales (2,000 m) is larger than the Level A harassment zone (1,769 m), and the relatively small number of monopiles planned for installation, NMFS has determined that no increases in take, by Level A harassment or Level B harassment, of fin whales incidental monopile installation, are warranted.
Because the Level A harassment zone for humpback whales (3,642 m, assuming 10-dB attenuation) is larger than the 2,000-m shutdown zone, South Fork Wind requested and NMFS proposed to authorize, 4 takes, by Level A harassment, of humpback whales in addition to 8 takes, by Level B harassment. NMFS has determined that, due to the relatively small number of monopiles planned for installation, 4 takes by Level A harassment and 8 takes by Level B harassment are appropriate for authorization.
Upon further review of scientific literature (DoN 2017; Smultea Sciences, 2020; CSA 2921; AMAPPS 2021), NMFS has conservatively selected the largest group size reported among references for common (35; AMAPPS 2021) and bottlenose (21.6; AMAPPS 2021) dolphins to incorporate into increases of take, by Level B harassment, for each species. The group size for each species was multiplied by the number of days on which impact pile driving of monopiles may occur (16), resulting in 560 common dolphin and 346 bottlenose dolphin takes, by Level B harassment.
(1) Omission of shutdown, Level A harassment, and Level B harassment zones in Table 2 of the proposed IHA;
(2) Lack of alignment of mitigation and monitoring measures between the
(3) Need to clarify that the 5,000-m clearance and 2,000-m acoustic shutdown zones for North Atlantic right whales (NARWs) will minimize the potential for Level A harassment, but not necessarily Level B harassment (as stated in the notice of the proposed IHA).
NMFS agrees with the Commission that ambient noise spectra should be reported and that visibility metrics are not a necessary reporting requirement, and has included these changes in the final IHA. However, despite the Commission's suggestion, NMFS supports collection of ambient sound measurements (as proposed by South Fork Wind), as these data contribute to the overall soundscape characterization within the WEA and provide context for detections of marine mammals during construction activities. NMFS has included this requirement in the final IHA.
As described in responses to comments 1 and 3, a majority of the Commission's comments were centered around the recommendation to use a different, but not necessarily more accurate, acoustic model (
The ENGOs suggested that NMFS should also require a 5,000-m shutdown zone during monopile installation if other endangered species (
If any large whale (including NARWs) enters the Level B harassment zone undetected or if visibility conditions limit visual monitoring to the minimum visibility zone, it is possible that individuals might be exposed to impact pile-driving noise sufficient to cause behavioral effects rising to the level of take under the MMPA. NMFS expects those effects would be temporary in nature and unlikely to cause any perceptible longer-term consequences to individuals or populations.
While NMFS analyzed Level A harassment exposures as requested by South Fork Wind and authorized them as appropriate, NMFS finds that such exposures are unlikely given (1) the short duration of monopile installation (2-4 hours), (2) the fact that authorized take numbers do not account for mitigation measures, and (3) the potential for a whale's averse behavior in response to impact pile driving. Level B harassment of some smaller number of individuals as a subset of the 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. Accordingly, NMFS does not find it warranted to require shutdown if a fin, sei, humpback, or minke whale is detected between 2,000 m and 5,000 m of the pile.
PSOs on board the pile-driving and dedicated PSO vessels will coordinate to the extent practicable to visually cover discrete zones while monitoring. The dedicated PSO vessel will travel at a maximum speed of 10 kts, allowing it to make a complete trip around the piling vessel at a distance of 2.2 km in one hour or less. The use of a real-time data collection platform, including the software program Mysticetus, will allow PSOs on the pile-driving vessel to see detections made by PSOs on the dedicated PSO vessel, and vice versa.
Accordingly, NMFS has determined that the Roberts
NMFS invests heavily in conserving NARWs and, in analyzing the impacts to NARWs from project construction, has considered and leveraged the wealth of data collected by NOAA and partners to make appropriately conservative management decisions in consideration of our statutory authority under the MMPA. NMFS has applied the best available (and most recent) science and has made the determinations necessary to issue this IHA.
For future IHAs, NMFS will continue to review other recommended data sources that become available to evaluate their applicability in a quantitative sense (
The potential impacts of overall increases in the amount of vessel traffic related to OSW development, which is separate from the analysis of the potential for vessel strike during South Fork Wind's construction phase under the final authorization, were addressed in BOEM's EIS for the South Fork Wind project, which can be found here:
As described above, South Fork Wind estimates that 20 crew transfer vessel transits per month will be required. While some individual marine mammals may exhibit short-term behavioral responses, and given the possibility that elevated background noise from vessels and other sources could interfere with the detection or interpretation of acoustic cues among NARW conspecifics, brief exposures to one or two South Fork Wind vessels transporting crew between the Lease Area and a nearby port would be unlikely to disrupt behavioral patterns in a manner that would rise to the level of take.
With respect to the recommendation that NMFS advance programmatic incidental take regulations for offshore wind development that take into account risks from other sectors, NMFS may issue regulations upon request. To date, neither the offshore wind industry nor BOEM has expressed interest in applying for such regulations. We note that the footnote the ENGOs provided in the letter including this comment cites the request to BOEM for a programmatic EIS. Again, it appears the ENGOs are conflating the NEPA and MMPA processes. NMFS does agree with the ENGOs that consistency in mitigation measures, where appropriate, provides efficiencies and helps to ensure adequate measures are being prescribed. To this end, NMFS is working on developing best management practice guidelines that will assist NMFS in developing mitigation measures common to all offshore wind IHAs.
In addition to the IHA renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress' intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for renewals in the regulations, description of the process and express invitation to comment on specific potential renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through
BOEM (2021a) reviewed underwater noise levels produced by the available types of HRG survey equipment as part of a programmatic biological assessment for this and other activities associated
It is unclear why RODA would be concerned that impacts would be “inadvertently assigned” to fishermen. Fishing impacts generally center on entanglement in fishing gear, which is a very acute, visible, and severe impact. In contrast, the pathway by which impacts occur incidental to construction is primarily acoustic in nature. Regardless, any take beyond that authorized is unlawful. If the authorized takes were exceeded, but the project could proceed without additional take of marine mammals, it would be lawful. It is BOEM's responsibility as the permitting agency to make decisions regarding ceasing the project. If the case suggested by RODA does occur, NMFS would work with BOEM and South Fork Wind to determine the most appropriate means by which to ensure compliance with the MMPA.
Because sea turtles are not marine mammals, no protections are afforded to them under the MMPA. However, we refer the commenter to NMFS' Biological Opinion, issued October 1, 2021. The Biological Opinion, issued pursuant to the ESA, contains an analysis on the impacts to ESA-listed fish and all sea turtles (as all sea turtle species are listed as endangered or threatened under the ESA). Impacts to non-listed fishes may be found in BOEM's Final EIS for the project, issued August 20, 2021, and found here:
In the final IHA, NMFS Office of Protected Resources (OPR) adopted the Terms and Conditions of the October 2021 Biological Opinion for the South Fork Offshore Energy Project, the August 2021 Programmatic Consultation on marine site assessment surveys, and made other modifications as a result of public input on the proposed IHA, which resulted in changes to mitigation and monitoring measures from proposed to final IHA. NMFS provides a summary here, and the changes are also described in the specific applicable sections below (
Please note that since publication of the notice of the proposed IHA, NMFS has changed terminology from exclusion zone to shutdown zone to clarify the mitigation action to be taken when a marine mammal enters this zone. In addition, in order to distinguish surveys using HRG equipment to obtain a baseline assessment of seabed, ecological, and archeological conditions within the footprint of future offshore wind development (marine site characterization) from those surveys planned under this IHA (also using HRG equipment) to assess the inter-array and export cables throughout construction of the SFWF and SFEC, NMFS has changed terminology from HRG surveys to construction surveys.
Since publication of the proposed IHA, South Fork Wind communicated to NMFS that construction activities will not commence until November 2022, rather than between April and May 2022 (as indicated in the proposed IHA). Therefore, the period of effectiveness of the IHA is November 15, 2022 to November 14, 2023.
In addition to the seasonal restriction on impact pile driving of monopiles from January 1 through April 30 included in the proposed IHA, the final IHA specifies that impact pile driving of monopiles must not occur in December unless an unanticipated delay due to weather or technical problems, notified to and approved by BOEM, arises that necessitates extending impact pile driving of monopiles through December.
