International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
National Nuclear Security Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Land Management Bureau
Workers Compensation Programs Office
Federal Aviation Administration
Federal Railroad Administration
Maritime Administration
Comptroller of the Currency
Internal Revenue Service
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Food and Drug Administration, HHS.
Final rule; technical amendments.
The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs), abbreviated new animal drug applications (ANADAs), and conditionally approved new animal drug applications (CNADAs) during January, February, and March 2025. The animal drug regulations are also being amended to improve their accuracy and readability.
This rule is effective May 9, 2025.
Barbara Leotta, DVM, Deputy Office Director, Office of New Animal Product Evaluation Center for Veterinary Medicine, Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0605,
FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during January, February, and March 2025, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOIA Summaries) under the Freedom of Information Act (FOIA). These documents, along with marketing exclusivity and patent information, may be obtained at Animal Drugs @FDA:
Boehringer Ingelheim Animal Health USA, Inc., 3239 Satellite Blvd., Duluth, GA 30096 (drug labeler code 000010) requested that FDA withdraw approval of ANADA 200-088 for SEDAZINE (xylazine hydrochloride) Injectable Solution because the product is no longer manufactured or marketed. Accordingly, approval of ANADA 200-088 was withdrawn effective December 10, 2023. The animal drug regulations are being amended to reflect this action.
The sponsors of the approved applications listed in table 3 have informed FDA that they have transferred ownership of, and all rights and interest in, these applications to another sponsor. The regulations cited in table 2 are amended to reflect these actions.
FDA is making the following amendments to improve the accuracy and readability of the animal drug regulations.
• 21 CFR 510.600(c) is amended to remove entries for Belcher Pharmaceuticals, LLC, as the firm is no longer the sponsor of approved applications, and to add entries for Ajenat Pharmaceuticals, LLC and Hikma Pharmaceuticals USA, Inc.
• 21 CFR 522.772 is amended to present an accurate list of bovine parasites.
• 21 CFR 522.2005 is amended to introduce sponsor drug labeler codes for approved propofol injectable solution.
• 21 CFR 522.2630(c) is amended to present the sequence of drug labeler codes for tulathromycin injectable solutions.
This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360b(i)). Although deemed a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability” and is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 516, 520, 522, and 524 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
The additions read as follows:
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360ccc-1, 360ccc-2, 371.
(a)
(b)
(c)
(2)
(3)
21 U.S.C. 360b.
21 U.S.C. 360b.
(b)
21 U.S.C. 360b.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the voriconazole test system into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the voriconazole test system's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on May 5, 2017.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the voriconazole test system as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to
On July 15, 2016, FDA received ARK Diagnostics, Inc.'s request for De Novo classification of the ARK Voriconazole II Assay Test System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on May 5, 2017, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 862.3970.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 862 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(b)
(1) Design verification and validation must include the following information:
(i) Data demonstrating the precision of the voriconazole test system. Precision studies must include a minimum of three samples containing different
(ii) Method comparison data demonstrating accuracy of the voriconazole test system. Method comparison data must be collected at three laboratory sites. The comparator method must not be subject to bias due to nonspecific detection of voriconazole.
(iii) Data from interference studies performed to evaluate potential interference from co-administered medications used for conditions in which voriconazole is indicated.
(iv) Data from studies performed to evaluate cross reactivity of the major metabolite, N-oxide voriconazole.
(2) The labeling required under § 809.10(b) of this chapter must include a warning statement as follows: “This assay should only be used in conjunction with information available from clinical evaluations and other diagnostic procedures.”
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the breast milk macronutrients test system into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the breast milk macronutrients test system's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on December 21, 2018.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the breast milk macronutrients test system as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On October 24, 2018, FDA received Miris AB's request for De Novo classification of the Miris Human Milk Analyzer. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to
Therefore, on December 21, 2018, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 862.1493.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 862 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(b)
(1) Design verification and validation must include the following:
(i) An appropriate traceability plan, as determined by FDA, to minimize the risk of drift in the breast milk macronutrient test system results over time.
(ii) Data that demonstrate appropriate precision, as determined by FDA, of the breast milk macronutrients test system. Precision studies must include assessment of a minimum of three breast milk specimens containing different concentrations (low, medium, and high levels) of fat, carbohydrates, and protein. Precision data must include breast milk specimen measurements that are collected at a minimum of three laboratory sites.
(iii) Data that demonstrate appropriate measurement accuracy, as determined by FDA, of fat, carbohydrates, and protein in breast milk. Measurement accuracy data must include breast milk specimen measurements that are collected at a minimum of one laboratory site.
(iv) Data from studies appropriate, as determined by FDA, to demonstrate that the device is free from significant interference from substances that could be present in human milk, including hemoglobin, and medications that are used by breastfeeding subjects.
(2) The labeling required under § 809.10 of this chapter must include a limiting statement indicating that the results should be used only as an aid in
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the coagulation system for the measurement of whole blood viscoelastic properties in perioperative patients into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the coagulation system for the measurement of whole blood viscoelastic properties in perioperative patients' classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on March 12, 2019.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the coagulation system for the measurement of whole blood viscoelastic properties in perioperative patients as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k) (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On April 2, 2018, FDA received HemoSonics, LLC's, request for De Novo classification of the Quantra QPlus System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on March 12, 2019, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Blood, Medical devices, Packaging and containers.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 864 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Design verification and validation must include detailed documentation of, and results from, the following:
(i) A study assessing precision using protocols determined to be acceptable by FDA, to cover the measurement range for each reported parameter (test output). Testing must include native specimens with coagulation profiles representative of the intended use population. In order to cover the measuring range, testing may include a limited number of contrived specimens, not to exceed 10 to 20 percent, or as otherwise deemed appropriate by FDA. The contrived specimens must be prepared to resemble clinical specimens. This testing must evaluate repeatability and reproducibility and provide assessments of within-run, within-day, between-run, between-day, between-reagent lot, between-instrument, between-site, and between-
(ii) Studies that demonstrate the performance of each parameter (test output) throughout the claimed measurement range, to include linearity studies or dose-response studies, as applicable to the parameter (test output);
(iii) Potential interferent study that includes evaluation of hemolyzed and lipemic samples as potential interferents; exogenous and endogenous interferents associated with each patient population intended for use with the device, and which might be expected to affect assay performance, must be evaluated; and potential interferents that are specific for, or related to, the technology or methodology of the device. Evaluation of all potential interferents must be performed using a protocol determined to be acceptable to the FDA (
(iv) A study that evaluates specimen stability under the intended conditions for specimen collection, handling, and storage, using samples that cover the coagulation profiles representative of the intended use population, and using protocols determined to be acceptable by FDA;
(v) A multisite clinical study, determined to be acceptable by FDA, demonstrating performance, relative to clinically relevant and clinically validated laboratory test(s) for each parameter (test output). Further, the study must meet all of the following criteria:
(A) The study must be performed in the intended use population and include representation from all patient populations for whom the device is intended to be used. Potential endogenous and exogenous interferents for each target patient population must be evaluated or known prior to the study;
(B) The study must be conducted at a minimum of three external sites representative of the intended use setting by the intended operators;
(C) Test samples must be collected at time intervals relevant to the device's use in the intended use population;
(D) Clinical specimens, which cover coagulation profiles representative of the intended use population, must be evaluated at each of the three clinical sites in the study;
(E) Analysis of the concordance of clinical interpretation of patient coagulation status made from individual test parameter (test output) results as compared to clinical interpretation of coagulation status from a clinically relevant laboratory test or tests (
(F) Expected (reference) values for each parameter (test output) must be demonstrated by testing a statistically appropriate number of samples from apparently healthy normal individuals;
(vi) For a device with a user interface that has information that needs to be interpreted by the user in correctly using the device to achieve the intended test results or a device that does not provide a final output that is a comprehensive interpretation of all parameter (test output) results, a study evaluating the ability of device users to correctly interpret results;
(vii) For any device indicated to guide blood product use, a clinical outcome study determined to be acceptable by FDA that specifically validates the device's indicated use in guiding blood product use; and
(viii) For any device indicated to guide use of medication, a clinical outcome study determined to be acceptable by FDA that specifically validates the device's indicated use in guiding use of medication.
(2) The labeling required under § 809.10(b) of this chapter must include the following:
(i) A summary of results from the study required by paragraph (b)(1)(i) of this section, including repeatability, reproducibility, and assessments of within-run, within-day, between-run, between-day, between-reagent lot, between-instrument, between-site, and between-operator precision, as applicable to the system.
(ii) The claimed measurement range of each parameter (test output), as supported by demonstrated performance of the parameter (test output) throughout the claimed measurement range, including studies required by paragraphs (b)(1)(i) through (iii) and (v) of this section, and, if applicable, paragraphs (b)(1)(vii) and (viii) of this section.
(iii) Identification of known interferents, including all endogenous, exogenous, technology-specific, and patient population-specific interferents, specific to each parameter (test output). The information must include the concentration(s) or level(s) at which interference was found to occur and the concentration range or levels at which interference was not found to occur.
(iv) Information regarding the multisite clinical study required by paragraph (b)(1)(v) of this section, including:
(A) Each patient population evaluated;
(B) Each intended use setting and the operators;
(C) A summary of the results, including the concordance analysis to clinically relevant laboratory test(s); and
(D) Demonstrated expected (reference) values for each parameter (test output).
(3) The labeling required under § 809.10 of this chapter must include the following:
(i) A limiting statement that the result(s) from the device is(are) not intended to be used as the sole basis for a patient diagnosis.
(ii) Unless appropriate clinical outcome studies are done in accordance with paragraph (b)(1)(vii) of this section that specifically validate an indication for the device's use in guiding blood product use, a limiting statement that the device has not been evaluated to guide blood product use.
(iii) Unless appropriate clinical outcome studies are done in accordance with paragraph (b)(1)(viii) of this section that specifically validate an indication for the device's use in guiding use of medication, a limiting statement that the device has not been evaluated to guide use of medication.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the device to detect nucleic acids from non-viral microorganism(s) causing sexually transmitted infections and associated resistance marker(s) into class II (special controls). The special controls that apply to the device type
This order is effective May 9, 2025. The classification was applicable on January 23, 2019.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the device to detect nucleic acids from non-viral microorganism(s) causing sexually transmitted infections and associated resistance marker(s) as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On August 31, 2018, FDA received Hologic, Inc.'s request for De Novo classification of the Aptima Mycoplasma genitalium Assay. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on January 23, 2019, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.3393.
FDA has identified the following risks to health associated specifically with this type of device and the measures
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) The intended use for the labeling required under § 809.10 of this chapter must include a detailed description of targets the device detects, the results provided to the user, the clinical indications appropriate for test use, and the specific population(s) for which the device is intended.
(2) Any sample collection device used must be FDA-cleared, -approved, or -classified as 510(k) exempt (standalone or as part of a test system) for the collection of specimen types claimed by this device; alternatively, the sample collection device must be cleared in a premarket submission as a part of this device.
(3) The labeling required under § 809.10(b) of this chapter must include:
(i) A detailed device description, including reagents, instruments, ancillary materials, all control elements, and a detailed explanation of the methodology, including all pre-analytical methods for processing of specimens;
(ii) Detailed discussion of the performance characteristics of the device for all claimed specimen types based on analytical studies, including Limit of Detection, inclusivity, cross-reactivity, interfering substances, competitive inhibition, carryover/cross contamination, specimen stability, within lab precision, and reproducibility, as appropriate;
(iii) Detailed descriptions of the test procedure, the interpretation of test results for clinical specimens, and acceptance criteria for any quality control testing;
(iv) Limiting statements indicating that:
(A) A negative test result does not preclude the possibility of infection;
(B) The test results should be interpreted in conjunction with other clinical and laboratory data available to the clinician;
(C) Reliable results are dependent on adequate specimen collection, transport, storage, and processing. Failure to observe proper procedures in any one of these steps can lead to incorrect results; and
(D) If appropriate (
(v) If the device is intended to detect antimicrobial resistance markers, limiting statements, as appropriate, indicating that:
(A) Negative results for claimed resistance markers do not indicate susceptibility of detected microorganisms, as resistance markers not measured by the assay or other potential mechanisms of antibiotic resistance may be present;
(B) Detection of resistance markers cannot be definitively linked to specific microorganisms and the source of a detected resistance marker may be an organism not detected by the assay, including colonizing flora;
(C) Detection of antibiotic resistance markers may not correlate with phenotypic gene expression; and
(D) Therapeutic failure or success cannot be determined based on the assay results, since nucleic acid may persist following appropriate antimicrobial therapy.
(4) Design verification and validation must include:
(i) Detailed device description documentation, including methodology from obtaining sample to result, design of primer/probe sequences, rationale for target sequence selection, and computational path from collected raw data to reported result (
(ii) Detailed documentation of analytical studies, including, Limit of Detection, inclusivity, cross-reactivity, microbial interference, interfering substances, competitive inhibition, carryover/cross contamination, specimen stability, within lab precision, and reproducibility, as appropriate.
(iii) Detailed documentation and performance results from a clinical study that includes prospective (sequential) samples for each claimed specimen type and, when determined to be appropriate by FDA, additional characterized clinical samples. The study must be performed on a study population consistent with the intended use population and compare the device performance to results obtained from FDA accepted comparator methods. Documentation from the clinical studies must include the clinical study protocol (including a predefined statistical analysis plan) study report, testing results, and results of all statistical analyses.
(iv) A detailed description of the impact of any software, including software applications and hardware-based devices that incorporate software, on the device's functions.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the cytomegalovirus nucleic acid detection device for congenital cytomegalovirus infection into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the cytomegalovirus nucleic acid detection device for congenital cytomegalovirus infection's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on November 30, 2018.
Ryan Lubert, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3414, Silver Spring, MD 20993-0002, 240-402-6357,
Upon request, FDA has classified the cytomegalovirus nucleic acid detection device for congenital cytomegalovirus infection as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On July 30, 2018, FDA received Meridian Bioscience, Inc.'s request for De Novo classification of the Alethia CMV Assay Test System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on November 30, 2018, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.3181.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding the quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) The labeling required under § 809.10(b) of this chapter must include:
(i) An intended use with a detailed description of what the device detects, the type of results provided to the user, the clinical indications appropriate for test use, and the specific population(s) to be tested.
(ii) A detailed device description, including all device components, instrument requirements, ancillary reagents required but not provided, and an explanation of the methodology, including all pre-analytical methods for specimen processing.
(iii) Performance characteristics from analytical and clinical studies required under paragraphs (b)(2)(ii) and (iii) of this section.
(iv) A detailed explanation of the interpretation of results and criteria for validity of results.
(v) A limiting statement that device results are not intended to be used as the sole basis for diagnosis, treatment, or other patient management decisions.
(vi) As applicable, a limiting statement and specific sample collection recommendations to indicate that breast milk can result in false positive results for saliva samples if samples are collected less than 1 hour after breastfeeding. Sample collection a minimum of 1 hour from breastfeeding must be recommended.
(vii) Detailed instructions for use that minimize the risk of generating a false result.
(2) Design verification and validation must include:
(i) Detailed device description documentation, including methodology from obtaining sample to result, design of primer/probe sequences, rationale for sequence selection, and computational path from collected raw data to reported result (
(ii) Detailed documentation of analytical studies including characterization of the cutoff, analytical sensitivity (limit of detection), inclusivity, reproducibility, interference, cross reactivity, instrument and method carryover/cross contamination, and sample stability and handling.
(iii) Detailed documentation from a clinical study documenting sensitivity and specificity of the device; if the number of positive samples in the clinical study is insufficient to properly estimate device sensitivity, additional pre-selected positive samples must be evaluated to supplement the study. Clinical study subjects must be consistent with the intended use population (
(iv) Detailed documentation for device software, including software applications and hardware-based devices that incorporate software.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the device to detect and identify microbial nucleic acids by fluorescence in situ hybridization (FISH) in clinical specimens into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the device to detect and identify microbial nucleic acids by FISH in clinical specimens classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on August 18, 2017.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the device to detect and identify microbial nucleic acids by FISH in clinical specimens as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On June 20, 2017, FDA received ID-FISH Technology, Inc.'s request for De Novo classification of the ID-FISH Plasmodium Genus Test Kit, ID-FISH Plasmodium falciparum and P. vivax Combo Test Kit. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on August 18, 2017, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.3367.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Design verification and validation must include the following:
(i) Detailed device description documentation, including the device components, instrument requirements, ancillary reagents required but not provided, and a detailed explanation of the methodology, including all pre-analytical methods for processing of specimens, probe sequences, and rationale for probe sequence selection;
(ii) Detailed description of the fluorophores, signal source, detection mechanism, and method of result interpretation;
(iii) Detailed documentation from the following analytical studies: analytical sensitivity (Limit of Detection), inclusivity, reproducibility, interference, cross reactivity, and specimen stability; and
(iv) Detailed documentation from a clinical study that includes prospective (sequential) samples. The study, performed on a study population consistent with the intended use population, must compare the device performance to results obtained from appropriate and well-accepted comparator methods.
(2) The labeling required under § 809.10(b) of this chapter must include:
(i) A statement that the device is intended to be used in conjunction with clinical history, signs, symptoms, and the results of other diagnostic testing;
(ii) A detailed explanation of the interpretation of results and acceptance criteria for any quality control testing; and
(iii) A limitation that negative results do not preclude the possibility of infection.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the DNA-based test to measure minimal residual disease in hematological malignancies into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the DNA-based test to measure minimal residual disease in hematological malignancies classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on September 28, 2018.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the DNA-based test to measure minimal residual disease in hematological malignancies as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On September 29, 2017, FDA received Adaptive Biotechnologies Corporation's request for De Novo classification of the clonoSEQ Assay. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on September 28, 2018, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.6100.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subpart A through E, regarding premarket approval have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding the quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Design verification and validation must include:
(i) A detailed description of the device, including:
(A) A detailed description of all test components, reagents, instrumentation, and software, including software applications and any hardware-based devices that incorporate software.
(B) A detailed description of all genomic regions that are detected and quantified by the assay.
(C) A detailed description of the methodology and protocols for each step of the test, including description of the quality metrics, thresholds, and filters at each step of the test that are implemented for final result reporting and a description of the metrics for run-failures, specimen-failures, and invalids, as appropriate.
(D) Detailed specifications and procedures for sample collection, processing, and storage.
(E) A description of the internal and external controls that are recommended or provided. The description must identify those control elements that are incorporated into the testing procedure. If appropriate, this description must include a description of the controls and control procedures used during the sequencing and data analysis.
(ii) Identification of risk mitigation elements used by the device, including a detailed description of all additional procedures, methods, and practices incorporated into the instructions for use that mitigate risks associated with use of the device.
(iii) As part of the risk management activities, an appropriate end user device training program must be offered as an effort to mitigate the risk of failure from user error, as appropriate.
(iv) Description of analytical and clinical studies, including:
(A) Device performance data that demonstrates the ability to measure minimal residual disease in the claimed specimen type(s) from patients that are representative of the intended use population. Data can be obtained via:
(
(
(B) Device precision (repeatability and reproducibility) data using clinical samples covering the range of minimal residual disease frequencies reported by the test and covering the stated range of DNA inputs that are indicated as allowable for use with the test. Results shall be reported as the standard deviation and/or percentage coefficient of variation with the 95 percent confidence interval for each level tested. The study must evaluate all sources of variability, including, as appropriate, between-site and between operator (minimum of three sites of which two must be external with a minimum of two operators per site), between-day (minimum of 3 days), between-run, within-run, between-lot (minimum of three lots), between instrument (minimum of three instruments), and total variation.
(C) Device linearity data generated from samples covering the device measuring range using a dilution panel created from clinical samples.
(D) Device accuracy by comparison to flow cytometry across the measuring interval or to the predicate method across the measuring interval.
(E) Device analytic sensitivity data, including limit of blank, limit of detection, and limit of quantitation, using a dilution panel created from clinical samples.
(F) Analytical specificity data, including interference and cross-contamination, and index cross-contamination, as appropriate.
(G) Validation of pre-analytical methods, including DNA extraction methods and cell enrichment methods, as appropriate.
(H) Device stability data, including real-time stability of reagents under various storage times and temperatures.
(I) Specimen and prepared sample stability data established for each specimen matrix in the anticoagulant
(2) The intended use for the labeling required under § 809.10(a)(4) of this chapter and for the labeling required under § 809.10(b)(5)(ii) of this chapter, as applicable, must include:
(i) The clinical hematopoietic malignancy for which the assay was designed and validated (
(ii) Specimen type (
(iii) The specific DNA regions that are being identified and quantified (
(iv) A statement that the results are indicated to be interpreted by qualified healthcare professionals in accordance with professional guidelines for clinical decision-making in conjunction with other clinicopathological features.
(3) The labeling required under § 809.10(b) of this chapter must include information that demonstrates the performance characteristics of the test, including a detailed summary of the performance studies conducted and their results, as described in paragraphs (b)(1)(iv)(A) through (I) of this section.
(4) The device output, including any test report, must include the estimated minimal residual disease (MRD) frequency and an appropriate range of the uncertainty of that frequency based on the amount of DNA that was evaluated by the test and the number of specific nucleic acid sequences that were detected (
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, the Agency, or we) is classifying the device to detect and measure non-microbial analytes to aid in the detection and identification of localized human infections into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the device to detect and measure non-microbial analytes to aid in the detection and identification of localized human infections' classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on May 23, 2019.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the device to detect and measure non-microbial analytes to aid in the detection and identification of localized human infections as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On June 29, 2018, FDA received CD Diagnostics Inc.'s request for De Novo classification of the Synovasure Alpha Defensin Lateral Flow Test Kit, Synovasure Alpha Defensin Lateral Flow Test Kit (5 Test), Synovasure Alpha Defensin Lateral Flow Test Kit (10 Test), Synovasure Alpha Defensin Lateral Flow Test Kit (30 Test), and the Synovasure Alpha Defensin Control Kit. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on May 23, 2019, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.3230.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information part 860, subpart D, regarding De Novo
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Any sample collection device used must be FDA-cleared, -approved, or -classified as 510(k) exempt (standalone or as part of a test system) for the collection of human specimens; alternatively, the sample collection device must be cleared in a premarket submission as a part of this device.
(2) The labeling required under § 809.10(b) of this chapter must include:
(i) An intended use with a detailed description of what the device detects and measures, the type of results provided to the user, the sample type, whether the measure is qualitative and/or quantitative, the clinical indications for the test use, and the specific population(s) for which the device is intended.
(ii) A detailed description of the performance characteristics of the device for all intended specimen types from the analytical and clinical studies (as applicable) required under paragraphs (b)(3)(ii) and (iii) of this section.
(iii) A detailed explanation of the interpretation of results, including acceptance criteria for evaluating the validity of individual runs (
(iv) The following limiting statements:
(A) A statement that a negative test result does not preclude the possibility of infection;
(B) A statement that the test results should be interpreted in conjunction with other clinical and laboratory data available to the clinician;
(C) A statement that consistent device performance is dependent on adequate specimen collection, transport, storage, and processing. Failure to observe proper procedures in any one of these steps can lead to incorrect results; and
(D) A statement that details any limitations associated with the samples, as appropriate (
(3) Design verification and validation must include the following:
(i) A detailed device description, including as appropriate, all device parts; control elements incorporated into the test procedure; instrument requirements; reagents required but not provided; and the principle of device operation and test methodology, including all preanalytical methods for the processing of specimens and the methodology from obtaining a sample to the result; design of primer/probe sequences; rationale for target analyte selection; and computational path from collected raw data to reported result (
(ii) Detailed documentation of analytical studies including analytical sensitivity (Limit of Detection, Limit of Quantitation, and Limit of Blank), inclusivity, cross-reactivity, microbial interference, interfering substances, competitive inhibition, carryover/cross-contamination, specimen stability, within-lab precision, reproducibility, and linearity, as applicable.
(iii) Detailed documentation and results either from a clinical study, that includes prospective (sequentially collected) samples for each intended specimen type that are representative of the intended use populations and, when determined to be acceptable by FDA, additional characterized clinical samples; or, when determined to be acceptable by FDA, an equivalent sample set. The clinical study must compare the device performance to results obtained from an FDA-accepted reference method and/or FDA-accepted comparator method, as appropriate. Documentation from the clinical studies must include the clinical study protocol (
(iv) An evaluation of the level of the non-microbial analyte in asymptomatic patients with demographic characteristics (
(v) Documentation of an appropriate end user device training program that will be offered as part of efforts to mitigate the risks of false results, failure to operate the device correctly, and failure to interpret test results correctly.
(vi) An appropriate risk mitigation strategy to ensure that the device does not prevent any other device(s) with which it is indicated for use, including incorporated device(s), from achieving their intended use (
(vii) A detailed description of the impact of any software, including software applications and hardware-based devices that incorporate software, on the device's functions.
Food and Drug Administration, Department of Health and Human Services (HHS).
Final amendment; final order.
The Food and Drug Administration (FDA, Agency, or we) is classifying the microbial nucleic acid storage and stabilization device into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the microbial nucleic acid storage and stabilization device's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective May 9, 2025. The classification was applicable on March 19, 2018.
Dina Jerebitski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3574, Silver Spring, MD 20993-0002, 301-796-2411,
Upon request, FDA has classified the microbial nucleic acid storage and stabilization device as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or PMA to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.
On May 25, 2017, FDA received Longhorn Vaccines and Diagnostics LLC's request for De Novo classification of the PrimeStore MTM. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on March 19, 2018, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 866.2950.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) The intended use for the labeling required under § 809.10 of this chapter must include a detailed description of microorganisms and types of human specimens intended to be preserved.
(2) The labeling required under § 809.10(b) of this chapter must include the following:
(i) A detailed device description, including all device components;
(ii) Performance characteristics from applicable analytical studies, including nucleic acid stability and microorganism inactivation;
(iii) A limiting statement that erroneous results may occur when the transport device is not compatible with molecular testing; and
(iv) A limiting statement that the device has only been validated to preserve the representative microorganisms used in the analytical studies.
(3) Design verification and validation must include the following:
(i) Overall device design, including all device components and all control elements incorporated into the analytical validation procedures;
(ii) Thorough description of the microorganisms and methodology used in the validation of the device including, extraction platforms and assays used for the detection of preserved nucleic acids; and
(iii) The limit of detection (LoD) of the molecular test used to establish microorganism nucleic acid stability.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local
This rule is effective from 6:30 a.m. through 9:30 a.m. on June 22, 2025.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email MST1 Jean Jimenez Sosa, Marine Safety Detachment Cincinnati, U.S. Coast Guard; telephone 513-921-9033, email
The Coast Guard is issuing this temporary rule under the authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This action is necessary to publish an NPRM because the Coast Guard must establish this special local regulation by June 22, 2025, and lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Sector Ohio Valley (COTP) has determined that this action is necessary to provide for the safety of life on these navigable waters near Cincinnati, OH during the Queen City Triathlon on June 22, 2025. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulation from MM 469.6-470.2 from 6:30 a.m. through 9:30 a.m.
This rule establishes a temporary special local regulation from 6:30 a.m. until 9:30 a.m. on June 22, 2025. The regulation will prevent mariners and persons not participating in the triathlon from entering the Ohio River between MM 469.6-470.2. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the schedule event. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time of year of the temporary special local regulation. The temporary special local regulation will be in effect for only three hours and will cover an area less than one mile in length on the Ohio River. The Coast Guard expects minimum adverse impact to mariners from the temporary special local regulation activation as the event has been advertised to the public.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation that will prohibit entry from MM 469.6-470.2 of the Ohio River lasting from 6:30 a.m. through 9:30 a.m. It is categorically excluded from further review under paragraph L61of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative on VFH-FM radio channel 16 or phone at 1-800-253-7465. Those in the regulated area must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(3) The COTP will provide notice of the regulated area through advanced notice via broadcast notice to mariners and by on-scene designated representatives.
(d)
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a safety zone for a fireworks display at “The Wharf DC,” in Washington, DC, to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” identifies the precise location. During the enforcement period, vessels may not enter, remain in, or transit through the safety zone unless authorized to do so by the COTP or his representative, and vessels in the vicinity must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulation in 33 CFR 165.506 will be enforced for the location identified in line no. 1 of table 2 to 33 CFR 165.506(h)(2) from 8 p.m. until 10 p.m., on June 07, 2025.
If you have questions about this notification of enforcement, call or email LCDR Kate M. Newkirk, Sector Maryland-NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-576-2596, email
The Coast Guard will enforce the safety zone regulation for a fireworks display at The Wharf DC from 8 p.m. to 10 p.m. on June 07, 2025. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation, “Safety Zones; Fireworks Displays within the Fifth Coast Guard District,” § 165.506, specifies the location of the safety zone for the fireworks show, which encompasses portions of the Washington Channel in the Upper Potomac River. As reflected in 33 CFR 165.23, vessels in the vicinity of the safety zone may not enter, remain in, or transit through the safety zone during the enforcement period unless authorized to do so by the COTP or his representative, and they must comply with directions from the Patrol
In addition to this notification of enforcement in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waterways surrounding Key West, Florida, during the Key West Paddle Classic event. This safety zone is necessary to ensure the safety of event participants and spectators from potential hazards associated with this event. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Key West or a designated representative.
DATES:This rule is effective from 6 a.m. through 5 p.m. on May 10, 2025.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Chief Marine Science Technician Mathew Mason, Sector Key West Waterways Management Department, Coast Guard; telephone (305) 292-8823, email
The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive the information required to develop and finalize plans for an official patrol of the safety zone in ample time to allow for public comment for the Key West Paddle Classic on May 10, 2025. It is impracticable to delay issuing this rule because it is necessary to protect the safety of participants, spectators, the public, and vessels transiting the waters adjacent to Key West, FL.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034. The Captain of the Port (COTP) Key West has determined that potential hazards associated with open water paddle events will be a safety concern for persons and vessels in the regulated area. This rule is needed to ensure the safety of the event participants, the public, vessels and the marine environment in the navigable waters within the safety zone during the Key West Paddle Classic event.
This rule establishes a safety zone from 6 a.m. until 5 p.m. on May 10, 2025. The safety zone will cover all navigable waters within 50 yards in front of the lead safety vessel preceding the first event participants, 50 yards behind the safety vessel trailing the last event participants, and at all times extend 100 yards on either side of event participants. The event course begins at Higgs Beach in Key West, Florida, moves west to the area offshore of Fort Zachary Taylor Historic State Park, north through Key West Harbor, east through Fleming Key Cut, south through Cow Key Channel, and west returning to Higgs Beach, in Key West, FL.
The duration of the safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the paddle event. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the Coast Guard assigned to units under the operational control of the Coast Guard Sector Key West. Requests for entry will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at (305) 292-8772 and at can be reached by VHF-FM channel 16. Persons and vessels permitted to enter these security zones must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or their designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on: (1) This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable waters of Key West, Florida, during a paddle event lasting eleven hours; (2) Although persons and vessels may not enter, transit through, anchor in, or remain within the zone without authorization from the COTP or a designated representative, they will be able to safely transit around this safety zone; (3) persons and vessels may still enter, transit through, anchor in, or remain within the areas during the enforcement period if authorized by the COTP or a designated representative; and (4) the Coast Guard will provide advance notification of the zone to the
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 11 hours that will prohibit entry of a zone within 100 yards directly surrounding race participants. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) Designated representatives may control vessel traffic throughout the enforcement area as determined by the prevailing conditions.
(3) To seek permission to enter, contact COTP Key West or representative by telephone at (305) 292-8772 or via VHF radio on channel 16. Those in the security zone must comply with all lawful orders or directions given to them by the COTP Key West or designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving Washington State Implementation Plan (SIP) revisions to the Southwest Clean Air Agency (SWCAA) air quality regulations submitted by the State of Washington, through the Department of Ecology (Ecology) on June 22, 2023. The revisions were submitted in part to respond to the EPA's June 12, 2015 “SIP call” in which the EPA found a provision in the Washington SIP applicable in the area regulated by SWCAA to be substantially inadequate, providing affirmative defenses that operate to limit the jurisdiction of the Federal court in an enforcement action related to excess emissions during startup, shutdown, and malfunction (SSM) events. The EPA's approval of the SIP revisions to the substantially inadequate provision corrects the SWCAA deficiency identified in the 2015 SSM SIP call and the EPA's January 2022 finding of failure to submit. Washington withdrew some portions of the revisions submitted that were not identified in the 2015 SSM SIP call and therefore the EPA is not approving those withdrawn portions. The EPA proposed to approve this action on December 10, 2024, and received no comments.
This final rule is effective June 9, 2025.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2024-0373. All documents in the docket are listed on the
Randall Ruddick, EPA Region 10, 1200 Sixth Avenue (Suite 155), Seattle, WA 98101, (206) 553-1999; or email
Throughout this document whenever “we,” or “our,” is used, it refers to the EPA.
On December 10, 2024 (89 FR 99177), the EPA proposed to approve State Implementation Plan (SIP) revisions to the Southwest Clean Air Agency (SWCAA) air quality regulations submitted by the State of Washington, through the Department of Ecology (Ecology) on June 22, 2023. In that proposal, we also proposed to determine that the revisions to SWCAA's Rule 400-107, corrects the deficiency with respect to SWCAA that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction”
The EPA is approving and incorporating by reference in the Washington SIP the revisions Washington submitted on June 22, 2023, except for those withdrawn by Washington.
Once this action becomes effective, the Washington SIP will no longer include the following regulation for SWCAA's jurisdiction:
SWCAA Rule 400-070(2)(a),
This action also approves and incorporates by reference at 40 CFR 52.2470(c)—
• SWCAA Rule 400-040,
• SWCAA Rule 400-070,
• SWCAA Rule 400-081,
• SWCAA Rule 400-107,
These SIP revisions apply specifically to the jurisdiction of the Southwest Clean Air Agency in Washington State.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference as described in section II of this preamble. The EPA has made, and will continue to make,
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM) on December 20, 2023. The revision modifies the State's air quality regulations as incorporated into the SIP by changing the definition of “volatile organic compounds” (VOC) to be consistent with federal regulations. The revision also addresses typographical errors and increases clarity and consistency with EPA's definitions and Alabama's Legislative Services Agency requirements.
This rule is effective June 9, 2025.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2024-0174. All documents in the docket are listed on the
Weston Freund, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8773. Mr. Freund can also be reached via electronic mail at
EPA is approving changes to the Alabama SIP submitted by the State of Alabama through a letter dated December 20, 2023,
Through a notice of proposed rulemaking (NPRM), published on March 7, 2025 (90 FR 11500), EPA proposed to approve the December 20, 2023, changes to Alabama Administrative Code Rule 335-3-1-.02,
All comments received on the NPRM are provided in the docket for this final action. Summaries of the adverse comments and EPA's responses to these comments are provided below.
Alabama did submit a SIP revision on December 20, 2023, consisting of changes to certain air permit regulations that have been amended by the State agency since EPA last approved those provisions; however, EPA will address these revisions in a separate rulemaking.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I and II of this preamble, EPA is finalizing the incorporation by reference of Alabama Administrative Code Rule 335-3-1-.02,
EPA is approving Alabama's December 20, 2023, SIP revision consisting of the aforementioned changes to Chapter No. 335-3-1,
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
The amendments read as follows:
(c) * * *
Office of Government-wide Policy (OGP); General Services Administration, (GSA).
Notification of Rescission.
GSA is rescinding the Federal Management Regulation (FMR) bulletin on Nondiscrimination Clarification in the Federal Workplace, which provided guidance on the interpretation of the prohibition against sex discrimination under various Federal civil rights laws. The rescission is based on E.O. 14168,
For clarification of content or information regarding a request for a delegation of authority, please contact Aluanda R. Drain, Associate Administrator, Office of Civil Rights, 202-501-0767, or by email at
On August 18, 2016, GSA issued a bulletin titled “Nondiscrimination Clarification in the Federal Workplace” (81 FR 55148, as corrected at 81 FR 63134, September 14, 2016). This bulletin provided guidance on the interpretation of the prohibition against sex discrimination under various Federal civil rights laws including Title VII of the Civil Rights Act of 1964 (Title VII), as amended, and Title IX of the Education Amendments Act of 1973, (Title IX) as amended. In particular, the Bulletin concludes that sex discrimination under relevant Federal laws also included discrimination based on gender identity and gender status. Pursuant to E.O. 14168 “
E.O. 14168 states that gender ideology embraces the belief that there are genders disconnected from the sex that one is assigned at birth. Accordingly, the E.O. directs agencies to promptly remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Additionally, the referenced Bulletin is inconsistent with E.O. 14168 in that it not only considers Title VII and Title IV to protect gender identity, but it also cites support in several cases issued by the U.S. Equal Employment Opportunity Commission upholding the use of restrooms based on gender identity. Therefore, the bulletin must be rescinded to bring GSA-controlled buildings into alignment with the principles of E.O. 14168 declaring that it is the Policy of the United States to recognize only two sexes, male and female.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus Helicopters Model EC 130 B4 and EC 130 T2 helicopters. This proposed AD was prompted by a report of heavy damage on the fenestron due to the loss of the tail rotor (TR) blade, which broke at the TR hub tension-torsion bar (tension-torsion bar). This proposed AD would require inspecting the tension-torsion bar and, depending on the inspection results, taking corrective actions. This proposed AD would also prohibit performing maintenance using certain maintenance manuals. These proposed actions are specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this NPRM by June 23, 2025.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For EASA material identified in this proposed AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222 5110.
Tara Lucas, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (206) 231-3189; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tara Lucas, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2024-0113, dated June 13, 2024 (EASA AD 2024-0113) (also referred to as “the MCAI”), to correct an unsafe condition on Airbus Helicopters Model EC 130 B4 and EC 130 T2 helicopters. The MCAI states an occurrence was reported of heavy damage on the fenestron due to the loss of the TR blade, which broke at the tension-torsion bar and separated from the hub assembly. The FAA is proposing this AD to prevent failure of the tension-torsion bar, which could result in loss of the TR anti-torque function and consequent loss control of the helicopter.
You may examine the MCAI in the AD docket at
The FAA reviewed EASA AD 2024-0113, which specifies procedures for inspecting all lamellas that compose the tension-torsion bar and, if any discrepancy is detected, replacing the
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type designs.
This proposed AD would require accomplishing the actions specified in EASA AD 2024-0113, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2024-0113 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2024-0113 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD Material referenced in EASA AD 2024-0113 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 108 helicopters of U.S. registry. Labor rates are estimated at $85 per hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Inspecting all 10 tension-torsion bars on each helicopter (to include removing any corrosion) would take 4 work-hours for an estimated cost of $340 per helicopter and $36,720 for the U.S. fleet.
If required, replacing a tension torsion bar would take 4 work-hours and parts would cost $1,144 for an estimated cost of $1,484 per replacement.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by June 23, 2025.
None.
This AD applies to Airbus Helicopters Model EC 130 B4, and EC 130 T2 helicopters, certificated in any category.
Joint Aircraft System Component (JASC) Code: 6500, Tail rotor drive system.
This AD was prompted by a report of heavy damage on the fenestron, due to the loss of the tail rotor (TR) blade, which broke at the TR hub tension-torsion bar. The FAA is issuing this AD to prevent failure of the tension-torsion bar. The unsafe condition, if not addressed, could result in loss of the TR anti-torque function and consequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency AD 2024-0113, dated June 13, 20204 (EASA AD 2024-0113).
(1) Where EASA AD 2024-0113 requires compliance in terms of flight hours, this AD requires using hours time-in-service.
(2) Where EASA AD 2024-0113 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where EASA AD 2024-0113 defines Groups, for this AD, Group 1 also includes those helicopters for which it cannot be determined if maintenance was accomplished using Aircraft Maintenance
(4) Where paragraph (2) of EASA AD 2024-0113 specifies “discrepancies as identified in the ASB are,” this AD requires replacing that text with, “a discrepancy, which is defined as a crack, nail-sensitive scratch, deformed lamella, broken lamella, mark, circular contact indication (other than those on the first and last lamella of the tension-torsion bar), or the P/N is not written on the first and the last lamella, is.”
(5) Where paragraph 3 of EASA AD 2024-0113 specifies “an aeroplane,” this AD requires replacing that text with “any helicopter.”
(6) Where the material referenced in EASA AD 2024-0113 specifies to discard parts, this AD requires removing those parts from service.
(7) Where the material referenced in EASA AD 2024-0113 specifies actions for non-installed equipment or parts, this AD does not require those actions.
(8) This AD does not adopt the “Remarks” section of EASA AD 2024-0113.
Although the material referenced in EASA AD 2024-0113 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
Special flight permits are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The following provisions also apply to this AD.
For more information about this AD, contact Tara Lucas, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (206) 231-3189; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the material listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this material as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2024-0113, dated June 13, 2024.
(ii) [Reserved]
(3) For EASA material identified in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
(4) You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222 5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-3 helicopters. This proposed AD was prompted by reports of momentary direct current (DC) power interruption in flight of both essential busses. This proposed AD would require revising the existing rotorcraft flight manual (RFM) for your helicopter, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by June 23, 2025.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For EASA material identified in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Parkway, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (303) 342-1080; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0208, dated October 11, 2022 (EASA AD 2022-0208) (also referred to as the MCAI), to correct an unsafe condition on certain serial-numbered AHD Model MBB-BK117 D-3 and D-3m helicopters. This proposed AD was prompted by reports of momentary DC power interruption in flight of both essential busses. The investigation is still ongoing to identify the root cause of this occurrence. In the interim, AHD developed emergency and malfunction procedures to address this issue. The FAA is proposing this AD to address DC power interruption, which could result in loss of control of the helicopter or reduced situational awareness.
You may examine the MCAI in the AD docket at
The FAA reviewed EASA AD 2022-0208, which specifies procedures for revising the RFM by incorporating an emergency and malfunction procedure, informing all flight crews, and thereafter, operating the helicopter accordingly. This material provides updated battery discharging procedures, which includes a warning in case of total electrical failure.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2022-0208, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD. See “Differences Between this AD and the MCAI” for a discussion of the general differences included in this AD. The owner/operator (pilot) holding at least a private pilot certificate may revise the existing RFM for your helicopter and must enter compliance with the applicable paragraph of the proposed AD into the helicopter maintenance records in accordance with 14 CFR 43.9(a) and 91.417(a)(2)(v).
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0208 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0208 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Material required by EASA AD 2022-0208 for compliance will be available at
EASA AD 2022-0208 applies to Model MBB-BK117 D-3m helicopters, whereas this proposed AD would not because that model is not FAA type-certificated.
The MCAI requires operators to “inform all flight crew” of the revisions to the RFM, and thereafter to “operate the helicopter accordingly.” However, this AD does not require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the RFM (for example, 14 CFR 135.21) and to ensure the pilots are familiar with the RFM (for example, 14 CFR 91.505). As with any other flight crew training requirement, training on the updated RFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing RFM including all updates. Therefore, including a requirement in this AD to inform the flight crew and operate the helicopter according to the revised RFM would be redundant and unnecessary.
The FAA considers this proposed AD would be an interim action. If final action is later identified, the FAA might consider further rulemaking then.
The FAA estimates that this AD, if adopted as proposed, would affect 27 helicopters of U.S. Registry. Labor rates are estimated at $85 per hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Revising the existing RFM for your helicopter would take 1 work-hour for an estimated cost of $85 per helicopter and $2,295 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by June 23, 2025.
None.
This AD applies to Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-3 helicopters, certificated in any category, as identified in European Union Aviation Safety Agency AD 2022-0208, dated October 11, 2022 (EASA AD 2022-0208).
Joint Aircraft Service Component (JASC) Code: 2432, Battery/Charger System.
This AD was prompted by reports of momentary direct current (DC) power interruption in flight of both essential busses. The FAA is issuing this AD to address DC power interruption through updated procedures. The unsafe condition, if not addressed, could result in loss of control of the helicopter or reduced situational awareness.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2022-0208. The owner/operator (pilot) holding at least a private pilot certificate may revise the existing RFM for your helicopter and must enter compliance with this paragraph of the AD into the helicopter maintenance records in accordance with 14 CFR 43.9(a) and 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(1) Where paragraph (1) of EASA AD 2022-0208 specifies to inform all flight crews and operate the helicopter accordingly, this AD does not require those actions.
(2) Where paragraph (2) of EASA AD 2022-0208 specifies “the RFM emergency and malfunction procedure, is an acceptable method” this AD requires replacing that text with “the RFM emergency and malfunction procedure, as defined in this AD, is an acceptable method.”
(3) This AD does not adopt the “Remarks” section of EASA AD 2022-0208.
Special flight permits are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (303) 342-1080; email:
(1) The Director of the Federal Register approved the incorporation by reference of the material listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this material as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2022-0208, dated October 11, 2022.
(ii) [Reserved]
(3) For EASA material identified in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
(4) You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Parkway, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Food and Drug Administration, HHS.
Proposed rule; extension of comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the proposed rule entitled “Food Labeling: Front-of-Package Nutrition Information” that appeared in the
FDA is extending the comment period on the proposed rule published January 16, 2025 (90 FR 5426), by 60 days. Either electronic or written comments must be submitted by July 15, 2025.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Claudine Kavanaugh, Office of Nutrition and Food Labeling, Human Foods Program, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 301-796-4647; or Deirdre Jurand or Alexandra Beliveau, Office of Policy, Regulations, and Information, Human Foods Program, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2378.
In the
We have considered the requests and are extending the comment period for the proposed rule for 60 days, until July 15, 2025. We believe that a 60-day extension allows adequate time for interested parties to submit comments without significantly delaying rulemaking on the important issues in the proposed rule.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a permanent security zone for certain waters of the Upper Mississippi River adjacent to the Jefferson Barracks military installation, Saint Louis, MO. This proposed rulemaking would prohibit persons and vessels from operating or anchoring within the Security zone unless authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative. This action is necessary to ensure no unauthorized entry into the waters adjacent to the military installation to safeguard the installation from sabotage or other
Comments and related material must be received by the Coast Guard on or before June 9, 2025.
You may submit comments identified by docket number USCG-2025-0210 using the Federal Decision-Making Portal at
If you have questions about this proposed rulemaking, call or email MST2 Jekeydon Pratcher, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2564, email
In accordance with 33 CFR 165.5, the Missouri Air National Guard notified the Coast Guard of waterside security concerns at the Jefferson Barracks military installation and requested that the Coast Guard establish a security zone for this area. Accordingly, the Captain of the Port Sector Upper Mississippi River (COTP) has determined that security risks exist in this area and have potential navigable waterway impact, and therefore a security zone would be needed to safeguard the military installation from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature.
The purpose of this rulemaking is to address and mitigate security risks on the navigable waters adjacent to the Jefferson Barracks National Cemetery. The Coast Guard may issue security zone regulations under authority in 46 U.S.C. 70051 and 70124.
The COTP is proposing to establish a permanent security zone that would cover all navigable waters within 300 feet of the right descending bank of the Upper Mississippi River from mile marker 169.3 to 169.5. No vessel or person would be permitted to enter the security zone without obtaining permission from the COTP or a designated representative. The proposed regulatory text appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size and location of the security zone. The security zone impacts approximately 350 yards along the Upper Mississippi River and extends only 300 feet into the river from the right descending bank. Vessels would be able to safely transit up and down the Mississippi River without entering this zone, but the rule would allow vessels to enter with the permission of the COTP. The Coast Guard will issue Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), or Marine Safety Information Bulletins (MSIBs), via VHF-FM marine channel 13 or 16, to notify the public about the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a permanent security zone that would prohibit entry within approximately 300 feet of the right descending bank of the Upper Mississippi River from mile marker 169.3 to 169.5. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(2) As used in this section,
(c)
(1) Under the general security zone regulations in subpart D of this part, you may not enter the security zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter, contact the COTP or the COTP's representative on Channel 16 or by phone at 314-269-2332. Those in the security zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
U.S. Commission on Civil Rights.
Announcement of virtual business meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that the Oklahoma Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold virtual business meetings via ZoomGov on Wednesday, May 21, 2025 and Thursday, June 5, 2025 from 2 p.m.-3 p.m. central time (CT). For the purpose of considering the topic for their next project.
The meeting will take place on Wednesday, May 21st and Thursday, June 5, 2025 from 2 p.m.-3 p.m. CT.
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•
•
Brooke Peery, Designated Federal Officer (DFO) at
Committee meetings are available to the public through the videoconference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Corrine Sanders, Support Services Specialist,
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments can be sent via email to Brooke Peery (DFO) at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that imports of 1-hydroxyethylidene-1, 1-diphosphonic acid, also referred to as hydroxyethylidenendiphosphonic acid, hydroxyethanediphosphonic acid, acetodiphosphonic acid, and etidronic acid, in solid or powder form (acidic solid HEDP) from the People's Republic of China (China) are circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on 1-hydroxyethylidene-1, 1-diphosphonic acid (HEDP) from China. Interested parties are invited to comment on this preliminary determination.
Applicable May 9, 2025.
Charles Vannatta, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4036.
On May 18, 2017, Commerce published in the
On December 19, 2024, Commerce published in the
The merchandise covered by the
This circumvention inquiry covers acidic solid HEDP produced in China and exported to the United States. A complete description of the merchandise subject to the circumvention inquiry is contained in the Preliminary Decision Memorandum.
Commerce is conducting this circumvention inquiry pursuant to section 781(c) of the Act and 19 CFR 351.226(j). For a complete description of the methodology underlying the preliminary determination,
As detailed in the Preliminary Decision Memorandum, we preliminarily determine that acidic solid HEDP is being produced in China and exported to the United States, and that the sale of acidic solid HEDP in the United States is circumventing the
Pursuant to section 776(a) of the Act, if necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impedes a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by not acting to the best of its ability to provide requested information.
Commerce requested quantity and value (Q&V) information from twelve companies: Dalian Sinobio Chemistry Co., Ltd. (Dalian Sinobio), Henan Qingshuiyuan Technology Co, Ltd. (Henan Qingshuiyuan), Jiangsu Yao's Environmental Protection Technology Co., Ltd. (Jiangsu Yao), Jiyuan Qingyuan Water Treatment Co. (Jiyuan Qingyuan), Juancheng Kangtai, KCC Industrial Enterprise Limited (KCC Industrial), Nantong Uniphos Chemicals Co., Ltd. (Nantong Uniphos), Plastix Company Ltd. (Plastix), Shandong Dongyue Chemical (Shandong Dongyue), Shandong Green Technologies Import Export Co., Ltd. (Green Technologies), Shandong Taihe Chemicals Co., Ltd. (Taihe Chemicals), and Shandong Taihe Water Treatment Technologies Co., Ltd (Taihe Water Treatment).
Therefore, we preliminarily find that the Eleven Non-Responsive Companies withheld requested information, failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded this inquiry, within the meaning of sections 776(a)(1) and (2)(A)-(C) of the Act. Moreover, we find that the Eleven Non-Responsive Companies failed to cooperate by not acting to the best of their ability to provide the requested information because they did not provide a timely response to Commerce's questionnaire. Consequently, we used adverse inferences with respect to the Eleven Non-Responsive Companies in selecting
As detailed in the Preliminary Decision Memorandum, based on AFA, we preliminarily determine that the Eleven Non-Responsive Companies have exported inquiry merchandise during the period of inquiry (
In accordance with 19 CFR 351.226(l)(2), we will direct CBP to continue the suspension of liquidation of previously suspended entries and to suspend liquidation of all entries of acidic solid HEDP produced in China that are entered, or withdrawn from warehouse, for consumption in the United States on or after December 19, 2024, the date of publication of the initiation of this circumvention inquiry in the
These suspension of liquidation instructions and cash deposit requirements will remain in effect until further notice.
Normally, Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b). However, in this inquiry, there are no calculations to disclose as this preliminary determination is based entirely on facts available. Accordingly, there will be no disclosure for this preliminary affirmative determination.
Interested parties may submit affirmative comments to Commerce no later than 14 days after the date of publication of this notice in the
In this circumvention inquiry, we request that interested parties provide at the beginning of their affirmative and rebuttal comments, a public executive summary for each issue raised in their comments.
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, U.S. Department of Commerce, within 30 days after the date of publication of this notice in the
All submissions, including affirmative and rebuttal comments, as well as hearing requests, should be filed using ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time on the established deadline.
Commerce is issuing and publishing this preliminary determination in accordance with section 781(c) of the Act and 19 CFR 351.226(g)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 14, 2025, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable April 24, 2025.
Krisha Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4037.
On September 8, 2023, Commerce published the
Trina appealed Commerce's
In its final results of redetermination, issued on December 18, 2024, Commerce, under respectful protest, adjusted the prices of Trina's sales of subject merchandise during the POR by the countervailing duties imposed on three of the six subsidy programs at issue.
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because Trina does not have a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from liquidating entries that: were exported by Trina and were entered, or withdrawn from warehouse, for consumption during the period February 1, 2021, through January 31, 2022. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
In the event the CIT's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise exported by Trina in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that utility scale wind towers (wind towers) from the Republic of Korea (Korea) were not made at less than normal value during the period of review (POR) August 1, 2022, through July 31, 2023.
Applicable May 9, 2025.
Anne Entz, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3845.
This review covers one producer/exporter of the subject merchandise, Dongkuk S&C Co., Ltd. (Dongkuk). On September 13, 2024, Commerce published the
For a summary of the events that occurred since the
The merchandise subject to the
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum and are listed 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
We determine that the following weighted-average dumping margin exists for the period, August 1, 2022, through July 31, 2023:
Normally, Commerce discloses to interested parties the calculations of the final results of an administrative review within five days of a public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final results in the
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce has determined, 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.
Pursuant to 19 CFR 351.212(b)(1), Dongkuk reported the entered value of its U.S. sales such that we calculated importer-specific
Commerce's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by Dongkuk for which the company did not know that the merchandise it sold to the intermediary (
Commerce intends to issue liquidation 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 will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the company listed above will be equal to the weighted-average dumping margin established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
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 review period. 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 serves as the only reminder to parties subject to an APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), 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.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Hankook Tire & Technology Co. Ltd. (Hankook) and Nexen Tire Corporation (Nexen) made sales of passenger vehicle and light truck tires from the Republic of Korea (Korea) at prices below normal value (NV) during the period of review (POR), July 1, 2022, through June 30, 2023.
Applicable May 9, 2025.
Charles DeFilippo and Jun Jack Zhao, 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) 482-3797 and (202) 482-1396, respectively.
On August 9, 2024, Commerce published the
The merchandise covered by the
We addressed all issues raised in the case and rebuttal briefs by interested parties to this administrative review in the Issues and Decision Memorandum. For a list of the issues raised by parties,
Based on our review of the record and comments received from interested parties, we made certain changes to the margin calculations for Hankook and Nexen for these final results of review. As a result of these changes, the weighted-average dumping margin changed for the company subject to this review, but not selected for individual examination. For a discussion of these changes,
The Act and Commerce's regulations do not address the establishment of a weighted-average dumping margin to be determined for companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a less-than-fair-value (LTFV) investigation, for guidance when determining the weighted-average dumping margin for companies which were not selected for individual examination in an administrative review.
Section 735(c)(5)(A) of the Act provides that Commerce will base the all-others rate on the weighted average of the estimated weighted-average dumping margins calculated for the individually examined respondents, excluding rates that are zero,
In this review, we calculated weighted-average dumping margins for Hankook and Nexen are not zero,
As a
We intend to disclose the calculations performed to parties in this proceeding within five days after the date of publication in the
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), 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.
Because the weighted-average dumping margins for Hankook and Nexen are not zero or
For Kumho Tire Co., Inc., the assessment rate for antidumping duties will be equal to the weighted-average dumping margin in the final results of review. If the weighted-average dumping margin is zero or
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this administrative review in the
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review in the
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as the 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 review period. 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 an administrative protective order (APO) of their responsibility concerning the return or destruction 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 return or 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.
We are issuing and publishing these final results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(2) and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) order on certain steel threaded rod (steel threaded rod) from the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping, at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable May 9, 2025.
Karina Holbrook, Trade Agreements Policy and Negotiations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-8192.
On February 3, 2025, Commerce published the notice of initiation of the third five-year review of the
On March 5, 2024, the petitioner filed an adequate substantive response within the deadline specified in 19 CFR 351.218(d)(3)(i).
The merchandise covered by this
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c)(1), 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to APO of the responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218 and 19 CFR 351.221(c)(5)(ii).
Notice of application for an amended Export Trade Certificate of Review for California Almond Export Association, LLC, Application No. 99-17A05.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (OTEA) of the International Trade Administration, received an application for an amended Export Trade Certificate of Review (Certificate). This notice summarizes the application and seeks public comments on whether the Certificate should be issued.
Amanda Reynolds, Acting Director, OTEA, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4011-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325. OTEA is issuing this notice pursuant to 15 CFR 325.6(a), which requires the Secretary of Commerce to publish a summary of the application in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.
Written comments should be sent to
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 99-17A05.”
1. Add the following entities as Members of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)):
2. Remove the following company as a Member of the Certificate:
3. Change the names of the following Members of the Certificate:
CAEA's proposed amendment of its Certificate would result in the following Members list:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 10, 2025, the U.S. Department of Commerce (Commerce) published its preliminary determination in the less-than-fair-value investigation of certain corrosion-resistant steel products (CORE) from the Republic of Türkiye (Türkiye) in the
Applicable May 9, 2025.
Olivia Woolverton or Brittany Bauer, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7452 or (202) 482-3860, respectively.
On April 10, 2025, Commerce published in the
The product covered by this investigation is CORE from Türkiye. For a complete description of the scope of this investigation,
A ministerial error is defined in 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” A significant ministerial error is defined as a ministerial error, the correction of which, singly or in combination with other errors, would result in: (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or
In the
Lastly, pursuant to 19 CFR 351.224(g)(2), Commerce's ministerial error in the calculation of Borcelik's FUPDOL is significant because its correction results in a difference between a weighted-average dumping margin of zero and a weighted-average dumping margin greater than
Section 735(c)(5)(A) of the Tariff Act of 1930, as amended (the Act), provides that Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
As a result of this amended preliminary determination, in this investigation Commerce calculated estimated weighted-average dumping margins for both Borcelik and Yıldız Demir Çelik Sanayi A.S. and Yıldız Entegre Ağaç Sanayi ve Ticaret A.S. (collectively, YDÇ) that are not zero,
As a result of the correction of the ministerial error, the revised estimated weighted-average dumping margin for Borcelik and all other producers and exporters are as follows:
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the amended preliminary determination, in accordance with 19 CFR 351.224.
The suspension of liquidation and cash deposit requirements will be revised according to this amended preliminary determination, in accordance with section 733(d) of the Act. Because this amended preliminary determination results in revised suspension of liquidation and cash deposit requirements, these changes will be effective on the date of publication of this notice in the
Further, Commerce has revised the estimated weighted-average dumping margin for all other producers and exporters of subject merchandise. Accordingly, Commerce will instruct CBP, for shipments of subject merchandise, not produced or exported by Borcelik or YDÇ, entered, or withdrawn from warehouse, for consumption on or after publication of this notice, and require a cash deposit equal to the revised estimated weighted-average dumping margin for all other producers and exporters (
These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 773(f) of the Act, we intend to notify the ITC of our amended preliminary determination.
This amended preliminary determination is issued and published in accordance with sections 733(f) and 777(i) of the Act, and 19 CFR 351.224(e).
The products covered by this investigation are certain flat-rolled steel products, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished, laminated, or coated with plastics or other non-metallic substances in addition to the metallic coating. The products covered include coils that have a width of 12.7 mm or greater, regardless of form of coil (
For purposes of the width and thickness requirements referenced above:
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of these investigations are products in which: (1) iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less, by weight.
Subject merchandise also includes corrosion-resistant steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching and/or slitting or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope corrosion resistant steel.
All products that meet the written physical description are within the scope of the investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (“terne plate”) or both chromium and chromium oxides (“tin free steel”), whether or not painted, varnished or coated with plastics or other non-metallic substances in addition to the metallic coating;
• Clad products in straight lengths of 4.7625 mm or more in composite thickness and of a width which exceeds 150 mm and measures at least twice the thickness;
• Certain clad stainless flat-rolled products, which are three-layered corrosion-resistant carbon steel flat-rolled products less than 4.75 mm in composite thickness that consist of a carbon steel flat-rolled product clad on both sides with stainless steel in a 20%-60%-20% ratio; and
Also excluded from the scope of the antidumping duty investigation on corrosion resistant steel from Taiwan are any products covered by the existing antidumping duty order on corrosion-resistant steel from Taiwan.
Also excluded from the scope of the antidumping duty investigation on corrosion-resistant steel from the United Arab Emirates and the antidumping duty and countervailing duty investigations on corrosion-resistant steel from the Socialist Republic of Vietnam are any products covered by the existing antidumping and countervailing duty orders on corrosion-resistant steel from the People's Republic of China and the Republic of Korea and the antidumping duty order on corrosion-resistant steel from Taiwan.
The products subject to the investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings: 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0040, 7210.49.0045, 7210.49.0091, 7210.49.0095, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7225.91.0000, 7225.92.0000, 7226.99.0110, and 7226.99.0130.
The products subject to the investigation may also enter under the following HTSUS subheadings: 7210.90.1000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.99.0090, 7226.99.0180, 7228.60.6000, 7228.60.8000, and 7229.90.1000.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council (Pacific Council) will convene an online meeting of its Ecosystem Workgroup (EWG), which is open to the public.
The online meeting will be held Tuesday, May 27, 2025, from 1 p.m. to 5 p.m. Pacific time, 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
Gilly Lyons, Staff Officer, Pacific Council; telephone: (503) 820-2427.
The EWG will meet via webinar to discuss items relevant to ecosystem management in advance of the Pacific Council's June 11-16, 2025, meeting. A detailed meeting agenda will be available on the Pacific Council's website prior to the 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 (
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds product(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes product(s) and service(s) from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
Michael R. Jurkowski, Telephone: (703) 489-1322, or email
On July 26, 2024, the Committee for Purchase From People Who Are Blind or Severely Disabled (operating as the U.S. AbilityOne Commission) published an initial notice of proposed additions to the Procurement List. (89 FR 60605). This final notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. The Committee has determined that the product(s) listed below are suitable for procurement by the Federal Government and has added these product(s) to the Procurement List as a mandatory purchase for Federal entities. In accordance with 41 CFR 51-5.2, the Committee has authorized the qualified nonprofit agencies described with the products as the mandatory source(s) of supply.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product(s) to the Government.
2. The action will result in authorizing small entities to furnish the product(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) proposed for addition to the Procurement List.
Accordingly, the following product(s) are added to the Procurement List:
On April 4, 2025 (90 FR 14813), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List. This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3.
After consideration of the relevant matter presented, the Committee has determined that the product(s) and service(s) listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the product(s) and service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) deleted from the Procurement List.
Accordingly, the following product(s) and service(s) are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
The Committee is proposing to delete product(s) and service(s) from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: June 08, 2025.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 489-1322, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following product(s) and service(s) are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before July 8, 2025.
You may submit comments, identified by “Futures Volume & Open Interest Collection,” 3038-0012, by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Adam Charnisky, Market Analyst, Division of Market Oversight, Commodity Futures Trading Commission, (312) 596-0630; email:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before July 8, 2025.
You may submit comments, identified by “OMB Control No. 3038-0089” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method.
Alicia Viguri, Assistant Chief Counsel, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 738-2140; email:
Under the PRA, 44 U.S.C. 3501
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is announcing an opportunity for public comments on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before July 8, 2025.
You may submit comments, identified by “OMB Control No. 3038-0070” by any of the following methods:
• The CFTC website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Isabella Bergstein, Assistant Chief Counsel, Division of Market Oversight, Commodity Futures Trading Commission, (202) 993-1384, email:
Under the PRA, 44 U.S.C. 3501
In 2020, the Commission amended part 43 by issuing the Real-Time Public Reporting Requirements final rule (“2020 RTR Final Rule”).
On June 10, 2022, the Commission staff issued a Staff Advisory on Reporting of Errors and Omissions in Previously Reported Data (“Advisory”),
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the CFTC, including whether the information will have a practical use;
• The accuracy of the CFTC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the CFTC to consider information that you believe is exempt from disclosure under the Freedom of Information Act (“FOIA”), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the CFTC's regulations.
The CFTC reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (CFTC or Commission) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (PRA), Federal agencies are required to publish notice in the
Comments must be submitted on or before July 8, 2025.
You may submit comments, identified by “OMB Control No. 3038-0061,” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method.
Owen Kopon, Associate Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5360; email:
Under the PRA, 44 U.S.C. 3501
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse, or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before July 8, 2025.
You may submit comments, identified by “OMB Control Number 3038-0078” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Catherine Brescia, Attorney Advisor, Market Participants Division, Commodity Futures Trading Commission, (202) 418-6236, email:
Under the PRA,
With respect to the collection of information, the Commission invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act (“FOIA), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Office of Postsecondary Education, Department of Education.
Notice; cancellation.
The Department of Education (Department) withdraws the notice inviting applications (NIA) for fiscal year (FY) 2025 for the Fulbright-Hays Group Projects Abroad (GPA) Program, Doctoral Dissertation Research Abroad (DDRA) Program, and the Faculty Research Abroad (FRA) Fellowship Program.
The NIAs published in the
Stacey Slijepcevic, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5076. Telephone: (202) 453-6150. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
On October 25, 2024, the Department published an NIA in the
You may also access Department documents published in the
Office of Elementary and Secondary Education, Department of Education
Notice.
The Department of Education (Department) is issuing a notice inviting applications (NIA) for fiscal year (FY) 2025 for the SFIG Program.
For the addresses for obtaining and submitting an application, please refer to the Application Submission Instructions section.
Clifton Jones, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 205-2204.
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
1.
Charter schools that receive financial assistance through CSP SFIG Grants provide elementary or secondary education, or both, and may also serve students in
2.
3.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
4.
(a) Is specified in State law; and
(b) Provides annual financing, on a per-pupil basis, for charter school facilities. (ESEA section 4304(k)(4)(B)(i)).
A State that is required under State law to provide charter schools with access to adequate facility space, but that does not have a per-pupil facilities aid program for charter schools specified in State law, is eligible to receive a grant if the State agrees to use the funds to develop a per-pupil facilities aid program consistent with the requirements in this NIA. (ESEA section 4304(k)(4)(B)(ii))
5.
These priorities are:
To meet this priority, the applicant must demonstrate the capacity of charter schools to offer public school choice in those communities with the greatest need for this choice based on—
(a) The extent to which the applicant would target services to geographic areas in which a large proportion or number of public schools have been identified for comprehensive support and improvement or targeted support and improvement under the ESEA;
(b) The extent to which the applicant would target services to geographic areas in which a large proportion of students perform poorly on State academic assessments; and
(c) The extent to which the applicant would target services to communities with large proportions of low-income students.
This priority is for applicants that have not previously received a grant under the program.
6.a.
• 10 percent in the first year
• 20 percent in the second year
• 40 percent in the third year
• 60 percent in the fourth year
• 80 percent in the fifth year
A State may partner with one or more organizations, and such organizations may provide up to 50 percent of the State share of the cost of establishing or enhancing, and administering, the per-pupil facilities aid program. (ESEA section 4304(k)(2)(D)).
b.
c.
d.
Charter school subgrantees may use grant funds for administrative costs that are necessary and reasonable for the proper and efficient performance and administration of this Federal grant. This use of funds, as well as indirect costs and rates, must comply with EDGAR and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200 (Uniform Guidance), as adopted and amended as regulations of the Department in 2 CFR part 3474.
Consistent with the requirements in 34 CFR 75.564(c)(2), any charter school subgrantees that use grant funds for construction activities may not be reimbursed for indirect costs for those activities. (34 CFR 226.23)
7.
i. All iron and steel used in the infrastructure project or activity are produced in the United States;
ii. All manufactured products used in the infrastructure project or activity are produced in the United States; and
iii. All construction materials are manufactured in the United States.
Grantees may request waivers to these requirements by submitting a Build America, Buy America Act Waiver Request Form. For more information, including a link to the Waiver Request Form, see the Department's Build America Buy America Waiver website at:
b. The charter schools that a grantee selects to benefit from this program must meet the definition of “charter school” in section 4310(2) of the ESEA (20 U.S.C. 7221i(2)), which is included in this notice.
8.
The following definitions are from sections 4310(1), 4310(2), 4304(k)(1), and 8101(48) of the ESEA (20 U.S.C. 7221i(1), 7221i(2), 7221c(k)(1), 7801)), and 34 CFR 77.1(c).
(1) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements in section 4310 of the ESEA;
(2) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(3) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the
(4) Provides a program of elementary or secondary education, or both;
(5) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(6) Does not charge tuition;
(7) Complies with the Age Discrimination Act of 1975 (42 U.S.C. 6101
(8) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA (20 U.S.C. 7221b(c)(3)(A)), if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the
(9) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;
(10) Meets all applicable Federal, State, and local health and safety requirements;
(11) Operates in accordance with State law;
(12) Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the
(13) May serve students in early childhood education programs or postsecondary students. (Section 4310(2) of the ESEA).
(1) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831
(2) A State licensed or regulated child care program; or
(3) A program that (i) serves children from birth through age 6 that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and (ii) is (A) a State prekindergarten program, (B) a program authorized under section 619 (20 U.S.C. 1419) or part C of the IDEA, or (C) a program operated by an LEA (section 8101(16) of the ESEA).
(1) That is dedicated solely to funding charter school facilities; or
(2) A portion of which is dedicated for funding charter school facilities. (section 4304(k)(1))
9.
(a)
(1) The need for per-pupil charter school facility funding in the State.
(2) The extent to which the proposal meets the need to fund charter school facilities on a per-pupil basis.
(b)
(1) The likelihood that the proposed grant project will result in the State either retaining a new per-pupil facilities aid program or continuing to enhance such a program without the total amount of assistance (State and Federal) declining over a five-year period.
(2) The flexibility charter schools have in their use of facility funds for the various authorized purposes.
(3) The quality of the plan for identifying charter schools and determining their eligibility to receive funds.
(4) The per-pupil facilities aid formula's ability to target resources to charter schools with the greatest need and the highest proportions of students in poverty.
(5) For projects that plan to reserve funds for evaluation, the quality of the applicant's plan to use grant funds for this purpose.
(6) For projects that plan to reserve funds for technical assistance, dissemination, or personnel, the quality of the applicant's plan to use grant funds for these purposes.
(c)
(1) The qualifications, including relevant training and experience, of the project manager and other members of the grant project team, including employees not paid with grant funds, consultants, and subcontractors.
(2) The adequacy and appropriateness of the applicant's staffing plan for the grant project.
(d)
(1) The extent to which the requested grant amount and the project costs are reasonable in relation to the objectives, design, and potential significance of the proposed grant project.
(2) The extent to which the costs are reasonable in relation to the number of students served and to the anticipated results and benefits.
(3) The extent to which the non-Federal share exceeds the minimum percentages (which are based on the percentages under section 4304(k)(2)(C) of the ESEA), particularly in the initial years of the program.
(e)
(1) The experience of the State in addressing the facility needs of charter schools through various means, including providing per-pupil aid and access to State loan or bonding pools.
10.
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600 (Predisclosure Notification Procedures for Confidential Commercial Information), please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
5.
6.
1.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
2.
3.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary. The Secretary may also require more frequent performance reports. For specific requirements on reporting, please go to
5.
(a)
(2) In accordance with 34 CFR 75.110(b), applications must describe:
(i) The data collection and reporting methods the applicant would use and why those methods are likely to yield reliable, valid, and meaningful performance data.
(ii) The applicant's capacity to collect and report the quality of the performance data, as evidenced by quality data collection, analysis, and reporting in other projects or research.
(b)
(1)
(2)
(3)
All grantees must submit an annual performance report with information that is responsive to these performance measures.
6.
7.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department.
8.
9.
You may also access Department documents published in the
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2025 for CSP Grants to State Entities.
For the addresses for obtaining and submitting an application, please refer to the Application Submission Instructions section.
Sareeta Schmitt, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970.
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
1.
This program provides financial assistance to State entities to support charter schools that serve elementary and secondary school students in States with a State statute specifically authorizing the establishment of charter schools. Charter schools receiving funds under this program may also serve students in
2.
3.
Under section 4303(e)(1) of the Elementary and Secondary Education Act of 1965, as amended (ESEA), no State entity may receive a grant under this competition for use in a State in which a State entity is currently using a CSP State Entity grant.
State entities located in States in which a State entity has a current CSP State Entity grant that is not in its final budget period, or that is in its final budget period, but the grantee plans to request a one-time no-cost extension in accordance with 34 CFR 75.261 and 2 CFR 200.308(g)(2)
State entities located in States in which a State entity has a current CSP State Entity grant that is operating under a no-cost extension (
If multiple State entities in a State submit applications that receive high enough scores to be recommended for funding under this competition, only the highest scoring application among such State entities will be funded.
4.
This priority is:
To meet this priority, the State entity must demonstrate that it has taken steps to ensure that all authorized public chartering agencies
An applicant must identify in the abstract form and in the project narrative section of its application the priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. The Department will not review or award points for any competitive preference priority that an applicant fails to clearly identify as a competitive preference priority that it wishes the Department to consider for purposes of awarding competitive preference priority points.
These priorities are:
To meet this priority, the State entity must demonstrate that it is located in a State that—
(a) Allows at least one entity that is not a local educational agency (LEA) to be an authorized public chartering agency for
(b) In the case of a State in which LEAs are the only authorized public chartering agencies, the State has an appeals process for the denial of an application for a charter school.
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State that ensures equitable financing, as compared to traditional public schools, for charter schools and students in a prompt manner.
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State
To be eligible to receive points under this priority, the State entity must demonstrate that it is located in a State that provides charter schools one or more of the following:
(a) Funding for facilities.
(b) Assistance with facilities acquisition.
(c) Access to public facilities.
(d) The ability to share in bonds or mill levies.
(e) The right of first refusal to purchase public school buildings.
(f) Low- or no-cost leasing privileges.
To be eligible to receive points under this priority, the State entity must demonstrate that it supports charter schools that serve at-risk students through activities such as dropout prevention, dropout recovery, or comprehensive career counseling services.
This priority is:
5.
The application requirements in this notice are from section 4303(f) of the ESEA (20 U.S.C. 7221b(f)). The Department will not fund an application that does not meet each application requirement. Applicants must clearly identify the application requirement they are addressing in the project narrative.
Applications for funding under the CSP State Entity program must contain the following:
(a) Description of Program—A description of the State entity's objectives in running a quality charter school program and how the objectives of the program will be carried out, including—
(1) A description of how the State entity will—
(i) Support the opening of charter schools through the startup of new charter schools and, if applicable, the replication of high-quality charter schools, and the expansion of high-quality charter schools (including the proposed number of new charter schools to be opened, high-quality charter schools to be opened as a result of the replication of a high-quality charter school, or high-quality charter schools to be expanded under the State entity's program);
(ii) Inform eligible charter schools, developers, and authorized public chartering agencies of the availability of funds under the program;
(iii) Work with eligible applicants to ensure that the eligible applicants access all Federal funds that such applicants are eligible to receive, and help the charter schools supported by the applicants and the students attending those charter schools—
(A) Participate in the Federal programs in which the schools and students are eligible to participate;
(B) Receive the commensurate share of Federal funds the schools and students are eligible to receive under such programs; and
(C) Meet the needs of students served under such programs, including students with disabilities and English learners;
(iv) Ensure that authorized public chartering agencies, in collaboration with surrounding LEAs where applicable, establish clear plans and procedures to assist students enrolled in a charter school that closes or loses its charter to attend other high-quality schools;
(v) In the case of a State entity that is not a State educational agency (SEA)—
(A) Work with the SEA and charter schools in the State to maximize charter school participation in Federal and State programs for which charter schools are eligible; and
(B) Work with the SEA to operate the State entity's program under section 4303 of the ESEA, if applicable;
(vi) Ensure that each eligible applicant that receives a subgrant under the State entity's program—
(A) Is using funds provided under this program for one of the activities described in section 4303(b)(1) of the ESEA; and
(B) Is prepared to continue to operate charter schools funded under section 4303 of the ESEA in a manner consistent with the eligible applicant's application for such subgrant once the subgrant funds under this program are no longer available;
(vii) Support—
(A) Charter schools in LEAs with a significant number of schools identified by the State for comprehensive support and improvement under section 1111(c)(4)(D)(i) of the ESEA; and
(B) The use of charter schools to improve struggling schools, or to turn around struggling schools;
(viii) Work with charter schools on—
(A) Recruitment and enrollment practices to promote inclusion of all students, including by eliminating any barriers to enrollment for educationally disadvantaged students (who include foster youth and unaccompanied homeless youth); and
(B) Supporting all students once they are enrolled to promote retention, including by reducing the overuse of discipline practices that remove students from the classroom;
(ix) Share best and promising practices between charter schools and other public schools;
(x) Ensure that charter schools receiving funds under the State entity's program meet the educational needs of their students, including children with disabilities and English learners;
(xi) Support efforts to increase charter school quality initiatives, including meeting the quality authorizing elements described in section 4303(f)(2)(E) of the ESEA;
(xii)(A) In the case of a State entity that is not a charter school support
(B) In the case of a State entity that is a charter school support organization, a description of how the State entity will work with the State to support the State's system of technical assistance and oversight of the authorizing activity of authorized public chartering agencies, as described in application requirement (a)(1)(xii)(A); and
(xiii) Work with eligible applicants receiving a subgrant under the State entity's program to support the opening of new charter schools or charter school models described in application requirement (a)(1)(i) that are high schools (ESEA section 4303(f));
(2) A description of the extent to which the State entity—
(i) Is able to meet and carry out Competitive Preference Priorities 1 through 5;
(ii) Is working to develop or strengthen a cohesive statewide system to support the opening of new charter schools and, if applicable, the replication of high-quality charter schools, and the expansion of high-quality charter schools; and
(iii) Is working to develop or strengthen a cohesive strategy to encourage collaboration between charter schools and LEAs on the sharing of best practices (ESEA section 4303(f));
(3) A description of how the State entity will award subgrants, on a competitive basis, including—
(i) A description of the application each eligible applicant desiring to receive a subgrant will be required to submit, which application must include the following:
(A) A description of the roles and responsibilities of eligible applicants, partner organizations, and
(B) A description of the quality controls agreed to between the eligible applicant and the authorized public chartering agency involved, such as a contract or performance agreement; how a school's performance in the State's accountability system and impact on student achievement (which may include student academic growth) will be one of the most important factors for renewal or revocation of the school's charter; and how the State entity and the authorized public chartering agency involved will reserve the right to revoke or not renew a school's charter based on financial, structural, or operational factors involving the management of the school (ESEA section 4303(f));
(C) A description of how the autonomy and flexibility granted to a charter school is consistent with the definition of charter school in section 4310 of the ESEA (ESEA section 4303(f));
(D) A description of how the eligible applicant will solicit and consider input from parents and other members of the community on the implementation and operation of each charter school that will receive funds under the State entity's program (ESEA section 4303(f));
(E) A description of the eligible applicant's planned activities and expenditures of subgrant funds to support opening and preparing for the operation of new charter schools, opening and preparing for the operation of replicated high-quality charter schools, or expanding high-quality charter schools,
(F) A description of how the eligible applicant will support the use of effective parent, family, and community engagement strategies to operate each charter school that will receive funds under the State entity's program (ESEA section 4303(f)); and
(ii) A description of how the State entity will review applications from eligible applicants (ESEA section 4303(f));
(4) In the case of a State entity that partners with an outside organization to carry out the State entity's quality charter school program, in whole or in part, a description of the roles and responsibilities of the partner (ESEA section 4303(f));
(5) A description of how the State entity will ensure that each charter school receiving funds under the State entity's program has considered and planned for the transportation needs of the school's students (4303(f));
(6) A description of how the State in which the State entity is located addresses charter schools in the State's open meetings and open records laws (ESEA section 4303(f));
(7) A description of how the State entity will support diverse charter school models, including models that serve rural communities (ESEA section 4303(f));
(b) Assurances—Assurances by the State entity that—
(1) Each charter school receiving funds through the State entity's program will have a high degree of autonomy over budget and operations, including autonomy over personnel decisions (ESEA section 4303(f));
(2) The State entity will support charter schools in meeting the educational needs of their students, including children with disabilities and English learners (ESEA section 4303(f));
(3) The State entity will ensure that the authorized public chartering agency of any charter school that receives funds under the State entity's program adequately monitors each charter school under the authority of such agency in recruiting, enrolling, retaining, and meeting the needs of all students, including children with disabilities and English learners (ESEA section 4303(f));
(4) The State entity will provide adequate technical assistance to eligible applicants to meet the objectives described in application requirement (a)(1)(viii) (ESEA section 4303(f));
(5) The State entity will promote quality authorizing, consistent with State law, such as through providing technical assistance to support each authorized public chartering agency in the State to improve such agency's ability to monitor the charter schools authorized by the agency, including by—
(i) Assessing annual performance data of the schools, including, as appropriate, graduation rates, student academic growth, and rates of student attrition;
(ii) Reviewing the schools' independent, annual audits of financial statements prepared in accordance with generally accepted accounting principles and ensuring that any such audits are publicly reported; and
(iii) Holding charter schools accountable to the academic, financial, and operational quality controls agreed to between the charter school and the authorized public chartering agency involved, such as renewal, non-renewal, or revocation of the school's charter (ESEA section 4303(f));
(6) The State entity will work to ensure that charter schools are included with the traditional public schools in decision-making about the public school system in the State (ESEA section 4303(f)); and
(7) The State entity will ensure that each charter school receiving funds under the State entity's program makes publicly available, consistent with the dissemination requirements of the annual State report card under section 1111(h) of the ESEA, including on the website of the school, information to help parents make informed decisions about the education options available to their children, including—
(i) Information on the educational program;
(ii) Student support services;
(iii) Parent contract requirements (as applicable), including any financial obligations or fees;
(iv) Enrollment criteria (as applicable); and
(v) Annual performance and enrollment data for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such disaggregation of performance and enrollment data must not be required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (ESEA section 4303(f)).
(c) Waivers—Requests for information about waivers, including—
(1) A request and justification for waivers of any Federal statutory or regulatory provisions that the State entity believes are necessary for the successful operation of the charter schools that will receive funds under the State entity's program under section 4303 of the ESEA or, in the case of a State entity that is a charter school support organization, a description of how the State entity will work with the State to request such necessary waivers, where applicable; and
(2) A description of any State or local rules, generally applicable to public schools, that will be waived or otherwise not apply to such schools.
4303(a) of the ESEA).
For example, a State Entity applicant may request approval from the Department, on behalf of its subgrant applicants, for a waiver of requirements in section 4303(h) of the ESEA regarding use of funds to allow subgrantees to use funds for sustained costs (
6.
(1) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this definition;
(2) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(3) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
(4) Provides a program of elementary or secondary education, or both;
(5) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(6) Does not charge tuition;
(7) Complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
(8) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA, if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in paragraph (i);
(9) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;
(10) Meets all applicable Federal, State, and local health and safety requirements;
(11) Operates in accordance with State law;
(12) Has a written performance contract with the authorized public
(13) May serve students in early childhood education programs or postsecondary students (section 4310(2) of the ESEA).
(1) Assistance to developers during the planning, program design, and initial implementation of a charter school; and
(2) Technical assistance to operating charter schools (section 4310(4) of the ESEA).
(1) A child (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
(2) For a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the LEA, include a child (i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof, needs special education and related services (section 8101(4) of the ESEA).
(1) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831
(2) A State licensed or regulated child care program; or
(3) A program that (i) serves children from birth through age 6 that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and (ii) is (A) a State prekindergarten program, (B) a program authorized under section 619 (20 U.S.C. 1419) or part C of the IDEA, or (C) a program operated by an LEA (section 8101(16) of the ESEA).
(1) Applied to an authorized public chartering authority to operate a charter school; and
(2) Provided adequate and timely notice to that authority (section 4310(6) of the ESEA).
(1) Who is aged 3 through 21;
(2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
(3)(i) Who was not born in the United States or whose native language is a language other than English;
(ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
(B) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or
(iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
(4) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual—
(i) The ability to meet the challenging State academic standards;
(ii) The ability to successfully achieve in classrooms where the language of instruction is English; or
(iii) The opportunity to participate fully in society (section 8101(20) of the ESEA).
(1) Shows evidence of strong academic results, which may include strong student academic growth, as determined by a State;
(2) Has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance;
(3) Has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school; and
(4) Has demonstrated success in increasing student academic achievement, including graduation rates where applicable, for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such demonstration is not required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (section 4310(8) of the ESEA).
(1) A State educational agency;
(2) A State charter school board;
(3) A Governor of a State; or
(4) A charter school support organization (section 4303(a) of the ESEA)
7.
(a)
(1) The quality of the logic model or other conceptual framework underlying the proposed project, including how inputs are related to outcomes. (34 CFR 75.210) (up to 5 points);
(2) The ambitiousness of the State entity's objectives for the quality charter school program carried out under the CSP State Entity program (section 4303(g)(1)(B) of the ESEA (20 U.S.C. 7221b(g)(1)(B)) (up to 5 points);
(3) The extent to which the budget is adequate to support the proposed project and the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project. (section 34 CFR 74.210) (up to 10 points); and
(4) The extent to which the proposed project demonstrates that it is designed to build capacity and yield sustainable results that will extend beyond the project period. (section 34 CFR 74.210) (up to 10 points)
(b)
(c)
(1) Adequately monitor the eligible applicants receiving subgrants under the State entity's program (section 4303(g)(1)(D)(i) (20 U.S.C. 7221b(g)(1)(D)(i))) (up to 10 points);
(2) Work with the authorized public chartering agencies involved to avoid duplication of work for the charter schools and authorized public chartering agencies (section 4303(g)(1)(D)(ii) (20 U.S.C. 7221b(g)(1)(D)(ii))) (up to 5 points);
(3) Provide technical assistance and support for—
(i) The eligible applicants receiving subgrants under the State entity's program; and
(ii) Quality authorizing efforts in the State (section 4303(g)(1)(D)(iii) of ESEA (20 U.S.C. 7221b(g)(1)(D)(iii))) (up to 10 points);
(4) The State entity's plan to solicit and consider input from parents and other members of the community on the implementation and operation of charter schools in the State (section 4303(g)(1)(E) of ESEA (20 U.S.C. 7221b(g)(1)(E))) (up to 5 points); and
(5) The degree of flexibility afforded by the State's charter school law and how the State entity will work to maximize the flexibility provided to charter schools under such law (section 4303(g)(1)(A) of ESEA (20 U.S.C. 7221b(g)(1)(A))) (up to 5 points).
(d)
(1) The feasibility of the management plan to achieve project objectives and goals on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (34 CFR 75.210) (up to 10 points);
(2) The adequacy of plans for ensuring the use of quantitative and qualitative data, including meaningful community member and partner input, to inform continuous improvement in the operation of the proposed project (34 CFR 75.210) (up to 5 points); and
(3) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (34 CFR 75.210) (up to 5 points).
In addressing the selection criteria and application requirements in this notice, an applicant must clearly identify which criterion or requirement it is addressing. In addition, an applicant must address corresponding application requirements when addressing the specific selection criteria noted in the table below.
All other application requirements not listed in the table above must be addressed elsewhere in the Project Narrative. This includes all assurances and the following requirements: (a)(1)(v), (a)(1)(xii), (a)(2)(i), and (a)(6), (b)(1), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6), (b)(7), (c)(1), and (c)(2).
8.
(a)
(2) In accordance with 34 CFR 75.110(b), applications must describe:
(i) The data collection and reporting methods the applicant would use and why those methods are likely to yield
(ii) The applicant's capacity to collect and report reliable, valid, and meaningful performance data, as evidenced by high-quality data collection, analysis, and reporting in other projects or research.
(b)
(1)
(2)
(3)
All grantees must submit an annual performance report with information that is responsive to these performance measures.
9.
1. a.
b.
c.
2.
(b) Under section 4303(d)(2) of the ESEA, when awarding subgrants to eligible applicants, a State entity must use a peer review process to review applications.
3.
(b)
For this competition, the maximum amount of subgrant funds a State entity may award to a subgrantee per new charter school, replicated high-quality charter school, or expanded high-quality charter school over a 5-year subgrant period is $2,000,000.
(c)
(ii) A non-Federal entity that expends less than $1,000,000 during the non-Federal entity's fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in 2 CFR 200.503 (Relation to other audit requirements), but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and Government Accountability Office. (2 CFR 200.501(d)).
4.
Additionally, a subgrant awarded by a State entity under this program must be for a period of not more than 5 years, of which an eligible applicant may use not more than 18 months for planning and program design. An eligible applicant may not receive more than one subgrant under this program for each individual charter school for a 5-year period, unless the eligible applicant demonstrates to the State entity that such individual charter school has at least 3 years of improved educational results for students enrolled in such charter school, with respect to the elements described in section 4310(8)(A) and (D) of the ESEA.
Likewise, a charter school that previously was awarded a subgrant by a State entity under this program (or the former CSP Grants for State Educational Agencies program) is ineligible to receive funds to carry out the same activities under the CMO program (ALN number 84.282M) or Developer program (ALN numbers 84.282B and 84.282E), including for opening or preparing to operate a new charter school, or for replication or expansion.
(a) Open and prepare for the operation of new charter schools;
(b) Open and prepare for the operation of replicated high-quality charter schools; or
(c) Expand high-quality charter schools.
Under section 4303(h) of the ESEA, an eligible applicant receiving a subgrant under this program must use such funds to support activities related to opening and preparing for the operation of new charter schools or replicating or expanding high-quality charter schools, which must include one or more of the following:
(a) Preparing teachers, school leaders, and specialized instructional support personnel, including through paying costs associated with—
(i) Providing professional development; and
(ii) Hiring and compensating, during the eligible applicant's planning period specified in the application for subgrant funds, one or more of the following:
(A) Teachers.
(B) School leaders.
(C) Specialized instructional support personnel.
(b) Acquiring supplies, training, equipment (including technology), and educational materials (including developing and acquiring instructional materials).
(c) Carrying out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction).
(d) Providing one-time, startup costs associated with providing transportation to students to and from the charter school.
(e) Carrying out community engagement activities, which may include paying the cost of student and staff recruitment.
(f) Providing for other appropriate, non-sustained costs related to opening, replicating, or expanding high-quality charter schools when such costs cannot be met from other sources.
(a) Are distributed throughout different areas, including urban, suburban, and rural areas; and
(b) Will assist charter schools representing a variety of educational approaches.
We reference additional regulations outlining funding restrictions in the
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600 (Predisclosure Notification Procedures for Confidential Commercial Information), please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information, please see 34 CFR 5.11(c).
3.
4.
For further information about the pre-application meeting, contact Sareeta Schmitt, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 205-0730. Email:
1.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
2.
3.
If the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to SAM semiannually. Please review these requirements if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary, including a description of the State entity's objectives in providing technical assistance to eligible applicants and authorized public chartering agencies under section 4303(b)(2) of the ESEA, and the activities identified to provide such technical assistance; and the impact of the State entity's actions or, if no known impact, an explanation of why. The Secretary may also require more frequent performance reports. For specific requirements on reporting, please go to
(c) In accordance with section 4303(i) of the ESEA, each State entity receiving a grant under this section must submit to the Secretary, at the end of the third year of the 5-year grant period (or at the end of the second year if the grant period is less than 5 years), and at the end of such grant period, a report that includes the following:
(1) The number of students served by each subgrant awarded under this section and, if applicable, the number of new students served during each year of the period of the subgrant.
(2) A description of how the State entity met the objectives of the quality charter school program described in the State entity's application, including—
(A) How the State entity met the objective of sharing best and promising practices as outlined in section 4303(f)(1)(A)(ix) of the ESEA in areas such as instruction, professional development, curricula development,
(B) If known, the extent to which such practices were adopted and implemented by such other public schools.
(3) The number and amount of subgrants awarded under this program to carry out activities described in section 4303(b)(1)(A) through (C) of the ESEA.
(4) A description of—
(A) How the State entity complied with, and ensured that eligible applicants complied with, the assurances included in the State entity's application; and
(B) How the State entity worked with authorized public chartering agencies, and how the agencies worked with the management company or leadership of the schools that received subgrant funds under this program, if applicable.
(d) The Secretary may provide a grantee with additional funding for data collection, analysis, and reporting. In this case, the Secretary establishes a data collection period.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department.
6.
7.
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces an in-person/virtual meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, June 18, 2025; 4-7:25 p.m. PDT.
Molasky Corporate Center, 15th Floor Conference Room, 100 North City Parkway, Las Vegas, Nevada 89106. This meeting will be held in-person at the Molasky Corporate Center and virtually. To receive the virtual access information, please contact the Nevada Site Specific Advisory Board (NSSAB) Administrator at the telephone number or email listed below at least two days prior to the meeting.
Barbara Ulmer, NSSAB Administrator, NSSAB Office, by phone: 702-523-0894 or email:
National Nuclear Security Administration, Department of Energy.
Notice of intent.
The National Nuclear Security Administration (NNSA), a semi-autonomous agency within the United States (U.S.) Department of Energy (DOE), announces its intent to initiate a National Environmental Policy Act of 1969 (NEPA) programmatic environmental impact statement (PEIS) process to ensure NEPA compliance for the production of plutonium pits in support of NNSA's Stockpile Stewardship and Management Program. The PEIS will evaluate the programmatic environmental impacts of producing pits at the Congressionally mandated rate (and potentially other reasonable rates) using various single site and multi-site alternatives; associated activities at other NNSA sites; and associated waste management and transportation activities. The purpose of this Notice is to invite public participation in the PEIS process and to solicit public comment on the scope, environmental issues, and alternatives for consideration by NNSA in the draft PEIS.
NNSA will hold initial virtual public scoping meetings and subsequent public hearings on the draft PEIS. During scoping, NNSA invites other Federal agencies, Native American Tribes, State and local governments, industry, other organizations, and members of the public to review and submit comments on the scope and alternatives of the PEIS. The deadline to submit these comments will be 45 days after the final public scoping meeting. As noted, the final public scoping meeting is currently scheduled for May 28, 2025, and therefore, the current deadline for comments is July 14, 2025. Comments received after this date will be considered to the extent practicable. NNSA will hold two virtual public scoping meetings. The information about the scoping meetings (
Written comments on the scope of the PEIS, requests to be placed on the PEIS distribution list, and comments or questions on the scoping process should be sent to: Ms. Jade Fortiner, NEPA Document Manager, National Nuclear Security Administration, Office of Pit Production Modernization, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585 or email to
For further information about this Notice, please contact Ms. Kristen M. Dors, NEPA Compliance Officer, NNSA Office of Environment, Safety and Health, Los Alamos Field Office, 3747 West Road, Los Alamos, NM 87544; telephone: 505-606-8953; or email to:
This Notice will be available on the internet at:
NNSA is responsible for meeting the national security requirements established by the President and Congress to maintain and enhance the safety, reliability, and performance of the U.S. nuclear weapons stockpile. Plutonium pits are critical components of every nuclear weapon; nearly all current stockpile pits were produced from 1978 to 1989. The United States' capability to produce plutonium pits is limited and does not meet Federal requirements.
Per title 50 United States Code (U.S.C.) 2538a, NNSA is mandated to manufacture no fewer than 80 war reserve pits per year by 2030. This number is driven by the stockpile's size, the need to replace existing pits as they age, and the requirement for the United States to have a flexible and resilient manufacturing capability with the capacity to produce a variety of pits to meet current and planned military stockpile requirements and ensure the safety, security, and effectiveness of the nation's nuclear stockpile.
Previously, NNSA prepared the 2008 Complex Transformation Supplemental PEIS (DOE/EIS-0236-S4) to analyze the potential environmental impacts associated with pit production at different site alternatives: Los Alamos National Laboratory (LANL) in Los Alamos, New Mexico; Savannah River Site (SRS) near Aiken, South Carolina; Pantex Plant near Amarillo, Texas; Y-12 National Security Complex in Oak Ridge, Tennessee; and the Nevada Test Site (now named the Nevada National Security Site) north of Las Vegas, Nevada. At SRS, the Complex Transformation Supplemental PEIS also evaluated a pit production facility that would use the Mixed-Oxide Fuel Fabrication Facility and Pit Disassembly and Conversion Facility infrastructure. Additionally, pit production at LANL has been analyzed in several NEPA documents over the past two decades, including the 2008 Site-Wide Environmental Impact Statement for Continued Operation of the Los Alamos National Laboratory, Los Alamos, New Mexico (DOE/EIS-0380) and the 2020 Final Supplement Analysis of the 2008
The national security policies of the United States require a safe, secure, and reliable nuclear weapons stockpile and the maintenance of core competencies to design, manufacture, and maintain nuclear weapons. The 2022 Nuclear Posture Review identified plutonium pit production as one of the highest priorities in the modernization of the nuclear security enterprise over the next ten years. To meet the need outlined in Federal legislation and requirements delineated by the U.S. Department of Defense, NNSA must establish a workforce and infrastructure capable of producing no fewer than 80 pits per year as soon as possible, while eliminating single point failures and providing flexible capacity options. The PEIS process is to ensure NEPA compliance for production of plutonium pits in support of these requirements and NNSA's Stockpile Stewardship and Management Program. The PEIS will evaluate the programmatic environmental impacts of producing pits at the Congressionally mandated rate needed to meet Federal requirements (and potentially other reasonable rates) using various single site and multi-site alternatives; associated activities at other NNSA sites; and associated waste management and transportation activities.