After further consideration, NMFS modified several zone sizes associated with monitoring and mitigation measures to provide additional protection for NARWs. The final IHA includes the condition that any large whale visually observed by a PSO within 2,000 m, or as modified based on SFV measurements, of the impact pile-driving vessel that cannot be identified to species must be treated as if it were a NARW for clearance and shutdown purposes. The distance has been increased from 1,000 m (included in the proposed IHA) to 2,000 m to align with the large whale shutdown zone. Similarly, the distance within which PSOs must treat an unspecified large whale as a NARW during vibratory pile driving has been increased from 1,000 m to 1,500 m for the same reason. In the final IHA, NMFS has defined the minimum visibility zone, or the area over which PSOs must be able to clearly observe marine mammals to begin the clearance process, as 2.2 km. In addition, NMFS has clarified that the 2.2 km large whale clearance zone included in the notice of proposed IHA (Table 24) is the minimum
Since publication of the proposed IHA, South Fork Wind communicated to NMFS that the PAM system will be designed such that the PAM PSO will be capable of reviewing acoustic detections within 5 minutes of the original detection, rather than 15 minutes (as indicated in the proposed IHA), to determine if a NARW was detected. This reduced evaluation time provides improved support for near real-time mitigation actions, should they be required. While the proposed IHA required a PAM PSO to have 75-percent confidence that a vocalization originated from a NARW to call for a delay or shutdown of impact pile driving of monopiles, the final IHA only requires that a PAM PSO categorize a call as having a probable (or greater) likelihood of originating from a NARW (scale: No, possible, probable, yes). In addition, South Fork Wind is required to communicate detections of all marine mammals detected at any distance (
The final IHA includes several additional vessel strike avoidance measures to provide enhanced protection for NARWs. South Fork Wind must use available sources of information on NARW presence, including (1) daily monitoring of the Right Whale Sightings Advisory System, (2) consulting the WhaleAlert app, and (3) monitoring of Coast Guard VHF
South Fork Wind is required to implement a noise mitigation system to reduce noise during impact pile driving of monopiles such that the measured ranges to Level A harassment and Level B harassment isopleths are equal to or less than those predicted by acoustic modeling, assuming 10-dB attenuation. The proposed IHA included the use of a single BBC, while the final IHA specifies that South Fork Wind must use (at a minimum) a single BBC coupled with an additional noise mitigation device, or a dBBC.
The final IHA requires verification of the Level A harassment and Level B harassment zones through sound field verification (SFV), whereas the proposed IHA only required verification of the Level B harassment zone. Additionally, the final IHA now specifies that NMFS may expand the relevant clearance and shutdown zones in the event that field measurements indicate ranges to Level A harassment and Level B harassment isopleths are consistently greater than the ranges predicted by modeling, assuming 10-dB attenuation (see
There are several additional planning and reporting requirements included in the final IHA. Specifically, NMFS is requiring that South Fork Wind prepare and submit Pile Driving and Marine Mammal Monitoring Plans to NMFS for review and approval at least 90 days before the start of any pile driving. The plans must include final project design related to all pile driving (
When reporting the results of SFV, South Fork Wind must include (in addition to the information that was included as a requirement in the proposed IHA) the bandwidth, hydrophone sensitivity, a description of the depth and sediment type at the recording
If a NARW is detected via PAM, the date, time, location of the detection, and the recording platform must be reported to NMFS as soon as feasible but no longer than 24 hours after the detection. Full detection data and metadata must be submitted on the 15th of every month for the previous month. Prior to initiation of the project activities, South Fork Wind must demonstrate in a report submitted to NMFS (
From the proposed IHA to the final IHA, NMFS modified the take number for blue whales. The proposed IHA allocated one take, by Level B harassment, of a blue whale incidental to impact pile driving of monopiles, even though animal exposure modeling resulted in zero blue whale exposures (by Level A harassment or Level B harassment). However, after further examination, NMFS has determined that the potential for even Level B harassment of this species is
Per the Commission's recommendation, NMFS has modified take, by Level B harassment, incidental to impact pile driving of monopiles for long-finned pilot whales, Atlantic spotted dolphins, common dolphins, and bottlenose dolphins. The take numbers, by Level B harassment, included in the proposed IHA for these species were those requested by South Fork Wind in the IHA application. Upon further review of scientific literature (DoN 2017; Smultea Sciences, 2020; CSA 2921; AMAPPS 2021), NMFS updated the reference for average group size for each species and conservatively selected the largest average group size for each species reported among references as the basis for increasing take numbers from the proposed to the final IHA. NMFS selected the group size reported for long-finned pilot whales (n=20) in CETAP (1982) and increased take, by Level B harassment, from 12 (included in the proposed IHA) to 20 (Table 18). Barkaski and Kelly (2018) report an average group size of 13 for Atlantic spotted dolphins, which is similar to the average group size based on sighting data within and near the SFWF and SFEC (Smultea Sciences, 2020). To account for group size, NMFS conservatively increased take, by Level B harassment, of Atlantic spotted dolphins from 2 to 13 (Table 18). To account for the frequent occurrence of common dolphins and bottlenose dolphins in the project area, NMFS increased take, by Level B harassment, by multiplying the largest group size (common dolphins (35), bottlenose dolphins (21.6); AMAPPS 2021) by the maximum number of days on which monopile installation might occur (n=16), resulting in 560 common dolphin takes and 346 bottlenose dolphins takes. Given the large size of the Level B harassment zone for vibratory pile driving (approximately 36 km), NMFS agreed with the Commission's recommendation to modify take, by Level B harassment, of humpback whales, as well as common dolphins and Atlantic white-sided dolphins. NMFS based take increases on the largest estimated group sizes for each species using the best available science (DoN 2017; Smultea Sciences, 2020; CSA 2921; AMAPPS 2021). For humpback whales and common dolphins, the largest estimated group sizes (humpback whales (1.6), common dolphins (35); AMAPPS (2021)) were multiplied by the number of days over which vibratory pile driving might occur (18 hours over 3 days for installation, 18 hours over 3 days for removal, total = 6 days). This approach resulted in the following increases in takes, by Level B harassment, from the proposed IHA to the final IHA: Humpback whales (from 1 to 9.6, rounded to 10) and common dolphins (from 4 to 210). Animal exposure modeling predicted one take, by Level B harassment, of an Atlantic white-sided dolphin incidental to vibratory pile driving, although sightings of this species are uncommon in the project area. However, NMFS has conservatively authorized 50 takes (or the equivalent of the largest seasonal group size, reported for summer; AMAPPS 2021), by Level B harassment, of Atlantic white-sided dolphins. As described in the Comments and Responses section, the Commission also recommended increasing take, by Level B harassment, of fin and sei whales incidental to vibratory pile driving. Exposure modeling resulted in exposures for each of 10 months (October-May; Table 19) for all species potentially impacted by vibratory pile driving. Of the remaining months, fin whale exposure estimates were zero (November-February) and one (in both March and May). The proposed take estimate was already conservatively based on the month with the highest number of modeled exposures (April; n=2), and sightings of fin whales are less frequent along the ECR and nearshore HDD site as compared to in/near the Lease Area (
After review of the scientific literature, NMFS has increased take of long-finned pilot whales, by Level B harassment, incidental to construction surveys from 4 (proposed) to 20 (authorized) based on the largest estimated group size (CETAP 1982).
Since publication of the proposed IHA, South Fork Wind proposed the installation of a temporary casing pipe using a small pneumatic impact hammer at the horizontal directional drilling (HDD) exit pit location for the SFEC as an alternative to the previously assessed sheet pile cofferdam at the same location. The cofferdam, but not the casing pipe alternative, was considered in the acoustic impact analysis performed by JASCO in support of the South Fork Wind Construction Operation Plan (COP) (Denes
In addition to the changes described above, NMFS has also (1) revised tables in the
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 project area and that are included in Table 16 of the IHA application. However, the temporal and/or spatial occurrence of 21 of these species is such that take is not expected to occur or authorized, 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 their more likely occurrence in habitat that is outside the SFWF and SFEC, based on the best available information: The blue 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 WEAs. As mentioned previously, 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 (MARUs; a type of static PAM recorder) were deployed at nine sites in the MA and RI/MA WEAs. The goal of
NMFS expects that the 15 species listed in Table 3 will potentially occur in the project area and may, therefore, be taken as a result of the project. Table 3 summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, NMFS follows the Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR is included here as a gross indicator of the status of the species and other threats. Four marine mammal species that are listed under the Endangered Species Act (ESA) may be present in the project area and may be taken incidental to the planned activity: The NARW, fin whale, sei whale, and sperm whale.