NNSA is responsible for management and implementation of the requirements of NEPA, and the regulations and policies promulgated thereunder, including, but not limited to the National Environmental Policy Act of 1969, DOE NEPA implementing procedures (10 CFR part 1021), the Amendments to NEPA from the Fiscal Responsibility Act of 2023 (H.R. 3746), DOE Order 451.1B NEPA Compliance Program, and NNSA Policy (NAP) 451.1 NEPA Compliance Program. The PEIS will be prepared pursuant to NEPA and applicable regulations and policies promulgated thereunder. The PEIS will be prepared in the same manner as a draft or final EIS and will provide the public with an analysis of the potential environmental impacts, at a programmatic level, associated with the reasonable alternatives.
The PEIS will evaluate NNSA's proposal to produce plutonium pits at required quantities to meet national security requirements and the potential environmental impacts associated with a range of reasonable alternatives for achieving the necessary pit production capabilities and operations at a programmatic level. For analytical purposes, this PEIS will evaluate potential impacts over a 50-year period, through approximately 2075.
In the PEIS, NNSA intends to analyze: (1) site alternatives; and (2) capacity alternatives for the near term (producing pits at the current Congressionally mandated rate) and the long term (to account for potential changes in future national security requirements for pits). With regard to site alternatives, NNSA considers LANL and SRS to be reasonable alternatives because of the available facilities and infrastructure at those sites that is being/could be used to produce pits to meet the mandated schedule and capacity requirements. NNSA will evaluate other potential site alternatives in the PEIS if they are determined to be reasonable. Construction of a new facility (greenfield) is likely to be considered unreasonable because it would not meet the federally mandated pit production rate in the near term and is likely cost prohibitive, however, NNSA has not decided to exclude greenfield alternatives at this time.
The No-Action Alternative will be based on NNSA's prior decision to produce 30 pits per year at LANL with surge efforts to produce up to 80 pits per year (85 FR 54544, September 2, 2020). NNSA welcomes input on alternatives to be analyzed in the PEIS.
The following issues have been identified for analysis in the PEIS. The list is tentative and intended to facilitate public comment on the scope of the PEIS. It is not intended to be all-inclusive, nor does it imply any predetermination of potential impacts. NNSA specifically invites suggestions for the addition or deletion of items on this list.
1. Impacts on land use and applicable plans and policies.
2. Impacts on visual aesthetics.
3. Impacts on geology and soil.
4. Impacts on water resources, including floodplains and wetlands.
5. Impacts on air quality and noise.
6. Impacts to plants and animals and their habitat, including species which are federally- or State-listed as threatened or endangered, or of special concern.
7. Impacts to cultural resources such as those that are historic and paleontological.
8. Socioeconomic impacts to affected communities.
9. Impacts from traffic and transportation of radiological and hazardous materials and waste.
10. Impacts from use of utilities, including water and electricity consumption, fuel use, sewer discharges, and resource conservation.
11. Impacts on the public and workers from exposures to radiological and hazardous materials during construction and normal operations.
12. Impacts on the public and workers from exposures to radiological and hazardous materials from reasonably foreseeable accidents, and intentional destructive acts.
13. Impacts on waste management activities and capacities at on-site and off-site locations.
The scoping process is intended to involve all interested agencies (Federal, State, Native American Tribes, county, and local), public interest groups, businesses, and members of the public. Interested parties are invited to participate in the PEIS process, both to refine the preliminary alternatives and environmental issues to be analyzed in depth and to eliminate from detailed study those alternatives and environmental issues that are not reasonable or pertinent. Input from the scoping process will assist NNSA in formulating the proposed action, refining the alternatives, and defining the scope of PEIS analyses.
Following the scoping period announced in this Notice, and after consideration of comments received during scoping, NNSA will prepare a draft PEIS for pit production. NNSA will announce the availability of the draft PEIS in the
NNSA expects to issue the draft PEIS within approximately one year of this NOI and complete the final PEIS and ROD within approximately 2 years.
This document of the Department of Energy was signed on April 22, 2025, by Teresa M. Robbins, Acting Under Secretary for Nuclear Security and NNSA Administrator, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Signed in Washington, DC, on May 6, 2025.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
l.
m.
n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
o.
p.
q. The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On January 3, 2025, Gravity Storage, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of Barrett Lake Pumped Storage Project to be located in San Diego County, California. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, community organizations, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
For assistance, please contact FERC Online Support at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
Enter the docket number (P-15390) in the docket number field to access the document. For assistance, contact FERC Online Support.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Spindletop Expansion Project involving construction and operation of facilities by Golden Triangle Storage, LLC (GTS) in Jefferson County, Texas. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on June 4, 2025. Comments may be submitted in written form. Further details on how to submit comments are provided in the Public Participation section of this notice.
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on March 31, 2025, you will need to file those comments in Docket No. CP25-167-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
GTS provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature, which is also on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP25-167-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Debbie-Anne A. Reese, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Debbie-Anne A. Reese, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, community organizations, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
GTS proposes to expand its existing natural gas storage facility by constructing and operating (1) four new salt dome storage caverns and well pads, (2) ten 5,500 horsepower (hp) gas-fired reciprocating engine compressor units, and (3) various appurtenances. The Spindletop Expansion Project would add 30.75 billion cubic feet (Bcf) of working gas and 24.2 Bcf of base gas capacity storage. According to GTS, its project would enhance customers' ability to move natural gas to and from storage on very short notice and at high rates of flow.
The Spindletop Expansion Project would consist of the following facilities:
• development and operation of four new salt dome natural gas storage caverns;
• surface development of temporary and permanent well pad sites for the new caverns;
• construction and operation of facilities related to the new caverns, including injection/withdrawal pipelines, water supply and brine return piping, instrument air piping, electrical conduit, gas dehydration equipment, heaters, metering, and other process control equipment;
• construction and operation of a new compressor building housing 55,000 hp of natural gas-driven compression on the existing Central Storage Site; and
• construction of new permanent access roads.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed aboveground facilities would occur within the existing storage facilities situated on land leased by GTS, and would disturb about 81.4 acres of land for the surface facilities associated with the new caverns. Following construction, GTS would maintain about 36.6 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the proposed project under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• air quality and noise; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
OR
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces the availability of and solicits public comment on the following Information Collection Request (ICR) that EPA is planning to submit to the Office of Management and Budget (OMB): Pesticide Data Call-Ins (DCIs) (EPA ICR No. 2288.07 and OMB Control No. 2070-0174). This ICR represents a renewal of an existing ICR that is currently approved through December 31, 2025. Before submitting the ICR to OMB for review and approval under the PRA, EPA is soliciting comments on specific aspects of the information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before July 8, 2025.
Submit your comments, identified by docket identification (ID) number Docket ID No. EPA-HQ-OPP-2020-0693, online at
Carolyn Siu, Mission Support Divison (7602M), Office of Program Support, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 719-1649; email address:
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
EPA regulates the use of pesticides under the authority of two federal statutes: FIFRA and the Federal Food, Drug and Cosmetic Act (FFDCA), both as amended by the Food Quality Protection Act (FQPA) of 1996. In general, before manufacturers can sell pesticides in the United States, EPA must evaluate the pesticides thoroughly to ensure that they meet federal safety standards to protect human health and the environment. EPA grants a “registration” or license that permits a pesticide's distribution, sale, and use only after the company meets the scientific and regulatory requirements.
In evaluating a pesticide registration application, EPA assesses a wide variety of potential human health and environmental effects associated with the use of the product. Applicants, or potential registrants, must generate or provide the scientific data necessary to address concerns pertaining to the identity, composition, potential adverse effects, and environmental fate of each pesticide. The data allow EPA to evaluate whether a pesticide has the potential to cause harmful effects to human health and the environment, including effects to non-target organisms, federally threatened and endangered (listed) species, and to surface water or ground water.
Through a rigorous scientific and public process, EPA specifies the kinds of data and information necessary to make regulatory judgments about the risks and benefits of pesticide products under FIFRA section 3, 4 and 5, as well as the data and information needed to determine the safety of pesticide chemical residues under FFDCA section 408. The regulations in 40 CFR part 158 describe the minimum data and information EPA typically requires to support an application for pesticide registration or amendment; support the reregistration of a pesticide product; support the maintenance of a pesticide registration by means of the data call-in process (
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities
There is a decrease of 7,194,896 hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. This change, which is discussed in more detail in the ICR, reflects the projected number of DCIs that have decreased for most IC groups. While the number of Maintenance DCIs have increased by 45, the number of estimated Registration Review DCIs have decreased by 227. In addition, the Agency has determined that Registration Review DCIs, specifically Resistance Management Plans, are unlikely to be called in and therefore reducing the number of DCIs from 237 to 1. The total decrease in DCIs is 418. This change is considered an adjustment.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces the availability of and solicits public comment on the following Information Collection Request (ICR) that EPA is planning to submit to the Office of Management and Budget (OMB) “TSCA Section 5 Premanufacture Review of New Chemical Substances and Significant New Use Rules for New and Existing Chemical Substances (EPA ICR No. 1188.16 and OMB Control No. 2070-0038).” This ICR represents a renewal of an existing ICR that is currently approved through December 31, 2025. Before submitting the ICR to OMB for review and approval under the PRA, EPA is soliciting comments on specific aspects of the information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before July 8, 2025.
Submit your comments, identified by docket identification (ID) number Docket ID No. EPA-HQ-OPPT-2021-0660, online at
Katherine Sleasman, Office of Program Support (Mail Code 7602M), Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-1206; email address:
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Under TSCA section 5, EPA is authorized to determine that a use of a chemical substance is a significant new use and promulgate a significant new use rule (SNUR). In certain instances, persons may opt to pursue that significant new use, in which case they must submit a notice and undergo a review. For such circumstances, TSCA section 5 requires a significant new use notice (SNUN) from any person who proposes to manufacture or process a chemical for a use that is determined by EPA to be a “significant new use.”
TSCA section 5 requires EPA to make one of five possible determinations before the conclusion of its review of the submitted notices regarding risk to human health and the environment from the manufacture, processing, distribution in commerce, use and/or disposal of new chemical substances or significant new uses. EPA's determination on a new chemical substance or new use will dictate how and to what extent the chemical's manufacture, processing, distribution, use, and/or disposal may be restricted. If EPA fails to make a timely determination, fees may be refunded; however, nothing relieves EPA of its obligation to make a determination. EPA requires that the submitter of a PMN or MCAN inform EPA when non-exempt commercial manufacture of the substance in question actually begins by submitting a Notice of Commencement; EPA would then add the new chemical substance to the TSCA section 8(b) Inventory.
Persons who intend to export a substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b), and regulations that interpret TSCA section 12(b) appear at 40 CFR part 707 and the associated paperwork activities and burdens are approved under OMB Control No. 2070-0030, ICR entitled “Notification of Chemical Exports—TSCA Section 12(b),” identified by EPA ICR No. 0795.16.
Existing chemicals are chemicals that are already listed on the TSCA Inventory and therefore “existing chemical SNURs” are generally written to require notice for significant new uses of chemicals that are already in commerce.
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
There is no change in the burden hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces the availability of and solicits public comment on the following Information Collection Request (ICR) that EPA is planning to submit to the Office of Management and Budget (OMB): “Consolidation of Certain Reporting and Recordkeeping Under Section 8 of the Toxic Substances Control Act (TSCA) (EPA ICR No. 2703.02 and OMB Control No. 2070-0224).” This ICR represents a renewal of an existing ICR that is currently approved through November 30, 2025. Before submitting the ICR to OMB for review and approval under the PRA, EPA is soliciting comments on specific aspects of the information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment. EPA is also consolidating two ICRs covering reporting and recordkeeping activities under TSCA Section 8(a) to streamline the presentation of the paperwork burden estimates for these various activities and eliminate any duplication.
Comments must be received on or before July 8, 2025.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2021-0728, through the Federal eRulemaking Portal at
Carolyn Siu, Mission Support Division (7602M), Office of Program Support, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 719-1649; email address:
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The TSCA section 8(a) Preliminary Assessment Information Rule (PAIR) requires manufacturers and importers of certain chemical substances to submit information about production, use, and/or exposure-related data. Under TSCA section 8(a), persons who manufacture, import, or process certain chemical substances or mixtures, or propose to manufacture, import, or process certain chemical substances or mixtures, are subject to chemical-specific rules promulgated under TSCA section 8(a). A chemical-specific “8(a) rule” requires more detailed and more types of information than is required by a PAIR rule. For example, a chemical-specific “8(a) rule” might require information that includes, but is not limited to, chemical names, categories of use, production volume, byproducts of chemical production, existing data on health and environmental effects, exposure data, and disposal information. EPA is consolidating two TSCA section 8(a) chemical specific rules into this ICR: including the reporting and recordkeeping requirements for persons who manufacture or process chemical substances as nanoscale materials under the authority of section 8(a) of the TSCA (40 CFR 704.20) covered by “Chemical-Specific Rules under the Toxics Substances Control Act Section 8(a); Certain Nanoscale Materials (Renewal) (EPA ICR No. 2517.04; OMB Control No. 2070-0194), and the one-time asbestos reporting and recordkeeping requirements (40 CFR 704.180), which is covered by the “TSCA Section 8(a) Reporting and Recordkeeping Requirements for Asbestos (Final Rule) (EPA ICR No. 2711.02; OMB Control No. 2070-0222).”
Under TSCA section 8(c), persons who manufacture, import, process, or distribute in commerce any chemical substance or mixture must keep records of significant adverse reactions to health or the environment, as determined by the Administrator by rule. Allegations of adverse reactions to the health of employees be kept for thirty years, and all other allegations be kept for five years. The rule also prescribes the conditions under which a firm must submit or make the records available to a duly designated representative of the Administrator.
Finally, under TSCA section 8(d), persons, who manufacture, import, process, or distribute in commerce (or propose to manufacture, import, process, or distribute in commerce) certain chemical substances and mixtures, are required to submit to EPA lists and copies of health and safety studies which relate to health and/or environmental effects of the chemical substances and mixtures. To comply with an “8(d)” rule, respondents must search their records to identify any health and safety studies in their possession, make copies of relevant studies, list studies that are currently in progress, and submit this information to EPA.
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
This ICR renewal includes the consolidation of multiple ICRs. Accordingly, for this particular ICR, the overall number of hours will increase to reflect the consolidation whereas EPA will retire the ICRs that are being consolidated into this ICR (
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Federal Maritime Commission.
Notice of filing and request for comments.
The Federal Maritime Commission (Commission) has received a petition from a controlled carrier requesting an exemption from the statutory requirement to provide 30 days' notice of a reduction in its tariff rates and seeks public comment.
Submit comments on or before June 9, 2025.
You may submit comments, identified by Docket No. FMC-2025-0008, by the following method:
A copy of the comment must also be served on the Petitioner's counsel, Cameron W. Roberts, Roberts & Kehagiaras LLP, at
For questions regarding the submission of written public comments or the treatment of any confidential information, please contact David Eng, Secretary, at (202) 523-5725 or by email at
Notice is given that the Chinese-Polish Joint Stock Shipping Company (“Chipolbrok”), has petitioned the Commission, pursuant to 46 U.S.C. 40103(a) and 46 CFR 502.94, for an exemption from 46 U.S.C. 40703 so that it may reduce its tariff rates effective upon publication. A copy of this petition, Petition No. P1-25, can be found at
To grant an exemption, the Commission must conclude that such exemption will not result in substantial reduction in competition or be detrimental to commerce. The Commission has stated that “detriment to commerce” must signify something other than “substantial reduction in competition.”
For the Commission to make a thorough evaluation of the exemption requested in the petition, interested parties are afforded an opportunity to participate through submission of written public comments. Comments must be received no later than the above stated date. The comments must be written and in English and submitted electronically through the Federal Rulemaking Portal at
The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If you would like to request confidential treatment, pursuant to 46 CFR 502.5, you must submit the following, by email, to
• A transmittal letter that identifies the specific information in the comments for which protection is sought and demonstrates that the information is a trade secret or other confidential research, development, or commercial information.
• A confidential copy of your comments, consisting of the complete filing with a cover page marked “Confidential-Restricted,” and the confidential material clearly marked on each page.
• A public version of your comments with the confidential information excluded. The public version must state “Public Version—confidential materials excluded” on the cover page and on each affected page and must clearly indicate any information withheld.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage de novo, or to acquire or control voting securities or assets of a company, including the companies listed below, that engages either directly or through a subsidiary or other company, in a nonbanking activity that is listed in § 225.28 of Regulation Y (12 CFR 225.28) or that the Board has determined by Order to be closely related to banking and permissible for bank holding companies. Unless otherwise noted, these activities will be conducted throughout the United States.
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 received are subject to public disclosure. In general, comments received will be made available without change and will not be modified to remove personal or business information including confidential, contact, or other identifying information. Comments should not include any information such as confidential information that would not be appropriate for public disclosure.
Unless otherwise noted, comments regarding the 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 May 27, 2025.
1.
Board of Governors of the Federal Reserve System.
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
Comments received are subject to public disclosure. In general, comments received will be made available without change and will not be modified to remove personal or business information including confidential, contact, or other identifying information. Comments should not include any information such as confidential information that would not be appropriate for public disclosure.
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 June 9, 2025.
1.
Board of Governors of the Federal Reserve System.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments received are subject to public disclosure. In general, comments received will be made available without change and will not be modified to remove personal or business information including confidential, contact, or other identifying information. Comments should not include any information such as confidential information that would not be appropriate for public disclosure.
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 May 27, 2025.
1.
Board of Governors of the Federal Reserve System.
New England Region, Public Buildings Service (PBS), U.S. General Services Administration (GSA).
Notice of availability (NOA).
This notice announces the availability of the Final Environmental Impact Statement (EIS) that analyzes the potential environmental effects from the acquisition of a site in Hartford, CT, and the subsequent design, construction, and operation of a new federal courthouse. The new courthouse would be owned and managed by GSA and occupied by the U.S. District Court for the District of Connecticut (the Court) and related agencies. The Final EIS describes the purpose and need for the project; the alternatives considered; the existing environment that could be affected; the potential impacts resulting from each of the alternatives and proposed best management practices and mitigation measures. The Final EIS identifies the Preferred Alternative, as summarized below (see the
The Final EIS Wait Period begins with publication of this NOA in the
Comments on the Final EIS may be submitted by one of the following methods:
•
•
Comments sent by any other method or to any other address or individual may not be considered by GSA. Comments received or postmarked after the 30-day Final EIS Wait Period may not be considered by GSA. All comments received are part of the public record. All personal identifying information (
Joseph Mulligan, GSA Project Manager, 312-505-5426, at
GSA has considered and incorporated stakeholder input and public comments provided during the scoping and Draft EIS comment periods to develop the Final EIS and determine the Preferred Alternative.
GSA's Preferred Alternative for the site acquisition, and subsequent design, construction and operation of a new federal courthouse in Hartford is Alternative 2, the Allyn Site. Under the Preferred Alternative, GSA would acquire the Allyn Site, consisting of approximately 2.19 acres of land located at 154 Allyn Street. The Allyn Site is bounded by Church Street to the north, High Street to the west, Allyn Street to the south, and mixed-use and religious buildings along its eastern perimeter. It is in the central business district of Hartford and is one block north of Bushnell Park. The Allyn Site currently serves as a surface parking lot. Under the Preferred Alternative, the new federal courthouse would likely contain up to two levels of underground secure parking. The majority of the Allyn Site, approximately 2 acres, would be excavated and graded in preparation for construction, and a small portion, approximately 0.25 acres, would be used as a staging area. GSA may lease a vacant paved lot in the vicinity of the Allyn Site for staging purposes due to the limited space availability at the site. The Project would generate approximately 50,000 to 75,000 cubic yards of excavated materials. A new landscape plan would be developed using native plantings. There appears to be adequate public parking in proximity to the Allyn Site, however, GSA may pursue options to provide additional parking such as entering into a lease with a commercial parking operator.
The Court currently operates at three facilities: the Richard C. Lee U.S. Courthouse in New Haven (its headquarters location), the Brien McMahon Federal Building and U.S. Courthouse in Bridgeport, and the Abraham A. Ribicoff Federal Building and Courthouse in Hartford (Ribicoff Federal Building and Courthouse).
The Ribicoff Federal Building and Courthouse, constructed in 1963, does not have the capacity to accommodate the functions and operations of the Court. The facility is inadequate in size and configuration for the Court's existing operations, including deficiencies in judicial, juror, and detainee circulation and overall facility security. The Court's long-term facilities planning and GSA's feasibility studies concluded that relocating the Court's headquarters to Hartford would provide efficiencies in judicial operations across the State. The results from these studies led to GSA's proposal to locate the Court and related agencies at a new courthouse in Hartford.
GSA has prepared a Final EIS to assess the potential impacts of this project.
GSA evaluated two action alternatives in the Final EIS. Both would involve site acquisition, design, construction, and operation of a new federal courthouse in Hartford: (1) Alternative 1, Woodland Site, located at 61 Woodland Street, and (2) Alternative 2, Allyn Site, located at 154 Allyn Street. Key features of the proposed courthouse include (a) total building gross square footage of up to 281,000; (b) eleven courtrooms and eighteen judges chambers; (c) offices for the Court and related agencies; and (d) sixty-six secure parking spaces. GSA also considered a No Action alternative. The Final EIS describes the purpose and need for the proposed project, the alternatives considered, the existing environment that could be affected, the potential impacts resulting from each of the alternatives, and proposed best management practices and mitigation measures. The resource areas analyzed in the Final EIS include land use; utilities; traffic and transportation; air quality; solid and hazardous waste; socioeconomics; protection of children's health and safety; cultural resources; geology, topography, and soils; water resources; and visual resources. Based on the analysis presented in the Final EIS, impacts from the Preferred Alternative on all resource areas would be less-than-significant (
The Final EIS was prepared in compliance with the National Environmental Policy Act (NEPA) NEPA, as amended (42 United States Code [U.S.C.]
Further information about the project can be viewed at:
Public Buildings Service (PBS), United States (U.S.) General Services Administration (GSA).
Notice of Availability (NOA); Public Notice of Floodplain and Wetlands Assessment and Statement of Findings.
This notice announces the availability of the Final EIS, which examines potential environmental impacts from the modernization and expansion of the Grand Portage LPOE, located within the Grand Portage Reservation of the Grand Portage Band of Lake Superior Chippewa (herein referred to as the Grand Portage Band). The existing Grand Portage LPOE is owned and managed by GSA and is operated by the U.S. Department of Homeland Security's Customs and Border Protection (CBP).
The Final EIS describes the purpose and need for the project; alternatives considered; the existing environment that could be affected; the potential impacts resulting from each of the
The Final EIS also includes a Floodplain and Wetlands Assessment and Statement of Findings as a result of potential construction in a floodplain and wetlands at the Grand Portage LPOE. Based on impacts analyses and public comments, GSA has identified the Proposed Action as described in the Final EIS as its preferred alternative.
The Final EIS Wait Period begins with publication of this NOA in the
A copy of the Final EIS can be found on the GSA website at:
Members of the public may submit comments by any of the following methods. All comments will be considered equally and will be part of the public record.
• Electronic comments should be submitted to the email address listed below.
Please include `Grand Portage LPOE Final EIS' in the subject line.
• Written comments should be mailed to: ATTN: Matthew Heiman, Senior Project Manager, Grand Portage LPOE Final EIS, U.S. General Services Administration, c/o Potomac-Hudson Engineering, Inc., 77 Upper Rock Circle, Suite 302, Rockville, MD 20850.
Questions and comments on the Final EIS should be directed to: Matthew Heiman, Senior Project Manager, GSA at the following email address:
The views and comments of the public are necessary in helping GSA in its decision-making process. The public review process will be accomplished through direct mail correspondence to appropriate federal, state, and local agencies, and to private organizations and citizens who have previously expressed, or are known to have, an interest in the project. The Final EIS has considered previous input provided during the scoping and Draft EIS comment periods.
The existing 5.7-acre LPOE serves vehicles and pedestrians crossing the U.S.-Canada border between the Grand Portage Reservation in the U.S. and Neebing, Ontario in Canada. The Feasibility Study performed in 2019 determined that the existing structures do not contain the necessary square footage as specified by CBP's space and facility requirements (also referred to as Program of Requirements [POR]). In addition, the facility lacks outbound inspection capabilities. Following preparation of the Feasibility Study, a Program Development Study (PDS) was initiated as the next step in the design process to further refine potential alternatives under consideration. From the PDS process, viable alternatives were further refined into the Proposed Action analyzed within the Final EIS, in collaboration with the Grand Portage Band, who is serving as a Cooperating Agency for this EIS.
GSA has prepared this Final EIS for the purpose of analyzing the potential environmental, cultural, and economic impacts resulting from the Proposed Action to modernize and expand the existing Grand Portage LPOE.
The Proposed Action would consist of modernization and expansion of existing Grand Portage LPOE facilities as described in the PDS. Under the Proposed Action, GSA would replace the Grand Portage LPOE with a modernized facility on an expanded footprint, expanding the existing 5.7-acre operational footprint to a total operational footprint of approximately 10.4 acres. GSA would also upgrade the electrical distribution system leading to the LPOE by installing a 7.3-mile buried three-phase power line within Arrowhead Cooperative's existing utility right-of-way along the western side of Highway 61. GSA also considered the No Action Alternative, which assumes that GSA would not expand or modernize the Grand Portage LPOE or install the three-phase power line.
The purpose of the Proposed Action is for GSA to support CBP's mission by modernizing and expanding the Grand Portage LPOE. The existing LPOE does not meet CBP's current needs and does not allow for expeditious and safe inspection of the traveling public. The deficiencies fall into two broad categories: deficiencies in the overall site layout and substandard building conditions. Therefore, to bring the Grand Portage LPOE operations in line with design standards and operational requirements, implementation of the Proposed Action is needed to (1) address space constraints and inefficient traffic flows; (2) shorten and expedite vehicle processing time, to include improving daily commutes across the U.S.-Canada border; (3) decrease congestion and long wait times during the peak travel season; (4) allow CBP to process a higher volume of vehicles traveling to and from Canada, to include further accommodation of potential future spikes in travelers crossing the U.S.-Canada border; and (5) provide a wider single lane for large semi-trucks hauling wind turbine components from Canada.
The Final EIS analyzes the potential impacts of the proposed alternatives on environmental resources including geology, water, biological resources, air quality, noise, traffic and transportation, land use and visual resources, infrastructure and utilities, socioeconomics, cultural resources, and human health and safety. The Final EIS concludes that impacts to all resource areas would be less-than-significant (
GSA is currently conducting formal consultation with the Grand Portage Band Tribal Historic Preservation Officer (THPO) as required under Section 106 of the National Historic Preservation Act to determine impacts to historic properties. Mitigation measures may be determined in consultation between GSA, the THPO, and applicable consulting parties.
Under the Endangered Species Act (ESA), GSA coordinated with the U.S. Fish and Wildlife Service (USFWS) per Section 7 requirements to determine effects to federally protected species. GSA determined that there would be no adverse effects to federally threatened or endangered species with implementation of impact avoidance measures; USFWS concurred with these findings. GSA's findings and correspondence with USFWS are incorporated in the Final EIS.
The project area occurs within a region unmapped by the Federal Emergency Management Agency for floodplains and floodways. As information is currently unavailable that definitively indicates the presence or
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) has determined that the drug products listed in this document were not withdrawn from sale for reasons of safety or effectiveness. This determination means that FDA will not begin procedures to withdraw approval of abbreviated new drug applications (ANDAs) that refer to these drug products, and it will allow FDA to continue to approve ANDAs that refer to the products as long as they meet relevant legal and regulatory requirements.
Stacy Kane, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6236, Silver Spring, MD 20993-0002, 301-796-8363,
Section 505(j) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(j)) allows the submission of an ANDA to market a generic version of a previously approved drug product. To obtain approval, the ANDA applicant must show, among other things, that the generic drug product: (1) has the same active ingredient(s), dosage form, route of administration, strength, conditions of use, and (with certain exceptions) labeling as the listed drug, which is a version of the drug that was previously approved, and (2) is bioequivalent to the listed drug. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA).
Section 505(j)(7) of the FD&C Act requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is generally known as the “Orange Book.” Under FDA regulations, a drug is removed from the list if the Agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness, or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
Under § 314.161(a) (21 CFR 314.161(a)), the Agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness: (1) before an ANDA that refers to that listed drug may be approved, (2) whenever a listed drug is voluntarily withdrawn from sale and ANDAs that refer to the listed drug have been approved, and (3) when a person petitions for such a determination under 21 CFR 10.25(a) and 10.30. Section 314.161(d) provides that if FDA determines that a listed drug was withdrawn from sale for safety or effectiveness reasons, the Agency will initiate proceedings that could result in the withdrawal of approval of the ANDAs that refer to the listed drug.
FDA has become aware that the drug products listed in the table are no longer being marketed.
FDA has reviewed its records and, under § 314.161, has determined that the drug products listed were not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the Agency will continue to list the drug products in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” identifies, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness.
Approved ANDAs that refer to the drug products listed are unaffected by the discontinued marketing of the products subject to these applications. Additional ANDAs that refer to these products may also be approved by the Agency if they comply with relevant legal and regulatory requirements. If FDA determines that labeling for these drug products should be revised to meet current standards, the Agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice of availability; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a document entitled “Product Quality Information Request Communications Assessment: Final Report.” This report fulfills a commitment under the recent reauthorization of the Prescription Drug User Fee Act (PDUFA) to assess communication between FDA and applicants through product quality information requests during application review and to identify best practices and areas of improvement. The assessment of FDA and applicants in communicating through product quality information requests was conducted by an independent contractor, as described in the document entitled “PDUFA Reauthorization Performance Goals and Procedures Fiscal Years 2023 Through 2027.” As part of FDA performance commitments described in this document, FDA is publishing the final assessment report and soliciting public comments.
Submit either electronic or written comments on the final report by July 31, 2025.
You may submit either electronic or written comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Dockets
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Mahesh Ramanadham, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-3272, email:
PDUFA provides FDA with a source of stable, consistent funding that has made it possible for the Agency to focus on promoting innovative therapies and help bring to market critical products for patients. When PDUFA was originally authorized in 1992, it had a 5-year term. The program has been subsequently reauthorized every 5 years. To prepare for the reauthorization of PDUFA for years 2023 to 2027, FDA conducted negotiations with the regulated industry and held regular consultations with public stakeholders, including patient advocates, consumer advocates, and healthcare professionals between September 2020 and February 2021.
Following these discussions, related public meetings, and Agency requests for public comment, FDA published the “PDUFA Reauthorization Performance Goals and Procedures Fiscal Years 2023 Through 2027” document, available at
FDA and applicants interact in a variety of ways throughout application review. One such way is via a communication called an information request (IR), sent to an applicant as the discipline review occurs. FDA uses IRs to request further information or clarification that is needed or would be helpful to allow completion of the discipline review. IRs may be in the form of letters, emails, or faxes.
FDA uses product quality IRs to request further information or clarification needed for FDA's assessment of identity, strength, quality, purity, or potency of drug substances or drug products. Ensuring that patients can have confidence in the safety and effectiveness of their medications is a longstanding priority for FDA. The Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) have worked to address this priority in part by performing Chemistry, Manufacturing, and Controls (CMC) reviews for CDER-regulated and CBER-regulated products. CDER or CBER may issue a product quality, or CMC, IR as a result of CMC assessments conducted in support of the application.
CDER and CBER have established procedures for assessors to use Four-Part Harmony, a framework that describes four key elements that should be included in product quality IRs, specifically: (1) what was provided, (2) what is the issue or deficiency, (3) what is needed, and (4) why it is needed. These procedures can be found in CDER's Manual of Policies and Procedures (MAPP) 5016.8 Rev. 1, “Using Four-Part Harmony in Quality-Related Assessment Communications” and CBER's Standard Operating Procedures and Policies (SOPP) 8401.1, “Issuance of and Review of Responses to Information Request Communications to Pending Applications.” The PDUFA VII goals letter includes commitments for FDA to update and conduct training on existing policies and procedures (MAPPs and SOPPs), to reflect Four-Part Harmony. CDER MAPP 5016.8, “Communication Guidelines for Quality-Related Information Requests and Deficiencies” (
In addition to updating the documents and conducting training, FDA committed to contracting with an independent third party to assess current practices of CDER, CBER, and applicants in communicating through product quality IRs during application review and effectiveness of Four-Part Harmony. This assessment has been completed, and in accordance with the PDUFA VII goals letter, FDA is seeking public comment on this “Product Quality Information Request Communications Assessment: Final Report,” available at
FDA is soliciting comments on the “Product Quality Information Request Communications Assessment: Final Report” from interested parties. We request feedback on: (1) the assessment findings and recommendations, (2) whether certain recommendations are more desirable than others, and (3) other actions FDA and applicants should consider and why.
Persons with access to the internet may obtain the report at
Food and Drug Administration, HHS.
Notice; request for notification of participation.
The Food and Drug Administration (FDA or Agency) is issuing this notice to request that public stakeholders—including patient and consumer advocacy groups, healthcare professionals, and scientific and academic experts—notify FDA of their intent to participate in periodic consultation meetings on the reauthorization of the Prescription Drug User Fee Act (PDUFA). The statutory authority for PDUFA expires in September 2027. At that time, new legislation will be required for FDA to continue collecting user fees for the prescription drug program. The Federal Food, Drug, and Cosmetic Act (FD&C Act) requires that FDA consult with a range of stakeholders in developing recommendations for the next PDUFA program. The FD&C Act also requires that FDA hold discussions (at least every month) with patient and consumer advocacy groups during FDA's negotiations with the regulated industry. The purpose of this request for notification is to ensure continuity and progress in these monthly discussions by establishing consistent stakeholder representation.
Submit notification of intention to participate in these series of meetings by August 4, 2025. Stakeholder meetings will be held monthly. It is anticipated that they will commence in September 2025. See the
Submit notification of intention to participate in monthly stakeholder meetings by email to
Andrew Kish, Center for Drug Evaluation and Research, Food and Drug Administration, 301-796-5215,
FDA is requesting that public stakeholders—including patient and consumer advocacy groups, healthcare professionals, and scientific and academic experts—notify the Agency of their intent to participate in periodic stakeholder consultation meetings on the reauthorization of PDUFA. PDUFA authorizes FDA to collect user fees from the regulated industry for the process for the review of human drugs. The authorization for the current program (PDUFA VII) expires in September 2027. Without new legislation, FDA will no longer be able to collect user fees for future fiscal years to fund the human drug review process.
Section 736B(f)(1) of the FD&C Act (21 U.S.C. 379h-2(f)(1)) requires that FDA consult with a range of stakeholders, including representatives from patient and consumer groups, healthcare professionals, and scientific and academic experts, in developing recommendations for the next PDUFA program. FDA will initiate the reauthorization process by holding a public meeting on July 14, 2025, where stakeholders and other members of the public will be given an opportunity to present their views on the reauthorization. The FD&C Act further requires that FDA continue meeting with these stakeholders at least once every month during negotiations with the regulated industry to continue discussions of stakeholder views on the reauthorization. It is anticipated that these monthly stakeholder consultation meetings will commence in September 2025.
FDA is issuing this notice to request that stakeholder representatives from patient and consumer groups, healthcare professional associations, as well as scientific and academic experts, notify FDA of their intent to participate in the periodic stakeholder consultation meetings on PDUFA reauthorization. FDA believes that consistent stakeholder representation at these meetings will be important to ensure progress in these discussions. If you wish to participate in the stakeholder consultation meetings, please designate one or more representatives from your organization who will commit to attending these meetings and preparing for the discussions. Stakeholders who identify themselves through this notice will be included in all stakeholder consultation discussions while FDA negotiates with the regulated industry. If a stakeholder decides to participate in these monthly meetings at a later time, that stakeholder may join the remaining monthly stakeholder consultation meetings after notifying FDA of this intention (see
If you intend to participate in continued periodic stakeholder consultation meetings regarding PDUFA reauthorization, please provide notification by email to
National Institutes of Health, HHS.
Notice.
The National Institute of Child Health and Human Development (NICHD), an institute of the National Institutes of Health (NIH), Department of Health and Human Services (HHS), is giving notice of the licensing or collaboration opportunities for the inventions listed below, which are owned by an agency of the U.S. Government and are available for licensing and collaboration to achieve expeditious commercialization of results of federally-funded research and development.
Inquiries related to these licensing or collaboration opportunities should be directed to: Zarpheen Jinnah, Ph.D., Technology Transfer Manager, NCI, Technology Transfer Center, email:
Tissue oxygen saturation (StO2) is an important parameter to assess oxygen delivery and uptake. Hypoxia, a term used to indicate inadequate StO2, is often seen in patients with cardiac problems, respiratory infections or pulmonary diseases. Prolonged hypoxia can damage vital organs such as the brain, lungs, and heart and can be fatal. Currently available tissue oximeters to monitor StO2 are expensive and cumbersome. NICHD has developed a novel method, which uses a single source-detector separation to calculate StO2. With this technique, a simple tissue oximeter can be made with just a LED and a photodetector, which enables the development of a miniaturized device. As a result, it can be used independently or implemented on existing technologies to measure StO2 without any hardware modifications. It can be applied in wearable devices, implantable medicines or endoscopies to measure tissue oxygenation in different tissues such as muscle, brain, spinal cord, internal organs, fetus and placenta.
This Notice is in accordance with 35 U.S.C. 209 and 37 CFR part 404.
• Miniaturized tissue oximeter for implantation or endoscopy.
• Measure tissue oxygen saturation.
• Multilayer tissue oximeter.
• Simpler and more compact as it only requires a single light source such as LED and a single photodetector such as a photodetector to build a tissue oximeter.
• Multilayer measurement.
• Implementation with existing technologies without any hardware modifications.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Government National Mortgage Association, HUD.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Housing and Urban Development (HUD), Government National Mortgage Association (GNMA) is modifying a system of records, “Ginnie Mae Master Subservicer System” (MSS). This system of records is being revised to make clarifying changes and general updates to the remaining sections to accurately reflect management of the system of records in accordance with the Office of Management and Budget (OMB) Circular A108, Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act.
Comments will be accepted on or before June 9, 2025. This SORN becomes effective immediately, while the routine uses become effective after the comment period immediately upon publication except for the routine uses, which will become effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number or by one of the following methods:
LaDonne White; 451 Seventh Street SW, Room 10139, Washington, DC 20410-0001; telephone number 202-708-3054 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit
HUD is publishing this revised notice to include additional detail relating to Ginnie Mae's use of the system of records and its data for market liquidity initiatives. Ginnie Mae has made updates to the SORN to ensure that the template is fully compliant with the agency's requirements. Furthermore, this modification is making clarifying changes within: System Location, System Manager, Record Authority for Maintenance of the System, Purpose of the System, Routine Uses of Records Maintained in the System, Retrieval of Records, and Retention and Disposal of Records, and Ginne Mae has modified the language of the `Routine Use' section to provide clear and concise information of the use and collection of the data. The modifications to MSS SORN include these changes:
• “System location” has been updated and brings the information current.
• “System Manager” has been updated and brings the information current.
• “Authority for maintenance” has been updated to include the authority for Social Security Number Collection.
• “Purpose” has been updated to reflect current information.
• “Routine Uses of Records Maintained in the System, Including Categories of Uses and Purpose of Such Uses” is updated to include the applicable routine uses.
Ginnie Mae Master Subservicer System (MSS); HUD/GNMA-02.
Unclassified.
Records are maintained at their respective Ginnie Mae Master Subservicer.
System Managers are specified in Ginnie Mae's Master Subservicer contract(s): Ms. Adrianne Brown in the Carrington Group, and Ms. Jacqueline Taylor in the Selene Finance, both reside at 425 3rd Street, 5th Floor, Washington, DC 20024-1000.
Sec. 306(g), National Housing Act, 12 U.S.C. 1721(g). 42 U.S.C. 3543 Preventing Fraud and Abuse in HUD programs, and under 24 CFR part 200, subpart U and 24 CFR 203.35.
The information is used to perform a wide range of loan servicing and issuing functions. The data is maintained in a comprehensive loan servicing system that processes transactions relating to the servicing of home and project loans on behalf of Ginnie Mae. The primary purpose of this system of records is to capture borrower, loan, and pool-level data associated with defaulted Issuer portfolios. When Ginnie Mae defaults and extinguishes an issuer, one of Ginnie Mae's functions as guarantor of securities is to service the mortgage loans. This system of records serves as a central back-end repository, on Ginnie Mae's behalf, to house borrower, loan origination, and servicing data associated those defaulted issuer portfolios. Additionally, Ginnie Mae intends to leverage the Master Subservicer System to source data required to support market liquidity initiatives related to its defaulted issuer portfolio.
Borrowers and co-borrowers.
May include, but not limited to: Borrower's name, Social Security Number, Date of Birth, co-borrowers' name(s), property address, phone number, email address, income and other financial data; the Federal Housing Administration (FHA), Department of Veterans Affairs (VA), Department of Agriculture Rural Housing Service (RHS), or HUD Office of Public and Indian Housing (PIH) loan number.
Records are established using information received from borrowers and from legal instruments related to borrowers' loans (
In
(a) To the U.S. Treasury—for disbursements, adjustments, collection services.
(b) To the Internal Revenue Service and to state and local governments—for reporting payments for mortgage interest, for reporting of discharge indebtedness and real estate taxes.
(c) To credit bureaus and other entities for credit reporting purposes.
(d) To employers to effect wage garnishment.
(e) To third party purchasers or potential purchasers in connection with asset sale transactions.
(f) To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. 552(h), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS' offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.
(g) To a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual to whom the records pertain.
(h) To contractors, grantees, experts, consultants, Federal agencies, and non-Federal entities, including, but not limited to, State and local governments and other research institutions or their parties, and entities and their agents with whom HUD has a contract, service agreement, grant, cooperative agreement, or other agreement for the purposes of statistical analysis and research in support of program operations, management, performance monitoring, evaluation, risk management, and policy development, to otherwise support the Department's mission, or for other research and statistical purposes not otherwise prohibited by law or regulation. Records under this routine use may not be used in whole or in part to make decisions that affect the rights, benefits, or privileges of specific individuals. The results of the matched information may not be disclosed in identifiable form.
(i) To contractors, grantees, experts, consultants and their agents, or others performing or working under a contract, service, grant, cooperative agreement, or other agreement with HUD, when necessary to accomplish an agency function related to a system of records. Disclosure requirements are limited to only those data elements considered relevant to accomplishing an agency function.
(j) To contractors, experts, and consultants with whom HUD has a contract, service agreement, or other assignment of the Department, when necessary to utilize relevant data for the purpose of testing new technology and systems designed to enhance program operations and performance.
(k) To appropriate agencies, entities, and persons when: (1) HUD suspects or has confirmed that there has been a breach of the system of records; (2) HUD has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, HUD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with HUD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(l) To another Federal agency or Federal entity, when HUD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
(m) To appropriate Federal, State, local, tribal, or other governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, where HUD determines that the information would assist in the enforcement of civil or criminal laws and when such records, either alone or in conjunction with other information, indicate a violation or potential violation of law.
(n) To a court, magistrate, administrative tribunal, or arbitrator in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, mediation, or settlement negotiations, or in connection with criminal law proceedings; when HUD determines that use of such records is relevant and necessary to the litigation and when any
(o) To any component of the Department of Justice or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when HUD determines that the use of such records is relevant and necessary to the litigation and when any of the following is a party to the litigation or have an interest in such litigation: (1) HUD, or any component thereof; or (2) any HUD employee in his or her official capacity; or (3) any HUD employee in his or her individual capacity where the Department of Justice or agency conducting the litigation has agreed to represent the employee; or (4) the United States, or any agency thereof, where HUD determines that litigation is likely to affect HUD or any of its components.
In addition to the routine uses described above, HUD provides notice pursuant to 31 U.S.C. 3711(e) that information contained in this system of records may also be disclosed to a consumer reporting agency when trying to collect a claim owed on behalf of the government.
Electronic and paper records.
Records are retrieved by mortgagor/borrower name, Social Security Number, loan number, property address.
Temporary. Destroy upon verification of successful creation of the final document or file. Or when no longer needed for business use, whichever is later. In accordance with HUD records disposition schedule 2225.6, Appendix 20. Records are destroyed upon successful creation of the final document or file, or when no longer needed for business use, whichever is later. Backup and recovery digital media will be destroyed or otherwise rendered irrecoverable per NIST SP 800-88 “Guidelines for Media Sanitization.” GRS 5.2, Item 20, DAA-GRS2017-0003-0002.
Individuals requesting records of themselves should address written inquiries to the Department of Housing Urban and Development 451 7th Street SW, Washington, DC 20410-0001. For verification, individuals should provide their full name, current address, and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
The HUD rule for contesting the content of any record pertaining to the individual by the individual concerned is published in 24 CFR 16.8 or may be obtained from the system manager.
Individuals requesting notification of records of themselves should address written inquiries to the Department of Housing Urban Development, 451 7th Street SW, Washington, DC 20410-0001. For verification purposes, individuals should provide their full name, office or organization where assigned, if applicable, and current address and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
None.
Docket No. FR-5386-N-07, 75 FR 44803, July 29, 2010.
Bureau of Land Management, Interior.
Notice of official filing.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management (BLM), Colorado State Office, Lakewood, Colorado, 30-calendar days from the date of this publication. The surveys, which were executed at the request of the BLM and U.S. Army Corps of Engineers, are necessary for the management of these lands.
You must submit written protests to the BLM Colorado State Office by June 9, 2025. Unless there are protests of this action, the plats described in this notice will be filed on June 9, 2025.
You may submit written protests to the BLM Colorado State Office, Cadastral Survey, P.O. Box 151029, Lakewood, CO 80215.
David W. Ginther, Chief Cadastral Surveyor for Colorado, telephone: (970) 826-5064; email:
The plat, in two sheets, and field notes of the dependent resurvey and survey in Township 33 South, Range 65 West, Sixth Principal Meridian, Colorado, were accepted on January 13, 2025.
The plat and field notes of the dependent resurvey and subdivision of sections 5 and 6 in Township 49 North, Range 1 West, New Mexico Principal
The supplemental plat of the NW1/4 of section 2 in Township 1 South, Range 1 East, Ute Principal Meridian, Colorado, was accepted on March 25, 2025.
A person or party who wishes to protest any of the above surveys must file a written notice of protest within 30-calendar days from the date of this publication at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your protest, please be aware that your entire protest, 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“the Commission”) has determined to dismiss the complaint in the above-captioned investigation as moot. The Commission has also determined to institute a rescission proceeding and to rescind the limited exclusion order and cease and desist order issued in the investigation. The rescission proceeding is terminated.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on May 26, 2021, based on a complaint filed by AliveCor, Inc. of Mountain View, California (“AliveCor”). 86 FR 28382 (May 26, 2021). The complaint alleges a violation of section 337 the Tariff Act, as amended, 19 U.S.C. 1337 (“section 337”), by way of the importation, sale for importation, or sale in the United States after importation of certain wearable electronic devices with ECG functionality and components thereof by reason of infringement of one or more claims of U.S. Patent Nos. 10,595,731 (“the '731 patent”); 10,638,941 (“the '941 patent”); and 9,572,499 (“the '499 patent”) (collectively, “the Asserted Patents”).
On December 22, 2022, the Commission issued a final determination finding a violation of section 337 based on the infringement of certain claims of the '941 patent and the '731 patent, but no violation based on the '499 patent. Accordingly, the Commission issued a limited exclusion order prohibiting further importation of infringing products and a cease and desist order against Apple (collectively, “the remedial orders”). The Commission, however, suspended enforcement of the orders pending final resolution of the Patent Trial and Appeal Board's (“PTAB”) Final Written Decisions finding the asserted patent claims unpatentable.