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, which can be found in the NMFS' 2021 Draft SARs (Hayes
A detailed description of the species for which take has been authorized, including brief introductions to the relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
As described in the proposed IHA notice, beginning in 2017, elevated mortalities in the NARW population have been documented, primarily in Canada but also in the U.S., and were collectively declared an Unusual Mortality Event (UME). As of December 2021, 34 NARWs have been confirmed dead and an additional 16 have been determined to be seriously injured. Entanglement and vessel strikes are the primary causes of M/SI.
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To assess the potential effects of exposure to sound appropriately, it is necessary to understand the frequency ranges marine mammals are able to hear. 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. Fifteen marine mammal species (13 cetacean and 2 pinniped (both phocid species); Table 3) have the reasonable potential to co-occur with South Fork Wind's construction activities. Of the cetacean species that may be present, five are classified as low-frequency cetaceans (
The effects of underwater noise from South Fork Wind's construction activities have the potential to result in harassment of marine mammals in the vicinity of the project area. The notice of proposed IHA (86 FR 8490; February 5, 2021) included a discussion of the effects of anthropogenic noise on marine mammals, and the potential effects of underwater noise from South Fork Wind's construction activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; for more details, please refer to the notice of proposed IHA (86 FR 8490; February 5, 2021).
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination. As noted in the summary of Changes from Proposed IHA to Final IHA, changes have been made to the number of takes for the given species incidental to: Impact pile driving of monopiles (blue whales, pilot whales, Atlantic spotted dolphins, common dolphins, and bottlenose dolphins); vibratory pile driving (humpback whales, common dolphins, white-sided dolphins); and construction surveys (pilot whales). Detailed descriptions are provided in the Comments and Responses and Changes from Proposed IHA to Final IHA sections, and below.
Harassment is the only type of take expected to result from South Fork Wind's construction 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 take would primarily be by Level B harassment, as noise from impact and vibratory pile driving and construction surveys has the potential to result in disruption of behavioral patterns for individual marine mammals, either directly or as a result of masking or temporary hearing impairment (also referred to as temporary threshold shift (TTS), as described in the notice of proposed IHA (86 FR 8490, February 5, 2021)). There is also some potential for auditory injury (Level A harassment) to result for select marine mammals. Mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. No serious injury or mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
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 activities 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 plans install up to 15 WTGs and one OSS in the SFWF (
The two piling scenarios were modeled separately to conservatively assess the potential impacts of each. The two scenarios modeled were:
(1) The “maximum design” consisting of 15 piles requiring ~4,500 strikes per pile (per 24 hours), and one difficult-to-drive pile requiring ~8,000 strikes (per 24 hours)
(2) The “standard design” consisting of 16 piles requiring ~4,500 strike per pile (per 24 hours).
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 penetration across the sites would vary, this value was chosen as a reasonable maximum 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.
• Impact pile driver: IHC S-4000 (4000 kilojoules (kJ) rated energy; 1977 kilonewtons (kN) ram weight).
• Helmet weight: 3234 kN.
As described in the Comments and Responses section, sound fields produced during monopile installation were estimated by first computing the force at the top of each pile associated with typical hammers using the GRLWEAP 2010 wave equation model (GRLWEAP, Pile Dynamics 2010), which produced forcing functions. The source signatures of each monopile were predicted using the TDFD PDSM to compute the monopile vibrations caused by hammer impact. To accurately calculate propagation metrics of an impulsive sound, a time-domain representation of the pressure wave in the water was used. To model the sound waves associated with the monopile vibration in an acoustic propagation model, the monopiles are represented as vertical arrays of discrete point sources. The discrete sources are distributed throughout the length of the monopile below the sea surface and into the sediment with vertical separation of 3 m. The length of the acoustic source is adjusted for the site-specific water depth and penetration at each energy level, and the section length of the monopile within the sediment is based on the monopile hammering schedule (Table 6). Pressure signatures for the point sources are computed from the particle velocity at the monopile wall up to a maximum frequency of 2,048 Hz. This frequency range is suitable because most of the sound energy generated by impact hammering of the monopiles is below 1 kHz.
As described previously, to calculate predicted propagation of sounds produced during impact pile driving of monopiles below 2 kHz, JASCO used it's FWRAM, which is an acoustic model based on the wide-angle parabolic equation (PE) algorithm (Collins 1993). FWRAM computes synthetic pressure waveforms versus range and depth for range-varying marine acoustic environments. It takes environmental inputs (
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 were 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 impact pile-driving scenarios (“maximum” and “standard”) is below 1000 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. Bubble curtains, one type of noise mitigation technology, 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 to attenuate lower frequencies. There are a variety of bubble curtain systems, confined or unconfined, and some with encapsulated bubbles or panels. Attenuation levels also vary by type of system, frequency band, and location. Small bubble curtains have been shown 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. Those with larger bubbles tend to perform a bit better and more reliably, particularly when deployed with two separate rings (
Encapsulated bubble systems (
The 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 isopleths, with 0, 6 10, 12, and 15-dB sound attenuation incorporated. For the peak level, the greatest ranges expected within a given hearing group are shown, typically occurring at the highest hammer energy (Table 7). The SEL
Table 9 shows the acoustic ranges to the Level B harassment isopleth 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 ranges shown in Table 8 are the mean ranges to the Level B harassment isopleth, derived by averaging the R
Modeled acoustic ranges to harassment isopleths may overestimate the actual ranges at which animals receive exposures meeting the Level A (SEL
Similar to cylindrical piles, sheet piles are a distributed acoustic source that can be treated as a linear array of point sources. The acoustic source modeling of vibratory driving of sheet piles was conducted following the same steps used to model impact pile driving. An American Pile-driving Equipment APE Model 200T with Model 200 Universal Clamp was modeled driving a19.5-meter-long (64-foot-long), 0.95 cm (
Underwater sound propagation (
For computational efficiency, MONM and similar models such as PE-RAM, do not track temporal aspects of the propagating signal (as opposed to the models used for impact pile driving that can output time-domain pressure signals). It is the total sound energy transmission loss that is calculated. For our purposes, that is equivalent to propagating the SEL acoustic metric. For continuous, steady-state signals SPL is readily obtained from the SEL.
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 isopleths and the Level B harassment isopleth 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 range to the Level B harassment isopleth resulting from vibratory piling installation and removal is, in part, a reflection of the threshold set for behavioral disturbance from a continuous noise (
Ranges to Level A harassment isopleths for HRG equipment planned for use 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. However, sources that project a narrower beam, often in frequencies above 10 kHz directed at the seabed, are expected to have smaller distances to isopleths and less horizontal propagation due to the directionality of the source and faster attenuation rate of higher frequencies. Narrow beamwidths allow these HRG sources to be highly directional, focusing energy in the vertical direction and minimizing horizontal propagation, which greatly reduces the possibility of direct path exposure to receivers (
NMFS has developed a user-friendly methodology for determining the 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 ranges to the Level A harassment and Level B harassment isopleths. 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 construction surveys and the sound levels associated with those HRG equipment types.
Results of modeling using the methodology described above indicated that, of the HRG 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 isopleth (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 range to the isopleth 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 SFWF area (where impact pile driving of monopiles will occur), the nearshore export cable landing area (where vibratory pile driving will occur), and the construction 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 × 10 km (6.2 × 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 nearshore export cable landing area were estimated from the 10 × 10 km habitat density blocks that contained the anticipated potential locations (separated by 22 km) 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
The species listed in each respective density table represent animals that could be reasonably expected to occur within the Level B harassment zone, in the months during which the cofferdam could potentially be installed and extracted (
Densities for construction surveys were combined for the SFWF area (inter-array cables) and the SFEC using density blocks that encompassed those areas. The densities used for construction 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 construction 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 planned 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 generated by monopile installation. 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 animat starting out in or transitioning into a given behavioral state can be defined in terms of the animat's current behavioral state, depth, and the time of day. In addition, each travel parameter and behavioral state has a termination function that governs how long the parameter value or overall behavioral state persists in the simulation.