AliveCor filed an appeal from the Commission's final determination with the U.S. Court of Appeals for the Federal Circuit (“the Federal Circuit”), and Apple cross-appealed. The appeal and cross-appeal were docketed on February 15, 2023, and March 3, 2023, respectively, and consolidated under
On March 7, 2025, the Federal Circuit affirmed decisions in companion appeals from the PTAB finding all claims of the Asserted Patents unpatentable.
As instructed by the Federal Circuit, the Commission has determined to dismiss the complaint as moot. Accordingly, as stated in the Commission Order issued concurrently herewith, the Commission finds that the conditions which led to the issuance of the remedial orders no longer exist, and therefore, a rescission of the remedial orders is warranted under section 337(k) (19 U.S.C. 1337(k)) and Commission Rule 210.76(a) (19 CFR 210.76(a)). The Commission has thus determined to institute a rescission proceeding and to rescind the remedial orders issued in the underlying investigation. The rescission proceeding is terminated.
The Commission's notice and order were delivered to the Secretary of the Treasury on the day of their issuance.
The Commission's vote for this determination took place on May 6, 2025.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On March 20, 2025, the American Fiberglass Door Coalition, the members of which are Therma-Tru Corporation, Maumee, Ohio, Plastpro Doors Inc., Los Angeles, California, and Owens Corning, Toledo, Ohio, filed petitions with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of fiberglass door panels from China and LTFV imports of fiberglass door panels from China. Accordingly, effective March 20, 2025, the Commission instituted countervailing duty investigation No. 701-TA-758 and antidumping duty investigation No. 731-TA-1739 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to §§ 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on May 5, 2025. The views of the Commission are contained in USITC Publication 5623 (May 2025), entitled
By order of the Commission.
Judicial Conference of the United States.
Advisory Committee on Appellate Rules; notice of open meeting.
The Advisory Committee on Appellate Rules will hold an in-person meeting in hybrid format with remote attendance options on October 15, 2025 in Washington, DC. The meeting is open to the public for observation but not participation. Please see the
October 15, 2025 (meeting date) and October 8, 2025 (registration deadline for in-person observation).
An agenda and supporting materials will be posted at least 7 days in advance of the meeting at:
Carolyn A. Dubay, Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7-300, Washington, DC 20544, Phone (202) 502-1820,
To observe the meeting in person, individuals must contact the office listed above by 5 p.m. (eastern time) on October 8, 2025. After this deadline, only remote observation is permitted. Remote registration is available until the meeting date, provided it is completed before the projected end time.
Judicial Conference of the United States.
Advisory Committee on Civil Rules; notice of open meeting.
The Advisory Committee on Civil Rules will hold an in-person
October 24, 2025 (meeting date) and October 17, 2025 (registration deadline for in-person observation).
An agenda and supporting materials will be posted at least 7 days in advance of the meeting at:
Carolyn A. Dubay, Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7-300, Washington, DC 20544, Phone (202) 502-1820,
To observe the meeting in person, individuals must contact the office listed above by 5 p.m. (eastern time) on October 17, 2025. After this deadline, only remote observation is permitted. Remote registration is available until the meeting date, provided it is completed before the projected end time.
Judicial Conference of the United States.
Advisory Committee on Criminal Rules; notice of open meeting.
The Advisory Committee on Criminal Rules held an in-person meeting in hybrid format with remote attendance options on April 24, 2025 in Washington, DC. The meeting was open to the public for observation but not participation.
April 24, 2025.
The meeting agenda and supporting materials are available at:
Carolyn A. Dubay, Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7-300, Washington, DC 20544, Phone (202) 502-1820,
Notice of availability; correction.
The Department of Labor (DOL) is correcting a notice that appeared in the
This correction is effective on May 9, 2025.
Michael Howell by telephone at 202-693-6782, or by email at
In FR Doc. 2025-07672 appearing at 90 FR 18870 in the
1. On page 18870, in the
Office of Workers' Compensation Programs, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance request for comment to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995. This request helps to ensure that: requested data can be provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents can be properly assessed. Currently, the OWCP is soliciting comments on the information collection for Pharmacy Billing Requirement.
All comments must be received on or before July 8, 2025.
You may submit comment as follows. Please note that late, untimely filed comments will not be considered.
•
• If your comment includes confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission.
•
• OWCP will post your comment as well as any attachments, except for information submitted and marked as confidential, in the docket at
Anjanette Suggs, Office of Workers' Compensation Programs, at
The Office of Workers' Compensation Programs (OWCP) is the agency responsible for administration of the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
OWCP is soliciting comments concerning the proposed information collection related to the Pharmacy Billing Requirements. OWCP is particularly interested in comments that:
Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
Evaluate the accuracy of OWCP's estimate of the burden related to the information collection, including the validity of the methodology and assumptions used in the estimate;
Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the information collection on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Documents related to this information collection request are available at
This information collection request concerns Pharmacy Billing Requirements. OWCP has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request from the previous information collection request.
Comments submitted in response to this notice will be summarized in the request for Office of Management and Budget approval of the proposed information collection request; they will become a matter of public record and will be available at
Information Security Oversight Office (ISOO), National Archives and Records Administration (NARA).
Notice of Federal advisory committee meeting.
We are announcing an upcoming National Industrial Security Program Policy Advisory Committee (NISPPAC) meeting in accordance with the Federal Advisory Committee Act and implementing regulations.
The meeting will be on May 28, 2025, 10 a.m.-1 p.m. eastern time.
This meeting will be a hybrid of virtual and in person in Washington, DC. See
Heather Harris Pagán, ISOO Program Analyst, by telephone at 202.357.5351 or by email at
This meeting is open to the public in accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and implementing regulations at 41 CFR
Weeks May 12, 19, 26, and June 2, 9, 16, 2025. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of May 19, 2025.
There are no meetings scheduled for the week of May 26, 2025.
There are no meetings scheduled for the week of June 9, 2025.
For more information or to verify the status of meetings, contact Chris Markley at 301-415-6293 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice; receipt.
The U.S. Nuclear Regulatory Commission (NRC) is providing public notice each week for four consecutive weeks of receipt and availability of an application from Long Mott Energy, LLC. for a construction permit for a four-unit reactor facility. The application for the construction permit was received on March 31, 2025.
May 9, 2025.
Please refer to Docket ID NRC-2025-0079 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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Adrian Muñiz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-4093; email:
On March 31, 2025, Long Mott Energy, LLC., a wholly owned subsidiary of the Dow Chemical Company, filed an application for a construction permit for a four-unit power reactor facility to be located in Calhoun County, Texas, pursuant to section 103 of the Atomic Energy Act, as amended, and part 50 of title 10 of the
The application is available in ADAMS under Package Accession No. ML25090A057. The information submitted by the applicant includes, among other things, the transmittal letter (ADAMS Accession No. ML25090A058), the preliminary safety analysis report (ADAMS Accession No. ML25090A061), the environmental report (ADAMS Accession No. ML25090A063), and certain financial qualification information (ADAMS Accession No. ML25090A059). These notices are being provided in accordance with the requirements in 10 CFR 50.43(a)(3).
The NRC staff is currently undertaking its acceptance review of the application. If the application is accepted for docketing, a subsequent
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has published a final Environmental Impact Statement (EIS), issued as NUREG-1437, Supplement 61, Second Renewal, “Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Perry Nuclear Power Plant, Unit 1, Final Report.” This EIS evaluates the environmental impacts of license renewal of Facility Operating License No. NPF-58 for an additional 20 years of operation for Perry Nuclear Power Plant (Perry Plant), Unit 1. Perry Plant is located approximately 35 miles northeast of Cleveland, OH. Alternatives to the proposed action of subsequent license renewal for Perry Plant include the no-action alternative and reasonable replacement power alternatives.
NUREG-1437, Supplement 61, Second Renewal, is available as of April 30, 2025.
Please refer to Docket ID NRC-2023-0136 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Lance Rakovan, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2589; email:
In accordance with section 51.118 of title 10 of the
The draft EIS (NUREG-1437, Supplement 61, Second Renewal, Draft for Comment) was issued for public comment on September 6, 2024. The final EIS (NUREG-1437, Supplement 61, Second Renewal, Final Report) addresses the comments received on the draft EIS. As discussed in Chapter 4 of the final EIS, the NRC staff has
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Pursuant to 39 CFR 3041.405, the Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to Competitive negotiated service agreement(s). The request(s) may propose the addition of a negotiated service agreement from the Competitive product list or the modification of an existing product currently appearing on the Competitive product list.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
Section II identifies the docket number(s) associated with each Postal Service request, if any, that will be reviewed in a public proceeding as defined by 39 CFR 3010.101(p), the title of each such request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each such request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 and 39 CFR 3000.114 (Public Representative). The Public Representative does not represent any individual person, entity or particular point of view, and, when Commission attorneys are appointed, no attorney-client relationship is established. Section II also establishes comment deadline(s) pertaining to each such request.
The Commission invites comments on whether the Postal Service's request(s) identified in Section II, if any, are consistent with the policies of title 39. Applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3041. Comment deadline(s) for each such request, if any, appear in Section II.
Section III identifies the docket number(s) associated with each Postal Service request, if any, to add a standardized distinct product to the Competitive product list or to amend a standardized distinct product, the title of each such request, the request's acceptance date, and the authority cited by the Postal Service for each request. Standardized distinct products are negotiated service agreements that are variations of one or more Competitive products, and for which financial models, minimum rates, and classification criteria have undergone advance Commission review.
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This Notice will be published in the
Postal Service.
Notice of modified system of records.
The United States Postal Service (USPS) is proposing to revise a Customer Privacy Act System of Records (SOR), in order to enhance the flexibility needed to support ongoing administrative and compliance activities for the Bank Secrecy Act (BSA), Anti-Money Laundering (AML) and Office of Foreign Assets Control (OFAC) requirements and standards, as determined by the Financial Crimes Enforcement Network (FinCEN).
These revisions will become effective without further notice on June 9, 2025, unless responses to comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, via
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service is defined as a money services business (MSB) under the BSA as it is a provider of money orders, gift cards, and limited check cashing services to customers throughout the United States. Moreover, the Postal Service is the only entity specifically mentioned in the BSA as being covered by the BSA and therefore, has a legal mandate to detect and deter suspicious activities. In addition, the Postal Service must train those who sell postal financial instruments, products, or services and those who supervise them, along with meeting federal recordkeeping and reporting requirements and standards.
Transactional limits and thresholds that trigger compliance and reporting activities are determined by FinCEN, a bureau of the U.S. Department of the Treasury. USPS SOR 860.000, Financial Transactions is being modified to increase flexibility to meet changing requirements and standards.
The Postal Service is proposing modifications to USPS SOR 860.000, Financial Transactions, as summarized below:
Updated PURPOSES #1 and #2 to include financial instruments.
• Updated PURPOSE #3 to include the BSA, AML and OFAC compliance and reporting standards.
• Updated PURPOSE #4 to include the reporting of potential fraud, crime, or violation of law or regulation.
• Updated PURPOSE #5 to include crime, and violations of law or regulation.
• Updated CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM #2 to include financial instruments, products, and services.
• Updated CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM #4 to be more comprehensive and consistent with other sections of the SOR.
• Updated CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM #1, #2, #3 and #5 to delete fund transfers, international wire transfers, and fixed dollar amounts.
• Updated CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM #5 to further define beneficiaries.
• Updated CATEGORIES OF RECORDS IN THE SYSTEM #8 d. and g. and #9 to delete fixed dollar amounts and Sure Money
• Added CATEGORIES OF RECORDS IN THE SYSTEM #10.
• Updated RECORD SOURCE CATEGORIES add beneficiaries.
• Updated Special Routine Use a. for consistency.
• Updated POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS to delete for funds transfers, transaction records are retained 3 years.
• Deleted funds transfers from NOTIFICATION PROCEDURES.
• Updated NOTIFICATION PROCEDURES to include and claims related to other financial instruments, products, or services.
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget (OMB) for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. USPS SOR 860.000, Financial Transactions is displayed below in its entirety:
USPS 860.000 Financial Transactions.
None.
USPS Headquarters; Integrated Business Solutions Services Centers; Accounting Service Centers; Bank Secrecy Act (BSA) Anti-Money Laundering (AML) Compliance group; and contractor sites.
Chief Financial Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 403, and 404; 31 U.S.C. 5311 et seq., and 7701.
1. To provide financial instruments, products, and services.
2. To respond to inquiries and claims related to financial instruments, products, and services.
3. To fulfill compliance and reporting standards found in statutes, regulations and guidance under the BSA, AML and Office of Foreign Assets Control (OFAC).
4. To report potential fraud, crime, or violation of law or regulation and to support investigations related to law enforcement for financial transactions.
5. To provide additional verification procedures to combat fraud, crime, and violations of law or regulation in financial transactions.
1. Customers who use online payment services.
2. Customers who file claims or make inquiries related to online payment services, money orders, stored-value cards, and financial instruments, products, and services.
3. Customers who purchase financial instruments, products, or services including money orders and gift cards.
4. Customers who purchase or redeem money orders, stored value cards, financial instruments, products, or services in a manner raising the possibility of a violation of law or regulation or deemed suspicious expressly including under BSA, AML, or OFAC statutes, regulations, or guidance.
5. Beneficiaries who cash or redeem financial instruments, products, or services.
6. Specially Designated Nationals and Blocked Persons List (SDNs) as defined and mandated by the OFAC.
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10. Completed Suspicious Activity Reports, Currency Transaction Reports, and currency transaction records under the BSA and supporting documentation and records.
Customers, recipients, beneficiaries, financial institutions, and USPS employees.
Standard routine uses 1. through 7., 10., and 11. apply. In addition; a. Legally required or permitted
Automated database, computer storage media, microfiche, and paper.
For online payment, information is retrieved by customer name, customer ID(s), transaction number, or address.
Claim information is retrieved by name of purchaser or payee, claim number, serial number, transaction number, check number, customer ID(s), or ZIP Code.
Information related to BSA, OFAC and AML is retrieved by customer name; SSN; alien registration, passport, or driver's license number; serial number; transaction number; ZIP Code; transaction date; data entry operator number; and employee comments, and individuals that appear on the Specially Designated Nationals and Blocked Persons List (SDNs) as defined and mandated by the OFAC.
1. Summary records, including bill due date, bill amount, biller information, biller representation of account number, and the various status indicators, are retained 2 years from the date of processing.
2. Records related to claims are retained up to 3 years from date of final action on the claim.
3. Forms related to fulfillment of BSA, anti-money laundering requirements are retained for a 5-year and one-month period.
4. Related automated records are retained the same 5-year and one-month period and purged from the system quarterly after the date of creation.
5. Enrollment records related to online payment services are retained 7 years after the subscriber's account ceases to be active or the service is cancelled.
6. Account banking records, including payment history, Demand Deposit Account (DDA) number, and routing number, are retained 7 years from the date of processing.
7. Online user information may be retained for 6 months.
Records existing on paper are destroyed by burning, pulping, or shredding. Records existing on computer storage media are destroyed according to the applicable USPS media sanitization practice.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Access to these areas is limited to authorized personnel, who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections. Computers are protected by mechanical locks, card key systems, or other physical access control methods. The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software. Online data transmissions are protected by encryption.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See Notification Procedure below and Record Access Procedures above.
For online payment services, and stored-value cards, individuals wanting to know if information about them is maintained in this system must address inquiries in writing to the Chief Marketing Officer and Executive Vice President. Inquiries must contain name, address, and other identifying information.
For money order claims and claims related to other financial instruments, products, or services, or BSA, OFAC and anti-money laundering documentation, inquiries should be addressed to the Chief Financial Officer and Executive Vice President. Inquiries must include name, address, or other identifying information of the purchaser (such as driver's license, Alien Registration Number, Passport Number, etc.), and serial or transaction number. Information collected for anti-money laundering purposes will only be provided in accordance with Federal BSA, OFAC, anti-money laundering laws, regulations and requirements.
Systems Exempted From Certain Provisions of the Act: USPS has established regulations at 39 CFR 266.9 that exempt information contained in this system of records from various provisions of the Privacy Act in order to conform to the prohibition in the Bank Secrecy Act, 31 U.S.C. 5318(g)(2), against notification of the individual that a suspicious transaction has been reported.
July 26, 2024, 89 FR 60666, January 4, 2023, 88 FR 374, December 15, 2021, 86 FR 71294; May 8, 2008, 73 FR 26155; April 29, 2005, 70 FR 22516.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change consists of amendments to (i) the Clearing Agency Policy on Capital Requirements (“Capital Policy” or “Policy”) of DTC and its affiliates, National Securities
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Clearing Agencies are proposing to revise the Capital Policy and Capital Replenishment Plan, which were adopted by the Clearing Agencies in July 2017
The Capital Policy sets forth the manner in which each Clearing Agency identifies, monitors, and manages its general business risk with respect to the requirement to hold sufficient liquid net assets (“LNA”) funded by equity to cover potential general business losses so the Clearing Agency can continue operations and services as a going concern if such losses materialize.
Currently, the Capital Policy also addresses how each Clearing Agency maintains a portion of retained earnings as LNA funded by equity as its Corporate Contribution, as a part of its management of credit risk
The Policy also provides a plan for the replenishment of capital through the Capital Replenishment Plan. The Capital Replenishment Plan was adopted by the Clearing Agencies as a plan for the replenishment of capital by each Clearing Agency should its equity fall close to or below the amount being held as its Total Capital Requirement pursuant to the Capital Policy. The Capital Replenishment Plan identifies the circumstances that would trigger implementation of the Plan; the roles, responsibilities, and guiding principles for implementation of the Plan; and an overview and description of each of the tools that may be used to replenish capital.
As described in greater detail herein, the Clearing Agencies are proposing to make certain revisions to the Capital Policy and Capital Replenishment Plan. First, the proposal would make technical revisions to update, simplify, and clarify statements in the Policy and Plan. Second, the proposed revisions would update the Plan to document alternate authorizations in case an authorizing officer is not available. These proposed revisions are designed to enhance the clarity of the Policy and Plan and help ensure that they continue to operate as intended.
The Clearing Agencies are proposing technical revisions to the descriptions within the Capital Policy and Capital Replenishment Plan that would update, simplify, and clarify statements, including, for example, removing in the Policy the unnecessary reference to the Plan as an Addendum to the Policy, rephrasing certain sentences for clarity without changing the meaning, and relocating language from one sentence or section to another.
Such revisions would also update the documents. For example, in the Policy, the proposed changes would more accurately refer to the Policy as a policy instead of a framework, and refer to the senior most management committee, which reflects the term now used by the Clearing Agencies to refer to the highest-level committee of the Clearing Agencies. In the Plan, these revisions would include removing references to credit risk from the risk scenarios that may trigger the Plan to reflect the Clearing Agencies' current rules and procedures allowing the Corporate Contribution to be used for both participant default as well as non-participant default losses.
Section 3.2 of the Plan describes the role and responsibilities of the Treasury group (“Treasury”) in the implementation of the Plan in the event the Plan is triggered pursuant to the Policy. This section lists the steps to be taken by Treasury in implementing the plan as well as the relevant internal
The Clearing Agencies believe that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, the Clearing Agencies believe that the proposed changes to the Capital Policy and Capital Replenishment Plan are both consistent with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of the Clearing Agencies be designed to promote the prompt and accurate clearance and settlement of securities transactions, and to assure the safeguarding of securities and funds which are in the custody or control of the Clearing Agency or for which it is responsible.
Rule 17ad-22(e)(15) under the Act requires, in part, that the Clearing Agencies establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor, and manage their respective general business risk and hold sufficient liquid net assets funded by equity to cover potential general business losses so that the Clearing Agencies can continue operations and services as a going concern if those losses materialize.
The Clearing Agencies believe that the proposed revisions to the Capital Policy and the Capital Replenishment Plan would not have any impact, or impose any burden, on competition. The Policy and the Plan are maintained by the Clearing Agencies in order to satisfy their regulatory requirements and generally reflect internal tools and procedures. Tools and procedures that have a direct impact on the rights, responsibilities or obligations of members or participants of the Clearing Agencies are reflected in the Clearing Agencies' Rules. Accordingly, the Capital Policy and Capital Replenishment Plan themselves are documents that enhance the Clearing Agencies' regulatory compliance and internal management and do not have any impact, or impose any burden, on competition.
The proposed revisions to update the Capital Policy and Capital Replenishment Plan would not effect any changes on the fundamental purpose or operation of these documents and, as such, would also not have any impact, or impose any burden, on competition.
The Clearing Agencies have not received or solicited any written comments relating to this proposed rule change. If any written comments are received, the Clearing Agencies will amend their respective filings to publicly file such comments as an Exhibit 2 to the filing, as required by Form 19b-4 and the General Instructions thereto.
Persons submitting written comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on How to Submit Comments, available at
The Clearing Agencies reserve the right to not respond to any comments received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (“Commission” or “SEC”) a proposed rule change related to the 2x Long VIX Futures ETF (“UVIX”) and the -1x Short VIX Futures ETF (“SVIX”) (each a “Fund” and, collectively, the “Funds”), shares of which have been approved by the Commission to list and trade on the Exchange as Trust Issued Receipts pursuant to BZX Rule 14.11(f)(4), in order to amend certain representations from the original filings.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Commission issued final approval of the rule filings proposing to list and trade shares of SVIX (the “SVIX Filing”)
Both Filings include representations that limit the Funds participation in Cboe Volatility Index (“VIX”) futures contracts traded on the Cboe Futures Exchange, Inc. (“CFE”) (hereinafter referred to as “VIX Futures Contracts”) to no more than ten percent (10%) during any “Rebalance Period,” defined as any fifteen minute period of continuous market trading.
By way of example, the equivalent rule filings for ProShares Ultra VIX Short-Term Futures ETF (“UVXY”),
UVXY seeks leveraged results of 1.5x whereas UVIX seeks leveraged results of 2x, and that SVXY seeks inverse results of -0.5x whereas SVIX seeks inverse results of -1x. However, it is critical to note that, from a futures market impact perspective, a $100 million fund with a 1.5x objective will have substantially the same market impact as a $75 million fund with a 2x objective. Similarly, a $100 million fund with a -0.5x objective will have substantially the same market impact as a $50 million fund with a -1x objective. Although asset levels of UVXY and SVXY, when compared with those of UVIX and SVIX, have varied over time, there are periods—including recent periods—when UVXY and SVXY have had larger market impacts on the VIX Futures Contracts market than UVIX and SVIX, respectively. The Exchange notes that VIXY and VIXM also, though not leveraged or inverse products, buy and sell VIX futures contracts and, therefore, impact those markets.
In addition, ETFs listed generically do not typically require exchange rule filings to list and trade. For example, the Simplify Volatility Premium ETF, which operates pursuant to Rule 6c-11 under the Investment Company Act can operate and approach any size without the kind of participation restrictions imposed by the Notice and Approval Orders. Similarly, ETNs also do not require separate listing rules, and so ETNs such as the iPath Series B S&P 500 VIX Mid-Term Futures ETN, iPath Series B S&P 500 Short-Term Futures ETN, and JP Morgan Chase's Inverse VIX Short-Term Futures ETN also can operate and approach any size without participation restrictions.
As a result, the Approval Orders have created an unfair playing field by applying restrictions to the Funds and their Sponsor but no other ETP, ETN, or ETF that references or invests in VIX Futures Contracts, or any of their sponsors. The Exchange also believes that these restrictions create potential negative outcomes for the Funds, their shareholders and the Funds' sponsor, Volatility Shares LLC (the “Sponsor”). For example, since the imposition of the market participation restrictions, the Sponsor has received multiple communications from potential investors and existing shareholders stating that the imposition of the participation limits creates inferior products due to the lack of certainty and confidence in Fund performance at times when the 10% threshold is approached or exceeded. These potential investors and existing shareholders have also stated that they will look to other products for investment instead of the Funds.
Therefore, the Exchange is proposing to modify the following paragraphs from each Notice and Approval Order that prohibits each Fund's participation in VIX Futures Contracts during the Rebalance Period.
Specifically, the UVIX Notice and Approval Order stated:
The time and manner in which the Fund will rebalance its portfolio is defined by the Index methodology but may vary from the Index methodology depending upon market conditions and other circumstances including the potential impact of the rebalance on the price of the VIX Futures Contracts. The Sponsor will seek to minimize the market impact of rebalances across all Funds
The Exchange proposes to replace the above paragraph with the following:
The time and manner in which the Fund will rebalance its portfolio is defined by the Index methodology but may vary from the Index methodology depending upon market conditions and other circumstances including the potential impact of the rebalance on the price of the VIX Futures Contracts. To limit participation during periods of market illiquidity, the Sponsor, on any given day, may vary the manner and period over which all funds it sponsors are rebalanced, and as such, the manner and
Similarly, the SVIX Notice and Approval Order stated:
The time and manner in which the Fund will rebalance its portfolio is defined by the Index methodology but may vary from the Index methodology depending upon market conditions and other circumstances including the potential impact of the rebalance on the price of the VIX Futures Contracts. The Sponsor will seek to minimize the market impact of rebalances across all exchange traded products based on VIX Futures Contracts (“VIX ETPs”) that it sponsors (“Funds”)
The Exchange proposes to replace the above paragraph with the following:
The time and manner in which the Fund will rebalance its portfolio is defined by the Index methodology but may vary from the Index methodology depending upon market conditions and other circumstances including the potential impact of the rebalance on the price of the VIX Futures Contracts. To limit participation during periods of market illiquidity, the Sponsor, on any given day, may vary the manner and period over which all funds it sponsors are rebalanced, and as such, the manner and period over which the Fund is rebalanced. The Sponsor believes that the Fund will enter an Extended Rebalance Period most often during periods of extraordinary market conditions or illiquidity in VIX Futures Contracts.
The Sponsor will continue to operate each Fund in a manner that seeks to minimize market impact across the Funds. For example, the Sponsor's products already differ from previous and existing VIX ETPs in their approach to mitigating market impact by using a valuation method that is an average price over a longer time period instead of exclusively at the 4:00 p.m. ET settlement price. The Sponsor owes the Funds a fiduciary duty and operates the Funds accordingly.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As noted above, the Exchange is not aware of any comparable restrictions on market participation for any single ETP, ETN, or ETF regardless of underlying asset that has been implemented by way of an exchange rule filing and especially not across numerous products as is the case for the Funds. More importantly, competitor ETPs, ETNs, or ETFs, or their sponsors or advisers, are not subject to these same restrictions on participation.
Based on the foregoing, the Exchange believes that the proposal is consistent with the Act as it would eliminate the status quo—the caps restrict free competition among issuers, cannot accomplish their supposed policy goals because they do not apply uniformly, and ultimately leave investors exposed to potentially negative outcomes.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As noted above, the proposed amendment is intended to allow the Funds to better compete in the marketplace and to operate more efficiently.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (“Act”).
The Commission:
Christopher D. Carlson, Senior Counsel, or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a temporary order and a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
1. CSSAG, a company organized under the laws of Switzerland, provided banking, administrative, legal and
2. UBSAM, a limited liability company operating under Delaware law, is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). UBSAM serves as investment adviser (either as primary investment adviser or as investment sub-adviser) to each Fund
3. UBSAM (US), a corporation formed under Delaware law, is registered as a broker-dealer under the Securities Exchange Act of 1934 (the “Exchange Act”). UBSAM (US) serves as principal underwriter and distributor to each open-end RIC (“Open-End Fund”) listed in Part 2 of Appendix A to the application.
4. UBSAM (PR), a division of UBS Trust Company of Puerto Rico, a trust company formed under the Puerto Rico Trust Company Act, is registered as an investment adviser under the Advisers Act. UBSAM (PR) serves as investment adviser to each Fund listed in Part 3 of Appendix A to the application.
5. UBSFS is a corporation organized under the laws of Delaware. UBSFS is registered with the Commission as a broker-dealer under the Exchange Act and is registered as an investment adviser under the Advisers Act. UBSFS serves as principal underwriter to each Fund listed in Part 4 of Appendix A to the application.
6. Each of the above Applicants is an indirect wholly-owned subsidiary of UBS AG (UBS AG, together with its wholly-owned subsidiaries and affiliated entities, “UBS”). UBS AG, a company incorporated under the laws of Switzerland, is a Swiss-based global financial services firm with offices in more than 50 countries. UBS AG, its affiliates, and subsidiaries engage in a full range of financial services activities in Switzerland and globally, including personal banking, commercial banking, investment banking, global wealth management, and asset management.
7. Currently, UBSAM, UBSAM (US), UBSAM (PR) and UBSFS (together, the “Fund Servicing Applicants”), collectively serve as investment adviser or investment sub-adviser to RICs and ESCs and as principal underwriter to Open-End Funds (such activities, collectively, “Fund Servicing Activities”).
8. While no existing company of which the Pleading Entity is an Affiliated Person (other than the Applicants) currently serves as an investment adviser or depositor of any RIC, ESC or BDC, or as principal underwriter for any Open-End Fund, unit investment trust (“UIT”), or registered face-amount certificate company (“FACC”), the Applicants request that any relief granted by the Commission pursuant to the application also apply to any existing company (with the exception of UBS AG and the 2014 CS Applicants (as defined below)) of which the Pleading Entity is an Affiliated Person and to any other company of which the Pleading Entity may become an Affiliated Person in the future (together with the Applicants other than the Pleading Entity, the “Covered Persons”) with respect to any activity contemplated by section 9(a) of the Act.
9. The 2025 Plea Agreement relates to a one-count criminal information that DOJ filed on May 19, 2014 in the District Court for the Eastern District of Virginia (the “Information”) charging CS Bank with conspiracy to commit tax fraud related to accounts CS Bank established for U.S. cross-border clients in violation of Title 18, United States Code, Section 371. CS Bank waived indictment and pleaded guilty to the charge set out in the Information (the “2014 Plea”) through a plea agreement dated May 19, 2014 (the “2014 Plea Agreement”).
10. According to the Statement of Facts that served as the basis for the 2014 Plea Agreement (the “2014 Statement of Facts”), CS Bank operated a cross-border banking business that knowingly and willfully aided U.S. clients in opening and maintaining undeclared accounts and concealing their offshore assets and income from the Internal Revenue Service (the “IRS”), assisted U.S. clients in filing false tax returns with the IRS, and failed to develop and implement an effective system of compliance controls to prevent and detect policy violations regarding the proper handling of accounts for U.S. clients, among other admissions.
11. Under the terms of the 2014 Plea Agreement, CS Bank agreed to undertake, among other actions: (i) to close the accounts of recalcitrant account holders (as defined in Section 1471(d)(6) of the Internal Revenue Code); (ii) implement procedures to prevent its employees from assisting recalcitrant account holders to engage in further concealment in connection with closing any account or transferring any funds; (iii) not open any U.S. Related Accounts (as defined in paragraph I.B.9 of the Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks (the “Program”)) except on conditions that ensure the account will be declared to the United States and will be subject to disclosure by the CS Bank; and (iv) promptly disclose all evidence and information described in Sections II.D.I and II.D.2 of the Program.
12. In May 2025, as part of a global settlement, CSSAG entered into the 2025 Plea Agreement whereby CSSAG agreed to waive indictment and plead guilty to a single-count criminal information charging CSSAG with conspiracy to commit tax evasion in violation of Title 18, United States Code, Section 371 (the “2025 Plea”).
13. According to the Statement of Facts that served as the basis for the 2025 Plea Agreement (the “2025 Statement of Facts”), CSSAG, its former sister entity CS Bank, and certain of its subsidiaries and affiliates at the time of the merger of UBS Group and Credit Suisse Group AG (“Credit Suisse”) on June 12, 2023 (collectively, the “CSSAG Affiliates”) did not adequately identify U.S.-related accounts prior to the 2014 Plea, which partially forms DOJ's claim that the 2014 Plea was violated.
14. Additionally, the 2025 Statement of Facts stated that the CSSAG Affiliates' post-plea conduct—through to approximately July 2021—breached the terms of the 2014 Plea Agreement. According to the 2025 Statement of Facts, the CSSAG Affiliates failed to close recalcitrant accounts that they knew to be U.S. accounts in a timely fashion, opened accounts for U.S. persons after the 2014 Plea under circumstances where the accounts were not declared to the U.S., and failed to provide in a timely and complete manner the requisite information about U.S. accounts, which assisted U.S. clients in concealing their offshore assets from the IRS.
15. Following the events that led to 2025 Plea Agreement, on March 23, 2023, UBS Group announced a merger agreement to acquire Credit Suisse, which is ongoing and has occurred in multiple steps (the “Merger”).
16. UBS Group and Credit Suisse completed the step of merging their holding companies on June 12, 2023.
17. On May 1, 2024, CSAM was merged with and into UBSAM, with UBSAM as the surviving entity. UBSAM is now the investment adviser to the Funds previously advised by CSAM. Separately, a subadvisory agreement relating to a Fund subadvised by CSAML—one of the 2014 CS Applicants—has been terminated. Additionally, on May 1, 2024, Credit Suisse's mutual fund underwriting and distribution activity and certain asset management dedicated personnel were transferred from CSSU, an entity within Credit Suisse's legacy investment bank division, to UBSAM (US). No legacy Credit Suisse entities have provided Fund Servicing Activities since May 1, 2024 and no legacy Credit Suisse entity would rely on the Orders as all the legacy Credit Suisse entities that have engaged in Fund Servicing Activities have transferred their Fund Servicing Activities to the Fund Servicing Applicants.
18. As of September 30, 2024, UBS had approximately $6.2 trillion of invested assets for clients globally, of which over $2 trillion was managed in the United States. UBSAM advises approximately $542 billion as of December 31, 2024, including approximately $128.9 billion in Fund assets invested by tens of thousands of investors.
1. Section 9(a)(1) of the Act provides, in pertinent part, that a person may not serve or act as an investment adviser or depositor of any registered investment company or as principal underwriter for any Open-End Fund, UIT, or FACC, if such person “within 10 years has been convicted of any felony or misdemeanor . . . arising out of such person's conduct as . . . [a] bank.” Section 2(a)(10) of the Act defines the term “convicted” to include a plea of guilty.
2. Section 9(c) of the Act provides that: “[t]he Commission shall by order grant [an] application [for relief from the prohibitions of subsection 9(a)], either unconditionally or on an appropriate temporary or other conditional basis, if it is established [i] that the prohibitions of subsection [9](a), as applied to such person, are unduly or disproportionately severe or [ii] that the conduct of such person has been such as not to make it against the public interest or protection of investors to grant such application.” Applicants have filed an application pursuant to section 9(c) seeking a Temporary Order and a Permanent Order exempting Fund Servicing Applicants and other Covered Persons from the disqualification provisions of section 9(a) of the Act. The Covered Persons may, if the Orders are granted, in the future act in any of the capacities contemplated by section 9(a) of the Act subject to the applicable terms and conditions of the Orders.
3. Applicants believe they meet the standards for exemption specified in section 9(c). Applicants assert that: (i) the conduct underlying the 2025 Plea Agreement (as described in the 2025 Statement of Facts) (the “Conduct”) did not involve any of the Fund Servicing Applicants acting as an investment adviser, depositor or principal underwriter for any Fund, or any Fund with respect to which Fund Servicing Applicants engage in Fund Servicing Activities; (ii) application of the statutory bar would impose significant hardships on the Funds and their shareholders; (iii) the prohibitions of section 9(a), if applied to Fund Servicing Applicants, would be unduly or disproportionately severe; (iv) the Conduct has not been such that would make it against the public interest or protection of investors to grant the exemption from section 9(a); and (v) the Conduct occurred prior to the completion of CS Bank's merger with UBS.
4. Applicants argue that it would be against the public interest and protection of investors, and would be unduly and disproportionately severe, to bar the Fund Servicing Applicants (all of which are UBS entities that would be considered Affiliated Persons of CSSAG only as a result of the Merger)
5. Applicants assert that the inability of the Fund Servicing Applicants to continue providing investment advisory, sub-advisory, and underwriting services to the Funds would result in the Funds and their shareholders facing significant hardships. As a practical matter, disqualifying the Fund Servicing Applicants from engaging in Fund Servicing Activities for the Funds would deprive the Funds of the advisory or sub-advisory and underwriting services that shareholders expected the Funds would receive when they decided to invest in the Funds. In addition, disqualifying the Fund Servicing Applicants could result in substantial costs to the Funds. Transitioning the Funds to another investment adviser (including sub-adviser) and principal underwriter without adequate time for the Fund Servicing Applicants and the boards of the Funds to consider and properly evaluate alternative options could result in substantial costs to, and lost opportunities for, the Funds and their underlying investors. Applicants also state that the effect of a disqualification on the Applicants' businesses and employees would also be severe. The Applicants have committed substantial capital and other resources to fostering highly valued long-term client relationships and establishing expertise in financial advisory and underwriting services. There are currently 79 UBS RICs with over tens of thousands of shareholders and over $125 billion in total assets. Without the requested relief, UBSAM (US) and UBSFS would lose a significant part of their business, potentially leading to layoffs of personnel. In the case of UBSAM and UBSAM (PR), the effects of a disqualification would be particularly significant, as these investment advisers provide investment advisory services with respect to approximately $543.8 billion in assets under management in the United States ($130.7 billion of which constitutes the assets under management of advised and, for UBSAM, sub-advised Funds) as of December 31, 2024. The disqualification of UBSAM from providing investment advisory services to the ESCs without a section 9(c) relief is similarly not in the public interest or in furtherance of the protection of investors, and would frustrate the expectations of the eligible employees who invested in the ESCs. Because the ESCs have been formed for certain key employees, officers and directors of UBSAM and its affiliates, it would not be consistent with the purposes of the employees' securities company provisions of the Act, and it would be impermissible under the terms and conditions of the ESC exemptive order under which the ESC operates to require another entity not affiliated with UBSAM to manage the ESCs.
6. The Applicants represent that: (i) none of the current or former directors, officers or employees of the Applicants (other than certain current and former personnel of CSSAG who were not, are not and will not be involved in Fund Servicing Activities) had any involvement in the Conduct; (ii) no person who has been or who subsequently may be identified by CSSAG or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct will be an officer, director, or employee of any Applicant, CSSAG, and of any Covered Person; (iii) no persons who otherwise were involved in the Conduct have had, and will have any future, involvement in the Applicants', CSSAG's or Covered Persons' activities in any capacity described in section 9(a) of the Act; and (iv) because the directors, officers and employees of the Applicants and 2014 CS Applicants (as defined below) (other than certain current and former personnel of CSSAG and CS Bank who were not involved in any Fund Servicing Activities) did not engage in the Conduct, shareholders of the Funds were not affected any differently than if those Funds had received services from any other non-affiliated investment adviser or principal underwriter.
7. In addition, Applicants agree as a condition of the application that the material terms and conditions of the 2025 Plea Agreement will be complied with in all material respects. Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement of a material violation of the terms and conditions of the Orders within 30 days of discovery of the material violation.
8. Applicants note that as part of the Merger, UBS has made integration of Credit Suisse's U.S. compliance framework a top priority. UBS and Credit Suisse have undertaken extensive efforts to accomplish the integration, including through a specific project that covers multiple workstreams staffed with dozens of UBS and Credit Suisse subject matter experts, and is subject to a rigorous governance framework with senior management oversight. Applicants further state that UBS will undertake certain other remedial measures, as described in greater detail in the application. These remedial measures by UBS include: (i) continuing to incorporate Credit Suisse into its U.S. banking compliance framework; (ii) integrating appropriate enhancements from Credit Suisse's compliance framework, which efforts include detailed side-by-side comparisons of elements of the U.S. compliance framework from both banks, to ensure coverage and identify complementary opportunities for enhancement; (iii) analysis of key compliance lessons learned by Credit Suisse after the 2014 Plea, including from the monitorship, DOJ's investigation, and significant cases of interest; (iv) implementing existing client reviews and remediation to avoid onboarding of unwanted U.S. person client relationships; (v) migration of Credit Suisse accounts onto the UBS platform and IT systems; and (vi) undertaking efforts to ensure CSSAG's compliance with its obligations under the 2025 Plea Agreement and to continue related compliance efforts stemming from the 2014 Plea Agreement, which are expected to include continuing to report and close recalcitrant U.S. accounts held at Credit Suisse, completing work to integrate Credit Suisse's compliance program into the existing UBS framework, submitting quarterly reports to the DOJ regarding the opening of U.S. accounts, the status of existing remediation efforts, including the monitoring and closing of U.S. accounts, and future plans to change, implement, and/or enforce compliance efforts, and providing other cooperation and assistance with tax prosecutions as specified in the 2025 Plea Agreement. After the merger, UBS conducted a risk-based review of Credit Suisse employees who were implicated in the Conduct, and referred certain personnel to UBS's disciplinary and conduct review process, which review remains ongoing. As of the date of the application, employees whose disciplinary review processes have been concluded and were found responsible for the Conduct had either left Credit Suisse prior to the identification of the Conduct or were subsequently terminated by UBS.
9. Certain of the Applicants and their affiliates have previously applied for exemptive orders under section 9(c) of the Act, as described in greater detail in the application.
Applicants agree that any order granted by the Commission pursuant to the application will be subject to the following conditions:
1. Any temporary exemption granted pursuant to the application will be without prejudice to, and will not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemptions granted under the Act in connection with the application.
2. Neither the Applicants, UBS AG, nor any of the other Covered Persons will employ any person who previously has been or who subsequently may be identified by CSSAG or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c).
3. UBS AG, each Applicant and Covered Person will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the Orders within 60 days of such Orders or as such later date as may be contemplated by the Commission, as applicable.
4. The material terms and conditions of the 2025 Plea Agreement will be complied with in all material respects.
5. The Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement of a material violation of the terms and conditions of the Orders within 30 days of discovery of the material violation.
The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption.
Accordingly,
By the Commission.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
AGTB Fund Manager, LLC, TPG Twin Brook Capital Income Fund, Angelo, Gordon & Co., L.P., and certain of their affiliated entities as described in Appendix A to the application.
The application was filed on April 17, 2025, and amended on May 2, 2025.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Adam Large, Senior Special Counsel, Kris Easter Guidroz, Senior Counsel, or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' first amended application, dated May 2, 2025, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system.
The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7.35-E (Auctions) regarding Indicative Match Price. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 7.35-E (Auctions) to restore Rule 7.35-E(a)(8)(F), relating to Indicative Match Price.
Rule 7.35-E(a) sets forth definitions for purposes of Rule 7.35-E. Rule 7.35-E(a)(8) defines Indicative Match Price as the best price at which the maximum volume of shares, including the non-displayed quantity of Reserve Orders, is tradable in the applicable auction, subject to the Auction Collars.
The Exchange previously filed a proposed rule change to include subparagraph (F) under Rule 7.35-E(a)(8), which provided that unless the Indicative Match Price is based on the midpoint of an Auction NBBO, if the Indicative Match Price is not in the MPV for the security, it will be rounded to the nearest price at the applicable MPV.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would restore rule text inadvertently omitted from the Exchange's rules. The inclusion of Rule 7.35-E(a)(8)(F) in the Exchange's rules would ensure that the rules accurately set forth the Exchange's existing process for determining Indicative Match Price, thereby reducing potential confusion and promoting clarity in the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue and would simply serve to enhance the clarity of the Exchange's rules.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 3A, Section 3, FLEX Option Listings, and Options 3A, Section 18, Position Limits, to permit FLEX Trading in options on the iShares Bitcoin Trust ETF. This Amendment No. 1 supersedes the original filing in its entirety.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3A, Section 3, FLEX Option Listings, and Options 3A, Section 18, Position Limits, to permit FLEX trading in options on the iShares Bitcoin Trust ETF. This Amendment No. 1 supersedes the original filing in its entirety.
IBIT is an exchange-traded fund (“ETF”) that holds bitcoin and is listed on The Nasdaq Stock Market LLC (“Nasdaq”).
At this time, the Exchange proposes to permit IBIT options to transact as FLEX Equity Options subject to position and exercise limits of 25,000 contracts which would be aggregated with non-FLEX IBIT options position and exercise limits in Options 9, Sections 13 and 15. With this proposal, an ETF that is either physically-delivered pursuant to Section 3(c)(5)(A)(i) or settled in cash pursuant to Section 3(c)(5)(A)(ii) would be aggregated with non-FLEX IBIT options position and exercise limits in Options 9, Sections 13 and 15. Specifically, the Exchange proposes to amend Options 3A, Section 3(a) to remove the iShares Bitcoin Trust ETF,
Notwithstanding the foregoing, the position limit for FLEX equity options on the iShares Bitcoin Trust ETF shall be subject to the position limits set forth in Options 9, Section 13, and subject to the exercise limits set forth in Options 9, Section 15 and shall be aggregated with positions on the same non-FLEX underlying ETF for the purpose of calculating the position limits set forth in Options 9, Section 13, and the exercise limits set forth in Options 9, Section 15.
The Exchange would also amend Options 3A, Section 18(b)(1)(A) to provide, “There shall be no position limits for FLEX Equity Options, other than as set forth in subparagraphs (B) and (C) and paragraph (c) below.” Additionally, the Exchange would amend Options 3A, Section 18(c) to state, “For purposes of the position limits and reporting requirements set forth in this Section 18, FLEX Option positions shall not be aggregated with positions in non-FLEX Options other than as provided below and in subparagraphs (b)(1)(B) and (C) above, and positions in FLEX Index Options on a given index shall not be aggregated with options on any stocks included in the index or with FLEX Index Option positions on another index.”
Per the Commission, “rules regarding position and exercise limits are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the options positions.”
As proposed, the Exchange will aggregate position (and exercise) limits for all IBIT options, thus limiting positions for options on all IBIT options—FLEX and non-FLEX—to 25,000 contracts. This proposed aggregated limit effectively restricts a market participant from holding positions that could result in the receipt of more than 2,500,000 shares, aggregated for FLEX IBIT and non-FLEX IBIT (if that market participant exercised all its IBIT options). The Exchange believes that capping the aggregated position limit at 25,000 contracts, the lowest limit available in options, would be sufficient to address concerns related to manipulation and the protection of investors. The Exchange notes that this number is conservative for IBIT and therefore appropriate given its liquidity.
While ISE proposed an aggregated 25,000 contract position limit for IBIT options in its rule proposal for IBIT options, it nonetheless believed that evidence existed to support a much higher position limit. Specifically, the Commission has considered and reviewed ISE's analysis that the exercisable risk associated with a position limit of 25,000 contracts represented only 0.4% of the outstanding shares of IBIT.
Despite the addition of FLEX trading in IBIT options, the Exchange would continue to limit the number of IBIT options contracts traded on the exchange in an underlying security that an investor, acting alone or in concert with others directly or indirectly, may control and thereby mitigate potential manipulation. The Exchange believes that it is consistent with the Act to permit FLEX trading in IBIT given FLEX trading is permitted today in other ETFs overlying a commodity such as SPDR Gold Shares (“GLD”), iShares Silver Trust (“SLV”), and ProShares Bitcoin ETF (“BITO”).
Further, the Exchange believes that the share creation and redemption process unique to ETFs would mitigate any potential risk of manipulation in FLEX trading in IBIT options. The creation and redemption process is designed to ensure that an ETF's price closely tracks the value of its underlying asset(s). For example, if a market participant exercised a long call position for 25,000 contracts and purchased 2,500,000 shares of IBIT and this purchase resulted in the value of IBIT shares to trade at a premium to the value of the (underlying) bitcoin held by IBIT, the Exchange believes that other market participants would attempt to arbitrage this price difference by selling short IBIT shares while concurrently purchasing bitcoin. Those market participants (arbitrageurs) would then deliver cash to IBIT and receive shares of IBIT, which would be used to close out any previously established short position in IBIT. Thus, this creation and redemptions process would significantly reduce the potential risk of price dislocation between the value of IBIT shares and the value of bitcoin holdings. The Exchange understands that FLEX Options on ETFs are currently traded in the over-the-counter (“OTC”) market by a variety of market participants,
Additionally, the Exchange believes that FLEX IBIT options traded on the Exchange would have three important advantages over the contracts that are traded in the OTC market. First, as a result of greater fungibility, exchange-traded contracts should develop more liquidity because each FLEX contract can be closed with a liquidating transaction as compared to OTC FLEX contracts which must be held until expiration. Second, counterparty credit risk would be mitigated by the fact that the exchange-traded contracts are issued and guaranteed by The Options Clearing Corporation (“OCC”). Finally, the price discovery and dissemination provided by the Exchange and its Members would lead to more transparent markets. The Exchange believes that its ability to offer FLEX IBIT options would aid it in competing with the OTC market and at the same time expand the universe of products available to interested market participants. The Exchange believes that an exchange-traded alternative may provide a useful risk management and
The Exchange has analyzed its capacity and represents that it and The Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic associated with the listing of FLEX IBIT options. The Exchange believes any additional traffic that would be generated from the trading of FLEX IBIT options would be manageable. The Exchange believes Members will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this proposed rule change will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems. The Exchange represents that the same surveillance procedures applicable to the Exchange's other options products listed and traded on the Exchange, including non-FLEX IBIT options, will apply to FLEX IBIT options, and that it has the necessary systems capacity to support such options. FLEX options products (and their respective symbols) are integrated into the Exchange's existing surveillance system architecture and are thus subject to the relevant surveillance processes. The Exchange's market surveillance staff (including staff of the Financial Industry Regulatory Authority (“FINRA”) who perform surveillance and investigative work on behalf of the Exchange pursuant a regulatory services agreement) conducts surveillances with respect to IBIT (the underlying ETF) and, as appropriate, would review activity in IBIT when conducting surveillances for market abuse or manipulation in IBIT options.
The Exchange represents that its existing trading surveillances are adequate to monitor the trading in IBIT (as well as FLEX IBIT) on the Exchange. Additionally, the Exchange is a member of the Intermarket Surveillance Group (“ISG”) under the Intermarket Surveillance Group Agreement. ISG members work together to coordinate surveillance and investigative information sharing in the stock, options, and futures markets. For surveillance purposes, the Exchange would therefore have access to information regarding trading activity in the pertinent underlying securities. In addition, and as referenced above, the Exchange has a regulatory services agreement with FINRA, pursuant to which FINRA conducts certain surveillances on behalf of the Exchange. Further, pursuant to a multi-party 17d-2 joint plan, all options exchanges allocate regulatory responsibilities to FINRA to conduct certain options-related market surveillances.
The proposed rule change is designed to allow investors seeking to trade options on IBIT to utilize FLEX IBIT options. The Exchange believes that offering innovative products flows to the benefit of the investing public. A robust and competitive market requires that exchanges respond to members' evolving needs by constantly improving their offerings. Such efforts would be stymied if exchanges were prohibited from offering innovative products such as the proposed FLEX IBIT options. The Exchange believes that introducing FLEX IBIT options would further broaden the base of investors that use FLEX Options (and options on IBIT in general) to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options. The proposed rule change is also designed to encourage market makers to shift liquidity from the OTC market on the Exchange, which, it believes, will enhance the process of price discovery conducted on the Exchange through increased order flow.
Finally, as discussed herein, the Exchange does not believe that this proposed rule change raises any unique regulatory concerns because the proposal to aggregate FLEX and non-FLEX IBIT options at the (most conservative) 25,000 contract position limit, which currently applies solely to non-FLEX IBIT options, should provide an adequate safeguard.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposal to permit FLEX IBIT options would remove impediments to and perfect the mechanism of a free and open market. The Exchange believes that offering FLEX IBIT options will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of bitcoin and provide a hedging vehicle to meet their investment needs in connection with a bitcoin-related product. Moreover, the proposal would broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange would be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that it would lead to the migration of options currently trading in the OTC market to trading to the Exchange. Also, any migration to the Exchange from the OTC market would result in increased market transparency and enhance the process of price discovery conducted on the Exchange through increased order flow. The Exchange also believes that offering FLEX IBIT options may open up the market for options on IBIT to more retail investors. Additionally, offering FLEX would serve two primary client types in the capital markets by permitting ETF and structured return issuers to more precisely tailor their settlement style and allow other investors to align their contract durations for calls and puts, as well as settlement-style.
Additionally, the Exchange believes the proposed rule change is designed to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest in that it should create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of FLEX IBIT options. Further, the proposed rule change would result in increased competition by permitting the Exchange to offer products that are currently used in the OTC market.
The Exchange does not believe that this proposed rule change raises any unique regulatory concerns because the proposal to aggregate FLEX and non-FLEX IBIT options at the (most conservative) 25,000 contract limit should provide an adequate safeguard. The purpose of position limits is to address potential manipulative schemes and adverse market impacts surrounding the use of options, such as disrupting the market in the security underlying the options. The Exchange believes the proposal will benefit investors and public interest because the aggregated position limit for all options on IBIT (FLEX and non-FLEX) at 25,000 contracts, the lowest limit available in options, would address concerns related to manipulation and protection of investors as this number is conservative for IBIT and therefore appropriate given its liquidity.
The Exchange believes that offering innovative products flows to the benefit of the investing public. A robust and competitive market requires that exchanges respond to evolving needs in the market by constantly improving their offerings. Such efforts would be stymied if exchanges were prohibited from offering innovative products such as the proposed FLEX IBIT options. The Exchange does not believe that allowing FLEX IBIT options would render the marketplace for equity options more susceptible to manipulative practices.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in FLEX IBIT options. Regarding the proposed FLEX IBIT options, the Exchange would use the same surveillance procedures currently utilized for FLEX Options listed on the Exchange (as well as for non-FLEX IBIT options). For surveillance purposes, the Exchange would have access to information regarding trading activity in IBIT (the underlying ETF).
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that its proposed rule change will impose any burden on intra-market competition as all market participants would have the option of utilizing the FLEX IBIT options. The proposed rule change is designed to allow investors seeking option exposure to bitcoin to trade FLEX IBIT options. Moreover, the Exchange believes that the proposal to permit FLEX IBIT options would broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options.
The Exchange does not believe that its proposed rule change will impose any burden on intermarket competition as all market participants would have the option of utilizing the FLEX IBIT options. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues. The proposed rule change would support that intermarket competition by allowing the Exchange to offer additional functionality to Members. The Exchange believes that the proposed FLEX IBIT options will increase the variety of options products available for trading in general and bitcoin-related products in particular and, as such, will provide a valuable tool for investors to manage risk.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as modified by Amendment No. 1, is consistent with the Act. Comments
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 14, 2025, Fixed Income Clearing Corporation (“FICC”), filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-FICC-2025-005 (“Proposed Rule Change”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Exchange Act
The 45th day after publication of the Notice of Filing is May 11, 2025. To provide the Commission with sufficient time to consider the Proposed Rule Change, the Commission finds that it is appropriate to designate a longer period within which to act on the Proposed Rule Change and therefore is extending this 45-day time period.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
Blackstone Private Credit Fund, Blackstone Secured Lending Fund, Blackstone Private Multi-Asset Credit and Income Fund, Blackstone Long-Short Credit Income Fund, Blackstone Senior Floating Rate 2027 Term Fund, Blackstone Strategic Credit 2027 Term Fund, Blackstone Private Real Estate Credit and Income Fund, Blackstone Alternative Investment Advisors LLC, Blackstone CLO Management LLC, Blackstone Credit BDC Advisors LLC, Blackstone
The application was filed on March 14, 2025, and amended on April 11, 2025, and April 24, 2025.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Adam Large, Senior Special Counsel, Laura Solomon, Senior Counsel, or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' second amended application, dated April 24, 2025, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rules 903G and 906G to permit Flexible Exchange (“FLEX”) Options on certain Exchange-Traded Funds (or ETFs) that hold bitcoin. This Amendment No. 1 supersedes and replaces the original filing in its entirety.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes amend Rules 903G (Terms of FLEX Options) and 906G (Position Limits) to permit options the Grayscale Bitcoin Trust (BTC) (“GBTC”), the Grayscale Bitcoin Mini Trust ETF (“BTC”), and the Bitwise Bitcoin ETF (“BITB”) (each a “Fund” and, collectively, the “Funds”) to trade as FLEX Equity Options and to require the aggregation of any FLEX and non-FLEX positions on the same underlying Fund for purposes of calculating position and exercise limits as set forth in Rules 904 and 905.
The Exchange notes that this proposal is competitive given that Nasdaq Phlx, LLC (“Phlx”) recently filed a proposal to permit FLEX trading on options on iShares Bitcoin Trust ETF (“IBIT”), with an aggregated position and exercise limit for IBIT options of 25,000-contracts.
Each Fund is ETF that holds bitcoin and is listed on NYSE Arca, Inc. (“NYSE Arca”), the Exchange's affiliated equities exchange.
FLEX Equity Options are not generally subject to position or exercise limits.
The Exchange proposes to permit options on each Fund to trade as FLEX Equity Options and would require the aggregation of any FLEX and non-FLEX positions in the same underlying Fund for purposes of calculating the 25,000-contract position and exercise limits applicable to each Fund.
Per the Commission “rules regarding position and exercise limits are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the options positions.”
As proposed, for options on each Fund, the Exchange will aggregate any FLEX and non-FLEX positions in the same underlying Fund for purposes of calculating the 25,000-contract position and exercise limits. For each Fund, this proposed aggregated limit effectively restricts a market participant from holding positions that could result in the receipt of more than 2,500,000 shares, aggregated for FLEX and non-FLEX in the same underlying Fund (if that market participant exercised all its options). The Exchange believes that capping the aggregated position and exercise limits at 25,000 contracts, the lowest available limit, would be sufficient to address concerns related to manipulation and the protection of investors. The Exchange notes that this number is conservative given the liquidity of each Fund.
While the Exchange proposes an aggregated 25,000-contract position and exercise limit for options on each Fund, it nonetheless believes that, for the reasons set forth below, evidence exists to support a much higher position limit.
Specifically, in approving the options on each Fund, the Commission considered and reviewed the Exchange's analysis that the exercisable risk associated with a position limit of 25,000 contracts represented only 0.9%, 0.7%, and 3.6% of the outstanding shares of GBTC, BTC and BITB, respectively.
Each Fund qualifies a 250,000-contract limit, pursuant to Rule 904, Commentary .06(e), which requires that, for the most recent six-month period, trading volume for the underlying security is at least 100,000,000 shares.
Also, as of November 25, 2024, there were 19,787,762 bitcoins in circulation.
Despite the proposed addition of FLEX trading in options on GBTC, BTC, and BITB (collectively, “FLEX Fund Options”), the Exchange would continue to limit to 25,000 the number of options on each Fund traded on the Exchange that an investor, acting alone or in concert with others directly or indirectly, may control and thereby mitigate potential manipulation. The Exchange believes that allowing FLEX Fund Options it consistent with the Act given FLEX trading is permitted today in other ETFs overlying a commodity such as SPDR Gold Shares (“GLD”) and iShares Silver Trust (“SLV”).
Further, the Exchange believes that the share creation and redemption process unique to ETFs would mitigate any potential risk of manipulation in FLEX Fund Options. The creation and redemption process is designed to ensure that an ETF's price closely tracks the value of its underlying asset(s). For example, if a market participant exercised a long call position for 25,000 contracts and purchased 2,500,000 shares of GBTC and this purchase resulted in the value of GBTC shares to trade at a premium to the value of the (underlying) bitcoin held by GBTC, the Exchange believes that other market participants would attempt to arbitrage this price difference by selling short GBTC shares while concurrently purchasing bitcoin. Those market participants (arbitrageurs) would then deliver cash to GBTC and receive shares of GBTC, which would be used to close out any previously established short position in GBTC. Thus, this creation and redemptions process would significantly reduce the potential risk of price dislocation between the value of shares in each Fund and the value of bitcoin holdings.
The Exchange understands that FLEX Equity Options on ETFs are currently traded in the over-the-counter (“OTC”) market by a variety of market participants,
Additionally, the Exchange believes that FLEX Fund Options traded on the Exchange would have three important advantages over the contracts that are traded in the OTC market. First, as a result of greater standardization of contract terms, exchange-traded contracts should develop more liquidity. Second, counter-party credit risk would be mitigated by the fact that the contracts are issued and guaranteed by The Options Clearing Corporation (“OCC”). Finally, the price discovery and dissemination provided by the Exchange and its members would lead to more transparent markets. The Exchange believes that its ability to offer FLEX Fund Options would aid it in competing with the OTC market and at the same time expand the universe of products available to interested market participants. The Exchange believes that an exchange-traded alternative may provide a useful risk management and trading vehicle for market participants and their customers.
The Exchange has analyzed its capacity and represents that it and The Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic associated with the listing of FLEX Fund Options. The Exchange believes any additional traffic that would be generated from the trading of FLEX Fund Options would be manageable. The Exchange believes ATP Holders will not have a capacity issue as a result of this proposed rule change. The Exchange also represents that it does not believe this proposed rule change will cause fragmentation of liquidity. The Exchange will monitor the trading volume associated with the additional options series listed as a result of this proposed rule change and the effect (if any) of these additional series on market fragmentation and on the capacity of the Exchange's automated systems.
The Exchange represents that the same surveillance procedures applicable to the Exchange's other options products listed and traded on the Exchange, including non-FLEX options in each Fund, will apply to FLEX Fund Options, and that it has the necessary systems capacity to support such options. FLEX options products (and their respective symbols) are integrated into the Exchange's existing surveillance system architecture and are thus subject to the relevant surveillance processes. The Exchange's market surveillance staff (including staff of the Financial Industry Regulatory Authority (“FINRA”) who perform surveillance and investigative work on behalf of the Exchange pursuant a regulatory services agreement) conducts surveillances with respect to GBTC, BTC, and BITB (
The Exchange represents that its existing trading surveillances are adequate to monitor the trading in GBTC, BTC, and BITB, as well as any subsequent trading of FLEX Fund Options on the Exchange. Additionally, the Exchange is a member of the Intermarket Surveillance Group (“ISG”) under the ISG Agreement. ISG members work together to coordinate surveillance and investigative information sharing in the stock, options, and futures markets. For surveillance purposes, the Exchange would therefore have access to information regarding trading activity in GBTC, BTC, and BITB and in other pertinent underlying securities on other exchanges through ISG. In addition, and as referenced above, the Exchange has a regulatory services agreement with FINRA, pursuant to which FINRA conducts certain surveillances on behalf of the Exchange. Further, pursuant to a multi-party 17d-2 joint plan, all options exchanges allocate regulatory responsibilities to FINRA to conduct certain options-related market surveillances.
The proposed rule change is designed to allow investors seeking to trade options on the Funds to utilize FLEX Fund Options. The Exchange believes that offering innovative products flows to the benefit of the investing public. A robust and competitive market requires that exchanges respond to members' evolving needs by constantly improving their offerings. Such efforts would be stymied if exchanges were prohibited from offering innovative products such as the proposed FLEX Fund Options. The Exchange believes that introducing FLEX Fund Options would further broaden the base of investors that use FLEX Equity Options (and options on the Funds in general) to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options. The proposed rule change is also designed to encourage market makers to shift liquidity from the OTC market on the Exchange, which, it believes, will enhance the process of price discovery conducted on the Exchange through increased order flow.
As discussed herein, the Exchange does not believe that this proposed rule change raises any unique regulatory concerns because the proposal to aggregate FLEX and non-FLEX option positions in each Fund at the (most conservative) 25,000-contract position and exercise limit, which currently applies solely to non-FLEX options on each Fund, should provide an adequate safeguard.
Finally, the Exchange proposes to make technical changes to Rule 904, Commentary. 07(f) to update the name of the Grayscale Bitcoin Mini Trust ETF (previously known as the Grayscale Bitcoin Mini Trust (BTC)) and to correct the symbol associated with Fidelity Ethereum Fund, which changes will add accuracy and internal consistent to Exchange rules making them easier to comprehend and understand.
The Exchange will announce the implementation date by Trader Update within sixty (60) days of the rule approval.
The Exchange believes that its proposal is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposal to permit FLEX Fund Options would remove impediments to and perfect the mechanism of a free and open market. The Exchange believes that offering FLEX Fund Options will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of bitcoin and provide a hedging vehicle to meet their investment needs in connection with a bitcoin-related product. Moreover, the proposal would broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options. By trading a product in an exchange-traded environment (that is currently being used in the OTC market), the Exchange would be able to compete more effectively with the OTC market. The Exchange believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that it would lead to the migration of options currently trading in the OTC market to trading to the Exchange. Also, any migration to the Exchange from the OTC market would result in increased market transparency and enhance the process of price discovery conducted on the Exchange through increased order flow. The Exchange also believes that offering FLEX Fund Options may appeal to retail investors interested in options trading (both FLEX and non-FLEX) on GBTC, BTC, and BITB.
Additionally, the Exchange believes the proposed rule change is designed to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest in that it should create greater trading and hedging opportunities and flexibility. The proposed rule change should also result in enhanced efficiency in initiating and closing out positions and heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of FLEX Fund Options. Further, the
The Exchange does not believe that this proposed rule change raises any unique regulatory concerns because the proposal to aggregate any FLEX and non-FLEX options in each Fund at the current (and most conservative) 25,000-contract limit should provide an adequate safeguard. As noted herein, the purpose of position (and exercise) limits is to address potential manipulative schemes and adverse market impacts surrounding the use of options, such as disrupting the market in the security underlying the options. The Exchange believes the proposal will benefit investors and public interest because the aggregated position and exercise limits for (FLEX and non-FLEX) options on the same underlying Fund at 25,000 contracts, the lowest limit available in options, would address concerns related to manipulation and protection of investors as this number is conservative and therefore appropriate given the sufficient liquidity in each Fund.
The Exchange believes that offering innovative products benefits the investing public. A robust and competitive market requires that exchanges respond to the evolving needs of their members by constantly improving their offerings. Such efforts would be stymied if exchanges were prohibited from offering innovative products such as the proposed FLEX Fund Options. The Exchange does not believe that allowing FLEX Fund Options would render the marketplace for equity options more susceptible to manipulative practices.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in FLEX Fund Options. Regarding the proposed FLEX Fund Options, the Exchange would use the same surveillance procedures utilized for FLEX Options currently listed on the Exchange (as well as for non-FLEX options on each Fund). For surveillance purposes, the Exchange would have access to information regarding trading activity in the underlying Funds (
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
As such, the Exchange believes that this proposal does not create an undue burden on intermarket competition. Rather, the Exchange believes that the proposed rule would bolster intermarket competition by promoting fair competition among individual markets. The Exchange notes that, upon approval of this proposal, competing options exchanges will be free to offer products like the proposed FLEX Fund Options.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change consists of amendments to (i) the Clearing Agency Policy on Capital Requirements (“Capital Policy” or “Policy”) of FICC and its affiliates, The Depository Trust Company (“DTC”) and National Securities Clearing Corporation (“NSCC,” and together with DTC and FICC, the “Clearing Agencies”); and (ii) the Clearing Agency Capital Replenishment Plan (“Capital Replenishment Plan” or “Plan”) of the Clearing Agencies. In particular, the proposed revisions to the Capital Policy and Capital Replenishment Plan would (1) make technical revisions to update, simplify, and clarify statements in the Policy and Plan; and (2) update the Plan to document alternate authorizations in case an authorizing officer is not available.
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Clearing Agencies are proposing to revise the Capital Policy and Capital Replenishment Plan, which were adopted by the Clearing Agencies in July 2017
The Capital Policy sets forth the manner in which each Clearing Agency identifies, monitors, and manages its general business risk with respect to the requirement to hold sufficient liquid net assets (“LNA”) funded by equity to cover potential general business losses so the Clearing Agency can continue operations and services as a going concern if such losses materialize.
Currently, the Capital Policy also addresses how each Clearing Agency maintains a portion of retained earnings as LNA funded by equity as its Corporate Contribution, as a part of its management of credit risk
The Policy also provides a plan for the replenishment of capital through the Capital Replenishment Plan. The Capital Replenishment Plan was adopted by the Clearing Agencies as a plan for the replenishment of capital by each Clearing Agency should its equity fall close to or below the amount being held as its Total Capital Requirement pursuant to the Capital Policy. The Capital Replenishment Plan identifies
As described in greater detail herein, the Clearing Agencies are proposing to make certain revisions to the Capital Policy and Capital Replenishment Plan. First, the proposal would make technical revisions to update, simplify, and clarify statements in the Policy and Plan. Second, the proposed revisions would update the Plan to document alternate authorizations in case an authorizing officer is not available. These proposed revisions are designed to enhance the clarity of the Policy and Plan and help ensure that they continue to operate as intended.
The Clearing Agencies are proposing technical revisions to the descriptions within the Capital Policy and Capital Replenishment Plan that would update, simplify, and clarify statements, including, for example, removing in the Policy the unnecessary reference to the Plan as an Addendum to the Policy, rephrasing certain sentences for clarity without changing the meaning, and relocating language from one sentence or section to another.
Such revisions would also update the documents. For example, in the Policy, the proposed changes would more accurately refer to the Policy as a policy instead of a framework, and refer to the senior most management committee, which reflects the term now used by the Clearing Agencies to refer to the highest-level committee of the Clearing Agencies. In the Plan, these revisions would include removing references to credit risk from the risk scenarios that may trigger the Plan to reflect the Clearing Agencies' current rules and procedures allowing the Corporate Contribution to be used for both participant default as well as non-participant default losses.
Section 3.2 of the Plan describes the role and responsibilities of the Treasury group (“Treasury”) in the implementation of the Plan in the event the Plan is triggered pursuant to the Policy. This section lists the steps to be taken by Treasury in implementing the plan as well as the relevant internal parties within Treasury tasked with providing any required authorizations. The proposed changes would provide alternate stakeholders that may provide any required authorizations in the absence of those already outlined in the steps referenced above. This change would allow for business continuity and timely implementation of the plan in the absence of any specific authorizing party.
The Clearing Agencies believe that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, the Clearing Agencies believe that the proposed changes to the Capital Policy and Capital Replenishment Plan are both consistent with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of the Clearing Agencies be designed to promote the prompt and accurate clearance and settlement of securities transactions, and to assure the safeguarding of securities and funds which are in the custody or control of the Clearing Agency or for which it is responsible.
Rule 17ad-22(e)(15) under the Act requires, in part, that the Clearing Agencies establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor, and manage their respective general business risk and hold sufficient liquid net assets funded by equity to cover potential general business losses so that the Clearing Agencies can continue operations and services as a going concern if those losses materialize.
The Clearing Agencies believe that the proposed revisions to the Capital Policy and the Capital Replenishment Plan would not have any impact, or impose any burden, on competition. The Policy and the Plan are maintained by the Clearing Agencies in order to satisfy their regulatory requirements and generally reflect internal tools and procedures. Tools and procedures that have a direct impact on the rights, responsibilities or obligations of members or participants of the Clearing Agencies are reflected in the Clearing Agencies' Rules. Accordingly, the Capital Policy and Capital Replenishment Plan themselves are documents that enhance the Clearing Agencies' regulatory compliance and internal management and do not have any impact, or impose any burden, on competition.
The proposed revisions to update the Capital Policy and Capital Replenishment Plan would not effect any changes on the fundamental purpose or operation of these documents and, as such, would also not have any impact, or impose any burden, on competition.
The Clearing Agencies have not received or solicited any written comments relating to this proposed rule change. If any written comments are received, the Clearing Agencies will
Persons submitting written comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on How to Submit Comments, available at
The Clearing Agencies reserve the right to not respond to any comments received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
First Eagle Private Credit Fund, First Eagle Private Credit Fund SPV, LLC, First Eagle Credit Opportunities Fund, First Eagle Credit Opportunities Fund SPV, LLC, First Eagle Real Estate Debt Fund, First Eagle Tactical Municipal Opportunities Fund, First Eagle Investment Management, LLC, First Eagle Alternative Credit, LLC, First Eagle Alternative Credit EU, LLC, Napier Park Global Capital (US) LP, and certain of their affiliated entities as described in Appendix A to the application.
The application was filed on April 11, 2025, and amended on May 1, 2025.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Adam Large, Senior Special Counsel, Toyin Momoh, Senior Counsel, or Daniele Marchesani, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' amended application, dated May 1, 2025, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to (i) amend Rule 11.23(c)(1)(A) to change the Market-On-Close time from 3:59 p.m. Eastern Time to 3:55 p.m. Eastern Time; (ii) amend Rule 11.23(c)(1)(B) to provide that Market-On-Close orders cannot be modified after 3:55 p.m. Eastern Time, and that Limit-On-Close (“LOC”) and Late-Limit-On-Close (“LLOC”) orders cannot be modified after 3:59 p.m. Eastern Time; and (iii) amend Rule 11.23(c)(2)(A) to change the frequency with which the Exchange publishes BZX Closing Auction information. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to (i) amend Rule 11.23(c)(1)(A) to change the Market-On-Close (“MOC”)
Pursuant to Rule 11.23(c), Closing Auction, Users may submit orders to the BZX Closing Auction as set forth in Rule 11.23(c)(1)(A)-(C). Eligible Auction Orders,
Per Rule 11.23(c)(1)(A), Users
As noted, the Exchange now seeks to move the MOC cutoff time from 3:59 p.m., back to BZX's original MOC cutoff time of 3:55 p.m., after which time the entry of any new MOCs will be rejected, and MOCs may not be modified or canceled (as opposed to existing Rule text, providing only that MOCs may not be
The difference in cutoff times between MOC and LOC/LLOC orders is due to the fact that the Exchange's LMM in BZX's corporate listing believes that a MOC cutoff time further away from market close would enable both the LMM, and other BZX Users
As noted further above, the Exchange reasoned in its 2021 Proposal that a 3:59 p.m. MOC cutoff time struck an appropriate balance of providing Users with greater control over their Closing Auction orders for a longer period of time, while also affording Users enough time to react to and respond to any potential Closing Auction imbalances. Importantly, the Exchange believes that the proposed 3:55 p.m. MOC cutoff time is still consistent with the rationale expressed by the Exchange in its 2021 Proposal. Based on feedback from LMMs and other Exchange Users, as well as its four years of experience in operating the Closing Auction process with a 3:59 p.m. MOC cutoff time, the Exchange now believes that 3:55 p.m. MOC cutoff time is better suited to strike the appropriate balance between enabling Users to control their closing order flow for a longer period of time, and providing Users with ample time to react to and respond to any potential
Notably, the use of LOC and LLOC orders, rather than MOC orders, may be more beneficial for LMMs and other Exchange Users, as LOC and LLOC orders have a limit price and therefore have a greater impact on price formation than unpriced MOC orders. Moreover, as previously noted, the Exchange discussed these changes with its LMMs and other BZX Users and confirmed that changing the MOC cutoff would not present them with any issues with maintaining a market in their designated ETPs. Furthermore, in today's marketplace each of BZX, the New York Stock Exchange (“NYSE”), NYSE Arca, and Nasdaq Stock Market LLC (“Nasdaq”), as well as various off-exchange venues, maintain different MOC cutoff times. Therefore, the Exchange believes that market participants are well-accustomed to such variation and should not be unduly burdened by BZX's new MOC cutoff time. Indeed, BZX Users are likely well accustomed to a 3:55 MOC cutoff time, as Nasdaq
From a technical perspective, the Exchange notes that the System
To increase transparency leading up to market close, the Exchange proposes to amend Rule 11.23(c)(2)(A). The proposed amendment will increase the frequency with which the Exchange disseminates Closing Auction information. Specifically, the Exchange will continue to disseminate Closing Auction information every five seconds from 3:00 p.m. to 3:59 p.m., but proposes to increase the frequency of dissemination of Closing Auction information to every one second from 3:59 p.m. to 4:00 p.m.
While MOCs will be rejected after 3:55 p.m. and can no longer be cancelled or modified after 3:55 p.m., the LOC cutoff will remain 3:59 p.m., and Users will still be able to enter LLOCs between 3:59 p.m. and 4:00 p.m., as well as enter/cancel Continuous Book
The Exchange also believes that the dissemination of Closing Auction information every one second between 3:59 p.m. and 4:00 p.m. will not present Users with any new or novel issues, as it is likely that Users are already well accustomed to ingesting information with such frequency, as Nasdaq
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that moving the MOC cutoff time to 3:55 p.m. will help to facilitate transactions in securities, and remove impediments to and perfect the mechanism of a free and open market and a national market system, by providing the Exchange's listing LMMs and other Users with additional time to react to and respond to any potential closing auction imbalances resulting from the entry of MOC orders. In turn, mitigating imbalances will help to ensure a smoother Closing Auction process. While market participants today are generally well equipped with high-speed trading technologies and can enter orders in sub-second latencies, the addition of four extra minutes to react to and respond to closing auction imbalances will only make it more feasible for all market participants to do so.
Importantly, in speaking with the Exchange's listing LMMs and various non-LMM Users
From a technical perspective, the Exchange handles the cancellation or modification of MOC orders in the same manner, treating the modification of an MOC order as a cancellation of such order. The Exchange believes that adding language to the rule text regarding modifications will make clearer to Members that even modifications to their MOC orders past 3:55 p.m., or their LOC and LLOC orders post 3:59 p.m., will also not be permitted. Importantly, this proposed amendment will not alter how Users interact with the Exchange or how they modify their MOC, LOC, LLOC, orders on the Exchange. As such, this amendment will not raise any new or novel issues for BZX Users.
The Exchange also believes that updating the frequency of the dissemination of Closing Auction information between 3:59 p.m. to 4:00 p.m., from every five seconds to every one second, will help to facilitate transactions in securities, and remove impediments to and perfect the mechanism of a free and open market and a national market system, as well as contribute to the protection of investors and the public interest. By providing both LMMs and other market participants with more timely Closing Auction information—
In today's high-speed marketplace, receiving information every one second is extremely valuable, and increases the likelihood that market participants or an LMM can take action to address any closing auction imbalances. The Exchange also notes that its proposed dissemination of Closing Auction information is essentially identical to what Users are accustomed to today. Specifically, Users are already familiar with ingesting Closing Auction information, updated every five seconds, between 3:00 p.m. and 4:00 p.m. Going forward, they will be provided with more information between 3:59 p.m. and 4:00 p.m., which they can choose to utilize or not. Given the technological capabilities of today's market participants, this should not present Users with any new or novel issues. Similarly, the technological capabilities of today's market participants should also make ingesting Closing Auction information every one second (instead of the previous five seconds) from 3:59 p.m. to 4:00 p.m. quite feasible. Moreover, market participants likely already possess this capability today, as Nasdaq also disseminates its closing cross information in one second intervals.
Altogether, the Exchange is simply moving its MOC cutoff time from 3:59 p.m. to 3:55 p.m., and disseminating updated Closing Auction information at the same duration at it does today, aside from 3:59 p.m. to 4:00 p.m. where information will be provided more frequently. In all other aspects, the Closing Auction will continue to operate identical to how it does so today, but with a 3:55 p.m. MOC cutoff time. Users of the BZX Closing Auction will not have to consider any other changes aside from needing to send their MOC orders to BZX four minutes earlier, and ingesting Closing Auction information more frequently during the last minute of the trading day. Furthermore, as noted above, Nasdaq's closing cross is similar in construct to the Exchange's current proposal. Specifically, Nasdaq accepts MOC orders up until 3:55 p.m. MOC cutoff,
The Exchange's proposals are also not unfairly discriminatory. The proposed MOC cutoff time applies to all Users, regardless of their size, type, or trading volume. Prior to submitting this proposal, the Exchange talked with Exchange Members, LMMs, and issuers of BZX-listed ETPs, and did not receive feedback that moving the MOC cutoff
Furthermore, the proposal to update the frequency with which Closing Auction data is disseminated between 3:59 p.m. and 4:00 p.m., also applies to all Users equally, regardless of their size, type, or trading volume. Each User that wishes to ingest Closing Auction information may do so, and all Users will receive the information in the same frequency via electronic means. If a User chooses not to receive the BZX Closing Auction information, the User will simply not receive the information on an updated frequency.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that its proposed changes will help to foster competition by further improving BZX's well-functioning Closing Auction process, making BZX a more attractive venue for closing order types. By moving up the time at which MOCs are no longer accepted, and by amending the modification cutoff time for MOC, LOC, and LLOC orders, the Exchange believes that the size of any potential Closing Auction imbalance will be reduced as market participants will be unable to send in MOC orders in such close proximity to 4:00 p.m. As such, market participants will have more time to react to imbalances by entering contra-side orders, thereby helping to contribute to a more efficient Closing Auction process. Additionally, the proposed increase in frequency of the dissemination of Closing Auction information from 3:59 to 4:00 p.m. will better enable market participants to react to and respond to the impact that any entry/cancellation of Continuous Book orders or the entry of LOC or LLOC orders may have on a security's indicative price, and related imbalances, and enable them to trade accordingly. In this regard, this proposed change will help to foster competition by incentivizing market participants to enter their closing orders onto BZX.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change consists of amendments to (i) the Clearing Agency Policy on Capital Requirements (“Capital Policy” or “Policy”) of NSCC and its affiliates, The Depository Trust Company (“DTC”) and Fixed Income Clearing Corporation (“FICC,” and together with DTC and NSCC, the “Clearing Agencies”); and (ii) the Clearing Agency Capital Replenishment Plan (“Capital Replenishment Plan” or “Plan”) of the Clearing Agencies. In particular, the proposed revisions to the Capital Policy and Capital Replenishment Plan would (1) make technical revisions to update, simplify, and clarify statements in the Policy and Plan; and (2) update the Plan to document alternate authorizations in case an authorizing officer is not available.
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Clearing Agencies are proposing to revise the Capital Policy and Capital Replenishment Plan, which were adopted by the Clearing Agencies in July 2017
The Capital Policy sets forth the manner in which each Clearing Agency identifies, monitors, and manages its general business risk with respect to the requirement to hold sufficient liquid net assets (“LNA”) funded by equity to cover potential general business losses so the Clearing Agency can continue operations and services as a going concern if such losses materialize.
Currently, the Capital Policy also addresses how each Clearing Agency maintains a portion of retained earnings as LNA funded by equity as its Corporate Contribution, as a part of its management of credit risk
The Policy also provides a plan for the replenishment of capital through the Capital Replenishment Plan. The Capital Replenishment Plan was adopted by the Clearing Agencies as a plan for the replenishment of capital by each Clearing Agency should its equity fall close to or below the amount being held as its Total Capital Requirement pursuant to the Capital Policy. The Capital Replenishment Plan identifies the circumstances that would trigger implementation of the Plan; the roles, responsibilities, and guiding principles for implementation of the Plan; and an overview and description of each of the tools that may be used to replenish capital.
As described in greater detail herein, the Clearing Agencies are proposing to make certain revisions to the Capital Policy and Capital Replenishment Plan. First, the proposal would make technical revisions to update, simplify, and clarify statements in the Policy and Plan. Second, the proposed revisions would update the Plan to document alternate authorizations in case an authorizing officer is not available. These proposed revisions are designed
The Clearing Agencies are proposing technical revisions to the descriptions within the Capital Policy and Capital Replenishment Plan that would update, simplify, and clarify statements, including, for example, removing in the Policy the unnecessary reference to the Plan as an Addendum to the Policy, rephrasing certain sentences for clarity without changing the meaning, and relocating language from one sentence or section to another.
Such revisions would also update the documents. For example, in the Policy, the proposed changes would more accurately refer to the Policy as a policy instead of a framework, and refer to the senior most management committee, which reflects the term now used by the Clearing Agencies to refer to the highest-level committee of the Clearing Agencies. In the Plan, these revisions would include removing references to credit risk from the risk scenarios that may trigger the Plan to reflect the Clearing Agencies' current rules and procedures allowing the Corporate Contribution to be used for both participant default as well as non-participant default losses.
Section 3.2 of the Plan describes the role and responsibilities of the Treasury group (“Treasury”) in the implementation of the Plan in the event the Plan is triggered pursuant to the Policy. This section lists the steps to be taken by Treasury in implementing the plan as well as the relevant internal parties within Treasury tasked with providing any required authorizations. The proposed changes would provide alternate stakeholders that may provide any required authorizations in the absence of those already outlined in the steps referenced above. This change would allow for business continuity and timely implementation of the plan in the absence of any specific authorizing party.
The Clearing Agencies believe that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, the Clearing Agencies believe that the proposed changes to the Capital Policy and Capital Replenishment Plan are both consistent with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of the Clearing Agencies be designed to promote the prompt and accurate clearance and settlement of securities transactions, and to assure the safeguarding of securities and funds which are in the custody or control of the Clearing Agency or for which it is responsible.
Rule 17ad-22(e)(15) under the Act requires, in part, that the Clearing Agencies establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor, and manage their respective general business risk and hold sufficient liquid net assets funded by equity to cover potential general business losses so that the Clearing Agencies can continue operations and services as a going concern if those losses materialize.
The Clearing Agencies believe that the proposed revisions to the Capital Policy and the Capital Replenishment Plan would not have any impact, or impose any burden, on competition. The Policy and the Plan are maintained by the Clearing Agencies in order to satisfy their regulatory requirements and generally reflect internal tools and procedures. Tools and procedures that have a direct impact on the rights, responsibilities or obligations of members or participants of the Clearing Agencies are reflected in the Clearing Agencies' Rules. Accordingly, the Capital Policy and Capital Replenishment Plan themselves are documents that enhance the Clearing Agencies' regulatory compliance and internal management and do not have any impact, or impose any burden, on competition.
The proposed revisions to update the Capital Policy and Capital Replenishment Plan would not effect any changes on the fundamental purpose or operation of these documents and, as such, would also not have any impact, or impose any burden, on competition.
The Clearing Agencies have not received or solicited any written comments relating to this proposed rule change. If any written comments are received, the Clearing Agencies will amend their respective filings to publicly file such comments as an Exhibit 2 to the filing, as required by Form 19b-4 and the General Instructions thereto.
Persons submitting written comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on How to Submit Comments, available at
The Clearing Agencies reserve the right to not respond to any comments received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
The collections of information required under Rules 400 through 404 is mandatory for all funding portals. Form Funding Portal helps ensure that the Commission can make information about funding portals transparent and easily accessible to the investing public, including issuers and obligated persons who engage funding portals; investors who may purchase securities through offerings on funding portals; and other regulators. Further, the information provided on Form Funding Portal expands the amount of publicly available information about funding portals, including disciplinary history. Consequently, the rules and forms allow issuers and the investing public, as well as others, to become more fully informed about funding portals in a more efficient manner.
Rule 400 requires each person applying for registration with the Commission as a funding portal to file electronically with the Commission Form Funding Portal. Rule 400(a) requires a funding portal to become a member of a national securities association registered under Section 15A of the Exchange Act. Rule 400(b) requires a funding portal to file an amendment to Form Funding Portal if any information previously submitted on Form Funding Portal becomes inaccurate for any reason. Rule 400(c) provides that a funding portal can succeed to the business of a predecessor funding portal upon the successor filing a registration on Form Funding Portal and the predecessor filing a withdrawal on Form Funding Portal.
Rule 400(d) requires a funding portal to promptly file a withdrawal of registration on Form Funding Portal upon ceasing to operate as a funding portal. Rule 400(e) states that duplicate originals of the applications and reports provided for in this section must be filed with surveillance personnel designated by any registered national securities association of which the funding portal is a member. Rule 400(f) requires a nonresident funding portal to: (1) obtain a written consent and power of attorney appointing an agent for service of process in the United States; (2) furnish the Commission with the name and address of its agent for services of process on Schedule C of Form Funding Portal; (3) certify that it can, as a matter of law, and will provide the Commission and any registered national securities association of which it becomes a member with prompt access to its books and records and can, as a matter of law, and will submit to onsite inspection and examination by
Rule 403(a) requires a funding portal to implement written policies and procedures reasonably designed to achieve compliance with the federal securities laws and the rules and regulations thereunder relating to its business as a funding portal. Rule 403(b) provides that a funding portal must comply with privacy rules. Rule 404 requires all registered funding portals to maintain certain books and records relating to their funding portal activities, for not less than five years, the first two in an easily accessible place. Rule 404(e) requires funding portals to furnish promptly to the Commission, its representatives, and the registered national securities association of which the funding portal is a member true, correct, complete and current copies of such records of the funding portal that are requested by the representatives of the Commission and the registered national securities association.
The Commission staff estimates that the annual industry time burden to comply with Rules 400-404 is approximately 36,315 hours per year. The Commission staff estimates that the annual industry cost burden to comply with Rules 400-404 is approximately $618,293 per year.
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.
Written comments are invited on: (a) whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The public may view and comment on this information collection request at:
On January 15, 2025, The Nasdaq Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On March 11, 2025, pursuant to Section 19(b)(2) of the Act,
As described in more detail in the Notice,
According to the Exchange, the investment objective of the Trust is for the Shares to seek to track the performance of Litecoin (“LTC”),
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice, in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on whether the proposal to list and trade Shares of the Trust, which would hold LTC, is designed to prevent fraudulent and manipulative acts and practices or raises any new or novel concerns not previously contemplated by the Commission.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, and the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by May 30, 2025. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 13, 2025.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to July 8, 2025.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Adriana Spain, Office of Foreign Missions, Office of the Executive
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Information collection tools for gathering data from foreign missions, including electronic data collection (e-Gov), have been combined into one request called the “Foreign Diplomatic Services Applications.” These tools help the Office of Foreign Missions and the Office of the Chief of Protocol gather the information they need to manage benefits, privileges, and immunities for foreign missions and eligible applicants. This program allows them to apply for benefits from the U.S. Department of State, as provided by the Foreign Missions Act.
Information may be received via Email or electronic submission through eGov at
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary display in the exhibition “Now Showing: Youssef Nabil's I Saved My Belly Dancer” at the Los Angeles County Museum of Art, Los Angeles, California, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Reed Liriano, Program Coordinator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “Northern Lights” at the Buffalo AKG Art Museum, Buffalo, New York, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Reed Liriano, Program Coordinator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Portland & Western Railroad, Inc. (PNWR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire from Port of Tillamook Bay (POTB) and operate approximately 1.01 miles of rail line near Banks, Or., between milepost 774.0 and milepost 775.01 in Washington County, Or. (the Line).
The verified notice states that PNWR and POTB have entered into a purchase agreement dated April 9, 2025. PNWR states that it holds incidental overhead trackage rights over a portion of the Line from approximately milepost 774.0 to milepost 774.7, which it acquired in connection with the unrelated purchase of a parallel line.
PNWR certifies that its projected annual revenues as a result this transaction will not exceed those that would qualify it as a Class III carrier and that its annual revenues currently exceed $5 million. Pursuant to 49 CFR 1150.42(e), if a carrier's projected annual revenues will exceed $5 million, it must, at least 60 days before the exemption becomes effective, post a notice of its intent to undertake the proposed transaction at the workplace of the employees on the affected lines, serve a copy of the notice on the national offices of the labor unions with employees on the affected lines, and certify to the Board that it has done so. However, PNWR has requested a waiver of the 60-day advance labor notice requirement. PNWR's waiver request will be addressed in a separate decision. The Board will establish the effective date of the exemption in its decision on the waiver request.
PNWR also certifies that the proposed acquisition and operation of the Line does not involve a provision or agreement that may limit future interchange with a third-party connecting carrier.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than May 16, 2025.
All pleadings, referring to Docket No. FD 36850, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on PNWR's representative, Justin J. Marks, Clark Hill PLC, 1001 Pennsylvania Ave. NW, Suite 1300 South, Washington, DC 20004.
According to PNWR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Lake State Railway Company (LSRC) has filed a verified notice of exemption under 49 CFR part 1152 subpart F—Exempt Abandonments to abandon approximately 6,805 feet of rail line extending from Sta. 9+00 approximately 270 feet northeast of the intersection of Carrollton Road and Ellsworth Road to the end of line at Sta. 77+05 approximately 1,000 feet southwest of the North Niagara Street at-grade railroad crossing of the Huron & Eastern Railway Company, in Saginaw County, Mich. (the Line).
LSRC has certified that: (1) no local traffic has moved over the Line for at least two years; (2) no overhead traffic could be or was previously handled on the stub-ended Line; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government on behalf of such user) regarding cessation of service over the Line is pending with either the Surface Transportation Board (Board) or any U.S. District Court or has been decided in favor of a complainant within the past two years; and (4) the requirements at 49 CFR 1105.7(b) and 1105.8(c) (notice of environmental and historic reports), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to government agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 534 (Sub-No. 4X), must be filed with the Surface Transportation Board either
If the verified notice contains false or misleading information, the exemption is void ab initio.
LSRC has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by May 16, 2025. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. If you require an accommodation under the Americans with Disabilities Act, please call (202) 245-0245. Comments on environmental or historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/railbanking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), LSRC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by LSRC's filing of a notice of consummation by May 9, 2026, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), Department of Transportation.
General notice.
This document clarifies that, in instances where launch or reentry activities are conducted from an FAA-licensed commercial site located on land that is owned by a Federal site that the commercial site uses pursuant to an agreement with the Federal site, and the Federal site provides ground safety services and oversight, the vehicle operator may be able to demonstrate an equivalent level of safety to the FAA's ground safety requirements.
For additional information concerning this action, contact Katie Cranor, Acting Executive Director, Office of Operational Safety, 800 Independence Ave. SW, Washington, DC 20591; (202) 267-9525;
The Commercial Space Launch Act of 1984, as amended and codified at 51 U.S.C. 50901 through 50923, authorizes the DOT, and the FAA through delegation,
As defined in § 401.7 of title 14 of the Code of Federal Regulations (CFR), a “Federal site” is “a launch or reentry site, from which launches routinely take place, that is owned and operated by the government of the United States.”
This document also references a “commercial site.” For the purposes of this document, a commercial site is a launch or reentry site operated
Under certain circumstances, vehicle operators conducting launch or reentry activities from a Federal site need not demonstrate compliance with the ground safety requirements in 14 CFR 450.181 through 450.189. Examples of Federal sites include the Cape Canaveral Space Force Station (CCSFS), Vandenberg Space Force Base (VSFB), Wallops Flight Facility (WFF), and Kennedy Space Center (KSC).
Specifically, for activities licensed under 14 CFR part 450, § 450.179(b) exempts a vehicle operator from demonstrating compliance with the ground safety requirements in §§ 450.181 through 450.189 if: (1) the launch or reentry is being conducted from a Federal launch or reentry site; (2) the operator has a written agreement with the Federal launch or reentry site for the provision of ground safety services and oversight; and (3) the FAA has determined that the Federal launch or reentry site's ground safety processes, requirements, and oversight are not inconsistent with the FAA's statutory authority (through delegation) over commercial space activities.
For the purpose of establishing that the ground safety requirements exemption in § 450.179(b) applies, the Federal site may seek a determination from the FAA that the condition in of § 450.179(b)(3) has been met—that is, the determination that the Federal site's ground safety processes, requirements, and oversight are not inconsistent with
In some instances, commercial sites, which hold launch and/or reentry site operator licenses that are issued by the FAA under 14 CFR part 420 or part 433, are located on land owned by a Federal site.
Even in instances when the Federal site leasing the land to the commercial site has obtained a § 450.179(b)(3) determination, and per agreement with either the commercial site or vehicle operator, is providing ground safety services equivalent to those for which the Federal site obtained a § 450.179(b)(3) determination, commercial vehicle operators conducting launch or reentry activities from the commercial site are unable to qualify for the ground safety requirements exemption in 14 CFR 450.179(b). This is due to the fact that the ground safety requirements exemption in 14 CFR 450.179(b) is only available when the proposed launch or reentry activity will be conducted from a Federal launch or reentry site (rather than a commercial site operating its site within the boundaries of a Federal site through a lease or similar agreement).
However, subject to the requirements discussed below, vehicle operators operating from a commercial site can obtain an Equivalent Level of Safety Determination (ELOS Determination) to the ground safety requirements of §§ 450.181 through 450.189 when (1) the proposed launch or reentry activity will be conducted from a commercial site that is located on land owned by a Federal site, (2) the Federal site has obtained a § 450.179(b)(3) determination for the ground safety services provided at the Federal site, and (3) the vehicle operator or site operator
For the majority of requirements in 14 CFR part 450, an applicant can propose an alternative approach that does not satisfy the requirement if the applicant clearly and convincingly demonstrates that the alternative approach provides an equivalent level of safety to the requirement.
A vehicle operator may demonstrate an ELOS with part 450's ground safety requirements when the following conditions are met: (1) the licensed activity occurs at a commercial site located on land owned by a Federal site; (2) the Federal site has obtained a § 450.179(b)(3) determination; and (3) there is a written agreement for the Federal site to provide ground safety services and oversight for the vehicle operator. This is because the FAA has found that a Federal site that has obtained a § 450.179(b)(3) determination has ground safety processes, requirements, and oversight that are not inconsistent with the FAA's statutory authority over commercial space activities. As a result, vehicle operators conducting launch or reentry from such Federal sites may not be required to comply with the part 450 ground safety requirements. Because the ground safety services offered to a vehicle operator conducting launch or reentry activities from a commercial site located on land owned by a Federal site are equivalent to the services offered on the Federal site itself; and because the Federal entity providing ground safety services and oversight to the commercial site is familiar with the site and its facilities, safety personnel, and operations, the FAA finds that the vehicle operator may demonstrate an ELOS to the part 450 ground safety requirements. Further, when the commercial site is located on land owned by a Federal site pursuant to a lease or similar agreement, the Federal site generally has more familiarity with or oversight of the commercial site because of the physical proximity of the two sites. This proximity facilitates coordination among the two sites, such as when the Federal site's personnel are able to physically access the commercial site or the commercial site uses the Federal site's infrastructure and resources. Thus, at this time, the FAA finds a vehicle operator using a Federal site for ground safety services and oversight may demonstrate an equivalent level of safety to the FAA's ground safety requirements only when the commercial site is also located on land that is owned by the Federal site.