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-percent 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. For this reason, mean number values are not rounded.
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 15 marine mammal species expected to occur in the project area during the activity. The various parameters for forecasting realistic marine mammal behaviors (
The mean numbers 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 pile-driving activities were modeled using the GRLWEAP (wave equation analysis of pile driving) model and JASCO's TDFD PDSM;
(2) Acoustic propagation modeling was performed within the exposure model framework using FWRAM and BELLHOP, which 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 harassment 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 authorized take.
Again, only the estimated Level B harassment exposures for the maximum design impact pile driving of monopiles schedule are presented here (Table 17).
Although exposures are presented according to a range of attenuation levels, 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 dBBC, which is the most likely noise mitigation technology that will be used during construction of SFWF. Recently reported
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 must be employed during piling operations to reduce the ensonified zone or increase mitigation
Variability in monthly species densities is not considered in South Fork Wind's take estimates for impact pile driving of monopiles, which are based on the highest mean density value for any month for each species. Given that all monopile installations will potentially occur within an approximately 30-day timeframe, it is unlikely that maximum monthly densities would be encountered for all species.
Finally, start delays and shutdowns of monopile installation are not considered in the exposure modeling parameters for monopile driving. However, South Fork Wind must delay impact pile driving of monopiles if a NARW is observed at any distance prior to initiating pile driving to avoid take, and if any other marine mammal is observed entering or within the respective clearance zone during the clearance period. If monopile installation has already commenced, South Fork Wind is required to shutdown if a NARW is sighted at any distance or detected via PAM within 2 km of the monopile location, and if any other marine mammal enters its respective shutdown zone (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 injury or loss of life for individuals). There are two scenarios, approaching pile refusal and pile instability, where this imminent risk could be a factor. These scenarios are considered unlikely and it is expected that shutdowns will predominantly be practicable during operations. See Mitigation section for shutdown procedural details.
Although exposure modeling for monopile installations indicated that take by Level A harassment (PTS) is only expected for a three species of baleen whales (fin whale, minke whale, and humpback whale), South Fork Wind requested, and NMFS has authorized, take, by Level A harassment, of one sei whale based on (1) rare observations of sei whales in/near the Lease Area during prior monitoring efforts, and (2) difficulty distinguishing fin and sei whales at sea (observers sometimes report a fin/sei complex). In addition, South Fork Wind requested authorization of take, by Level B harassment, equal to the mean group size for several species, based on the following: Seals, Herr
Animal movement and exposure modeling was not used to determine potential exposures from vibratory pile driving. Rather, the modeled acoustic ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds were used to calculate the area around the cofferdam predicted to be ensonified daily to levels that exceed the thresholds, or the Zone of Influence (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 activity days that contain the potential duration of actual vibratory pile driving (36 hours total) which is, for cofferdam installation and removal, conservatively estimated as two days. Modeling of the Level A harassment exposures resulting from an 18-hour period of vibratory pile driving for installation and another 18-hour period for removal resulted in less than one exposure for all species for each month between October 1 and May 31. South Fork Wind plans to install a cofferdam or casing pipe, if required, as one of the first activities in the construction schedule; removal could occur at any time through the expiration of the IHA. Modeled potential Level B harassment exposures resulting from installation and removal 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 HDD exit pit 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
Given the possibility that vibratory pile driving (for installation and removal of the cofferdam, or the casing pipe support piles) could occur anytime in the construction schedule, the maximum modeled exposure across months for each species (Table 19) was used to conservatively predict take numbers and assess impacts resulting from vibratory pile driving (Table 20). However, in response to a comment from the Commission on the proposed IHA and as described in the Changes from Proposed IHA to Final IHA, NMFS has increased take, by Level B harassment, of humpback whales, white-sided dolphins, and common dolphins. Please see Table 20 for all proposed and authorized take, by Level B harassment, incidental to vibratory pile driving.
Potential exposures of marine mammals to acoustic impacts from construction survey activities were estimated using an approach similar to that described for installation and removal of a cofferdam. For construction 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 survey days (60).
Modeled ranges 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 planned activities (
The proposed and authorized number of takes by Level B harassment resulting from construction surveys 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 planned surveys is so low as to be discountable, and South Fork Wind did not request any take by Level A harassment associated with construction surveys, NMFS does not authorize take by Level A harassment of any marine mammals.
The seasonal mean number of minke whales sighted during marine site characterization surveys in or near the Lease Area in 2017 and 2018 was 19; therefore, South Fork Wind increased the number of takes requested for minke whales from 1 to 19. Preliminary PSO reports from similar surveys in or near the Lease Area in 2019 and 2020 show a high number of common dolphin detections within the estimated Level B harassment zones. Using a mean group size of 25 (based on sightings during monitoring efforts in the project area), South Fork Wind multiplied the mean group size by the number of Level B harassment exposures modeled (47) to produce the number of takes, by Level B harassment, they requested (1,175). There were zero exposures estimated for several species; however, as a precautionary measure, South Fork Wind requested, and NMFS has authorized, Level B harassment takes for those species based on published values of mean group sizes (Atlantic spotted dolphin, Risso's dolphin, Barkaszi and Kelly (2018)). After review of the scientific literature, NMFS has increased authorized take, by Level B harassment, of long-finned pilot whales from 4 to 20, based on the largest reported group size (CETAP 1982). Please see Table 22 for all proposed and authorized take, by Level B harassment, incidental to construction surveys.
The number of takes, by Level A harassment and Level B harassment, authorized incidental to the combined activities (impact pile driving of monopiles using a noise mitigation system, vibratory pile driving, and construction 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 Mitigation and Monitoring and Reporting sections are activity-specific and are designed to minimize acoustic exposures to marine mammal species.
The take numbers NMFS has authorized (Table 23) are considered conservative for the following key reasons:
• Authorized take numbers for impact pile driving of monopiles assume a maximum piling schedule (16 monopiles installed in 20 days);
• Authorized take numbers for vibratory pile driving assume that a sheet pile temporary cofferdam will be installed (versus the alternative installation of a casing pipe for which less take is expected);
• Authorized take numbers for impact pile driving of monopiles are conservatively based on maximum densities across the planned construction months;
• Authorized Level A harassment take numbers do not fully account for the likelihood that marine mammals will avoid a stimulus when possible before that stimulus reaches a level that would have the potential to result in injury;
• Authorized take numbers do not fully account for the effectiveness of 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 of monopiles, which is accounted for in the authorized 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 (
In addition to the specific measures described later in this section, South Fork Wind must 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 construction survey activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocols, and operational procedures. South Fork Wind must use available sources of information on NARW presence, including daily monitoring of the Right Whale Sightings Advisory System, monitoring of Coast Guard VHF Channel 16 throughout the day to receive notifications of any sightings, and information associated with any DMAs. This measure was not included in the proposed IHA, but affords increased protection of NARWs by raising awareness of NARW presence in the area through ongoing visual and passive acoustic monitoring efforts (outside of South Fork Wind's efforts), and allows for planning of construction activities, when practicable, to minimize potential impacts on NARWs.
Based on the best available information (Kraus
South Fork Wind must use PSOs and PAM PSOs to establish clearance zones around the impact pile-driving location to ensure these zones are clear of marine mammals prior to the start of impact pile driving. The purpose of “clearance” of a particular zone is to prevent potential instances of auditory injury, and more severe behavioral disturbance as a result of exposure to impact pile-driving noise, by delaying the activity before it begins if marine mammals are detected within certain pre-defined distances of the impact pile-driving vessel. The primary goal in this case is to prevent auditory injury (PTS) of NARWs and reduce the risk of PTS for other marine mammals where there is potential for it to occur. The clearance zones are larger than the modeled ranges to isopleths (based on ER
The Level A harassment zone (based on ER
The NARW clearance zone is conservatively based on the Level B harassment zone (4,684 m), rounded up to 5,000 m for PSO clarity. PSOs and PAM PSOs may use a combination of visual observation and real-time PAM to clear this zone (see Monitoring and Reporting); however, as noted in the Changes from Proposed IHA to Final IHA, the 2.2-km minimum visibility zone is defined as the area over which PSOs must be able to clearly observe marine mammals, including NARWs, to begin the clearance process. When visibility conditions permit (
Prior to the start of impact pile driving of monopiles, both visual and PAM (for NARWs) clearance zones will be monitored for 60 minutes to ensure that they are clear of the relevant species of marine mammals. The entire minimum visibility zone must be visible (
The shutdown zones for non-NARW large whales, harbor porpoises, and seals are based on the maximum Level A harassment zone for each group (excluding humpback whales), increased by a 10-percent buffer and rounded up for PSO clarity (Table 24). Similar to clearance zones, mid-frequency cetacean (except sperm whale) shutdown zones will extend to the larger of two distances: 50 m, or just outside the noise mitigation system. For NARWs, a visual detection at any distance by a PSO (from the impact pile-driving vessel or dedicated PSO vessel) or acoustic detection localized to a position within 2,000 m of the pile will trigger shutdown of impact pile driving (Table 26).
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 has been met, approaches or is observed within the Level B harassment zone, impact pile-driving activities must be shut down immediately or delayed if impact pile driving has not commenced. Impact pile driving must not commence or resume until the animal has been confirmed to have left the Level B harassment zone on its own volition, or a full 30 minutes have elapsed with no further sightings.
The use of a soft start procedure is believed to provide additional protection to marine mammals by warning them, or providing them with a chance to leave the area prior to the hammer operating at full capacity. Soft start typically involves initiating hammer operation at a reduced energy level (relative to full operating capacity) followed by a waiting period. South Fork Wind must utilize a soft start protocol for impact pile driving of monopiles 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 a reduction in energy for any given hammer because of variation across drivers. 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 will target less than 20 percent of the total hammer energy for the initial hammer strikes during soft start. Soft start will be required at the beginning of each day's monopile installation, and at any time following a cessation of impact pile driving of 30 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 shutdown zone (Table 24) after impact pile driving has
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 creates risk of injury or loss of life for individuals, reduced hammer energy must be implemented when the lead engineer determines it is practicable. After shutdown, impact pile driving may be reinitiated once all clearance zones are clear of marine mammals for the minimum species-specific 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 (
Impact pile driving of monopiles must not be initiated at night, or when the full extent of the clearance zones (Table 24) cannot be confirmed to be clear of marine mammals, as determined by the lead PSO on duty. As mentioned previously, the 2.2 km clearance zone for non-NARW baleen whales may only be declared clear when the full extent of the minimum visibility zone is visible (
South Fork Wind must implement noise mitigation technology designed to result in the targeted reduction in sound levels that would produce measured ranges to Level A harassment and Level B harassment isopleths corresponding to those modeled assuming 10-dB sound attenuation, pending results of SFV (see
The bubble curtain(s) must distribute air bubbles using a target air flow rate of at least 0.5 m
Vibratory pile driving or impact driving of a casing pipe must occur at the export cable landing site only.
Vibratory pile driving of sheet piles may continue after dark only when the driving of the same pile began no less than 90 minutes prior to civil sunset, when the clearance zones were fully visible for a full 30 minutes immediately prior to commencing pile driving, and installation of sheet piles must proceed for human safety or installation feasibility reasons.
South Fork Wind must implement visual monitoring of the clearance zones for 30 minutes immediately prior to the initiation of ramp-up of vibratory piling equipment (Table 27). 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 clearance zone. If a marine mammal is observed within a clearance zone during the 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(s) is sighted entering or within its respective shutdown zone after cofferdam installation has commenced. Resumption of vibratory pile driving may begin if the animal(s) has been observed exiting its respective shutdown zone or an additional time period has elapsed without a resighting
South Fork Wind must implement a 30-minute clearance period of the clearance zones (Table 28) immediately prior to the initiation of ramp-up of boomers, sparkers, and Chirps. Since publication of the proposed IHA, the clearance zones for ESA-listed species have been increased from 100 to 500 m to align with standard marine site characterization mitigation and monitoring measures. Any large whale sighted by a PSO within 1,000 m of boomers, sparkers, and Chirps that cannot be identified to species must be treated as if it were a NARW. The clearance zones will be monitored by PSOs, using the appropriate visual technology. If a marine mammal is observed within a clearance zone during the clearance period, ramp-up (described below) may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until an additional time period has elapsed with no further sighting (
At the start or restart of the use of boomers, sparkers, and/or Chirps, a ramp-up procedure must be implemented. Ramp-up must begin with the powering up of the specified HRG equipment at the lowest power output appropriate for the survey. When practicable, the power must then be gradually turned up, and then any other acoustic sources added. The ramp-up procedure must be used at the beginning of construction survey activities using the specified HRG equipment to provide additional protection to marine mammals in or near the survey area by allowing them to vacate the area prior to operation of survey equipment at full power.
Ramp-up activities will be delayed if a marine mammal(s) enters its respective clearance zone. Ramp-up will continue if the animal(s) has been observed exiting its respective clearance zone or until additional time has elapsed with no further sighting (
An immediate shutdown of boomers and sparkers is required if a marine mammal(s) is sighted entering or within its respective shutdown zone. No shutdown is required for Chirp sub-bottom profilers. 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 may be initiated if the animal(s) has been observed exiting its respective shutdown zone or until an additional 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 has been met, approaches or is observed within the Level B harassment zone, boomers and sparkers must be shut down immediately, or use delayed if not yet activated. Use of boomers and sparkers must not must not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or a full 15 minutes (small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sightings.
If a boomer, sparker, or Chirp is shut down for reasons other than mitigation (
The shutdown requirement will be waived for small delphinids of the following genera:
The IHA contains numerous vessel strike avoidance measures. South Fork Wind is required to comply with these measures except under circumstances when doing so 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.
South Fork Wind must submit a NARW vessel strike avoidance plan 90 days prior to commencement of vessel use. The plan will describe, at a minimum, how PAM will be conducted
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 (
• Year-round, operators of all vessels associated with South Fork Wind must use all available sources of information on NARW presence, including daily monitoring of the Right Whale Sightings Advisory System, WhaleAlert app, and Coast Guard VHF Channel 16 throughout the day to receive notifications of any sightings and/or information associated with any Slow Zones (
• For construction surveys, members of the PSO monitoring team must consult the Right Whale Sightings Advisory System, WhaleAlert app, and monitor Coast Guard VHF Channel 16 for reports of NARW presence in the survey area.
• On all vessels associated with South Fork Wind, regardless of size or speed of travel, operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course as appropriate to avoid striking any marine mammal.
• Whenever multiple project-associated vessels (
• Vessels of all sizes associated with South Fork Wind must operate port to port at 10 kts or less between November 1 and April 30, and while operating in the Lease Area, along the SFEC, or transit area to and from ports in NY, CT, RI, and MA, except for vessels transiting inside Narragansett Bay or Long Island Sound (unless during a DMA). Vessels transiting from other ports outside those described must operate at 10 kts or less when within any active Seasonal Management Area (SMA) or within the Lease Area.
• For vessels of all sizes, vessel speeds must immediately be reduced to 10 kts when any large whale, mother/calf pairs, or large assemblages of non-delphinoid cetaceans are observed near (within 100 m) an underway vessel. In the proposed IHA, this measure only applied to vessels greater than or equal to 65 ft (19.8 m).
The measures above were not included in the proposed IHA, but are included in the final IHA. The measures below were included in the proposed IHA and are carried over to the final IHA.
• All vessels 65-ft (19.8 m) or greater in length must comply with the 10-kt speed restriction rule in any SMA, per the NOAA ship strike reduction rule (74 FR 60173; October 10, 2008).
• All underway vessels (
• Vessel speed must immediately be reduced to 10 kts or less when a NARW is sighted by an observer or anyone else on the underway vessel.
• In the event that any Slow Zone (designated as a DMA) is established that overlaps with an area where a project-associated vessel must operate, that vessel, regardless of size, must transit that area at 10 kts or less.
• If a vessel is traveling at greater than 10 kts between May 1 and October 31, in addition to the required dedicated observer, real-time PAM of transit corridors must be conducted prior to and during transits. If a NARW is detected via visual observation or PAM within or approaching the transit corridor, all crew transfer vessels must travel at 10 kts or less for the following 12 hours. Each subsequent detection will trigger a 12-hour reset. A slow-down in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 12 hours.
• All vessels must maintain a minimum separation distance of 500 m from NARWs. If a whale is observed but cannot be confirmed as a species other than a NARW, the vessel operator must assume that it is a NARW and take appropriate action.