An applicant proposing to conduct launch or reentry from a commercial site located on land that is owned by a Federal site may be able to demonstrate an equivalent level of safety with the ground safety requirements of §§ 450.181 through 450.189. Such an applicant should request an equivalent level of safety determination during pre-application consultation. In particular, if an applicant proposes to conduct launch or reentry activities from a commercial site that is located on land that is owned by a Federal site and the Federal site has obtained a § 450.179(b)(3) determination for ground safety services provided at the Federal site, the applicant may be able to demonstrate an equivalent level of
In order to demonstrate that the Federal site will provide to the commercial site ground safety services and oversight equivalent to those for which it obtained a § 450.179(b)(3) determination, a vehicle operator would also need to demonstrate in its license application that the Federal site has contractually agreed to provide ground safety services and oversight for the purpose of the proposed launch or reentry activity. If the vehicle operator has directly contracted with the Federal site for the provision of the ground safety services and oversight, that agreement is likely sufficient to demonstrate that the Federal site has contractually agreed to provide ground safety services and oversight for the purpose of the proposed launch or reentry activity. However, if there is not a direct contractual relationship between the vehicle operator and the Federal site, the vehicle operator could demonstrate that the Federal site has contractually agreed to provide ground safety services and oversight for the purpose of the proposed launch or reentry activity by including both its agreement with the commercial site and the agreement between the commercial site and the Federal site for the provision of ground safety services and oversight. A comparison of the obligations and responsibilities outlined in the agreements with the services for which the Federal site obtained a § 450.179(b)(3) determination will also allow the FAA to assess whether the ground safety services, and oversight provided at the commercial site will be equivalent to the ground safety services and oversight available at the corresponding Federal site.
At the time of this Notice, § 450.179(b)(3) determinations have been obtained for ground safety services at the following Federal sites:
Memorandum of Agreement (MOA) Between the Department of the Air Force (DAF) and the FAA for Launch and Reentry Activity on Department of the Air Force Ranges and Installations (specifically CCSFS and VSFB), Agreement Number: FAA-DAF-SLR-2021.01.
• This MOA states that the DAF will provide ground safety services and oversight for activity on a USSF installation consistent with the FAA Ground Safety Policy, 3 November, 2020, and 14 CFR 450.179(b). The DAF will ensure its ground safety requirements and process protect the public health and safety, safety of property, and national security and foreign policy interests of the U.S.
Notice of Determination on KSC Ground Safety Services and Oversight, dated December 12, 2024.
• This document establishes that, in accordance with 14 CFR 450.179(b)(3) and (c), the FAA has determined that the NASA KSC ground safety processes, requirements, and oversight are not inconsistent with the FAA's statutory authority over commercial space activities conducted at NASA KSC.
Non-reimbursable Umbrella Interagency Agreement (IAA) Between the NASA and FAA for Commercial Launch and Reentry Activities on NASA Ranges and Installations, signed January 10, 2025.
• This IAA states that for licensed launch and reentry operations from a Federal launch site, the FAA will accept NASA ground safety processes and procedures performed in accordance with the appropriate Annex of this Umbrella IAA. The FAA and NASA will execute Annexes focused on the most utilized NASA installations at NASA KSC and WFF.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. It is intended only to provide clarity to the public regarding existing requirements under the law and agency policies.
Issued in Washington, DC.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice; request for comment.
This notice informs operators of certain experimental aircraft of a new program that enables certain pilots to receive authorization to act as pilot in command (PIC) of certain experimental aircraft by completing aircraft-specific ground and flight training without taking a practical test. The FAA implements this program in accordance with section 806 of the FAA Reauthorization Act of 2024. While the Experimental Aircraft All Makes and Models Program is effective upon the date of this notice, FAA seeks comments on the implementing guidance for future consideration.
Comments on this petition must identify the petition docket number and must be received on or before June 9, 2025.
Send comments identified by docket number FAA-2025-0906 using any of the following methods:
David Menzimer at (202) 267-1100, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
Some experimental aircraft operating limitations require a pilot to hold an authorization to act as PIC; a type rating, an Authorized Experimental Aircraft (AEA) authorization (formerly called a letter of authorization (LOA)), or a temporary LOA.
Prior policy allowed for an “All Makes and Models” authorization and subsequent AEAs to be issued on a person's pilot certificate after submitting an FAA Form 8710-1, Airman Certificate and/or Rating Application, and documentation of the completed training requirements to the FAA. However, to reduce the burden and increase efficiency for the regulated community, and to reduce costs to the FAA, pilots who hold three AEAs on their pilot certificate and seek to operate additional experimental aircraft in accordance with this program will no longer send an application or documentation to the FAA. Additional authorizations issued in accordance with this program will no longer be listed on the pilot certificate.
Instead, authorizations added in accordance with this program will be issued in the form of a logbook endorsement by the authorized instructor who provided the training.
Pilots who do not yet hold the requisite three AEAs on their pilot certificate will continue to reference the process outlined in FAA Order 8900.1, volume 5, chapter 9, section 2, Airman Qualification Requirements for Aircraft for Which the Operating Limitations Require an FAA-Issued Authorization to Act as Pilot in Command, to obtain an AEA. Likewise, pilots may continue to add additional AEAs in accordance with that process and are not required to utilize this new program.
Relatedly, FAA is simultaneously updating the aforementioned operating limitation to add an endorsement as a means of compliance to meet the operating limitation, as appropriate. In other words, currently, the operating limitation explicitly recognizes the AEA as a pilot authorization; FAA simultaneously revises the operating limitation through a deviation memo to FAA Order 8130.2K to include an endorsement as a pilot authorization. FAA notes that because previously-issued airworthiness certificate operating limitations specify that pilots must hold a model-specific type rating, AEA, or temporary LOA, persons seeking to utilize this new program (
As specified in volume 5, chapter 9, section 7 of FAA Order 8900.1, for authorizations issued in accordance with this program, the trainee must:
• Hold at least three AEAs in high-performance single-engine piston or high-performance multi-engine piston aircraft (as appropriate to the endorsement sought).
• Receive the same ground and flight training required to obtain an AEA from an authorized instructor (see volume 5, chapter 9, section 2, subparagraph 5-1582B, Training Requirements).
• Receive a logbook endorsement from the authorized instructor who provided the training stating the following: “I certify that [John Doe, certificate number] holds at least three [high-performance single-engine piston or high-performance multi-engine piston (instructors must choose the option appropriate to the endorsement sought)] Authorized Experimental Aircraft (AEA) authorizations, has received the required ground and flight training, and is proficient to act as PIC of [make/model] experimental aircraft.”
Pilots seeking an endorsement in accordance with this program must hold an instrument rating. If the aircraft used for the training is not equipped such that the applicant can demonstrate instrument skills, the instructor will place a limitation on the endorsement noting “VFR ONLY.”
The FAA is requesting comments on the new program described herein. A copy of the associated guidance is being posted for review to Docket No.: FAA-2025-0906. The new program may be revised based on comments received.
Issued in Washington, DC.
Federal Aviation Administration (FAA), Department of Transportation.
Notice of request to release airport land.
The FAA proposes to rule and invites public comment on the request to release and sell a 10.59 acre parcel of federally obligated airport property at the Malden Regional Airport & Industrial Park (MAW), Malden, Missouri.
Comments must be received on or before June 9, 2025.
Comments on this application may be mailed or delivered to the FAA at the following address: Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: David Blalock, Airport Manager, City of Malden Regional Airport & Industrial Park, 3077 Mitchell Drive, P.O. Box 411, Malden, MO 63863-0411, (573) 276-2279.
Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust, Room 364, Kansas City, MO 64106, (816) 329-2603,
The FAA invites public comment on the request to release a 10.59-acre parcel of airport property at the Malden Regional Airport & Industrial Park (MAW) under the provisions of 49 U.S.C. 47107(h)(2). This is a Surplus Property Airport. The City of Malden requested a release from the FAA to sell the parcel to Aycorp, LLC, which proposes to develop the parcel. The FAA determined this request to release and sell property at the Malden Regional Airport & Industrial Park (MAW) submitted by the Sponsor meets the procedural requirements of the FAA and the release and sale of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this notice.
The following is a brief overview of the request:
The Malden Regional Airport & Industrial Park (MAW) is proposing the release and sale of a parcel of airport property containing 10.59 acres. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the land at the Malden Regional Airport & Industrial Park (M) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances in order to sell the land. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for general aviation use.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
Federal Aviation Administration (FAA), Department of Transportation.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval for an information collection. The collection involves S. 4319—
Written comments should be submitted by July 8, 2025.
Please send written comments:
Anthony Butters by email at:
The required respondents to this new information request are civilian U.S. part 139 airport certificate holders who operate airports that serve scheduled and unscheduled operations of air carrier aircraft with more than 10 passenger seats (approximately 517 airports). These airport operators already hold an AOC and comply with all current information collection requirements.
Operators of certificated airports are permitted to choose the methodology to report information and can design their own recordkeeping system. As airports vary in size, operations and complexities, the FAA has determined this method of information collection allows airport operators greater flexibility and convenience to comply with reporting and recordkeeping requirements. 100% of the information may be submitted electronically.
The FAA Reauthorization Act of 2024, sec. 762 requires the FAA to provide a progress report on the national transition plan related to a fluorine free
This Act requires that the FAA provide progress reports on the status of part 139 airports transition to fluorine-free firefighting foam no later than 180 days after the date of enactment of this Act, and every 180 days thereafter until the progress report termination date. These progress reports on the development and implementation of a national transition plan related to a fluorine-free firefighting foam that meets the performance standards referenced in Chapter 3—Agent Compatibility, Substitutions, and Performance Requirements of Advisory Circular 150/5210.6E—Aircraft Fire Extinguishing Agents for Airports (AC 150/5210.62) issued on November 27, 2023, shall be submitted to the appropriate committees of Congress. These reports will also contain a comprehensive list of the amount of aqueous filmforming firefighting foam at each part 139 airport has as of the date of the submission of the progress report, including the amount of such firefighting foam held in firefighting equipment and the number of gallons regularly kept in reserve at each such airports. In order to provide congress an accurate accounting to AFFF, the FAA must contact all 518 airports to ascertain the amount at each airport.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
This document provides the public notice that BNSF Railway Company (BNSF) petitioned FRA for relief from certain regulations concerning inspections when combining and separating trains.
FRA must receive comments on the petition by June 9, 2025. FRA will consider comments received after that date to the extent practicable.
Steven Zuiderveen, Railroad Safety Specialist, FRA Motive Power & Equipment Division, telephone: 202-493-6337, email:
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that by letter received March 11, 2025, BNSF petitioned FRA for an extension of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 215 (Railroad Freight Car Safety Standards). FRA assigned the petition Docket Number FRA-2020-0033.
BNSF requests relief from 49 CFR 215.13,
In support of its petition, BNSF states that “data gathered over the course of the waiver period to date shows that trains operating under the waiver experience at least equivalent safety outcomes as similarly situated trains.” BNSF explains that an additional part 215 inspection when combining trains is redundant because each train to be combined has had a brake test and inspection and a § 215.13 pre-departure inspection. Further, BNSF notes that the requested relief will reduce exposure to potential walking hazards faced by train crews or mechanical inspectors and opportunities for an employee to inadvertently foul a track. Finally, BNSF suggests that “the waiver encourages greater utilization of Distributed Power (DP), which reduces in-train forces and improves braking performance.”
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
Communications received by June 9, 2025 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of FRA's dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
This document provides the public notice that the Association of American Railroads (AAR) petitioned FRA for relief from certain regulations concerning track inspections.
FRA must receive comments on the petition by June 9, 2025. FRA will consider comments received after that date to the extent practicable.
Yujiang Zhang, Staff Director, FRA Track & Structures Division, telephone: 202-493-6460, email:
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that by letter received April 24, 2025, AAR, on behalf of its members, petitioned FRA for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 213 (Track Safety Standards). FRA assigned the petition Docket Number FRA-2025-0059.
AAR seeks relief from § 213.233(b) and (c), Visual track inspections, which specifies the method and frequency in which railroads must conduct visual track inspections. AAR requests that its members instead be permitted to use a combination of track geometry measurement system (TGMS) and visual track inspection methods, which AAR states “will result in earlier detection and remediation of track defects, reduce visual inspections that are a potential source of injury, and improve operational efficiency.” Further, AAR believes that the relief would allow railroads to build on their existing successful TGMS programs and provide FRA additional data for use in possible future regulations. In support of its request, AAR also cites that automated track inspection technologies enable earlier detection of track defects and preventative maintenance practices, rather than reactive operations.
FRA notes that other non-AAR member railroads, including New Jersey Transit (NJT) (Docket Number FRA-2003-15196), the Southeastern Pennsylvania Transportation Authority (SEPTA) (Docket Number FRA-1999-5102), and the Long Island Rail Road (LIRR) (Docket Number RST-74-1),
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
Communications received by June 9, 2025 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of FRA's dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
This document provides the public notice that Florida Gulf & Atlantic Railroad (FGA) petitioned FRA seeking approval to discontinue or modify a signal system. FRA is reissuing this notice because of an incorrect docket number given in the previous notice.
FRA must receive comments on the petition by June 9, 2025. FRA will consider comments received after that date to the extent practicable.
Scott Johnson, Railroad Safety Specialist, FRA Signal, Train Control, and Crossings Division, telephone: 406-210-3608, email:
Under part 235 of title 49 Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that by letter dated February 26, 2025, FGA petitioned FRA seeking approval to discontinue or modify a signal system. FRA assigned the petition Docket Number FRA-2025-0034.
Specifically, FGA requests to discontinue the centralized traffic control (CTC) system on the Tallahassee Subdivision, from milepost (MP) 693.3 to MP 802.0. FGA intends to remove the “outdated” CTC system and install “switch point approach signal indicators, DTMF Systems, and self-restoring switches at five siding locations between Baldwin and Tallahassee, as well as the switch accessing the Bainbridge Line at Tallahassee.” Train operation would then use track warrant control, which is used on FGA's other two subdivisions.
In support of the request, FGA states that it is difficult to find parts for the current CTC system, as the relays required are no longer produced, and the system frequently fails. Further, the CTC system sometimes “hinders operations by slowing down the switching operations when blocking or organizing interchange traffic.” FGA adds that the new DTMF system will provide broken rail protection and there is no potential for head-on or rear-end collisions at either interlocking in the subject area.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
Communications received by June 9, 2025 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of FRA's dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Maritime Administration, DOT.
Notice and request for comments.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to make determinations regarding the coastwise use of foreign built; certain U.S. built; and U.S. and foreign rebuilt vessels that solely carry no more than twelve passengers for hire. MARAD has received such a determination request and is publishing this notice to solicit comments to assist with determining whether the proposed use of the vessel set forth in the request would have an adverse effect on U.S. vessel builders or U.S. coastwise trade businesses that use U.S.-built vessels in those businesses. Information about the requestor's vessel, including a description of the proposed service, is in the
Submit comments on or before June 9, 2025.
You may submit comments identified by DOT Docket Number MARAD-2025-0063 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
Patricia Hagerty, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Mail Stop 2, MAR-620, Washington, DC 20590. Telephone: (202) 366-5400. Email:
Pursuant to 46 U.S.C. 12121(b), the U.S. Coast Guard may issue a certificate of documentation with a coastwise trade endorsement for eligible, small passenger vessels authorized to carry no more than 12 passengers for hire if the
MARAD has received an eligibility determination request. Further details about the requester's vessel and its proposed operations may be found in the determination request posted in the DOT docket as MARAD-2025-0063 at
Please submit comments, including the attachments, following the instructions provided under the above heading entitled
The docket online is located at
Yes. Your entire comment, including your personal identifying information, will be made publicly available.
You may request that MARAD treat your comments as commercially confidential by submitting them to
If MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administration.
Maritime Administration, DOT.
Notice and request for comments.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to make determinations regarding the coastwise use of foreign built; certain U.S. built; and U.S. and foreign rebuilt vessels that solely carry no more than twelve passengers for hire. MARAD has received such a determination request and is publishing this notice to solicit comments to assist with determining whether the proposed use of the vessel set forth in the request would have an adverse effect on U.S. vessel builders or U.S. coastwise trade businesses that use U.S.-built vessels in those businesses. Information about the requestor's vessel, including a description of the proposed service, is in the
Submit comments on or before June 9, 2025.
You may submit comments identified by DOT Docket Number MARAD-2025-0064 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
Patricia Hagerty, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Mail Stop 2, MAR-620, Washington, DC 20590. Telephone: (202) 366-5400. Email:
Pursuant to 46 U.S.C. 12121(b), the U.S. Coast Guard may issue a certificate of documentation with a coastwise trade endorsement for eligible, small passenger vessels authorized to carry no more than 12 passengers for hire if the Maritime Administration (MARAD), after notice and an opportunity for public comment, determines the use of the small passenger vessel in the coastwise trade will not adversely affect United States vessel builders or the coastwise trade business of any person
MARAD has received an eligibility determination request. Further details about the requester's vessel and its proposed operations may be found in the determination request posted in the DOT docket as MARAD-2025-0064 at
Please submit comments, including the attachments, following the instructions provided under the above heading entitled
The docket online is located at
Yes. Your entire comment, including your personal identifying information, will be made publicly available.
You may request that MARAD treat your comments as commercially confidential by submitting them to
If MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administration.
Maritime Administration, DOT.
Notice and request for comments.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to make determinations regarding the coastwise use of foreign built; certain U.S. built; and U.S. and foreign rebuilt vessels that solely carry no more than twelve passengers for hire. MARAD has received such a determination request and is publishing this notice to solicit comments to assist with determining whether the proposed use of the vessel set forth in the request would have an adverse effect on U.S. vessel builders or U.S. coastwise trade businesses that use U.S.-built vessels in those businesses. Information about the requestor's vessel, including a description of the proposed service, is in the
Submit comments on or before June 9, 2025.
You may submit comments identified by DOT Docket Number MARAD-2025-0065 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
Patricia Hagerty, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Mail Stop 2, MAR-620, Washington, DC 20590. Telephone: (202) 366-5400. Email:
Pursuant to 46 U.S.C. 12121(b), the U.S. Coast Guard may issue a certificate of documentation with a coastwise trade endorsement for eligible, small passenger vessels authorized to carry no more than 12 passengers for hire if the Maritime Administration (MARAD), after notice and an opportunity for public comment, determines the use of the small passenger vessel in the coastwise trade will not adversely affect United States vessel builders or the coastwise trade business of any person that employs vessels built in the United States in that business.
MARAD has received an eligibility determination request. Further details about the requester's vessel and its proposed operations may be found in the determination request posted in the DOT docket as MARAD-2025-0065 at
Please submit comments, including the attachments, following the instructions provided under the above heading entitled
The docket online is located at
Yes. Your entire comment, including your personal identifying information, will be made publicly available.
You may request that MARAD treat your comments as commercially confidential by submitting them to
If MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administration.
Maritime Administration, DOT.
Notice and request for comments.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to make determinations regarding the coastwise use of foreign built; certain U.S. built; and U.S. and foreign rebuilt vessels that solely carry no more than twelve passengers for hire. MARAD has received such a determination request and is publishing this notice to solicit comments to assist with determining whether the proposed use of the vessel set forth in the request would have an adverse effect on U.S. vessel builders or U.S. coastwise trade businesses that use U.S.-built vessels in those businesses. Information about the requestor's vessel, including a description of the proposed service, is in the
Submit comments on or before June 9, 2025.
You may submit comments identified by DOT Docket Number MARAD-2025-0066 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
Patricia Hagerty, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Mail Stop 2, MAR-620, Washington, DC 20590. Telephone: (202) 366-5400. Email:
Pursuant to 46 U.S.C. 12121(b), the U.S. Coast Guard may issue a certificate of documentation with a coastwise trade endorsement for eligible, small passenger vessels authorized to carry no more than 12 passengers for hire if the Maritime Administration (MARAD), after notice and an opportunity for public comment, determines the use of the small passenger vessel in the coastwise trade will not adversely affect United States vessel builders or the coastwise trade business of any person that employs vessels built in the United States in that business.
MARAD has received an eligibility determination request. Further details about the requester's vessel and its proposed operations may be found in the determination request posted in the DOT docket as MARAD-2025-0066 at
Please submit comments, including the attachments, following the instructions provided under the above heading entitled
The docket online is located at
Yes. Your entire comment, including your personal identifying information, will be made publicly available.
You may request that MARAD treat your comments as commercially confidential by submitting them to
If MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administration.
Maritime Administration, DOT.
Notice and request for comments.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to make determinations regarding the coastwise use of foreign built; certain U.S. built; and U.S. and foreign rebuilt vessels that solely carry no more than twelve passengers for hire. MARAD has received such a determination request and is publishing this notice to solicit comments to assist with determining whether the proposed use of the vessel set forth in the request would have an adverse effect on U.S. vessel builders or U.S. coastwise trade businesses that use U.S.-built vessels in those businesses. Information about the requestor's vessel, including a description of the proposed service, is in the
Submit comments on or before June 9, 2025.
You may submit comments identified by DOT Docket Number MARAD-2025-0062 by any one of the following methods:
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If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
Patricia Hagerty, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Mail Stop 2, MAR-620, Washington, DC 20590. Telephone: (202) 366-5400. Email:
Pursuant to 46 U.S.C. 12121(b), the U.S. Coast Guard may issue a certificate of documentation with a coastwise trade endorsement for eligible, small passenger vessels authorized to carry no more than 12 passengers for hire if the Maritime Administration (MARAD), after notice and an opportunity for public comment, determines the use of the small passenger vessel in the coastwise trade will not adversely affect United States vessel builders or the coastwise trade business of any person that employs vessels built in the United States in that business.
MARAD has received an eligibility determination request. Further details about the requester's vessel and its proposed operations may be found in the determination request posted in the DOT docket as MARAD-2025-0062 at
Please submit comments, including the attachments, following the instructions provided under the above heading entitled
The docket online is located at
Yes. Your entire comment, including your personal identifying information, will be made publicly available.
You may request that MARAD treat your comments as commercially confidential by submitting them to
If MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administration.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning renewal of its information collection titled “Consumer Protections for Depository Institution Sales of Insurance.”
Comments must be received by July 8, 2025.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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Following the close of this notice's 60-day comment period, the OCC will publish a second notice with a 30-day comment period. You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the method set forth in the next bullet.
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Shaquita Merritt, Clearance Officer, (202) 649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
Under the PRA (44 U.S.C. 3501
This information collection requires national banks, Federal savings associations, and other covered persons involved in insurance sales, as defined in 12 CFR 14.20(f), to make two separate disclosures to consumers. Under 12 CFR 14.40, a national bank, Federal savings association, or other covered person must prepare and provide orally and in writing: (1) certain insurance disclosures to consumers before the completion of the initial sale of an insurance product or annuity to a consumer and (2) certain credit disclosures at the time of application for the extension of credit (if insurance products or annuities are sold, solicited, advertised, or offered in connection with an extension of credit). The insurance disclosures are required in advertisements and promotional material for insurance products or annuities unless the advertisements and promotional materials are of a general nature describing or listing the services or products offered by the national bank or Federal savings association.
Consumers use the disclosures to understand the risks associated with insurance products and annuities and to understand that they are not required to purchase, and may refrain from purchasing, certain insurance products or annuities in order to qualify for an extension of credit.
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of the operation, maintenance, and purchase of services necessary to provide the required information.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to extend for three years, without revision, the Country Exposure Report (FFIEC 009) and the Country Exposure Information Report (FFIEC 009a), which are currently approved collections of information. At the end of the comment period for this notice, the FFIEC and the agencies will review any comments received to determine whether to modify the proposal in response to comments. As required by the PRA, the agencies will then publish a second
Comments must be submitted on or before July 8, 2025.
Interested parties are invited to submit written comments to any or all of the agencies. All comments will be shared among the agencies.
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You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the following method:
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All public comments are available on the Board's website at
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Additionally, commenters may send a copy of their comments to the OMB desk officers for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the proposed FFIEC report discussed in this notice, please contact any of the agency staff whose names appear below. In addition, a copy of the proposed FFIEC 009 and FFIEC 009a report forms can be obtained at the FFIEC's website (
The agencies are proposing to extend for three years, without revision, the FFIEC 009 and FFIEC 009a, which are currently approved collections of information for each agency.
The Country Exposure Report (FFIEC 009) is filed quarterly with the agencies and provides information on international claims of U.S. banks, savings associations, Edge and/or Agreement corporations, bank holding companies, savings and loan holding companies, and intermediate holding companies (U.S. banking organizations) that is used for supervisory and analytical purposes. The information is used to monitor the foreign country exposures of reporting institutions to determine the degree of risk in their
These information collections are mandatory under the following statutes: 12 U.S.C. 161 and 1817 (national banks), 12 U.S.C. 1464 (federal savings associations), 12 U.S.C. 248(a)(1) and (2), 1844(c), and 3906 (state member banks and bank holding companies); 12 U.S.C. 1467a(b)(2)(A) (savings and loan holding companies); 12 U.S.C. 5365(a) (intermediate holding companies); and 12 U.S.C. 1817 and 1820 (insured state nonmember commercial and savings banks and insured state savings associations). The FFIEC 009 information collection is given confidential treatment (5 U.S.C. 552(b)(4) and (b)(8)). The FFIEC 009a information collection is not given confidential treatment.
The FFIEC has approved issuing for public comment a proposal to extend without revision for three years the FFIEC 009 and FFIEC 009a. On April 11, 2024, the agencies received an unsolicited comment from a trade association regarding the reporting of securities financing transactions (SFTs) compared to the reporting for other collateralized claims on the FFIEC 009. This comment is under review by the agencies.
Public comment is requested on all aspects of this joint notice. Comment is specifically invited on:
(a) Whether the proposed revisions to the collections of information that are the subject of this notice are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies.
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 information collection requirements related to guidance for qualification as an acceptance agent, and execution of an agreement between an acceptance agent and the Internal Revenue Service relating to the issuance of certain taxpayer identifying numbers.
Written comments should be received on or before July 8, 2025 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 by email to
Requests for additional information or copies of the revenue procedure 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, U.S. Department of the Treasury.
Notice of information collection; request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to comment on the proposed information collections listed below, in accordance with the Paperwork Reduction Act of 1995.
Written comments must be received on or before July 8, 2025.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to Treasury PRA Clearance Officer, 1750 Pennsylvania Ave. NW, Suite 8100, Washington, DC 20220, or email at
Copies of the submissions may be obtained from Spencer W. Clark by emailing
Department of Veterans Affairs.
Notice of solicitation for nominations.
The Department of Veterans Affairs (VA) is seeking nominations of qualified candidates to be considered for appointment as a member of the Veterans and Community Oversight and Engagement Board (herein-after referred in this section to as “the Board”) for the VA West Los Angeles Campus (“Campus”) in Los Angeles, California.
Nominations for membership on the Board must be received no later than 5 p.m. EST on June 15, 2025.
All nominations should be mailed to the Veterans Experience Office, Department of Veterans Affairs, 810 Vermont Avenue NW, (30), Washington, DC 20420; or sent electronically to the Advisory Committee Management Office mailbox at
Chihung Szeto, Alternate Designated Federal Officer, Veterans Experience Office, Department of Veterans Affairs, 810 Vermont Avenue NW, (30), Washington, DC 20420, telephone 562-708-9959 or via email at
In carrying out the duties set forth in the West Los Angeles Leasing Act of 2016, Public Law 114-226 (the West LA Leasing Act), the Board shall:
(1) Provide the community with opportunities to collaborate and communicate by conducting public forums; and
(2) Focus on local issues regarding the Department that are identified by the community with respect to health care, implementation of the Master Plan, and any subsequent plans, benefits, and memorial services at the Campus. Information on the Master Plan can be found at
The Board operates in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. ch. 10. The Board is established to coordinate locally with the VA to identify the goals of the
The members of the Board are appointed by the Secretary of Veterans Affairs from the general public, from various sectors and organizations, and shall meet the following qualifications, as set forth in the West LA Leasing Act:
(1) Not less than 50% of members shall be Veterans; and
(2) Non-Veteran members shall be:
a. Family members of Veterans,
b. Veteran advocates,
c. Service providers,
d. Real estate professionals familiar with housing development projects, or
e. Stakeholders.
The Board members may also serve as Subcommittee members.
In accordance with the Board Charter, the Secretary shall determine the number, terms of service, and pay and allowances of Board members, except that a term of service of any such member may not exceed two years. The Secretary may reappoint any Board member for additional terms of service.
To the extent possible, the Secretary seeks members who have requisite professional and personal qualifications including, but not limited to, subject matter expertise in the areas described above. VA strives to develop a Committee membership that includes variety in military services, ranks, and deployments, military service, military deployments, working with Veterans, committee subject matter expertise, geographical background, and profession. We ask that nominations include any relevant experience and information so that VA can ensure effective expert advice, ideas, and opinions, are provided by the Board.
Nominations should be typewritten (one nomination per nominator). Nomination packages should include:
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) The nominee's curriculum vitae, not to exceed three pages and a one-page cover letter;
(4) A summary of the nominee's experience and qualifications relative to the membership criteria and professional qualifications criteria listed above;
(5) letters of recommendation are accepted, but not required; and
(6) a statement from the nominee confirming that they are not a federally registered lobbyist.
The Department strives to fairly balance committee membership through consideration of points of view represented and functions to be performed by the advisory committee, consistent with section 1004(b)(2), title 5, U.S.C. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Department of Veterans Affairs.
Notice of solicitation for nominations.
The Department of Veterans Affairs (VA), Center for Minority Veterans (CMV), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Minority Veterans (“the Committee”).
Nominations for membership on the Committee must be received no later than 5 p.m. EST on June 15, 2025.
All nomination packages should be emailed to
Mr. Dwayne Campbell,
In carrying out the duties set forth, the Committee responsibilities include, but are not limited to:
(1) Advising the Secretary and Congress on VA's administration of benefits and provisions of healthcare, benefits, and services to “minority group member” Veterans, defined in 38 U.S.C. 544 as: (1) Asian American; (2) Black; (3) Hispanic; (4) Native American (including American Indian, Alaskan Native, and Native Hawaiian); or (5) Pacific Islander.
(2) Providing a biennial report to Congress outlining recommendations, concerns and observations on VA's delivery of services to “minority group member” Veterans.
(3) Meeting with VA officials, Veteran Service Organizations, and other stakeholders to assess the Department's efforts in providing benefits and outreach to “minority group member” Veterans.
Making periodic site visits and holding town hall meetings with “minority group member” Veterans to address their concerns.
Management and support services for the Committee are provided by CMV.
(1) Representatives of Veterans who are “minority group members”;
(2) Individuals who are recognized authorities in fields pertinent to the needs of Veterans who are “minority group members”;
(3) Veterans who are “minority group members” and who have experience in a military theater of operations;
(4) Veterans who are “minority group members” and who do not have such experience and;
(5) Veterans who are “minority group members recently” separated from active military service.
In accordance with § 544, the Secretary determines the number, terms of service, pay, and allowances of members of the Committee appointed by the Secretary, except that a term of service of any such member may not exceed three years. The Secretary may reappoint any member for additional terms of service.
(1) Professional and personal qualifications relevant to the functions and tasks to be performed by the committee.
(2) Experience in military service and military deployments (please identify your Branch of Service and Rank).
(3) Current work with Veterans.
(4) Committee subject matter expertise.
(5) Emphasis on experience using VA Service and Benefits.
Nominations should be type written (one nomination per nominator). Nomination package should include: (1) a letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
Individuals selected for appointment to the Committee shall be invited to serve a two-year term. Committee members will receive a stipend for attending Committee meetings including per diem and reimbursement for travel expenses incurred.
The Department strives to fairly balance committee membership through consideration of points of view represented and functions to be performed by the advisory committee, consistent with section 1004(b)(2), title 5, U.S.C., and the FACA Final Rule, section 102-3.60, title 41, CFR Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Comments must be received on or before July 8, 2025.
Comments must be submitted through
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
United States Sentencing Commission.
Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2025, and request for comment.
The United States Sentencing Commission hereby gives notice that the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary; and the Commission requests comment regarding whether it should include in the
There are two methods for submitting written public comment.
Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4597.
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p). Absent action of the Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary. Notices of proposed amendments were published in the
The text of the amendments to the sentencing guidelines, policy statements, and commentary, and the reason for each amendment, is set forth below. Additional information pertaining to the amendments described in this notice may be accessed through the Commission's website at
This notice sets forth a request for comment regarding whether the Commission should list in subsection (d) of § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants any or all of the following subparts or parts of these amendments: Part A (Circuit Conflict Relating to “Physically Restrained” Enhancements) and Part B (Circuit Conflict Relating to the Meaning of “Intervening Arrest” in § 4A1.2(a)(2)) of Amendment 1, and Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to § 3B1.2) of Part A of Amendment 2.
The Background Commentary to § 1B1.10 lists the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range under § 1B1.10(b) as among the factors the Commission considers in selecting the amendments included in § 1B1.10(d). To the extent practicable, public comment should address each of these factors.
Section 2B3.1(b)(2)(B) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (
Section 2B3.1(b)(4)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.
The Commentary to § 2B3.1 captioned “Application Notes” is amended in Note 1 by striking ” `abducted,' and `physically restrained' are defined” and inserting “and `abducted' have the meaning given such terms”.
The Commentary to § 2B3.1 captioned “Background” is amended by striking “was physically restrained by being tied, bound, or lock up” and inserting “a victim's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up”.
Section 2B3.2(b)(3)(A)(ii) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (
Section 2B3.2(b)(5)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.
The Commentary to § 2B3.2 captioned “Application Notes” is amended in Note 1 by striking ” `physically restrained,' ”.
Section 2E2.1(b)(1)(B) is amended by striking “if a dangerous weapon (including a firearm) was otherwise used” and inserting “if a dangerous weapon (including a firearm) was used to convey a specific (not general) threat of harm (
Section 2E2.1(b)(3)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.
The Commentary to § 2E2.1 captioned “Application Notes” is amended in Note 1 by striking “ ‘otherwise used,’ ”; and by striking “ ‘abducted,’ and ‘physically restrained’ ” and inserting “and ‘abducted’ ”.
The Commentary to § 2X1.1 captioned “Application Notes” is amended in Note 2 by striking “the defendants actually intended to physically restrain the teller, the specific offense characteristic for physical restraint would be added” and inserting “the defendants actually intended to restrict the teller's freedom of movement through physical contact or confinement, the specific offense characteristic for such restriction would be added”.
Section 4A1.2(a)(2) is amended in the paragraph that begins “If the defendant” by inserting after “the second offense).” the following: “For purposes of this provision, a traffic stop is not an intervening arrest.”.
Part A of the amendment responds to a circuit conflict over whether § 2B3.1(b)(4)(B)—which provides for a 2-level increase “if any person was physically restrained to facilitate commission of the offense or to facilitate escape”—applies where a robbery victim is restricted from moving at gunpoint but is not otherwise immobilized through measures like those in the definition of “physically restrained” in Application Note 1 to § 1B1.1 (Application Instructions) (
The Second, Third, Fifth, Seventh, and Ninth Circuits have largely agreed that the psychological coercion of pointing a gun at a victim, without more, does not qualify, and that a restraint must be “physical” for the enhancement to apply.
The Commission received public comment and testimony indicating that the conduct at issue in the circuit split (pointing a gun at a victim during a robbery) is treated differently not only under § 2B3.1(b)(4)(B) but also under the separate § 2B3.1(b)(2) enhancement. Section 2B3.1(b)(2) provides for tiered offense level increases for threats and weapon involvement in a robbery, including a 5-level enhancement “if a firearm was brandished or possessed” and a 6-level enhancement “if a firearm was otherwise used.” The terms “brandished” and “otherwise used” are defined in Application Note 1 to § 1B1.1.
Circuits that have considered the difference between these definitions generally agree that while “brandished” covers the general display of a weapon, a firearm is “otherwise used” where it is employed for a specific threat.
Commission data shows, however, that pointing a gun at a victim during a robbery has resulted in the 5-level “brandished” increase in some cases and the 6-level “otherwise used” increase in others. The combination of these differing applications of the firearms enhancement and the conflict among the circuits regarding the 2-level “physically restrained” enhancement has led to disparities: the total resulting enhancements have ranged from five to eight levels for pointing a gun at a victim during a robbery.
To promote uniformity and consistency in guideline application, Part A of the amendment generally adopts the approach of the Second, Third, Fifth, Seventh, and Ninth Circuits that § 2B3.1(b)(4)(B) does not apply solely based on the coercion of using a firearm to restrict a victim's movement. Rather, the increase applies only “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up, to facilitate commission of the offense or to facilitate escape.”
Part A of the amendment also revises § 2B3.1(b)(2) to ensure that use of a firearm during a robbery is accounted for under this enhancement with more uniformity. It amends § 2B3.1(b)(2)(B) to state that the 6-level increase applies “if a firearm was used to convey a specific (not general) threat of harm (
To further promote consistency in application of offense guidelines with similar specific offense characteristics, the amendment makes parallel changes to two Chapter Two guidelines with “physically restrained” and “otherwise used” enhancements: §§ 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1 (Making or Financing an Extortionate Extension of Credit; Collecting an Extension of
Part B of the amendment addresses a circuit conflict over whether a traffic stop is an “intervening arrest” for purposes of determining whether multiple prior sentences should be “counted separately or treated as a single sentence” when assigning criminal history points (“single-sentence rule”) under § 4A1.2(a)(2).
The Third, Sixth, Ninth, and Eleventh Circuits have held that a formal, custodial arrest is required, and that a citation or summons following a traffic stop does not qualify.
After reviewing public comment and testimony, the Commission determined that a traffic stop should not be considered an “intervening arrest” for purposes of the single-sentence rule. The amendment revises § 4A1.2(a)(2) to include that clarification.
Section 2D1.1(a)(5) is amended by striking “the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the resulting offense level is greater than level 32 and the defendant receives the 4-level (‘minimal participant’) reduction in § 3B1.2(a), decrease to level 32” and inserting “the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34, decrease by 3 levels; or (iii) above level 34, decrease to level 32. If the resulting offense level is greater than level 30 and the defendant receives the 4-level reduction in § 3B1.2(a), decrease to level 30”.
Section 2D1.1(b)(17) is amended by striking “(‘minimal participant’)”.
Section 2D1.1(e) is amended—
in the heading by striking “Instruction” and inserting “Instructions”;
and by inserting at the end the following new paragraph (2):
“(2) Application of § 3B1.2 (Mitigating Role) to § 2D1.1 Cases
(A) Determine whether an adjustment under § 3B1.2 (Mitigating Role) applies.
(B) In addition to the circumstances identified in § 3B1.2, an adjustment under § 3B1.2 is generally warranted if the defendant's primary function in the offense was performing a low-level trafficking function.
(i) An adjustment under § 3B1.2(a) is generally warranted if the defendant's primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout; or
(ii) an adjustment under § 3B1.2(b) is generally warranted if the defendant's primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (
For purposes of subsection (e)(2)(B), the provisions of § 3B1.2 apply in determining whether a mitigating role adjustment is warranted, except that the adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity. The extent of the adjustment shall be based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.
(C) The mitigating role provisions at subsection (a)(5) and the 2-level reduction at subsection (b)(17) apply regardless of whether the defendant receives the required adjustment from § 3B1.2 (Mitigating Role) by direct application of § 3B1.2 or by use of the special instruction in subsection (e)(2)(B).”.
The Commentary to § 3B1.2 captioned “Application Notes” is amended in Note 3(A) by striking the following:
“A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.
Likewise, a defendant who is accountable under § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose participation in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, may receive an adjustment under this guideline.”;
and inserting the following:
“A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is accountable under § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose participation in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, may receive an adjustment under this guideline.”.
Section 2D1.1(b)(13)(B) is amended by striking “and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug” and inserting “with reckless disregard that such mixture or substance was not the legitimately manufactured drug”.
Part A of the amendment contains two subparts to address concerns that § 2D1.1 and § 3B1.2 (Mitigating Role) as they currently apply in tandem do not adequately account for the lower culpability of individuals performing low-level functions in a drug trafficking offense.
Subpart 1 of Part A amends the mitigating role provisions in § 2D1.1(a)(5) to refine the drug trafficking guideline in cases where an individual receives an adjustment under § 3B1.2. The Commission initially added the mitigating role cap to “somewhat limit[ ] the sentencing impact of drug quantity for offenders who perform relatively low level trafficking functions.” USSG App. C, amend. 640 (effective Nov. 1, 2002). As previously amended, § 2D1.1(a)(5) provided a graduated 2-, 3-, or 4-level decrease, depending on the base offense level under § 2D1.1(c), when a defendant received a mitigating role adjustment under § 3B1.2. USSG App. C, amend. 668 (effective Nov. 1, 2004).
This amendment maintains the approach of graduated decreases depending on the base offense level but amends § 2D1.1(a)(5) in two ways. First, it sets a mitigating role cap at level 32 if the defendant receives an adjustment under § 3B1.2 and has a base offense level above 34. Second, if the defendant has a resulting offense level greater than 30 and receives a 4-level adjustment under § 3B1.2(a), then a mitigating role cap of 30 applies.
As explained further below in Subpart 2, the mitigating role provisions in § 2D1.1(a)(5) and the 2-level reduction at § 2D1.1(b)(17) apply regardless of whether the defendant receives the required adjustment from § 3B1.2 by direct application of § 3B1.2 or by use of the new special instruction in § 2D1.1(e)(2)(B). Thus, the amendment deletes the phrase “minimal participant” from § 2D1.1(a)(5) and § 2D1.1(b)(17) to clarify that those provisions are triggered regardless of whether a defendant receives a 4-level reduction by direct application of § 3B1.2(a) or by use of the new special instruction in § 2D1.1(e)(2)(B).
Subpart 2 of Part A adds a new special instruction at § 2D1.1(e) to address the inconsistent application of § 3B1.2 in § 2D1.1 cases and to encourage broader use of § 3B1.2 in these cases.
Section 3B1.2 provides a range of reductions depending on the defendant's role in the criminal activity. Subsection (a) sets forth a 4-level reduction if the defendant was a “minimal participant in any criminal activity.” Subsection (b) sets forth a 2-level reduction if the defendant was “a minor participant in any criminal activity.” Section 3B1.2 also provides for a 3-level reduction where the case “fall[s] between (a) and (b).”
The Commission previously amended the Commentary to § 3B1.2 to increase its usage (
The amendment expands the circumstances in which an adjustment under § 3B1.2 is warranted in § 2D1.1 cases by instructing courts that an adjustment is generally warranted if the defendant's “primary function” in the offense was performing a low-level trafficking function. Section 2D1.1(e)(2)(A) directs the court to determine whether an adjustment under § 3B1.2 applies as a court already does under the
To ensure courts focus on a defendant's predominant trafficking-related activities, the Commission selected “primary function” to guide courts in determining whether an adjustment is appropriate. Due to the wide variety of functions performed by individuals in drug trafficking offenses, the examples listed in § 2D1.1(e)(2)(B) are illustrative rather than a definitive list.
To assist courts in determining the appropriate level of reduction, the amendment provides examples of functions generally warranting an adjustment under § 3B1.2(a) and (b). Section 2D1.1(e)(2)(B)(i) states that a four-level adjustment under § 3B1.2(a) is generally warranted if the defendant's primary function in the offense was plainly among the lowest level of drug trafficking functions. It lists as examples serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout. Section 2D1.1(e)(2)(B)(ii) states that a two-level adjustment under § 3B1.2(b) is generally warranted if the defendant's primary function in the offense was another low-level trafficking function. It lists as examples distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (
The amendment places the special instruction in § 2D1.1 instead of § 3B1.2 to highlight that the rules for determining § 3B1.2 eligibility are different in § 2D1.1 cases. For purposes of the special instruction at § 2D1.1(e)(2)(B), the provisions of § 3B1.2 apply in determining whether a mitigating role adjustment is warranted, with two exceptions: the amendment provides that the adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and also regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity. The Commission determined that these two provisions in the Commentary to § 3B1.2 may discourage a court from applying a mitigating role adjustment in single-defendant drug trafficking cases or drug trafficking cases where the defendant performed a similar low-level function as other participants in the criminal activity, but an adjustment may nevertheless be appropriate. Accordingly, the Commission concluded that these provisions shall not apply in assessing whether a mitigating role adjustment is warranted based on a defendant's low-level function in a drug trafficking offense.
The amendment specifies that the mitigating role provisions in § 2D1.1(a)(5) and the 2-level reduction at § 2D1.1(b)(17) apply regardless of whether the defendant receives the § 3B1.2 adjustment by direct application of § 3B1.2 or by use of the special instruction in § 2D1.1(e)(2)(B). This instruction ensures that any individual who receives a mitigating role adjustment, regardless of the mechanism, may also receive the reductions in § 2D1.1(a)(5) and § 2D1.1(b)(17).
Part B of the amendment changes the
Section 2D1.1(b)(13)(A) provides a 4-level increase when the defendant knowingly misrepresented or knowingly marketed as another substance a mixture or substance containing fentanyl or a fentanyl analogue. The Commission added this specific offense characteristic in 2018 in response to rising numbers of fentanyl and fentanyl analogue cases.
The Commission received comment that § 2D1.1(b)(13)(B) is being applied inconsistently, in part, because the current
Informed by those concerns, the amendment changes the
3.
in paragraph (3)(B) by striking “subdivision” and inserting “paragraph”;
by redesignating paragraphs (5) through (9) as paragraphs (6) through (10), respectively;
by inserting after paragraph (4) the following new paragraph (5):
“(5) (Apply the Greatest) If the defendant—
(A)(i) possessed four or more machinegun conversion devices; or (ii) transferred or sold any machinegun conversion device to another person, or attempted or conspired to commit such a transfer or sale, increase by 2 levels; or
(B) possessed 30 or more machinegun conversion devices, increase by 4 levels.
For purposes of subsection (b)(5), ‘machinegun conversion device’ means any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun (
in the paragraph that begins “The cumulative offense level” by striking “(b)(4)” and inserting “(b)(5)”;
in paragraph (6) (as so redesignated), in the subparagraph that begins “
in paragraph (9)(A) (as so redesignated) by striking “(b)(5)” and inserting “(b)(6)”;
and in paragraph (10)(A) (as so redesignated) by striking “(b)(5)” and inserting “(b)(6)”.
The Commentary to § 2K2.1 caption “Application Notes” is amended—
in Note 1, in the paragraph that begins “ ‘Firearm’ has the meaning” by inserting after “18 U.S.C. 921(a)(3)” the following: “, unless otherwise specified”;
in Note 3 by striking “(b)(5)” and inserting “(b)(6)”;
in Note 9 by striking “
in Note 13—
in the heading by striking “(b)(5)” and inserting “(b)(6)”;
and in subparagraph (C) by striking “(b)(5)” and inserting “(b)(6)”; and by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;
and in Note 14—
in the heading by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;
in subparagraph (A) by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;
in subparagraph (B) by striking “(b)(6)(B)” both places it appears and inserting “(b)(7)(B)”;
in subparagraph (C) by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;
and in subparagraph (E) by striking “(b)(6)(B)” each place it appears and inserting “(b)(7)(B)”.
The Commentary to § 2K2.4 captioned “Application Notes” is amended in Note 4(A) in the paragraph that begins “If the explosive” by striking “§ 2K2.1(b)(6)(B)” both places it appears and inserting “§ 2K2.1(b)(7)(B)”.
Commonly referred to as “Glock switches” and “auto sears,” MCDs are devices designed to convert semi-automatic firearms into fully automatic weapons. Under the National Firearms Act (NFA), the definition of “machinegun” includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.” 26 U.S.C. 5845(b). An MCD therefore qualifies as a machinegun under federal law, and—as in the case of other machineguns—federal law generally prohibits the possession and transfer of such devices, with limited exceptions.