• If underway, all vessels must steer a course away from any sighted NARW at 10 kts or less such that the 500-m minimum separation distance requirement is not violated. If a NARW, or a large whale that cannot be confirmed to species, is sighted within 500 m of an underway vessel, that vessel must shift the engine to neutral. Engines will not be engaged until the whale has moved outside of the vessel's path and beyond 500 m.
• All vessels must maintain a minimum separation distance of 100 m from sperm whales and non-NARW baleen whales. If one of these species is sighted within 100 m of an underway vessel, that vessel must shift the engine to neutral. Engines will not be engaged until the whale has moved outside of the vessel's path and beyond 100 m.
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all delphinoid cetaceans and pinnipeds, with an exception made for those that approach the vessel (
• When a marine mammal(s) is sighted while a vessel is underway, the vessel must take action as necessary to avoid violating the relevant separation distances (
• All vessels underway must not divert or alter course in order to approach any marine mammal. Any vessel underway must avoid excessive speed or abrupt changes in direction.
• For in-water construction heavy machinery activities other than impact or vibratory pile driving, if a marine mammal comes within 10 m of equipment, South Fork Wind must cease operations (when practicable) until the marine mammal has moved more than 10 m on a path away from the activity.
With the measures described herein, NMFS has prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the planned 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.
South Fork Wind must collect sighting data and behavioral responses to construction activities for marine mammals species observed in the region of activity during the period of activity. All observers must be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. PSOs will monitor all clearance and shutdown zones prior to, during, and following impact and vibratory pile driving, and while boomers, sparkers, and Chirps are active. PSOs will also monitor Level B harassment zones and will document any marine mammals observed within these zones, to the extent practicable (noting that some zones are too large to fully observe). As mentioned, South Fork Wind must conduct monitoring before, during, and after construction activities (monitoring durations specified below), with observers located at the best practicable vantage points on the pile driving and dedicated PSO vessels. Full details regarding marine mammal monitoring must be included in a Pile Driving and Marine Mammal Monitoring Plan that, under the IHA, South Fork Wind is required to submit to NMFS for approval at least 90 days in advance of commencement of construction activities. Please note submission of this plan was not included in the proposed IHA. The following additional measures apply to visual monitoring:
(1) Monitoring must be conducted by qualified, trained PSOs who will be placed on the pile-driving and dedicated PSO vessels (monopile), installation or nearby construction vessel (cofferdam or casing pipe), and construction survey vessels, in positions which represent 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 must 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
• All PSOs must be approved by NMFS. South Fork Wind must submit the CVs of the initial set of PSOs necessary to commence the project to NMFS OPR for approval at least 60 days
South Fork Wind must conduct briefings between construction supervisors and crews and the PSO team prior to the start of all construction activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocols, and operational procedures. An informal guide must be included with the Marine Mammal Monitoring Plan to aid in identifying species if they are observed in the vicinity of the project area.
The following are measures specific to each activity.
South Fork Wind must implement the following procedures for impact pile driving of monopiles:
• A minimum of two PSOs on the impact pile-driving vessel must maintain watch at all times when impact pile driving is underway.
• A minimum of two PSOs on a dedicated PSO vessel located at the outer edge of the 2,200 m (or as modified based on SFV) large whale clearance zone must maintain watch at all times when impact pile driving of monopiles is underway.
• PSOs must be located at the best vantage point(s) on the impact pile-driving vessel and dedicated PSO vessels in order to ensure 360° visual coverage of the entire clearance and shutdown zones around the vessels, and as much of the Level B harassment zone as possible.
• The clearance zones must be monitored for the presence of marine mammals for 60 minutes before, throughout the installation of the monopile, and for 30 minutes after monopile installation.
• During all observation periods, PSOs must use high magnification (25X) binoculars, standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals. During periods of low visibility (
• Monopile installation may only commence when the minimum visibility zone (2.2 km) is fully visible (
• If the minimum visibility zone (2.2 km) is obscured by fog or poor lighting conditions while impact pile driving of monopiles is underway, the activity must be halted when practicable, as described above. Following a shutdown, monopile installation may not recommence until the minimum visibility zone is fully visible and clear of marine mammals for 30 minutes, as described above.
During vessel transits within or to/from the SFWF (
• PSOs or dedicated observers will record the time, date, vessel's position, heading and speed, sea state, water depth, and visibility, marine mammal species identification, initial distance and bearing from the vessel to the marine mammal, closest point of approach, and any avoidance measures taken in response to the marine mammal sighting. 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.
South Fork Wind must implement the following procedures for impact and vibratory pile driving associated with installation of a cofferdam or casing pipe:
• A minimum of two PSOs will maintain watch at all times when vibratory pile driving or impact hammering is underway.
• PSOs must be located at the best vantage point(s) on the impact or vibratory pile-driving platform, or platform in the immediate vicinity of the impact or vibratory pile-driving platform, in order to ensure visual coverage of the entire visual clearance zones and as much of the Level B harassment zone as possible.
• The clearance zones will be monitored for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles (and casing pipe, if installed), and for 30 minutes after all vibratory pile-driving or impact-hammering activity.
• During all observation periods related to impact and vibratory pile driving, PSOs must use high-magnification (25X), standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals. During periods of low visibility (
• Sheet pile or casing pipe installation may only commence when visual clearance zones are fully visible (
South Fork Wind must implement the following procedures for construction surveys:
• At least one PSO must be on duty on each survey vessel during daytime operations, conducting visual observations at all times during daylight hours (
• A minimum of two PSOs must be on watch during nighttime operations.
• The clearance zones must be monitored for the presence of marine mammals for 30 minutes before, throughout, and for 30 minutes after use of boomers, sparkers, and Chirps.
• During all observation periods, PSOs must use standard handheld (7X) binoculars and the naked eye to search continuously for marine mammals. During periods of low visibility (
• Ramp-up of boomers, sparkers, and Chirps may only commence when visual clearance zones are fully visible (
• In cases where multiple vessels are surveying concurrently, any observations of marine mammals must be communicated to PSOs on all nearby survey vessels.
• During daylight hours when survey equipment is not operating, South Fork Wind must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
NMFS requires that observers use standardized forms. In addition to other data, South Fork Wind must record detailed information about any implementation of delays or shutdowns, including the distance of the animal(s) to the pile or specified HRG equipment 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 (
• All marine mammal sightings, regardless of distance from the construction activity;
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any marine mammal behavioral observations (
• Distance and bearing of each marine mammal observed relative to the pile being driven or specified HRG equipment for each sighting, and time spent within harassment zones;
• 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 must utilize a PAM system to supplement visual monitoring for all monopile installations. The PAM system must be monitored by a minimum of one PAM PSO beginning at least 60 minutes prior to soft start of impact pile driving of monopiles, at all times during monopile installation, and 30 minutes post-completion of installation. PAM PSOs must immediately communicate all detections of marine mammals at any distance (
PAM PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches. PAM PSOs must be required to demonstrate that they have completed specialized training for operating PAM systems, including identification of species-specific mysticete vocalizations. PSOs can act as PAM PSOs or visual PSOs (but not simultaneously) as long as they demonstrate that their training and experience are sufficient to perform each task.
A Passive Acoustic Monitoring Plan must be submitted to NMFS and BOEM for review and approval at least 90 days prior to the planned start of monopile installations. PAM must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind (Van Parijs
During the first three monopile installations, South Fork Wind must empirically determine the ranges to the isopleths corresponding to Level A harassment and Level B harassment thresholds. For verification of the range to the Level B harassment isopleth, South Fork Wind must report the measured or extrapolated ranges where the received levels SPL
If acoustic field measurements for installation of the first monopile indicate ranges to the isopleths corresponding to Level A harassment and Level B harassment isopleths are greater than the ranges predicted by modeling (assuming 10-dB attenuation), South Fork Wind must implement additional noise mitigation measures prior to installing the second monopile. Initial additional measures may include improving the efficacy of the implemented noise mitigation technology (
If acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), South Fork Wind may request a modification of the clearance and shutdown zones for impact pile driving of monopiles. For a modification request to be considered by NMFS, South Fork Wind must have conducted SFV on three or more monopile installations to verify that zone sizes are consistently smaller than predicted by modeling (assuming 10-dB attenuation). In addition, if a subsequent monopile installation location is selected that was not represented by previous three locations (
A draft final report must be submitted to NMFS within 90 days of the completion of activities occurring under this IHA. The report must include marine mammal observations pre-activity, during-activity, and post-activity for all pile-driving and construction survey days, and must also provide descriptions of any changes in marine mammal behavioral patterns resulting from construction activities. The report must detail the implemented 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 will be required to provide the initial results of SFV (including measurements) to NMFS in interim reports after each monopile installation for the first three piles as soon as they are available, but no later than 48 hours after each installation. If SFV is required for subsequent monopile installations, the same reporting timeline and data requirements apply. In addition to
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 (
Impact and vibratory pile-driving and construction survey activities associated with South Fork Wind's 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 (PTS, from impact pile driving only) or Level B harassment (potential behavioral disturbance) from underwater sounds generated by pile driving (impact and vibratory) and certain HRG active acoustic sources used for construction surveys. Potential take could occur if individual marine mammals are present in the ensonified zone when any pile-driving or construction 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 South Fork Wind's 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 NARW—they are included as separate subsections below.
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. However, modeling indicates there is limited potential for injury (
NMFS expects that any take resulting from exposures above the Level A harassment threshold would be in the form of slight PTS (minor degradation of hearing capabilities within regions of hearing that align most completely with the energy produced by impact pile driving (
Additionally, the amount of authorized take, by Level A harassment,
NMFS has authorized an amount of Level B harassment take for all marine mammal species based on either modeling or information reflected in field data (
Feeding behavior is not likely to be significantly impacted, as most prey species are mobile, broadly distributed throughout the project area, and likely to only respond temporarily to exposure to impact or vibratory pile-driving noise; 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. Soft starts would allow mobile prey to move away from the source prior to exposure to any noise levels that may cause physical injury. The use of noise mitigation devices during impact pile driving of monopiles should reduce sound levels to the degree that any mortality or injury of prey will minimized. Use of bubble curtains, for example, is a key mitigation measure in reducing injury and mortality of ESA-listed salmon on the west coast during impact pile driving. NMFS recognizes some mortality, physical injury and/or hearing impairment in marine mammal prey may still occur but anticipates the amount of prey impacted in this manner is minimal compared to overall prey availability. Any behavioral responses by mobile marine mammal prey are expected to be brief. For example, Jones
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 notable areas of biological significance for non-NARW marine mammals, other than fin whales, known to exist within the Lease Area or potential export cable route corridors. Although the SFWF and SFEC will be constructed within a fin whale foraging BIA that exists east of Montauk Point, NY, from March through October, the BIA is considerably larger than the relatively small area within which impacts from monopile installations may occur; this difference in scale will provide ample access to foraging opportunities for fin whales within the remaining area of the BIA. Vibratory pile-driving for installation of the cofferdam will occur sometime between November 2022 and April 2023 (removal could occur any time prior to expiration of this IHA); this schedule indicates that the overlap between cofferdam installation and the fin whale foraging BIA would occur for only 36 non-continuous hours. Monopiles will be installed on up to 16 days, which is a small percentage of the duration of the fin whale foraging BIA. Impact pile driving of one monopile per day (the limit under the IHA), and the associated potential disturbance of foraging fin whales, will only occur for 2-4 hours per day. The remaining 20-22 hours of the day will provide fin whales the opportunity to forage undisturbed by noise produced during monopile installation. Any disruption of feeding behavior or avoidance of the project area by fin whales is expected to be temporary, with habitat utilization by fin whales returning to baseline once the disturbance ceases. In addition, a second, larger, year-round fin whale foraging BIA, as well as foraging BIAs for sei, humpback, and minke whales, are delineated to the east of the project area. This second fin whale BIA will provide alternate suitable habitat and food resources for foraging fin whales during construction activities within the SFWF and SFEC. Please see LeBrecque
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.
NMFS concludes that exposures to marine mammals due to South Fork Wind's activity 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
As described in the notice of the proposed IHA (86 FR 8490; February 5, 2021), humpback and minke whales, and gray and harbor seals are experiencing ongoing UMEs. For minke whales and seals, although the ongoing UME is under investigation (as occurs for all UMEs), this event does not provide cause for concern regarding population-level impacts. The minke whale population abundance is greater than 20,000 whales. Even though the PBR value is based on an abundance for U.S. waters that is negatively biased and a small fraction of the true population abundance, annual M/SI does not exceed the calculated PBR value for minke whales. For harbor seals, the population abundance is over 75,000 and annual M/SI (345) is well below PBR (2,006) (Hayes
NARWs are currently threatened by low population abundance, higher than average mortality rates, and lower than average reproductive rates. Pace
On November 24, 2021, a NARW and newborn calf were sighted east of Pawleys Island, SC. On December 2, 2021, a second NARW and newborn calf were sighted east of the northern tip of Cumberland Island, GA; the NARW in this pair is currently entangled. On December 10, 2021, a third NARW and newborn calf were sighted off Ossabaw Island, GA, and a fourth pair was sighted off Morris Island, SC, on the same day. The fifth and sixth NARW/calf pairs were sighted off Fernandina Beach, FL, and near Nassau Sound, FL, respectively, on December 16, 2021. On December 18, 2021, a seventh NARW and calf were sighted off Amelia Island, FL, and an eighth NARW/calf pair was sighted in Florida off the St. Johns River entrance. A ninth NARW/calf pair was sighted off St. Simons Sound, GA, on December 26, 2021. The most recent information on the status of NARWs can be found in NMFS' 2021 Draft Stock Assessment Reports, available online at: (
As described above, the project area represents part of an important migratory area for NARWs. In addition, core year-round foraging habitats have been identified south of Martha's Vineyard and Nantucket to the east of the project area (Oleson
The IHA includes the following nine overarching mitigation measures related to impact pile driving of monopiles, which are intended to reduce both the number and intensity of NARW takes: (1) Time of year restrictions; (2) time of day restrictions; (3) implementation of clearance zones; (4) implementation of shutdown zones; (5) use of soft-start; (6) use of noise mitigation technology; (7) use of PSOs to visually observe for NARWs (with any detection within designated zones triggering delay or shutdown); (8) use of PAM to acoustically detect NARWs (with any detection within designated zones triggering delay or shutdown); and (9) enhanced awareness of NARW presence (
As described in Oleson
The most significant measure to minimize impacts to individual NARWs during monopile installations is the seasonal moratorium on impact pile driving of monopiles from January 1 through April 30, when NARW abundance in the project area is expected to be greatest. In addition, monopile installation must not occur in December unless an unanticipated delay due to weather or technical problems, notified to and approved by BOEM, arises that necessitates extending monopile installation through December. NMFS also expects this measure to greatly reduce the potential for mother-calf pairs to be exposed to impact pile-driving noise above the Level B harassment threshold during their annual migration through the project area. Mitigation and monitoring measures outside of those months will greatly minimize any take that may otherwise occur.
When monopile installation does occur, South Fork Wind is committed to reducing the noise levels generated by pile driving to the lowest levels practicable, such that they do not exceed a noise footprint above that which was modeled, assuming a 10-dB attenuation. Use of a soft start will allow animals to move away from (
NMFS expects that any avoidance of the project area by NARWs due to exposure to monopile installation, cofferdam/casing pipe installation, and construction surveys would be temporary in nature, and that any NARW that avoids the project area during construction would not be permanently displaced. The IHA authorizes a total of 13 takes, by Level B harassment only, of NARWs (4 based on the maximum impact pile-driving design scenario for impact pile driving, 6 from vibratory pile driving, and 3 from construction survey using boomers and/or sparkers). Although unlikely, this may comprise 13 individuals taken once or fewer than 13 individuals taken on multiple days. For those individuals where take is limited to occurring once, behavioral disturbance and other Level B harassment impacts that may occur during exposure to elevated noise levels (
There is potential for the same individual NARW to be exposed on multiple days; however, the risk is low, and given the total number of anticipated exposures, even if a single individual were exposed on more than one day, it would not be more than a few (and that would mean that fewer total individuals were exposed). Impact pile driving of monopiles is limited to one pile per day and may only begin in the absence of NARWs (based on clearance zones, as determined by visual and PAM PSOs). If impact pile driving has commenced, NMFS anticipates NARWs would avoid the area, utilizing nearby habitats not impacted by monopile installation. However, impact pile driving must be shutdown if a NARW is sighted at any distance, unless a shutdown is not feasible due to risk of injury or loss of life. Depending on visibility conditions, shutdown may occur based on a NARW sighting in the Level B harassment zone, thereby minimizing the duration and intensity of exposure above the Level B harassment threshold. NMFS anticipates
There are no known NARW mating or calving areas within the project area; however, as described above, it is on the far western edge of a larger core foraging area (Oleson
As described above, due to the temporary nature of disturbance from South Fork Wind's project activities and the availability of similar habitat and resources in the surrounding area, the impacts to NARWs and the food sources that they utilize are not expected to cause significant or long-term consequences for individual NARWs or their population. Feeding NARWs that may be temporarily displaced during South Fork Wind's construction activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise or when the activity ceases. Even repeated Level B harassment of some smaller number (13 or less) of individuals, as a subset of the overall stock, over several days 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.
With respect to potential vessel strike, the IHA includes an extensive suite of mitigation measures designed to avoid ship strike and close approaches, including, but not limited it: Separation distances; limiting vessel speed to 10 kts or less (except in the case of transiting crew transfer vessels in the transit route under specific conditions, including use of observers and PAM for crew transfer vessels travelling in excess of 10 kts (outside of any DMA or SMA); training and communication protocols; and monitoring of NARW sighting resources. As described above, given the anticipated effectiveness of these measures in addition to the already very low probability of a vessel strike, take from vessel strike is not anticipated or authorized.
As described above, NARWs are experiencing an ongoing UME, the primary drivers of which are entanglement and ship strikes leading to serious injury or mortality. The loss of even one individual could significantly impact the population. However, no mortality, serious injury, or injury of NARWs as a result of the project is expected or authorized. Any disturbance to NARWs due to exposure to impact or vibratory pile-driving noise (Level B harassment) or construction surveys is expected to result in temporary avoidance of the immediate area of construction. As no injury or mortality is expected or authorized, and Level B harassment of NARWs will be reduced to the level of least practicable adverse impact through use of mitigation measures, the authorized number of takes of NARWs would not exacerbate or compound the effects of the ongoing UME in any way.
NMFS concludes that (1) exposures of NARWs to impact pile-driving noise from monopile installation will be greatly reduced due to seasonal restrictions on monopile installation, and (2) additional required mitigation measures would ensure that any exposures above the Level B harassment threshold during months outside of the seasonal restriction on monopile installation would result in only short-term effects to individuals exposed. With implementation of the mitigation requirements, take by Level A harassment is not expected to occur and is therefore not authorized. Potential impacts associated with Level B harassment would include low-level, temporary behavioral modifications, most likely in the form of avoidance behavior or potential alteration of vocalizations (due to masking). Although unlikely given the NARW-specific mitigation, TTS is another potential form of Level B harassment that could result in brief periods of slightly reduced hearing sensitivity, affecting behavioral patterns by making it more difficult to hear or interpret acoustic cues within the frequency range (and slightly above) of sound produced during impact pile driving; however, it is unlikely that any individuals would be exposed to impact or vibratory pile driving, or active specified HRG acoustic sources at distances or for durations that would
Although acoustic masking may occur, based on the acoustic characteristics of noise associated with pile driving (
Avoidance of the SFWF or SFEC during construction would represent a potential manifestation of behavioral disturbance. Although the project area is located within the migratory BIA for NARWs, impact pile driving of monopile foundations would only occur on up to 16 days (one pile would be driven per day for a maximum of 4 hours), and vibratory pile driving for cofferdam installation/removal would be limited to a maximum of 36 hours (18 hours for installation and an additional 18 hours for removal) of the 12 months of activities covered in this IHA. If a casing pipe and support piles are installed, impact hammering and vibratory pile driving would be limited to a total of 8 hours. Further, seasonal restrictions preclude monopile installation during the months in which NARW occurrence is expected to be highest (January through April). Monopile installation is also prohibited in December, unless unanticipated delays due to weather or technical problems arise that necessitate extending installations into December. If avoidance of the project area by NARWs occurs, it is expected to be temporary. Finally, consistent NARW utilization of the habitat south of Martha's Vineyard and Nantucket (Oleson
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 (Christiansen and Lusseau 2015; Dunlop
In the IHA, up to 13 individual NARWs could be behaviorally disturbed incidental to all construction activities, or some fewer number of individual NARWs could be behaviorally disturbed on more than one day, but no more than 13 total instances of take would occur. Since most monopile installations would occur during a period when NARW occurrence is much lower than January through April (when impact pile driving of monopiles is, under no circumstances, allowed to proceed) and considering the required mitigation and monitoring, it is highly unlikely a single NARW would incur all the authorized take (
While there may be temporary impacts to behaviors such as foraging near impact and vibratory pile-driving activities, meaningful shifts in habitat use, distribution, or foraging success are not anticipated. As described above, NMFS expects NARWs to avoid areas with high noise levels. Given the suite of monitoring and mitigation measures in the IHA specific to NARWs, if an individual is exposed to noise levels that may result in Level B harassment, this exposure would likely occur at distance (
In summary and as described above, the following factors primarily support NMFS' determination that the impacts resulting from the South Fork Wind's construction activites are not expected to adversely affect any marine mammal species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• Where Level A harassment is authorized, the amount of Level A harassment is low for all impacted species and would be in the form of a slight PTS;
• Level B harassment would be in the form of behavioral disturbance, primarily resulting in avoidance of the project area around where impact or vibratory pile driving is occurring, and some low-level TTS and masking that may limit the detection of acoustic cues for relatively brief amounts of time.
• Repeated disturbance to some individuals, including a very limited number of NARWs (potentially up to a few individuals on a few days), may occur; however, any resulting behavioral reactions from exposure to acoustic impacts from the specified HRG acoustic sources, and impact and vibratory pile driving (
• Total authorized take as a percentage of population is very low for all species and stocks impacted (
• Areas of similar habitat value are available for marine mammals that may temporarily vacate the project area during construction activities covered in this IHA;
• Effects on species that serve as prey for marine mammals from the activity 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;
• A biologically important migratory area exists for NARWs within the Lease Area and potential export cable route corridors; however, the required seasonal moratorium on monopile installations is expected to largely avoid impacts to the NARW migration, as described above. The project area encompasses a subset of a core year-round foraging habitat; however, there are areas within this core foraging habitat that would not be impacted by project noise. Further, any noise within the project area would be temporary given the limitation to the amount of pile driving for the project, the limitations on the number of piles installed per day, and time of day restrictions limiting when pile driving could occur. Moreover, potential for exposure from noise causing behavioral disruptions such as a cessation of foraging is further reduced through implementation of the required mitigation measures (
• There are no known important feeding, breeding or calving areas in the project area for any other marine mammals, except fin whales. A foraging BIA exists for fin whales from March through October within the Lease Area and ECR, but ample alternate suitable foraging habitat is available in the immediate vicinity of the project area. A second fin whale BIA, and BIAs for humpback, sei, and minke whales are delineated to the east of the project area; however, received levels (if any) within these areas would be extremely low given the distance to the BIAs from the project area; therefore, exposure to these low levels (while possibly audible) are not expected to result in disruption of foraging within the BIAs.
• The required mitigation measures, including visual and acoustic monitoring, clearance zones, soft start, and ramp-up, are expected to minimize potential impacts to marine mammals and effect the least practicable adverse impact on all marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from South Fork Wind's planned 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 authorizes incidental take of 15 marine mammal stocks. The total amount of take authorized is less than 4 percent for five of these stocks, and less than 1 percent for the 10 remaining stocks (Table 23), which NMFS 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 planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of 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
The NMFS Office of Protected Resources Permits and Conservation Division is authorizing the incidental take of four species of marine mammals that are listed under the ESA: The NARW, fin, sei and sperm whale. NMFS requested initiation of consultation under Section 7 of the ESA with NMFS GARFO on February 8, 2021, for the issuance of this IHA. On October 1, 2021, NMFS GARFO issued a Biological Opinion concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of NARW, fin, sei and sperm whales or adversely modify their critical habitat. The Biological Opinion can be found at:
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
NMFS has issued an IHA to South Fork Wind authorizing take of marine mammals incidental to pile driving (vibratory and impact) and surveys utilizing specified HRG equipment associated with construction of the South Fork Wind Offshore Wind Project offshore New York, Massachusetts, and Rhode Island, for a period of one year, from November 15, 2022, through November 14, 2023. South Fork Wind is required to abide by all mitigation, monitoring, and reporting requirements in the IHA.