As a technical matter, the definition of “firearm” is not uniform throughout federal law. Because the NFA defines “firearm” to include machineguns—and “machinegun” to include MCDs—MCDs qualify as “firearms” under the NFA definition at 26 U.S.C. 5845(a). By contrast, MCDs are not firearms under the definition of that term provided in the Gun Control Act (GCA), which is limited (as relevant) to a weapon “which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.” 18 U.S.C. 921(a)(3).
Prior to this amendment, § 2K2.1 accounted for MCDs solely through base offense levels. It provided certain enhanced base offense levels for offenses involving NFA firearms, including MCDs.
The Commission's amendment responds to concerns by the Department of Justice and other commenters about the proliferation of MCDs, which pose a heightened danger to the public because a weapon equipped with an MCD fires more rapidly and with less control than an identical weapon without an MCD. Of note, the Department of Justice pointed to a 570% rise in MCD recoveries in 2021 as compared to 2017 and to the growing involvement of automatic gunfire reported in shootings. Commission data similarly reflects a recent rise in firearms cases involving MCDs. In fiscal year 2023, 4.5 percent of cases sentenced under § 2K2.1 involved an MCD—an increase from one percent of § 2K2.1 cases in fiscal year 2019. While most cases involving MCDs in fiscal year 2023 involved a single MCD, more than 18 percent involved four or more devices. In addition, in more than 25 percent of § 2K2.1 cases involving MCDs, the sentenced individual transferred at least one MCD to another person.
To address these concerns and in recognition that MCDs pose different risks than functional firearms, the amendment establishes a new tiered specific offense characteristic at § 2K2.1(b)(5) for cases involving MCDs. New subsection (b)(5)(A) provides a two-level enhancement when a defendant (i) possessed four or more MCDs or (ii) transferred or sold an MCD or attempted or conspired to commit such a transfer or sale. New subsection (b)(5)(B) provides a four-level enhancement when a defendant possessed 30 or more MCDs. The amendment includes a definition of “machinegun conversion device” consistent with the NFA's statutory definition at 26 U.S.C. 5845(b). To tailor the enhancement to the most culpable conduct, the Commission determined that it should apply only to the acts of the defendant. The Commission also concluded that the new specific offense characteristic should be subject to the offense level cap in § 2K2.1. The amendment revises the cap to provide that the cumulative offense level may not exceed level 29 after application of subsections (b)(1) through the new subsection (b)(5), unless subsection (b)(3)(A) applies.
The amendment also includes conforming changes, including to the Commentary to § 2K2.1 and § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), to address the renumbering of the prior § 2K2.1(b)(5) through (9).
4.
The Commentary to § 4B1.5 captioned “Application Notes” is amended in Note 5 by striking the following:
“
(A)
(B)
and by inserting the following:
“
Section 5B1.3(d)(7) is amended by striking “, as defined in Application Note 1 of the Commentary to § 5D1.2 (Term of Supervised Release)”.
The Commentary to § 5B1.3 captioned “Application Note” is amended—
in the caption by striking “Note” and inserting “Notes”;
and by inserting at the end the following new Note 2:
“2.
‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer
Chapter Five, Part D is amended by inserting at the beginning the following new Introductory Commentary:
“
The Sentencing Reform Act of 1984 requires the court to assess a wide range of factors ‘in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release.’ 18 U.S.C. 3583(c). These determinations aim to make the imposition and scope of supervised release ‘dependent on the needs of the defendant for supervision.’
Section 5D1.1 is amended—
by striking subsections (a) and (b) as follows:
“(a) The court shall order a term of supervised release to follow imprisonment—
(1) when required by statute (
(2) except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed.
(b) The court may order a term of supervised release to follow imprisonment in any other case.
and inserting the following new subsections (a) and (b):
“(a) The court shall order a term of supervised release to follow imprisonment when required by statute (
(b) When a term of supervised release is not required by statute, the court should order a term of supervised release to follow imprisonment when warranted by an individualized assessment of the need for supervision.”;
and by inserting at the end the following new subsection (d):
“(d) The court should state in open court the reasons for imposing or not imposing a term of supervised release.
The Commentary to § 5D1.1 captioned “Application Notes” is amended—
by striking Notes 1, 2, and 3 as follows:
“1.
2.
3.
(A)
(i) the nature and circumstances of the offense and the history and characteristics of the defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(iii) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(iv) the need to provide restitution to any victims of the offense.
(B)
(C)
(D)
by redesignating Notes 4 and 5 as Notes 5 and 6, respectively;
by inserting at the beginning the following new Notes 1, 2, 3, and 4:
“1.
(A) the nature and circumstances of the offense and the history and characteristics of the defendant (18 U.S.C. 3553(a)(1));
(B) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner (18 U.S.C. 3553(a)(2)(B)-(D));
(C) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));
(D) any pertinent policy statement issued by the Sentencing Commission (18 U.S.C. 3553(a)(5));
(E) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct (18 U.S.C. 3553(a)(6)); and
(F) the need to provide restitution to any victims of the offense (18 U.S.C. 3553(a)(7)).
2.
3.
4.
and by inserting at the end the following new Note 7:
“7.
Section 5D1.2 is amended—
by striking subsections (a), (b), and (c) as follows:
“(a) Except as provided in subsections (b) and (c), if a term of supervised release is ordered, the length of the term shall be:
(1) At least two years but not more than five years for a defendant convicted of a Class A or B felony.
(2) At least one year but not more than three years for a defendant convicted of a Class C or D felony.
(3) One year for a defendant convicted of a Class E felony or a Class A misdemeanor.
(b) Notwithstanding subdivisions (a)(1) through (3), the length of the term of supervised release shall be not less than the minimum term of years specified for the offense under subdivisions (a)(1) through (3) and may be up to life, if the offense is—
(1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended.
(c) The term of supervised release imposed shall be not less than any statutorily required term of supervised release.”;
and by inserting the following new subsections (a) and (b):
“(a) If a term of supervised release is ordered, the court shall conduct an individualized assessment to determine the length of the term, which shall not be less than any statutorily required minimum term. Except as otherwise provided by statute, the maximum term of supervised release is as follows:
(1) Not more than five years for a defendant convicted of a Class A or B felony.
(2) Not more than three years for a defendant convicted of a Class C or D felony.
(3) Not more than one year for a defendant convicted of a Class E felony or a misdemeanor (other than a petty offense).
(b) The court should state in open court the reasons for the length of the term imposed.
The Commentary to § 5D1.2 captioned “Application Notes” is amended—
by striking Note 1 as follows:
“1.
‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”;
by striking Notes 4, 5, and 6 as follows:
“4.
5.
6.
For example, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of three years and a maximum term of life, the term of supervised release provided by the guidelines is restricted by subsection (c) to three years to five years. Similarly, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of five years and a maximum term of life, the term of supervised release provided by the guidelines is five years.
The following example illustrates the interaction of subsections (a) and (c) when subsection (b) is also involved. In this example, subsection (a) provides a range of two years to five years; the relevant statute requires a minimum term of supervised release of five years and a maximum term of life; and the offense is a sex offense under subsection (b). The effect of subsection (b) is to raise the maximum term of supervised release from five years (as provided by subsection (a)) to life, yielding a range of two years to life. The term of supervised release provided by the guidelines is then restricted by subsection (c) to five years to life. In this example, a term of supervised release of more than five years would be a guideline sentence. In addition, subsection (b) contains a policy statement recommending that the maximum—a life term of supervised release—be imposed.”;
by redesignating Notes 2 and 3 as Notes 4 and 5, respectively;
by inserting at the beginning the following new Notes 1, 2, and 3:
“1.
2.
3.
in Note 4 (as so redesignated) by striking “shall be determined” and inserting “is determined”;
in Note 5 (as so redesignated) by striking “or the guidelines”;
and by inserting at the end the following new Note 6:
“6.
The Commentary to § 5D1.2 is amended by striking the Commentary captioned “Background” in its entirety as follows:
“
Section 5D1.3 is amended—
by striking subsections (b), (c), (d), and (e) as follows:
“(b)
The court may impose other conditions of supervised release to the extent that such conditions (1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.
(c)
The following ‘standard’ conditions are recommended for supervised release. Several of the conditions are expansions of the conditions required by statute:
(1) The defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.
(2) After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed.
(3) The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer.
(4) The defendant shall answer truthfully the questions asked by the probation officer.
(5) The defendant shall live at a place approved by the probation officer. If the defendant plans to change where he or she lives or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that he or she observes in plain view.
(7) The defendant shall work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from doing so. If the
(8) The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours.
(10) The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (
(11) The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
(12) If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.
(13) The defendant shall follow the instructions of the probation officer related to the conditions of supervision.
(d)
The following ‘special’ conditions of supervised release are recommended in the circumstances described and, in addition, may otherwise be appropriate in particular cases:
(1)
(A) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child support payments or to make payments to support a person caring for a child—a condition specifying that the defendant shall make the payments and comply with the other terms of the order.
(2)
If an installment schedule of payment of restitution or a fine is imposed—a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(3)
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine—a condition requiring the defendant to provide the probation officer access to any requested financial information.
(4)
If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol—(A) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (B) a condition specifying that the defendant shall not use or possess alcohol.
(5)
If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment—a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.
(6)
If (A) the defendant and the United States entered into a stipulation of deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (B) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable—a condition ordering deportation by a United States district court or a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(7)
If the instant offense of conviction is a sex offense, as defined in Application Note 1 of the Commentary to § 5D1.2 (Term of Supervised Release)—
(A) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.
(8)
If the defendant has any unpaid amount of restitution, fines, or special assessments, the defendant shall notify the probation officer of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay.
(e)
The following ‘special conditions’ may be appropriate on a case-by-case basis:
(1)
Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of supervised release.
(2)
Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment.
(3)
Community service may be imposed as a condition of supervised release.
(4)
Occupational restrictions may be imposed as a condition of supervised release.
(5)
A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.
(6)
Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during
and inserting at the end the following new subsection (b):
“(b)
(1)
Such conditions are warranted to the extent that they (A) are reasonably related to (i) the nature and circumstances of the offense and the history and characteristics of the defendant; (ii) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (iii) the need to protect the public from further crimes of the defendant; and (iv) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (B) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.
(2)
The following are ‘standard’ conditions of supervised release, which the court may modify, expand, or omit in appropriate cases:
(A) The defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.
(B) After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed.
(C) The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer.
(D) The defendant shall answer truthfully the questions asked by the probation officer.
(E) The defendant shall live at a place approved by the probation officer. If the defendant plans to change where he or she lives or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.
(F) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that he or she observes in plain view.
(G) The defendant shall work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the defendant works or anything about his or her work (such as the position or the job responsibilities), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.
(H) The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer.
(I) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours.
(J) The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (
(K) The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
(L) If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.
(M) The defendant shall follow the instructions of the probation officer related to the conditions of supervision.
(3)
One or more conditions from the following non-exhaustive list of ‘special’ conditions of supervised release may be appropriate in a particular case, including in the circumstances described therein:
(A)
(i) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents.
(ii) If the defendant is ordered by the government to make child support payments or to make payments to support a person caring for a child—a condition specifying that the defendant shall make the payments and comply with the other terms of the order.
(B)
If an installment schedule of payment of restitution or a fine is imposed—a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(C)
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine—a condition requiring the defendant to provide the probation officer access to any requested financial information.
(D)
If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol—(i) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (ii) a condition specifying that the defendant shall not use or possess alcohol.
(E)
If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment—a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.
(F)
If (i) the defendant and the United States entered into a stipulation of
* So in original. Probably should be 8 U.S.C. 1228(d)(5).
(G)
If the instant offense of conviction is a sex offense—
(i) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.
(ii) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.
(iii) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.
(iv) A condition prohibiting the defendant from communicating, or otherwise interacting, with any victim of the offense, either directly or through someone else.
(H)
If the defendant has any unpaid amount of restitution, fines, or special assessments, the defendant shall notify the probation officer of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay.
(I)
If the court has reason to believe that a course of study or vocational training would be appropriate and would equip the defendant for suitable employment, a condition specifying that the defendant participate in a General Education Development (or similar) program, vocational training, or skills training, unless the probation officer excuses the defendant from doing so.
(J)
If there is an identifiable victim of the offense, a condition prohibiting the defendant from communicating, or otherwise interacting, with any of the victims, either directly or through someone else.
(K)
Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of supervised release.
(L)
Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment.
(M)
Community service may be imposed as a condition of supervised release.
(N)
Occupational restrictions may be imposed as a condition of supervised release.
(O)
A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.
(P)
Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) and only when facilities are available.
The Commentary to § 5D1.3 captioned “Applications Note” is amended—
in the caption by striking “Note” and inserting “Notes”;
by redesignating Note 1 as Note 2;
by inserting at the beginning the following new Note 1:
“1.
in Note 2 (as so redesignated) by striking “(c)(4)” both places it appears and inserting “(b)(2)(D)”;
and by inserting at the end the following new Note 3:
“3.
‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.
Chapter Five, Part D is amended by inserting at the end the following new § 5D1.4:
(a)
(b)
(c)
1.
(A)
(B)
(i) any history of court-reported violations over the term of supervision;
(ii) the ability of the defendant to lawfully self-manage (
(iii) the defendant's substantial compliance with all conditions of supervision;
(iv) the defendant's engagement in appropriate prosocial activities and the existence or lack of prosocial support to remain lawful beyond the period of supervision;
(v) a demonstrated reduction in risk level or maintenance of the lowest category of risk over the period of supervision; and
(vi) whether termination will jeopardize public safety, as evidenced by the nature of the defendant's offense, the defendant's criminal history, the defendant's record while incarcerated, the defendant's efforts to reintegrate into the community and avoid recidivism, any statements or information provided by the victims of the offense, and other factors the court finds relevant.
2.
3.
The Commentary to § 5G1.3 captioned “Application Notes” is amended in Note 4(C) by striking “Application Note 4 and subsection (f) of § 7B1.3 (Revocation of Probation or Supervised Release)” and inserting “Application Note 3 and subsection (f) of § 7B1.3 (Revocation of Probation)”.
Section 5H1.3 is amended in the paragraph that begins “Mental and emotional conditions may be relevant in determining the conditions” by striking “5D1.3(d)(5)” and inserting “5D1.3(b)(3)(E)”.
Section 5H1.4 is amended in the paragraph that begins “Drug or alcohol dependence or abuse” by striking “§ 5D1.3(d)(4)” and inserting “§ 5D1.3(b)(3)(D)”.
Chapter Seven, Part A is amended—
in Subpart 1 by striking the following:
“Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. At this time, the Commission has chosen to promulgate policy statements only. These policy statements will provide guidance while allowing for the identification of any substantive or procedural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determinations under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements.”;
and inserting the following:
“Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. The Commission chose to promulgate policy statements only. These policy statements were intended to provide guidance and allow for the identification of any substantive or procedural issues that require further review. The Commission viewed these policy statements as evolutionary and intended to review relevant data and materials concerning revocation determinations under these policy statements. Updated policies would be issued after federal judges, probation officers, practitioners, and others had the opportunity to evaluate and comment on these policy statements.”;
in Subpart 3(a), in the paragraph that begins “Moreover, the Commission” by striking “anticipates” and inserting “anticipated”; by striking “will provide” and inserting “would provide”; by striking “represent” and inserting “represented”; and by striking “intends to promulgate revocation guidelines” and inserting “intended to promulgate updated revocation policies”;
in Subpart 3(b)—
in the paragraph that begins “The Commission debated” by striking “debated” and inserting “initially debated”;
and in the paragraph that begins “Given the relatively narrow ranges” by striking “this time” and inserting “that time”;
in Subpart 4—
in the paragraph that begins “The revocation policy statements” by striking “categorize” and inserting “categorized”; and by striking “fix” and inserting “fixed”;
and in the paragraph that begins “The Commission” by striking “has elected” and inserting “initially elected”; by striking “the Commission determined” and inserting “the Commission had determined”; and by striking “the Commission has initially concluded” and inserting “the Commission initially concluded”;
by striking Subpart 5 as follows:
“
The Commission views these policy statements for revocation of probation and supervised release as the first step in an evolutionary process. The Commission expects to issue revocation guidelines after judges, probation officers, and practitioners have had an opportunity to apply and comment on the policy statements.
In developing these policy statements, the Commission assembled two outside working groups of experienced probation officers representing every circuit in the nation, officials from the Probation Division of the Administrative Office of the U.S. Courts, the General Counsel's office at the Administrative Office of the U.S. Courts, and the U.S. Parole Commission. In addition, a number of federal judges, members of the Criminal Law and Probation Administration Committee of the Judicial Conference, and representatives from the Department of Justice and federal and community defenders provided considerable input into this effort.”;
and by inserting at the end the following new Subpart 5:
“
The Commission viewed the original policy statements for revocation of probation and supervised release as the first step in an evolutionary process. The Commission intended to revise its approach after judges, probation officers, and practitioners had an opportunity to apply and comment on the policy statements. Since the promulgation of those policy statements, a broad array of stakeholders has identified the need for more flexible, individualized responses to violations of supervised release.
In response, the Commission updated the policy statements in this chapter to ensure judges have the discretion necessary to properly manage supervised release. The revised policy statements encourage judges to take an individualized approach in: (1) responding to reports of non-compliance before initiating revocation proceedings; (2) addressing violations found during revocation proceedings; and (3) imposing a sentence of imprisonment upon revocation. These changes are intended to better allocate taxpayer dollars and probation resources, encourage compliance and improve public safety, and facilitate the reentry and rehabilitation of defendants.
This chapter proceeds in two parts: Part B addresses violations of probation, and Part C addresses violations of supervised release. Both parts maintain an approach in which the court addresses primarily the defendant's failure to comply with court-ordered conditions, while reflecting, to a limited degree, the seriousness of the underlying violation and the criminal history of the individual. The Commission determined that violations of probation and supervised release should be addressed separately to reflect their different purposes. While probation serves all the goals of sentencing, including punishment, supervised release primarily ‘fulfills rehabilitative ends, distinct from those served by incarceration.’
Chapter Seven, Part B is amended—
in the heading by striking “Probation and Supervised Release Violations” and inserting “Violations of Probation”;
and in the Introductory Commentary—
in the paragraph that begins “The policy statements” by striking “chapter” and inserting “part”; and by striking “supervision” and inserting “probation”;
by striking the following paragraph:
“Because these policy statements focus on the violation of the court-ordered supervision, this chapter, to the extent permitted by law, treats violations of the conditions of probation and supervised release as functionally equivalent.”;
by striking the last paragraph as follows:
“This chapter is applicable in the case of a defendant under supervision for a felony or Class A misdemeanor. Consistent with § 1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does not apply in the case of a defendant under supervision for a Class B or C misdemeanor or an infraction.”;
and by inserting at the end the following new paragraph:
“This part is applicable in the case of a defendant on probation for a felony or Class A misdemeanor. Consistent with § 1B1.9 (Class B or C Misdemeanors and Infractions), this part does not apply in the case of a defendant on probation for a Class B or C misdemeanor or an infraction.”.
Section 7B1.1 is amended—
in subsection (a) by striking “and supervised release”;
in subsection (a)(3) by striking “supervision” and inserting “probation”;
and in subsection (b) by striking “supervision” and inserting “probation”.
The Commentary to § 7B1.1 captioned “Application Notes” is amended—
in Note 1 by striking “18 U.S.C. 3563(a)(1) and 3583(d), a mandatory condition of probation and supervised release” and inserting “18 U.S.C. 3563(a)(1), a mandatory condition of probation”;
and in Note 5 by striking “under supervision” and inserting “on probation”.
Section 7B1.2 is amended in the heading by striking “and Supervised Release”.
Section 7B1.3 is amended—
in the heading by striking “or Supervised Release”;
in subsection (a)(1) by striking “or supervised release”;
in subsection (a)(2) by striking “(A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision” and inserting “(A) revoke probation; or (B) extend the term of probation and/or modify the conditions thereof”;
in subsection (b) by striking “or supervised release”;
in subsection (e) by striking “or supervised release” both places such phrase appears;
in subsection (f) by striking “or supervised release” both places such phrase appears;
in subsection (g) by striking the following:
“(1) If probation is revoked and a term of imprisonment is imposed, the provisions of §§ 5D1.1-1.3 shall apply to the imposition of a term of supervised release.
(2) If supervised release is revoked, the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. 3583(h).”;
and inserting the following:
“If probation is revoked and a term of imprisonment is imposed, the provisions of §§ 5D1.1-1.3 shall apply to the imposition of a term of supervised release.”.
The Commentary to § 7B1.3 captioned “Application Notes” is amended—
in Note 1 by striking “or supervised release”; and by striking “supervision” both places such term appears and inserting “probation”;
by striking Note 2 as follows:
“2. The provisions for the revocation, as well as early termination and extension, of a term of supervised release are found in 18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release, may order an additional period of supervised release to follow imprisonment.”;
by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4, respectively;
in Note 2 (as so redesignated) by striking “or supervised release”; and by striking “Bureau of Prisons” and inserting “Federal Bureau of Prisons”;
in Note 3 (as so redesignated) by striking “or supervised release” both places such phrase appears;
and in Note 4 (as so redesignated) by striking “. Intermittent confinement is
Section 7B1.4 is amended in the heading by striking “
Section 7B1.4(a) is amended in the Table—
in the heading by striking “
and by striking the following:
“
12-18 15-21 18-24 24-30 30-37 33-41.
24-30 27-33 30-37 37-46 46-57 51-63.
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervision.”;
and inserting the following:
“
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of probation.”.
The Commentary to § 7B1.4 captioned “Application Notes” is amended—
in Note 1 by striking the following:
“The criminal history category to be used in determining the applicable range of imprisonment in the Revocation Table is the category determined at the time the defendant originally was sentenced to the term of supervision. The criminal history category is not to be recalculated because the ranges set forth in the Revocation Table have been designed to take into account that the defendant violated supervision. In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of supervision being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of supervision. (
and inserting the following:
“The criminal history category to be used in determining the applicable range of imprisonment in the Probation Revocation Table is the category determined at the time the defendant originally was sentenced to the term of probation. The criminal history category is not to be recalculated because the ranges set forth in the Probation Revocation Table have been designed to take into account that the defendant violated probation.
In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of probation being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of probation. (
in Note 2 by striking “Revocation Table” and inserting “Probation Revocation Table”; and by striking “supervision” both places such term appears and inserting “probation”;
in Note 3 by striking “under supervision” and inserting “on probation”;
in Note 5 by striking “or supervised release” both places such phrase appears; and by striking “18 U.S.C. 3565(b), 3583(g)” and inserting “18 U.S.C. 3565(b)”;
and in Note 6 by striking “under 18 U.S.C. 3565(b) and 3583(g). 18 U.S.C. 3563(a), 3583(d)” and inserting “under 18 U.S.C. 3565(b). 18 U.S.C. 3563(a)”.
Section 7B1.5 is amended—
in the heading by striking “
by striking subsections (a), (b), and (c) as follows:
“(a) Upon revocation of probation, no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term of probation served prior to revocation.
(b) Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.
(c)
and inserting the following:
“Upon revocation of probation, no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term of probation served prior to revocation.”.
The Commentary to § 7B1.5 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which provides that the combined periods of imprisonment and supervised release in transfer treaty cases shall not exceed the term of imprisonment imposed by the foreign court.”.
The Commentary to § 7B1.5 captioned “Background” is amended by striking “or supervised release”; by striking “with supervision” and inserting “with probation”; and by striking “under supervision” and inserting “on probation”.
Chapter Seven is amended by inserting at the end the following new Part C:
At the time of original sentencing, the court may—and in some cases, must—impose a term of supervised release to follow the sentence of imprisonment.
If the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised release under existing
Because supervised release is intended to promote rehabilitation and ease the defendant's transition back into the community, the Commission encourages courts—where possible—to consider a wide array of options to respond to non-compliant behavior and violations of the conditions of supervised release. These interim steps before revocation are intended to allow courts to address the defendant's failure to comply with court-imposed conditions and to better address the needs of the defendant while also maintaining public safety. If revocation is mandated by statute or the court otherwise determines revocation to be appropriate, the sentence imposed upon revocation should be tailored to address the failure to abide by the conditions of the court-ordered supervision; imposition of an appropriate punishment for new criminal conduct is not the primary goal of a revocation sentence. The determination of the appropriate sentence on any new criminal conviction that is also a basis of the violation should be a separate determination for the court having jurisdiction over such conviction.
(a) There are four grades of supervised release violations:
(1)
(2)
(3)
(b) Where there is more than one violation of the conditions of supervised release, or the violation includes conduct that constitutes more than one offense, the grade of the violation is determined by the violation having the most serious grade.
1. Under 18 U.S.C. § 3583(d), a mandatory condition of supervised release is that the defendant not commit another federal, state, or local crime. A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct. The grade of violation does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant's actual conduct.
2. ‘Crime of violence’ is defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).
3. ‘Controlled substance offense’ is defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).
4. A ‘firearm or destructive device of a type described in 26 U.S.C. 5845(a)’ includes a shotgun, or a weapon made from a shotgun, with a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun or rifle with an overall length of less than 26 inches; a rifle, or a weapon made from a rifle, with a barrel or barrels of less than 16 inches in length; a machine gun; a muffler or silencer for a firearm; a destructive device; and certain large bore weapons.
5. Where the defendant is on supervised release in connection with a felony conviction, or has a prior felony conviction, possession of a firearm (other than a firearm of a type described in 26 U.S.C. 5845(a)) will generally constitute a Grade B violation, because 18 U.S.C. 922(g) prohibits a convicted felon from possessing a firearm. The term ‘generally’ is used in the preceding sentence, however, because there are certain limited exceptions to the applicability of 18 U.S.C. 922(g).
(a) The probation officer shall promptly report to the court any alleged Grade A or B violation.
(b) The probation officer shall promptly report to the court any alleged Grade C violation unless the officer determines: (1) that such violation is minor, and not part of a continuing pattern of violations; and (2) that non-reporting will not present an undue risk to an individual or the public or be inconsistent with any directive of the court relative to the reporting of violations.
1. Under subsection (b), a Grade C violation must be promptly reported to the court unless the probation officer makes an affirmative determination that the alleged violation meets the criteria for non-reporting. For example, an isolated failure to file a monthly report or a minor traffic infraction generally would not require reporting.
(a)
(b)
1.
2.
3.
(a) In the case of a revocation of supervised release, the court shall conduct an individualized assessment to determine the appropriate length of the term of imprisonment, given the recommended range of imprisonment set forth in § 7C1.5 (Term of Imprisonment—Supervised Release (Policy Statement)).
(b) Any term of imprisonment imposed upon the revocation of supervised release generally should be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of supervised release.
(c) If supervised release is revoked, the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. 3583(h).
1.
2. The provisions for the revocation, as well as early termination and extension, of a term of supervised release are found in 18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release, may order an additional period of supervised release to follow imprisonment.
3. In the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction is not recommended.
4. Any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under § 7C1.5 (Term of Imprisonment—Supervised Release), and any such unserved period of community confinement, home detention, or intermittent confinement may be converted to an equivalent period of imprisonment.
Unless otherwise required by statute, and subject to an individualized assessment, the recommended range of imprisonment applicable upon revocation is set forth in the following table:
1. The criminal history category to be used in determining the applicable range of imprisonment in the Supervised Release Revocation Table is the category determined at the time the defendant originally was sentenced to the term of supervision. The criminal history category is not to be recalculated because the ranges set forth in the Supervised Release Revocation Table have been designed to take into account that the defendant violated supervision.
In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of supervision being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of supervision. (
2. Departure from the applicable range of imprisonment in the Supervised Release Revocation Table may be warranted when the court departed from the applicable range for reasons set forth
3. In the case of a Grade C violation that is associated with a high risk of new felonious conduct (
4. Where the original sentence was the result of a downward departure (
5. Upon a finding that a defendant violated a condition of supervised release by being in possession of a controlled substance or firearm or by refusing to comply with a condition requiring drug testing, the court is required to revoke supervised release and impose a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).
6. The availability of appropriate substance abuse programs, or a defendant's current or past participation in such programs, may warrant an exception from the requirement of mandatory revocation and imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).
(a) Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.
(b)
1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which provides that the combined periods of imprisonment and supervised release in transfer treaty cases shall not exceed the term of imprisonment imposed by the foreign court.
The Sentencing Reform Act of 1984 established “supervised release” as a tool a court could use to impose post-release supervision on a defendant sentenced to a term of imprisonment.
While statutes mandate the imposition and minimum length of supervised release in some cases, courts generally have discretion to determine whether to impose supervised release, to set its length and conditions, modify those conditions, and to extend, revoke, or terminate the term. In making these decisions, the Act requires courts to examine a set of factors similar, but not identical, to those considered when imposing a sentence.
In November 2024, the Commission held a roundtable on supervised release attended by judges, retired federal probation officers, providers of reentry services, academics, federal probation, government and defense community representatives, and a reentry program graduate. The Commission also received extensive public comment and testimony from members of Congress, the Committee on Criminal Law of the Judicial Conference of the United States, the Department of Justice, the Federal Public and Community Defenders, the Commission's advisory groups, law professors, currently and formerly incarcerated individuals, and other criminal justice system stakeholders.
The amendment makes several overarching changes in response to this feedback and consistent with the statutory purposes and framework. First, it emphasizes the importance of judges making individualized decisions about supervised release at all relevant stages—including imposition, modification or extension, and revocation. Second, it underscores the authority of courts, in consultation with the probation officer, to reassess supervised release decisions after a defendant's release from imprisonment, including decisions about the length and conditions of supervision. Third, it underscores the rehabilitative purposes of supervised release by dividing the provisions addressing violations of probation and violations of supervised release into separate parts of Chapter Seven and providing courts with greater discretion to respond to a violation of a condition of supervised release, including where appropriate, through alternatives to revocation and imprisonment.
The amendment's specific changes to Chapters Five and Seven are discussed further below.
The amendment revises Chapter Five, Part D of the
The amendment adds Introductory Commentary to Part D of Chapter Five emphasizing that supervised release is intended to ease a defendant's transition into the community, provide needed rehabilitation, and promote public safety. It highlights the importance of conducting an individualized assessment to determine whether a defendant needs supervision and how to appropriately tailor the term and conditions, as required by 18 U.S.C. 3583(c).
The amendment revises § 5D1.1 to provide greater judicial discretion in determining whether any term of supervised release is warranted. The amendment removes the requirement to impose supervised release whenever the sentence of imprisonment is more than one year and instead requires supervised release only when mandated by statute. In any other case, “the court should order a term of supervised release when warranted by an individualized assessment of the need for supervision.” Application Note 1 defines the “individualized assessment” by reference to the 18 U.S.C. 3553(a) factors that courts must consider under 18 U.S.C. 3583(c). The Commentary to § 5D1.1 continues to instruct courts to consider the defendant's criminal history, substance abuse history, and history of domestic violence in determining whether to impose a term of supervised release.
These changes respond to widespread concern that supervised release often is ordered reflexively, potentially diverting supervision resources from individuals who most need them. Commission data shows that courts currently impose supervised release in most cases (82.5%). This focus on an individualized assessment aims to “assure that [individuals] who will need post-release supervision will receive it” while “prevent[ing] probation system resources from being wasted on supervisory services for releasees who do not need them,” as Congress intended.
The amendment also adds new § 5D1.1(d), which instructs that “the court should state in open court the reasons for imposing or not imposing a term of supervised release,” consistent with 18 U.S.C. 3553(c).
Finally, it adds new Application Note 7, which alerts courts to the fact that the decision whether to impose a term of supervised release could affect subsequent application of First Step Act earned time credits.
The amendment revises § 5D1.2 to provide courts with greater discretion in determining the appropriate length of the term of supervised release. It removes the recommended minimum terms by class of offense from § 5D1.2(a) and instead instructs the court to conduct an individualized assessment to determine the length of the term, which shall be not less than any statutorily required minimum term. It continues to list the maximum terms of supervised release by offense class, noting that some statutes may provide for a different term. Application Note 1 provides that the factors considered for purposes of determining the length of the term are the same as the factors considered in determining whether to impose a term and—consistent with 18 U.S.C. 3583(c) and 3553(a)—instructs that the court should ensure the term “is sufficient, but not greater than necessary, to address the purposes of imposing supervised release on the defendant.”
Similar to the changes made to § 5D1.1, the amendment adds a new instruction to § 5D1.2 that “the court should state in open court the reasons for the length of the term imposed.”
Additionally, the amendment removes the policy statement recommending the statutory maximum term of supervised release for sex offense cases. Although imposition of a statutory maximum term may be warranted in certain cases, the amendment leaves the appropriate term to the court's discretion. As a related change, the amendment deletes a similar maximum-term recommendation in the Commentary to § 4B1.5 (Repeat and Dangerous Sex Offender Against Minors), but it continues to recommend that treatment and monitoring be considered as special conditions of supervised release for individuals sentenced under that guideline.
Finally, in Application Notes 2 and 3, the amendment advises that Congress has authorized higher statutory maximum and/or minimum terms of supervised release for certain terrorism and sex offenses and for some drug offenses.
Section 5D1.3 sets forth mandatory and discretionary conditions of supervised release. Discretionary conditions currently are further subdivided into “standard,” “special,” and additional conditions. The amendment restructures and revises the discretionary conditions of supervised release in four ways. First, it adds a general instruction at § 5D1.3(b)(1), which provides that the court “should conduct an individualized assessment to determine what, if any,” discretionary conditions are warranted. Second, in § 5D1.3(b)(2), it removes the instruction that “standard” conditions “are recommended for supervised release” and instead clarifies that they “may be modified, omitted, or expanded in appropriate cases.” Third, in § 5D1.3(b)(3), it removes the recommendation of imposing “special” conditions for listed circumstances and instead provides that “[o]ne or more conditions from the . . . non-exhaustive list of ‘special conditions’ may be appropriate in a particular case, including” the described circumstances. Fourth, it removes the “additional conditions” subheading and incorporates those conditions into the list of “special” conditions in § 5D1.3(b)(3).
These changes emphasize that any standard, special, or other discretionary conditions of supervised release—
The amendment also adds three “special” conditions in response to commenters' concerns about cases where victims need special protection and cases where defendants could benefit from educational programs. The revised § 5D1.3 lists the following as “special” conditions: (1) a condition prohibiting the defendant from interacting with any victim if the instant conviction is a sex offense; (2) a condition prohibiting the defendant from interacting with any identifiable victim, applicable to all offenses generally; and (3) a condition that the defendant participate in a General Education Development (or similar) program, vocational training, or skills training if the court has reason to believe it would be appropriate and would equip the defendant for suitable employment.
The Commission sought to address with this amendment potential issues surrounding the fact that the terms and conditions of supervised release are imposed at original sentencing, often years before the defendant begins supervision. People and their circumstances may change in and after prison, such that the original term and conditions may no longer be appropriate after the defendant's release. Courts are encouraged to consider modifying the terms and conditions of supervised
While Commentary to § 5D1.2 previously noted the court's authority to terminate or extend supervised release and encouraged courts to “exercise this authority in appropriate cases,” the amendment adds a new policy statement at § 5D1.4 to more directly address a court's statutory authority to modify conditions or to terminate or extend the term of supervised release.
Subsection (a) (Modification of Conditions) restates the court's authority under 18 U.S.C. 3583(e)(2) to modify, reduce, or enlarge the conditions of supervised release and encourages the court to conduct an individualized assessment, in consultation with the probation officer, to determine whether any change to the conditions is warranted after a defendant's release from imprisonment. The Commission received feedback that while probation officers often meet with defendants approaching and after their release, judicial involvement varies by jurisdiction and individual court practice. The Commission believes that more consistent judicial participation in revisiting the conditions of supervised release will facilitate successful reintegration, increase compliance, and promote public safety, and, therefore, it is encouraged as a best practice.
To encourage appropriate use of early termination, subsection (b) (Early Termination) restates the court's authority under 18 U.S.C. 3583(e)(1) to terminate the remaining term of supervision any time after one year of supervised release if the court determines, following consultation with the government and the probation officer, that termination is warranted by the conduct of the defendant and in the interest of justice. Application Note 1(B) specifies factors a court might consider in determining whether to terminate the remaining term of supervised release, which are modeled in part after the factors in the
Subsection (c) (Extending a Term of Supervised Release) provides that the court may extend the term of supervised release any time before the expiration of a term if less than the maximum term was imposed and extension is warranted by an individualized assessment of the need for further supervision. Application Note 3 notes that extending a term may be more appropriate than revoking a term of supervised release in some cases.
Application Note 2 encourages the court, in coordination with the government, to ensure that any victim is reasonably, accurately, and timely notified, and provided, to the extent practicable, with an opportunity to be reasonably heard, unless any such victim previously requested not to be notified.
The amendment also makes conforming changes to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)), § 5B1.3 (Conditions of Probation), § 5H1.3 (Mental and Emotional Conditions (Policy Statement)), and § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction (Policy Statement)).
The amendment revises Chapter Seven of the
The amendment revises the Introduction to Chapter Seven to explain the Commission's updated approach that treats violations of probation and supervised release differently. To highlight the primarily rehabilitative purposes of supervised release, the new introductory language encourages courts to consider graduated responses to non-compliant behavior before revoking supervised release. The Commission believes that a graduated approach will better allocate resources, promote public safety, and facilitate the reentry and rehabilitation of defendants on supervised release.
The amendment removes references to supervised release from Chapter Seven, Part B and adds an example to the commentary of § 7B1.4 (criminal history calculation) that mirrors an addition to the commentary of new § 7C1.5. The provisions in Chapter Seven, Part B are otherwise unchanged, reflecting the Commission's determination that violations of probation and supervised release should be treated differently.
The amendment includes Introductory Commentary to new Part C of Chapter Seven, which explains that in responding to a report of non-compliance, addressing a violation found during revocation proceedings, or imposing a sentence upon revocation, the court should conduct the same kind of individualized assessment used when imposing supervised release. The introduction highlights the Commission's view that courts should consider a wide array of options to address violations of supervised release and that any sentence imposed upon revocation should be tailored to address the failure to abide by supervision conditions, as imposition of an appropriate punishment for new criminal conduct is not the primary goal of a revocation sentence.
The amendment duplicates §§ 7B1.1 and 7B1.2 into new §§ 7C1.1 and 7C1.2 and retains the three existing grades of supervised release violations.
New § 7C1.3 identifies actions a court may take in response to a report of non-compliance with supervised release conditions or a finding of a violation. This new policy statement underscores the importance of using a graduated response to non-compliant behavior.
Subsection (a) instructs the court to conduct an individualized assessment to determine what, if any, response is appropriate to a report of non-compliance. New § 7C1.3(a) reflects feedback that supervision is a dynamic process and often benefits from regular
Subsection (b) instructs the court to (1) revoke supervised release upon a finding of a violation for which revocation is required by statute, and (2) upon a finding of any other violation, conduct an individualized assessment, taking into consideration the grade of the violation, to determine whether to revoke supervised release for any other violation. New § 7C1.3(b) further provides that revocation is generally appropriate for a Grade A violation, often appropriate for a Grade B violation, and may be appropriate for a Grade C violation. While revocation previously was required for both Grade A or B violations—and Commission data shows similar rates of prison-only revocations for both grades in recent years,
For both reports of non-compliance and findings of a violation, Application Note 2 references the court's authority to “take any appropriate action provided under 18 U.S.C. 3583” and lists certain informal responses the court also may consider.
New Application Note 3 encourages the court to consider issuing a summons, rather than an arrest warrant, when appropriate, reflecting concerns that an arrest may result in unnecessary collateral consequences.
The amendment adds new § 7C1.4, which, in subsection (a), instructs the court to conduct an individualized assessment to determine the appropriate length of the term of imprisonment upon revocation, given the recommended ranges set forth in § 7C1.5 (Term of Imprisonment—Supervised Release (Policy Statement)).
Subsection (b) directs that any term of imprisonment “generally should” be ordered to be served consecutively to any sentence of imprisonment that the defendant is currently serving. This language replaces the former instruction that terms of imprisonment upon revocation “shall” be ordered to be served consecutively. This new provision continues to underscore the seriousness of violation conduct while reserving flexibility for courts to run sentences concurrently in extraordinary cases where justified.
Subsection (c) retains the instruction from the prior version of § 7B1.3(g)(2) which, consistent with 18 U.S.C. 3583(h), allows a court to reimpose a term of supervised release upon release from a term of imprisonment imposed upon revocation.
New Application Note 3 adopts and modifies § 7B1.3(c)(3) to state that “[i]n the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction
New Application Note 4 adopts and modifies § 7B1.3(d) to instruct that sentencing obligations that remain unpaid or unserved at the time of revocation “should” be ordered to be paid or served in addition to any sentence imposed upon revocation.
The new § 7C1.5 adopts and modifies § 7B1.4 to set forth the Supervised Release Revocation Table and affirms the importance of conducting an individualized assessment to determine the length of a revocation sentence, in addition to consulting the recommended ranges in the Supervised Release Revocation Table.
The amendment adds an example to Application Note 1 to clarify that a defendant's criminal history category for purposes of determining the applicable range of imprisonment is not recalculated to reflect an amendment made retroactive under § 1B1.10 (Reduction of Imprisonment as a Result of Amended Guideline Range (Policy Statement)). It adds the same example to the commentary to § 7B1.4 (Term of Imprisonment—Probation (Policy Statement)).
The amendment adds § 7C1.6, which duplicates § 7B1.5(b) and (c).
5.
Subparts 1 and 2 of this Part provide an introduction to the Guidelines Manual describing the historical development and evolution of the federal sentencing guidelines. Subpart 1 sets forth the original introduction to the Guidelines Manual as it first appeared in 1987, with the inclusion of amendments made occasionally thereto between 1987 and 2000. The original introduction, as so amended, explained a number of policy decisions made by the United States Sentencing Commission (`Commission') when it promulgated the initial set of guidelines and therefore provides a useful reference for contextual and historical purposes. Subpart 2 further describes the evolution of the federal sentencing guidelines after the initial guidelines were promulgated.
Subpart 3 of this Part states the authority of the Commission to promulgate federal sentencing guidelines, policy statements, and commentary.
The following provisions of this Subpart set forth the original introduction to this manual, effective November 1, 1987, and as amended through November 1, 2000:
1.
The United States Sentencing Commission (`Commission') is an independent agency in the judicial branch composed of seven voting and two non-voting,
The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code.
2.
The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of `bank robbery/committed with a gun/$2500 taken.' An offender characteristic category might be `offender with one prior conviction not resulting in imprisonment.' The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by
Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments.
The Commission's initial guidelines were submitted to Congress on April 13, 1987. After the prescribed period of Congressional review, the guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. The Commission has the authority to submit guideline amendments each year to Congress between the beginning of a regular Congressional session and May 1. Such amendments automatically take effect 180 days after submission unless a law is enacted to the contrary. 28 U.S.C. 994(p).
The initial sentencing guidelines and policy statements were developed after extensive hearings, deliberation, and consideration of substantial public comment. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines through submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts.
3.
To understand the guidelines and their underlying rationale, it is important to focus on the three objectives that Congress sought to achieve in enacting the Sentencing Reform Act of 1984. The Act's basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court.
Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.
Honesty is easy to achieve: the abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior. There is a tension, however, between the mandate of uniformity and the mandate of proportionality. Simple uniformity—sentencing every offender to five years—destroys proportionality. Having only a few simple categories of crimes would make the guidelines uniform and easy to administer, but might lump together offenses that are different in important respects. For example, a single category for robbery that included armed and unarmed robberies, robberies with and without injuries, robberies of a few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect. For example: a bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected; and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies depending on how much other harm has occurred. Thus, it would not be proper to assign points for each kind of harm and simply add them up, irrespective of context and total amounts.
The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to the simple, broad category approach and to grant courts the discretion to select the proper point along a broad sentencing range. Granting such broad discretion, however, would have risked correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. Such an approach would have risked a return to the wide disparity that Congress established the Commission to reduce and would have been contrary to the Commission's mandate set forth in the Sentencing Reform Act of 1984.
In the end, there was no completely satisfying solution to this problem. The Commission had to balance the comparative virtues and vices of broad, simple categorization and detailed,
A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of `just deserts.' Under this principle, punishment should be scaled to the offender's culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical `crime control' considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.
Adherents of each of these points of view urged the Commission to choose between them and accord one primacy over the other. As a practical matter, however, this choice was unnecessary because in most sentencing decisions the application of either philosophy will produce the same or similar results.
In its initial set of guidelines, the Commission sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice. It analyzed data drawn from 10,000 presentence investigations, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission's guidelines and statistics, and data from other relevant sources in order to determine which distinctions were important in pre-guidelines practice. After consideration, the Commission accepted, modified, or rationalized these distinctions.
This empirical approach helped the Commission resolve its practical problem by defining a list of relevant distinctions that, although of considerable length, was short enough to create a manageable set of guidelines. Existing categories are relatively broad and omit distinctions that some may believe important, yet they include most of the major distinctions that statutes and data suggest made a significant difference in sentencing decisions. Relevant distinctions not reflected in the guidelines probably will occur rarely and sentencing courts may take such unusual cases into account by departing from the guidelines.
The Commission's empirical approach also helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just deserts or crime control perspective.
The Commission did not simply copy estimates of pre-guidelines practice as revealed by the data, even though establishing offense values on this basis would help eliminate disparity because the data represent averages. Rather, it departed from the data at different points for various important reasons. Congressional statutes, for example, suggested or required departure, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences. In addition, the data revealed inconsistencies in treatment, such as punishing economic crime less severely than other apparently equivalent behavior.
Despite these policy-oriented departures from pre-guidelines practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions. The guidelines may prove acceptable, however, to those who seek more modest, incremental improvements in the status quo, who believe the best is often the enemy of the good, and who recognize that these guidelines are, as the Act contemplates, but the first step in an evolutionary process. After spending considerable time and resources exploring alternative approaches, the Commission developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, proportional, and therefore effective sentencing system.
4.
The guideline-drafting process required the Commission to resolve a host of important policy questions typically involving rather evenly balanced sets of competing considerations. As an aid to understanding the guidelines, this introduction briefly discusses several of those issues; commentary in the guidelines explains others.
(a)
One of the most important questions for the Commission to decide was whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted (`real offense' sentencing), or upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted (`charge offense' sentencing). A bank robber, for example, might have used a gun, frightened bystanders, taken $50,000, injured a teller, refused to stop when ordered, and raced away damaging property during his escape. A pure real offense system would sentence on the basis of all identifiable conduct. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted.
The Commission initially sought to develop a pure real offense system. After all, the pre-guidelines sentencing system was, in a sense, this type of system. The sentencing court and the parole commission took account of the conduct in which the defendant actually engaged, as determined in a presentence report, at the sentencing hearing, or before a parole commission hearing officer. The Commission's initial efforts in this direction, carried out in the spring and early summer of 1986, proved unproductive, mostly for practical reasons. To make such a system work, even to formalize and rationalize the status quo, would have required the Commission to decide precisely which harms to take into account, how to add them up, and what kinds of procedures the courts should use to determine the presence or absence of disputed factual elements. The Commission found no practical way to combine and account for the large number of diverse harms arising in different circumstances; nor did it find a practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process
In its initial set of guidelines submitted to Congress in April 1987, the Commission moved closer to a charge offense system. This system, however, does contain a significant number of real offense elements. For one thing, the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law forced the Commission to write guidelines that are descriptive of generic conduct rather than guidelines that track purely statutory language. For another, the guidelines take account of a number of important, commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken, through alternative base offense levels, specific offense characteristics, cross references, and adjustments.
The Commission recognized that a charge offense system has drawbacks of its own. One of the most important is the potential it affords prosecutors to influence sentences by increasing or decreasing the number of counts in an indictment. Of course, the defendant's actual conduct (that which the prosecutor can prove in court) imposes a natural limit upon the prosecutor's ability to increase a defendant's sentence. Moreover, the Commission has written its rules for the treatment of multicount convictions with an eye toward eliminating unfair treatment that might flow from count manipulation. For example, the guidelines treat a three-count indictment, each count of which charges sale of 100 grams of heroin or theft of $10,000, the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30,000. Furthermore, a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. Finally, the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary.
(b)
The sentencing statute permits a court to depart from a guideline-specified sentence only when it finds `an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' 18 U.S.C. 3553(b). The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), § 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the third sentence of § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse), the last sentence of § 5K2.12 (Coercion and Duress), and § 5K2.19 (Post-Sentencing Rehabilitative Efforts)* list several factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.
Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) was deleted by Amendment 768, effective November 1, 2012. (
The Commission has adopted this departure policy for two reasons. First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.
Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice. Thus, for example, where the presence of physical injury made an important difference in pre-guidelines sentencing practice (as in the case of robbery or assault), the guidelines specifically include this factor to enhance the sentence. Where the guidelines do not specify an augmentation or diminution, this is generally because the sentencing data did not permit the Commission to conclude that the factor was empirically important in relation to the particular offense. Of course, an important factor (
It is important to note that the guidelines refer to two different kinds of departure. The first involves instances in which the guidelines provide specific guidance for departure by analogy or by other numerical or non-numerical suggestions. The Commission intends such suggestions as policy guidance for the courts. The Commission expects that most departures will reflect the suggestions and that the courts of appeals may prove more likely to find departures `unreasonable' where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon grounds referred to in Chapter Five, Part K (Departures) or on grounds not mentioned in the guidelines. While Chapter Five, Part K lists factors that the Commission believes may constitute grounds for departure, the list is not exhaustive. The Commission recognizes that there may be other grounds for departure that are not mentioned; it also believes there may be cases in which a departure outside suggested levels is warranted. In its view, however, such cases will be highly infrequent.
(c)
Nearly ninety percent of all federal criminal cases involve guilty pleas and many of these cases involve some form of plea agreement. Some commentators on early Commission guideline drafts urged the Commission not to attempt any major reforms of the plea agreement process on the grounds that any set of guidelines that threatened to change pre-guidelines practice radically also threatened to make the federal system unmanageable. Others argued that guidelines that failed to control and limit plea agreements would leave untouched a `loophole' large enough to undo the good that sentencing guidelines would bring.
The Commission decided not to make major changes in plea agreement practices in the initial guidelines, but rather to provide guidance by issuing
The Commission expects the guidelines to have a positive, rationalizing impact upon plea agreements for two reasons. First, the guidelines create a clear, definite expectation in respect to the sentence that a court will impose if a trial takes place. In the event a prosecutor and defense attorney explore the possibility of a negotiated plea, they will no longer work in the dark. This fact alone should help to reduce irrationality in respect to actual sentencing outcomes. Second, the guidelines create a norm to which courts will likely refer when they decide whether, under Rule 11(e), to accept or to reject a plea agreement or recommendation.
(d)
The statute provides that the guidelines are to `reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense . . . .' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the Commission's view are `serious.'
The Commission's solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. The Commission concluded that the definite prospect of prison, even though the term may be short, will serve as a significant deterrent, particularly when compared with pre-guidelines practice where probation, not prison, was the norm.
More specifically, the guidelines work as follows in respect to a first offender. For offense levels one through eight, the sentencing court may elect to sentence the offender to probation (with or without confinement conditions) or to a prison term. For offense levels nine and ten, the court may substitute probation for a prison term, but the probation must include confinement conditions (community confinement, intermittent confinement, or home detention). For offense levels eleven and twelve, the court must impose at least one-half the minimum confinement sentence in the form of prison confinement, the remainder to be served on supervised release with a condition of community confinement or home detention.* The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.**
The Commission expanded Zones B and C of the Sentencing Table in 2010 to provide a greater range of sentencing options to courts with respect to certain offenders. (
Although the Commission had not addressed `single acts of aberrant behavior' at the time the Introduction to the Guidelines Manual originally was written, it subsequently addressed the issue in Amendment 603, effective November 1, 2000. (
(e)
The Commission, like several state sentencing commissions, has found it particularly difficult to develop guidelines for sentencing defendants convicted of multiple violations of law, each of which makes up a separate count in an indictment. The difficulty is that when a defendant engages in conduct that causes several harms, each additional harm, even if it increases the extent to which punishment is warranted, does not necessarily warrant a proportionate increase in punishment. A defendant who assaults others during a fight, for example, may warrant more punishment if he injures ten people than if he injures one, but his conduct does not necessarily warrant ten times the punishment. If it did, many of the simplest offenses, for reasons that are often fortuitous, would lead to sentences of life imprisonment—sentences that neither just deserts nor crime control theories of punishment would justify.
Several individual guidelines provide special instructions for increasing punishment when the conduct that is the subject of that count involves multiple occurrences or has caused several harms. The guidelines also provide general rules for aggravating punishment in light of multiple harms charged separately in separate counts. These rules may produce occasional anomalies, but normally they will permit an appropriate degree of aggravation of punishment for multiple offenses that are the subjects of separate counts.
These rules are set out in Chapter Three, Part D (Multiple Counts). They essentially provide: (1) when the conduct involves fungible items (
(f)
Regulatory statutes, though primarily civil in nature, sometimes contain criminal provisions in respect to particularly harmful activity. Such criminal provisions often describe not only substantive offenses, but also more technical, administratively-related offenses such as failure to keep accurate records or to provide requested information. These statutes pose two problems: first, which criminal regulatory provisions should the Commission initially consider, and second, how should it treat technical or administratively-related criminal violations?
In respect to the first problem, the Commission found that it could not comprehensively treat all regulatory
In respect to the second problem, the Commission has developed a system for treating technical recordkeeping and reporting offenses that divides them into four categories. First, in the simplest of cases, the offender may have failed to fill out a form intentionally, but without knowledge or intent that substantive harm would likely follow. He might fail, for example, to keep an accurate record of toxic substance transport, but that failure may not lead, nor be likely to lead, to the release or improper handling of any toxic substance. Second, the same failure may be accompanied by a significant likelihood that substantive harm will occur; it may make a release of a toxic substance more likely. Third, the same failure may have led to substantive harm. Fourth, the failure may represent an effort to conceal a substantive harm that has occurred.
The structure of a typical guideline for a regulatory offense provides a low base offense level (
(g)
In determining the appropriate sentencing ranges for each offense, the Commission estimated the average sentences served within each category under the pre-guidelines sentencing system. It also examined the sentences specified in federal statutes, in the parole guidelines, and in other relevant, analogous sources. The Commission's Supplementary Report on the Initial Sentencing Guidelines (1987) contains a comparison between estimates of pre-guidelines sentencing practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-guidelines sentencing practice, it has not attempted to develop an entirely new system of sentencing on the basis of theory alone. Guideline sentences, in many instances, will approximate average pre-guidelines practice and adherence to the guidelines will help to eliminate wide disparity. For example, where a high percentage of persons received probation under pre-guidelines practice, a guideline may include one or more specific offense characteristics in an effort to distinguish those types of defendants who received probation from those who received more severe sentences. In some instances, short sentences of incarceration for all offenders in a category have been substituted for a pre-guidelines sentencing practice of very wide variability in which some defendants received probation while others received several years in prison for the same offense. Moreover, inasmuch as those who pleaded guilty under pre-guidelines practice often received lesser sentences, the guidelines permit the court to impose lesser sentences on those defendants who accept responsibility for their misconduct. For defendants who provide substantial assistance to the government in the investigation or prosecution of others, a downward departure may be warranted.
The Commission has also examined its sentencing ranges in light of their likely impact upon prison population. Specific legislation, such as the Anti-Drug Abuse Act of 1986 and the career offender provisions of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the Commission to promulgate guidelines that will lead to substantial prison population increases. These increases will occur irrespective of the guidelines. The guidelines themselves, insofar as they reflect policy decisions made by the Commission (rather than legislated mandatory minimum or career offender sentences), are projected to lead to an increase in prison population that computer models, produced by the Commission and the Bureau of Prisons in 1987, estimated at approximately 10 percent over a period of ten years.
(h)
The Commission has established a sentencing table that for technical and practical reasons contains 43 levels. Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels. By overlapping the ranges, the table should discourage unnecessary litigation. Both prosecution and defense will realize that the difference between one level and another will not necessarily make a difference in the sentence that the court imposes. Thus, little purpose will be served in protracted litigation trying to determine, for example, whether $10,000 or $11,000 was obtained as a result of a fraud. At the same time, the levels work to increase a sentence proportionately. A change of six levels roughly doubles the sentence irrespective of the level at which one starts. The guidelines, in keeping with the statutory requirement that the maximum of any range cannot exceed the minimum by more than the greater of 25 percent or six months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest permissible range of sentencing discretion. The table overlaps offense levels meaningfully, works proportionately, and at the same time preserves the maximum degree of allowable discretion for the court within each level.
Similarly, many of the individual guidelines refer to tables that correlate amounts of money with offense levels. These tables often have many rather than a few levels. Again, the reason is to minimize the likelihood of unnecessary litigation. If a money table were to make only a few distinctions, each distinction would become more important and litigation over which category an offender fell within would become more likely. Where a table has many small monetary distinctions, it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance.
5.
The Commission emphasizes that it drafted the initial guidelines with considerable caution. It examined the many hundreds of criminal statutes in the United States Code. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. In doing so, it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40,000 convictions, a sample of 10,000 augmented presentence reports, the parole guidelines, and policy judgments.
The Commission recognizes that some will criticize this approach as overly cautious, as representing too little a departure from pre-guidelines sentencing practice. Yet, it will cure wide disparity. The Commission is a permanent body that can amend the guidelines each year. Although the data available to it, like all data, are
Finally, the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. Because of time constraints and the nonexistence of statistical information, some offenses that occur infrequently are not considered in the guidelines. Their exclusion does not reflect any judgment regarding their seriousness and they will be addressed as the Commission refines the guidelines over time.
The Sentencing Reform Act of 1984 changed the course of federal sentencing. Among other things, the Act created the United States Sentencing Commission as an independent agency in the Judicial Branch, and directed it to develop guidelines and policy statements for sentencing courts to use when sentencing offenders convicted of federal crimes. Moreover, it empowered the Commission with ongoing responsibilities to monitor the guidelines, submit to Congress appropriate modifications of the guidelines and recommended changes in criminal statutes, and establish education and research programs. The mandate rested on congressional awareness that sentencing is a dynamic field that requires continuing review by an expert body to revise sentencing policies, in light of application experience, as new criminal statutes are enacted, and as more is learned about what motivates and controls criminal behavior.
This statement finds resonance in a line of Supreme Court cases that, taken together, echo two themes. The first theme is that the guidelines are the product of a deliberative process that seeks to embody the purposes of sentencing set forth in the Sentencing Reform Act, and as such they continue to play an important role in the sentencing court's determination of an appropriate sentence in a particular case. The Supreme Court alluded to this in
Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models, . . . [w]e have no doubt that in the hands of the Commission `the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose' of the Act.
The continuing importance of the guidelines in federal sentencing was further acknowledged by the Court in
The continuing importance of the guidelines in the sentencing determination is predicated in large part on the Sentencing Reform Act's intent that, in promulgating guidelines, the Commission must take into account the purposes of sentencing as set forth in 18 U.S.C. 3553(a).
[T]he presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the
Consequently, district courts are required to properly calculate and consider the guidelines when sentencing, even in an advisory guideline system.
The second and related theme resonant in this line of Supreme Court cases is that, as contemplated by the Sentencing Reform Act, the guidelines are evolutionary in nature. They are the product of the Commission's fulfillment of its statutory duties to monitor federal sentencing law and practices, to seek public input on the operation of the guidelines, and to revise the guidelines accordingly. As the Court acknowledged in
The Commission's work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual cases may depart (either pursuant to the Guidelines or, since
Provisions of the Sentencing Reform Act promote and facilitate this evolutionary process. For example, pursuant to 28 U.S.C. 994(x), the Commission publishes guideline amendment proposals in the
Congress retains authority to require certain sentencing practices and may exercise its authority through specific directives to the Commission with respect to the guidelines. As the Supreme Court noted in
As envisioned by Congress, implemented by the Commission, and reaffirmed by the Supreme Court, the guidelines are the product of a deliberative and dynamic process that seeks to embody within federal sentencing policy the purposes of sentencing set forth in the Sentencing Reform Act. As such, the guidelines continue to be a key component of federal sentencing and to play an important role in the sentencing court's determination of an appropriate sentence in any particular case.
The guidelines, policy statements, and commentary set forth in this Guidelines Manual, including amendments thereto, are promulgated by the United States Sentencing Commission pursuant to: (1) section 994(a) of title 28, United States Code; and (2) with respect to guidelines, policy statements, and commentary promulgated or amended pursuant to specific congressional directive, pursuant to the authority contained in that directive in addition to the authority under section 994(a) of title 28, United States Code.”;
and inserting the following:
The United States Sentencing Commission (`Commission') is an independent agency in the judicial branch composed of seven voting and two non-voting,
The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code, and are set forth in this Guidelines Manual.
The Guidelines Manual is structured to reflect the advisory sentencing scheme established following the Supreme Court's decision in
Originally, consistent with the pre-
Following
In 2025, the Commission amended the Guidelines Manual to remove departures and policy statements relating to specific personal characteristics. (
The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides that a sentencing court `shall impose a sentence sufficient, but not greater than necessary, to comply with' the purposes of sentencing: (1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) deterrence; (3) protection of the public from further crimes; and (4) rehabilitation.
The guidelines, policy statements, and commentary set forth in this Guidelines Manual, including amendments thereto, are promulgated by the United States Sentencing Commission pursuant to: (1) section 994(a) of title 28, United States Code; and (2) with respect to guidelines, policy statements, and commentary promulgated or amended pursuant to specific congressional directive, pursuant to the authority contained in that directive in addition to the authority under section 994(a) of title 28, United States Code.
The Commission has ensured that the guidelines, policy statements, and commentary used to calculate the guideline range are: (1) neutral as to the race, sex, national origin, creed, and socioeconomic status of the defendant; and (2) generally do not reflect consideration of education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant, in recommending a term of imprisonment or length of imprisonment.
As background, Congress provided specific directives to the Commission when setting a guideline range for `each category of offense involving each category of defendant.' 28 U.S.C. 994(b)(1).
First, the Act directs the Commission to consider, for purposes of establishing categories of offenses, whether the following seven matters, `among others,' have any relevance to the nature, extent, place of service, or other aspects of an appropriate sentence: (1) the grade of the offense; (2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense; (3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of persons, or a breach of public trust; (4) the community view of the gravity of the offense; (5) the public concern generated by the offense; (6) the deterrent effect a particular sentence may have on the commission of the offense by others; and (7) the current incidence of the offense in the community and in the Nation as a whole.
Second, the Act directs the Commission to consider, for purposes of establishing categories of defendants, whether the following eleven matters, `among others,' have any relevance to the nature, extent, place of service, or other aspects of an appropriate sentence, and to take them into account in the guidelines and policy statements only to the extent that they do have relevance: (1) age; (2) education; (3) vocational skills; (4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant; (5) physical condition, including drug dependence; (6) previous employment record; (7) family ties and responsibilities; (8) community ties; (9) role in the offense; (10) criminal history; and (11) degree of dependence upon criminal activity for a livelihood.
Third, the Act directs the Commission to ensure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the `general inappropriateness' of considering five of those characteristics—education; vocational skills; employment record; family ties and responsibilities; and community ties.
In formulating the guidelines used to calculate the guideline range, the Commission remains cognizant of these detailed instructions directing the Commission to consider whether, and to what extent, specific offense-based and offender-based factors are relevant to sentencing.
The requirements and limitations imposed upon the Commission by 28 U.S.C. 994, however, do not apply to the sentencing court. To the contrary, Congress set forth the factors that a
Section 1B1.1(a) is amended—
by inserting at the beginning the following new heading: “
in paragraph 5 by striking “Apply the adjustment as appropriate for the defendant's acceptance of responsibility from Part E of Chapter Three” and inserting “Apply the adjustment for the defendant's acceptance of responsibility and the reduction pursuant to an early disposition program, as appropriate, from Parts E and F of Chapter Three”;
and by inserting at the end the following new paragraph (9):
“(9) Apply, as appropriate, Part K of Chapter Five.”.
Section 1B1.1 is amended by striking subsections (b) and (c) as follows:
“(b) The court shall then consider Parts H and K of Chapter Five, Specific Offender Characteristics and Departures, and any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.
(c) The court shall then consider the applicable factors in 18 U.S.C. 3553(a) taken as a whole.
and inserting the following new subsection (b):
“(b)
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to meet the purposes of sentencing listed in 18 U.S.C. 3553(a)(2);
(3) the kinds of sentences available;
(4) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(5) the need to provide restitution to any victims of the offense.”.
The Commentary to § 1B1.1 captioned “Application Notes” is amended in Note 1—
by striking subparagraph (F) as follows:
“(F) `Departure' means (i) for purposes other than those specified in clause (ii), imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence; and (ii) for purposes of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category), assignment of a criminal history category other than the otherwise applicable criminal history category, in order to effect a sentence outside the applicable guideline range. `Depart' means grant a departure.
`Downward departure' means departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence. `Depart downward' means grant a downward departure.
`Upward departure' means departure that effects a sentence greater than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise greater than the guideline sentence. `Depart upward' means grant an upward departure.”;
and by redesignating subparagraphs (G) through (M) as subparagraphs (F) through (L), respectively.
The Commentary to § 1B1.1 captioned “Background” is amended by striking the following:
“The court must impose a sentence `sufficient, but not greater than necessary,' to comply with the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2).
and inserting the following:
“The court must impose a sentence `sufficient, but not greater than necessary,' to comply with the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2).
Originally, the guidelines were mandatory, with limited exceptions.
District courts are then required to fully and carefully consider the additional factors set forth in 18 U.S.C. 3553(a), which include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to meet the purposes of sentencing listed in 18 U.S.C. 3553(a)(2); (3) the kinds of sentence available; (4) the need to avoid unwarranted sentence disparities among
The Commentary to § 1B1.2 captioned “Application Notes” is amended in Note 1 by striking “the court would be forced to use an artificial guideline and then depart from it” and inserting “the court would be forced to use an artificial guideline and then impose a sentence that is greater than the otherwise applicable guideline range”; and by striking “the probation officer might need to calculate the robbery guideline to assist the court in determining the appropriate degree of departure” and inserting “the probation officer might need to calculate the robbery guideline to assist the court in determining an appropriate sentence”.
Section 1B1.3(b) is amended in the heading by striking “
The Commentary to § 1B1.3 captioned “Application Notes” is amended—
in Note 3(B) by striking “The Commission does not foreclose the possibility that there may be some unusual set of circumstances in which the exclusion of such conduct may not adequately reflect the defendant's culpability; in such a case, an upward departure may be warranted.”;
and in Note 6(B) by striking “In a case in which creation of risk is not adequately taken into account by the applicable offense guideline, an upward departure may be warranted.
Section 1B1.4 is amended—
in the heading by striking “
and by striking “In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted” and inserting “In determining the sentence to impose”.
The Commentary to 1B1.4 captioned “Background” is amended by striking the following:
“This section distinguishes between factors that determine the applicable guideline sentencing range (§ 1B1.3) and information that a court may consider in imposing a sentence within that range. The section is based on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 1728), makes it clear that Congress intended that no limitation would be placed on the information that a court may consider in imposing an appropriate sentence under the future guideline sentencing system. A court is not precluded from considering information that the guidelines do not take into account in determining a sentence within the guideline range or from considering that information in determining whether and to what extent to depart from the guidelines. For example, if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for an upward departure. Some policy statements do, however, express a Commission policy that certain factors should not be considered for any purpose, or should be considered only for limited purposes.
and inserting the following:
“This section distinguishes between factors that determine the applicable guideline sentencing range (§ 1B1.3) and information that a court may consider in imposing a sentence. The section is based on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 1728), makes it clear that Congress intended that no limitation would be placed on the information that a court may consider in imposing an appropriate sentence under the future guideline sentencing system. A court is not precluded from considering information that the guidelines do not take into account. For example, if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines may provide a reason for sentencing at the top of, or above, the guideline range.”.
Section 1B1.7 is amended by striking the following:
“The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.
and inserting the following:
“The Commentary that accompanies the guideline sections may serve a number of purposes. It may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.
Section 1B1.8(b)(5) is amended by striking “in determining whether, or to what extent, a downward departure from the guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities)” and inserting “in determining whether, or to what extent, to impose a sentence that is below the otherwise applicable guideline range pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities)”.
The Commentary to § 1B1.8 captioned “Application Notes” is amended in Note 1 by striking “Although the guideline itself affects only the determination of the guideline range, the policy of the Commission, as a corollary, is that information prohibited from being used to determine the applicable guideline range shall not be used to depart upward. In contrast, subsection (b)(5) provides that consideration of such information is appropriate in determining whether, and to what extent, a downward departure is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities);
The Commentary to § 1B1.9 captioned “Application Notes” is amended in Note 2 by adding at the end of the paragraph the following: “For example, in a case where the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716 while committing an offense covered by the guidelines, it would be appropriate for the court to consider this fact as an aggravating factor in determining the appropriate sentence even though section 716 is a Class B misdemeanor not covered by the guidelines.
The Commentary to § 1B1.10 captioned “Application Notes,” as amended by Amendment 4 of this document, is further amended—
in Note 1(A) by striking “(
and in Note 3 by striking “(constituting a downward departure or variance)” and inserting “(constituting a sentence that is below the otherwise applicable guideline range)”; by striking “(representing a downward departure of 20 percent” and inserting “(representing a reduction of 20 percent”; and by striking “(authorizing, upon government motion, a downward departure based on the defendant's substantial assistance)” and inserting “(authorizing the court, upon government motion, to impose a sentence that is below the otherwise applicable guideline range based on the defendant's substantial assistance)”.
Section 1B1.12 is amended by striking “sufficient to warrant an upward departure from that guideline range.
Chapter Two is amended in the Introductory Commentary by striking “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders); and Chapter Five, Part K (Departures)” and inserting: “and Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders)”.
The Commentary to § 2A1.1 captioned “Application Notes” is amended in Note 2 by striking the following:
“
(A)
(B)
and inserting the following:
“
The Commentary to § 2A1.2 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1.
The Commentary to § 2A2.1 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2.
The Commentary to § 2A2.4 captioned “Application Notes” is amended by striking Note 3 as follows:
“3.
The Commentary to § 2A3.1 captioned “Application Notes” is amended by striking Note 6 as follows:
“6.
The Commentary to § 2A3.2 captioned “Application Notes” is amended by striking Note 6 as follows:
“6.
The Commentary to § 2A3.6 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
The Commentary to § 2A5.3 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers, an upward departure may be warranted.”.
The Commentary to § 2A6.1 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
(A)
(B)
The Commentary to § 2A6.2 captioned “Application Notes” is amended by striking Note 5 as follows:
“5. If the defendant received an enhancement under subsection (b)(1) but that enhancement does not adequately reflect the extent or seriousness of the conduct involved, an upward departure may be warranted. For example, an upward departure may be warranted if the defendant stalked the victim on many occasions over a prolonged period of time.”.
The Commentary to § 2B1.1 captioned “Application Notes” is amended—
in Note 8(A) by striking “If, in a particular case, however, more than one of the enumerated factors applied, an upward departure may be warranted.”;
and by striking Note 21 as follows:
“21.
(A)
(i) A primary objective of the offense was an aggravating, non-monetary objective. For example, a primary objective of the offense was to inflict emotional harm.
(ii) The offense caused or risked substantial non-monetary harm. For example, the offense caused physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of a privacy interest (through, for example, the theft of personal information such as medical, educational, or financial records). An upward departure would be warranted, for example, in an 18 U.S.C. 1030 offense involving damage to a protected computer, if, as a result of that offense, death resulted. An upward departure also would be warranted, for example, in a case involving animal enterprise terrorism under 18 U.S.C. 43, if, in the course of the offense, serious bodily injury or death resulted, or substantial scientific research or information were destroyed. Similarly, an upward departure would be warranted in a case involving conduct described in 18 U.S.C. 670 if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product.
(iii) The offense involved a substantial amount of interest of any kind, finance charges, late fees, penalties, amounts based on an agreed-upon return or rate of return, or other similar costs, not included in the determination of loss for purposes of subsection (b)(1).
(iv) The offense created a risk of substantial loss beyond the loss determined for purposes of subsection (b)(1), such as a risk of a significant disruption of a national financial market.
(v) In a case involving stolen information from a `protected computer', as defined in 18 U.S.C. 1030(e)(2), the defendant sought the stolen information to further a broader criminal purpose.
(vi) In a case involving access devices or unlawfully produced or unlawfully obtained means of identification:
(I) The offense caused substantial harm to the victim's reputation, or the victim suffered a substantial inconvenience related to repairing the victim's reputation.
(II) An individual whose means of identification the defendant used to obtain unlawful means of identification is erroneously arrested or denied a job because an arrest record has been made in that individual's name.
(III) The defendant produced or obtained numerous means of identification with respect to one individual and essentially assumed that individual's identity.
(B)
(C)
For example, a securities fraud involving a fraudulent statement made publicly to the market may produce an aggregate loss amount that is substantial but diffuse, with relatively small loss amounts suffered by a relatively large number of victims. In such a case, the loss table in subsection (b)(1) and the victims table in subsection (b)(2) may combine to produce an offense level that substantially overstates the seriousness of the offense. If so, a downward departure may be warranted.
(D)
The Commentary to § 2B1.5 captioned “Application Notes” is amended by striking Note 9 as follows:
“9.
The Commentary to § 2B2.1 captioned “Background” is amended by striking “Weapon use would be a ground for upward departure.”.
The Commentary to § 2B3.1 captioned “Application Notes,” as amended by Amendment 1 of this document, is further amended—
by striking Note 5 as follows:
“5.
and by redesignating Note 6 as Note 5.
The Commentary to § 2B3.2 captioned “Application Notes,” as amended by Amendment 1 of this document, is further amended by striking Notes 7 and 8 as follows:
“7.
8.
The Commentary to § 2B5.3 captioned “Application Notes” is amended by striking Note 5 as follows:
“5.
(A) The offense involved substantial harm to the reputation of the copyright or trademark owner.
(B) The offense was committed in connection with, or in furtherance of, the criminal activities of a national, or international, organized criminal enterprise.
(C) The method used to calculate the infringement amount is based upon a formula or extrapolation that results in an estimated amount that may substantially exceed the actual pecuniary harm to the copyright or trademark owner.
(D) The offense resulted in death or serious bodily injury.”.
The Commentary to § 2C1.1 captioned “Application Notes” is amended—
in Note 5 by striking “Chapter Three, Parts A-D” and inserting “Chapter Three, Parts A-E”;
and by striking Note 7 as follows:
“7.
In a case in which the court finds that the defendant's conduct was part of a systematic or pervasive corruption of a governmental function, process, or office that may cause loss of public confidence in government, an upward departure may be warranted.
The Commentary to § 2C1.8 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
The Commentary to § 2D1.1 captioned “Application Notes” is amended—
in Note 3 by striking the following paragraph:
“An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection.”;
in Note 10 by striking the following paragraph:
“In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. In such a case, an upward departure may be warranted.”;
in Note 18(A) by striking “In some cases, the enhancement under subsection (b)(14)(A) may not account adequately for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, in determining” and inserting “In determining”;
in Note 22 by striking the following:
“
(A)
(B)
and inserting the following:
“
in Note 24 by striking “a lower sentence imposed (including a downward departure)” and inserting “a lower sentence imposed”;
and by striking Note 27 as follows:
“27.
(A)
(B)
(C)
(D)
(E)
(i)
There also may be cases in which the substance involved in the offense is a mixture containing a synthetic cannabinoid diluted with an unusually high quantity of base material. In such a case, a downward departure may be warranted.
(ii)
The Commentary to § 2D1.5 captioned “Application Notes” is amended—
by striking Note 2 as follows:
“2.
and by redesignating Notes 3 and 4 as Notes 2 and 3, respectively.
The Commentary to § 2D1.7 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. The typical case addressed by this guideline involves small-scale trafficking in drug paraphernalia (generally from a retail establishment that also sells items that are not unlawful). In a case involving a large-scale dealer, distributor, or manufacturer, an upward departure may be warranted. Conversely, where the offense was not committed for pecuniary gain (
The Commentary to § 2D1.11 captioned “Application Notes” is amended—
in Note 1 by striking subparagraph (C) as follows:
“(C)
and in Note 4 by striking “In some cases, the enhancement under subsection (b)(3) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, any costs” and inserting “Any costs”.
The Commentary to § 2D1.12 captioned “Application Notes” is amended—
by striking Note 1 as follows:
“1. If the offense involved the large-scale manufacture, distribution, transportation, exportation, or importation of prohibited flasks, equipment, chemicals, products, or material, an upward departure may be warranted.”;
by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3, respectively;
and in Note 2 (as so redesignated) by striking “In some cases, the enhancement under subsection (b)(2) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, any costs” and inserting “Any costs”.
The Commentary to § 2D2.1 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant's own consumption. Where the circumstances establish intended consumption by a person other than the defendant, an upward departure may be warranted.”.
The Commentary to § 2D2.3 captioned “Background” is amended by striking “If no or only a few passengers were placed at risk, a downward departure may be warranted. If the offense resulted in the death or serious bodily injury of a large number of persons, such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense, an upward departure may be warranted.”.
The Commentary to § 2E1.1 captioned “Application Notes” is amended in Note 4 by striking “If this treatment produces an anomalous result in a particular case, a guideline departure may be warranted.”.
The Commentary to § 2E3.1 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2.
The Commentary to § 2G1.1 captioned “Application Notes” is amended—
in Note 2 by striking “If bodily injury results, an upward departure may be warranted.
and by striking Note 6 as follows:
“6.
The Commentary to § 2G1.3 captioned “Application Notes” is amended by striking Note 7 as follows:
“7.
The Commentary to § 2G2.1 captioned “Application Notes” is amended by striking Note 8 as follows:
“8.
The Commentary to § 2G2.2 captioned “Application Notes” is amended—
in Note 6(B)(i) by striking “If the number of images substantially underrepresents the number of minors depicted, an upward departure may be warranted.”;
in Note 6(B)(ii) by striking “If the length of the visual depiction is substantially more than 5 minutes, an upward departure may be warranted.”;
and by striking Note 9 as follows:
“9.
The Commentary to § 2H2.1 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1.
The Commentary to § 2H3.1 captioned “Application Notes” is amended by striking Note 5 as follows:
“5.
(A) The offense involved personal information, means of identification, confidential phone records information, or tax return information of a substantial number of individuals.
(B) The offense caused or risked substantial non-monetary harm (
The Commentary to § 2H4.1 captioned “Application Notes” is amended by striking Notes 3 and 4 as follows:
“3. If the offense involved the holding of more than ten victims in a condition of peonage or involuntary servitude, an upward departure may be warranted.
4. In a case in which the defendant was convicted under 18 U.S.C. 1589(b) or 1593A, a downward departure may be warranted if the defendant benefitted from participating in a venture described in those sections without knowing that (
The Commentary to § 2J1.2 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4.
and by redesignating Note 5 as Note 4.
The Commentary to § 2J1.3 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4. If a weapon was used, or bodily injury or significant property damage resulted, an upward departure may be warranted.
and by redesignating Note 5 as Note 4.
The Commentary to § 2J1.6 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4. If a defendant is convicted of both the underlying offense and the failure to appear count, and the defendant committed additional acts of obstructive behavior (
and by redesignating Note 5 as Note 4.
The Commentary to § 2K1.3 captioned “Application Notes” is amended—
by striking Note 10 as follows:
“10. An upward departure may be warranted in any of the following circumstances: (A) the quantity of explosive materials significantly exceeded 1000 pounds; (B) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (
by redesignating Note 11 as Note 10;
and in Note 10 (as so redesignated) by striking “However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (
The Commentary to § 2K1.4 captioned “Application Notes” is amended by striking Note 3 as follows:
“3.
Section 2K2.1(b)(10)(B), as redesignated by Amendment 3 of this document, is amended by striking “, before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category)”.
The Commentary to § 2K2.1 captioned “Application Notes,” as amended by Amendment 3 of this document, is further amended—
in Note 7 by striking the following:
“Offenses involving such devices cover a wide range of offense conduct and involve different degrees of risk to the public welfare depending on the type of destructive device involved and the location or manner in which that destructive device was possessed or transported. For example, a pipe bomb in a populated train station creates a substantially greater risk to the public welfare, and a substantially greater risk of death or serious bodily injury, than an incendiary device in an isolated area. In a case in which the cumulative result of the increased base offense level and the enhancement under subsection (b)(3) does not adequately capture the seriousness of the offense because of the type of destructive device involved, the risk to the public welfare, or the risk of death or serious bodily injury that the destructive device created, an upward departure may be warranted.
by striking Note 11 as follows:
“11.
by redesignating Notes 12, 13, and 14 as Notes 11, 12, and 13, respectively;
in Note 12 (as so redesignated)—
by striking subparagraph (B) as follows:
“(B)
and by redesignating subparagraph (C) as subparagraph (B);
and in Note 13 (as so redesignated)—
by striking subparagraph (D) as follows:
“(D)
and by redesignating subparagraph (E) as subparagraph (D).
Section 2K2.4(a) is amended by striking “Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood)” and inserting “Chapters Three (Adjustments), Parts A through E, and Four (Criminal History and Criminal Livelihood)”.
Section 2K2.4(b) is amended by striking “Chapters Three and Four” and inserting “Chapters Three, Parts A through E, and Four”.
Section 2K2.4(c) is amended by striking “Chapters Three and Four” and inserting “Chapters Three, Parts A through E, and Four”.
The Commentary to § 2K2.4 captioned “Application Notes,” as amended by Amendment 3 of this document, is further amended—
in Note 2 by striking the following:
“
(A)
(B)
and inserting the following:
“
in Note 4 by striking the subparagraph (C) as follows:
“(C)
and in Note 5 by striking “Chapter Three (Adjustment) and Chapter Four (Criminal History and Criminal Livelihood)” and inserting “Chapter Three (Adjustment), Parts A through E, and Chapter Four (Criminal History and Criminal Livelihood)”; and by striking “no other adjustments in Chapter Three” and inserting “no other adjustments in Chapter Three, Parts A through D,”.
The Commentary to § 2K2.5 captioned “Application Notes” is amended by striking Note 4 as follows:
“4. Where the firearm was brandished, discharged, or otherwise used, in a federal facility, federal court facility, or school zone, and the cross reference from subsection (c)(1) does not
The Commentary to § 2L1.1 captioned “Application Notes” is amended—
in Note 4 by striking “Application Note 1(M) of § 1B1.1” and inserting “Application Note 1(L) of § 1B1.1”;
and by striking Note 7 as follows:
“7.
(A) The defendant smuggled, transported, or harbored an alien knowing that the alien intended to enter the United States to engage in subversive activity, drug trafficking, or other serious criminal behavior.
(B) The defendant smuggled, transported, or harbored an alien the defendant knew was inadmissible for reasons of security and related grounds, as set forth under 8 U.S.C. 1182(a)(3).
(C) The offense involved substantially more than 100 aliens.”.
The Commentary to § 2L1.2 captioned “Application Notes” is amended by striking Notes 6, 7, and 8 as follows:
“6.
7.
Such a departure should be considered only in cases where the departure is not likely to increase the risk to the public from further crimes of the defendant. In determining whether such a departure is appropriate, the court should consider, among other things, (A) whether the defendant engaged in additional criminal activity after illegally reentering the United States; (B) the seriousness of any such additional criminal activity, including (1) whether the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon (or induced another person to do so) in connection with the criminal activity, (2) whether the criminal activity resulted in death or serious bodily injury to any person, and (3) whether the defendant was an organizer, leader, manager, or supervisor of others in the criminal activity; and (C) the seriousness of the defendant's other criminal history.
8.
In determining whether such a departure is appropriate, the court should consider, among other things, (1) the age in childhood at which the defendant began residing continuously in the United States, (2) whether and for how long the defendant attended school in the United States, (3) the duration of the defendant's continued residence in the United States, (4) the duration of the defendant's presence outside the United States, (5) the nature and extent of the defendant's familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States, (6) the seriousness of the defendant's criminal history, and (7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”.
The Commentary to § 2L2.1 captioned “Application Notes” is amended—
by striking Note 3 as follows:
“3. Subsection (b)(3) provides an enhancement if the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws. If the defendant knew, believed, or had reason to believe that the felony offense to be committed was of an especially serious type, an upward departure may be warranted.”;
by redesignating Note 4 as Note 3;
and by striking Note 5 as follows:
“5. If the offense involved substantially more than 100 documents, an upward departure may be warranted.”.
The Commentary to § 2L2.2 captioned “Application Notes” is amended by striking Note 6 as follows:
“6.
The Commentary to § 2M3.1 captioned “Application Notes” is amended—
in Note 2 by striking “When revelation is likely to cause little or no harm, a downward departure may be warranted.
and by striking Note 3 as follows:
“3. The court may depart from the guidelines upon representation by the President or his duly authorized designee that the imposition of a sanction other than authorized by the guideline is necessary to protect national security or further the objectives of the nation's foreign policy.”.
The Commentary to § 2M4.1 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict, an upward departure may be warranted.”.
The Commentary to § 2M5.1 captioned “Application Notes” is amended by striking Note 3 as follows:
“3.
(A)
(B)
The Commentary to § 2M5.2 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
in Note 1 by striking the following:
“The base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted. In the case of a violation during time of war or armed conflict, an upward departure may be warranted.
and by striking Note 2 as follows:
“2. In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted.”.
The Commentary to § 2M5.3 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2.
(A)
(B)
The Commentary to § 2N1.1 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
by striking Note 1 as follows:
“1. The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims; or causes, or is intended to cause, bodily injury. Where the offense posed a substantial risk of death or serious bodily injury to numerous victims, or caused extreme psychological injury or substantial property damage or monetary loss, an upward departure may be warranted. In the unusual case in which the offense did not cause a risk of death or serious bodily injury, and neither caused nor was intended to cause bodily injury, a downward departure may be warranted.”;
and by redesignating Note 2 as Note 1.
The Commentary to § 2N1.2 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted.
The Commentary to § 2N1.3 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted.
The Commentary to § 2N2.1 captioned “Application Notes” is amended—
by striking Note 1 as follows:
“1. This guideline assumes a regulatory offense that involved knowing or reckless conduct. Where only negligence was involved, a downward departure may be warranted.
by redesignating Note 2 as Note 1;
by striking Note 3 as follows:
“3.
(A) The offense created a substantial risk of bodily injury or death; or bodily injury, death, extreme psychological injury, property damage, or monetary loss resulted from the offense.
(B) The defendant was convicted under 7 U.S.C. 7734.”;
and by redesignating Note 4 as Note 2.
The Commentary to § 2P1.1 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4. If death or bodily injury resulted, an upward departure may be warranted.
and by redesignating Notes 5 and 6 as Notes 4 and 5, respectively.
The Commentary to § 2P1.3 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. If death or bodily injury resulted, an upward departure may be warranted.
The Commentary to § 2Q1.1 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. If death or serious bodily injury resulted, an upward departure may be warranted.
The Commentary to § 2Q1.2 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4. Except when the adjustment in subsection (b)(6) for simple recordkeeping offenses applies, this section assumes knowing conduct. In cases involving negligent conduct, a downward departure may be warranted.”;
by redesignating Notes 5 through 8 as Notes 4 through 7, respectively;
in Note 4 (as so redesignated) by striking “Depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate.”;
in Note 5 (as so redesignated) by striking “Depending upon the nature of the risk created and the number of people placed at risk, a departure of up to three levels upward or downward may be warranted. If death or serious bodily injury results, a departure would be called for.
in Note 6 (as so redesignated) by striking “Depending upon the nature of the contamination involved, a departure of up to two levels either upward or downward could be warranted.”;
in Note 7 (as so redesignated) by striking “Depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels either upward or downward may be warranted.”;
and by striking Note 9 as follows:
“9.
(A)
(B)
(C)
The Commentary to § 2Q1.3 captioned “Application Notes” is amended—
by striking Note 3 as follows:
“3. The specific offense characteristics in this section assume knowing conduct. In cases involving negligent conduct, a downward departure may be warranted.”;
by redesignating Notes 4 through 7 as Notes 3 through 6, respectively;
in Note 3 (as so redesignated) by striking “Depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate.”;
in Note 4 (as so redesignated) by striking “Depending upon the nature of the risk created and the number of people placed at risk, a departure of up to three levels upward or downward may be warranted. If death or serious bodily injury results, a departure would be called for.
in Note 5 (as so redesignated) by striking “Depending upon the nature of the contamination involved, a departure of up to two levels in either direction could be warranted.”;
in Note 6 (as so redesignated) by striking “Depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels in either direction may be warranted.”;
and by striking Note 8 as follows:
“8. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order, an upward departure may be warranted.
The Commentary to § 2Q1.4 captioned “Application Notes” is amended by striking Note 3 as follows:
“3.
(A)
(B)
If the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, an upward departure would be warranted.
The Commentary to § 2Q2.1 captioned “Application Notes” is amended—
by striking Note 5 as follows:
“5. If the offense involved the destruction of a substantial quantity of fish, wildlife, or plants, and the seriousness of the offense is not adequately measured by the market value, an upward departure may be warranted.”;
and by redesignating Note 6 as Note 5.
The Commentary to § 2R1.1 captioned “Application Notes” is amended in Note 7 by striking “a sentence at the maximum of the applicable guideline range, or an upward departure, may be warranted.
The Commentary to § 2T1.8 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:
“
1. If the defendant was attempting to evade, rather than merely delay, payment of taxes, an upward departure may be warranted.”.
The Commentary to § 2T2.1 captioned “Application Notes” is amended—
in the caption by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2. Offense conduct directed at more than tax evasion (
Chapter Two, Part T, Subpart 3 is amended in the Introductory Commentary by striking “, or for departing upward if there is not another more specific applicable guideline”.
The Commentary to § 2T3.1 captioned “Application Notes” is amended—
by striking Note 2 as follows:
“2. Particular attention should be given to those items for which entry is prohibited, limited, or restricted. Especially when such items are harmful or protective quotas are in effect, the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. In such instances, an upward departure may be warranted. A sentence based upon an alternative measure of the ‘duty’ evaded, such as the increase in market value due to importation, or 25 percent of the items' fair market value in the United States if the increase in market value due to importation is not readily ascertainable, might be considered.”;
and by redesignating Note 3 as Note 2.
The Commentary to § 2X5.1 captioned “Application Notes” is amended—
in Note 1 by inserting after “include:” the following: “§ 3F1.1 (Early Disposition Programs (Policy Statement));”; by striking “Chapter Five, Part H (Specific Offender Characteristics); Chapter Five, Part J (Relief from Disability); Chapter Five, Part K (Departures); Chapter Six, Part A (Sentencing Procedures); Chapter Six, Part B (Plea Agreements)” and inserting “Chapter Five, Part J (Relief from Disability); Chapter Five, Part K (Assistance to Authorities); Chapter Six, Part A (Sentencing Procedures); and Chapter Six, Part B (Plea Agreements)”;
and in Note 2 by striking the following:
“
(A)
(B)
and inserting the following:
“
The Commentary to § 2X7.2 captioned “Application Note” is amended in Note 1 by striking the following:
“
(A) The defendant engaged in a pattern of activity involving use of a submersible vessel or semi-submersible vessel described in 18 U.S.C. 2285 to facilitate other felonies.
(B) The offense involved use of the vessel as part of an ongoing criminal organization or enterprise.”;
and inserting the following:
“As identified by Congress in section 103 of Public Law 110-407, the following factors may also warrant consideration in imposing a sentence under this guideline:
(A) The defendant engaged in a pattern of activity involving use of a submersible vessel or semi-submersible vessel described in 18 U.S.C. 2285 to facilitate other felonies.
(B) The offense involved use of the vessel as part of an ongoing criminal organization or enterprise.”.
The Commentary to § 3A1.1 captioned “Application Notes” is amended—
by striking Note 4 as follows:
“4. If an enhancement from subsection (b) applies and the defendant's criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted.”;
and by redesignating Note 5 as Note 4.
The Commentary to § 3A1.2 captioned “Application Notes” is amended by striking Note 5 as follows:
“5.
The Commentary to § 3A1.3 captioned “Application Notes” is amended by striking Note 3 as follows:
“3. If the restraint was sufficiently egregious, an upward departure may be warranted.
The Commentary to § 3A1.4 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
The Commentary to § 3B1.1 captioned “Application Notes” is amended in Note 2 by striking “An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.”.
The Commentary to § 3B1.4 captioned “Application Notes” is amended by striking Note 3 as follows:
“3. If the defendant used or attempted to use more than one person less than eighteen years of age, an upward departure may be warranted.”.
The Commentary to § 3C1.2 captioned “Application Notes” is amended—
in Note 2 by striking “However, where a higher degree of culpability was involved, an upward departure above the 2-level increase provided in this section may be warranted.”;
and by striking Note 6 as follows:
“6. If death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person, an upward departure may be warranted.
The Commentary to § 3D1.1 captioned “Background” is amended by striking “Chapter Three, Part E (Acceptance of Responsibility)” and inserting “Chapter Three, Parts E (Acceptance of Responsibility) and F (Early Disposition Programs),”; and by striking “Chapter Five (Determining the Sentence)” both places such phrase appears and inserting “Chapter Five (Determining the Sentencing Range and Options Under the Guidelines)”.
The Commentary to § 3D1.2 captioned “Background” is amended by striking “it was rejected because it probably would require departure in many cases in order to capture adequately the criminal behavior” and inserting “it was rejected because, in many cases, it would not adequately capture the scope and impact of the criminal behavior”.
The Commentary to § 3D1.3 captioned “Application Notes” is amended by striking Note 4 as follows:
“4. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules. For example, if the defendant commits forcible criminal sexual abuse (rape), aggravated assault, and robbery, all against the same victim on a single occasion, all of the counts are grouped together under § 3D1.2. The aggravated assault will increase the guideline range for the rape. The robbery, however, will not. This is because the offense guideline for rape (§ 2A3.1) includes the most common aggravating factors, including injury, that data showed to be significant in actual practice. The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape, which is fairly wide. However, an exceptionally large property loss in the course of the rape would provide grounds for an upward departure.
The Commentary to § 3D1.4 captioned “Background” is amended by striking the following:
“When Groups are of roughly comparable seriousness, each Group will represent one Unit. When the most serious Group carries an offense level substantially higher than that applicable to the other Groups, however, counting the lesser Groups fully for purposes of the table could add excessive punishment, possibly even more than those offenses would carry if prosecuted separately. To avoid this anomalous result and produce declining marginal punishment, Groups 9 or more levels less serious than the most serious Group should not be counted for purposes of the table, and that Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group. Thus, if the most serious Group is at offense level 15 and if two other Groups are at level 10, there would be a total of two Units for purposes of the table (one plus one-half plus one-half) and the combined offense level would be 17. Inasmuch as the maximum increase provided in the guideline is 5 levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.
In unusual circumstances, the approach adopted in this section could produce adjustments for the additional counts that are inadequate or excessive. If there are several groups and the most serious offense is considerably more serious than all of the others, there will be no increase in the offense level resulting from the additional counts. Ordinarily, the court will have latitude to impose added punishment by sentencing toward the upper end of the range authorized for the most serious offense. Situations in which there will be inadequate scope for ensuring appropriate additional punishment for the additional crimes are likely to be unusual and can be handled by departure from the guidelines. Conversely, it is possible that if there are several minor offenses that are not grouped together, application of the rules in this part could result in an excessive increase in the sentence range. Again, such situations should be infrequent and can be handled through departure. An alternative method for ensuring more precise adjustments would have been to determine the appropriate offense level adjustment through a more complicated mathematical formula; that approach was not adopted because of its complexity.”;
and inserting the following:
“When Groups are of roughly comparable seriousness, each Group will represent one Unit. When the most serious Group carries an offense level substantially higher than that applicable to the other Groups, however, counting the lesser Groups fully for purposes of the table could add excessive punishment, possibly even more than those offenses would carry if prosecuted separately. To avoid this anomalous result and produce declining marginal punishment, Groups 9 or more levels less serious than the most serious Group should not be counted for purposes of the table, and that Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group. Thus, if the most serious Group is at offense level 15 and if two other Groups are at level 10, there would be a total of two Units for purposes of the table (one plus one-half plus one-half) and the combined offense level would be 17.”.
The Commentary to § 3D1.5 is amended by striking “Chapter Five (Determining the Sentence)” and inserting “Chapter Five (Determining the Sentencing Range and Options Under the Guidelines)”; and by striking “Chapter Three, Part E (Acceptance of Responsibility)” and inserting “Chapter Three, Parts E (Acceptance of Responsibility) and F (Early Disposition Programs),”.
Chapter Three is amended by inserting at the end the following new Part F:
Upon motion of the Government, the court may decrease the defendant's offense level pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. The level of the decrease shall be consistent with the authorized program within the filing district and the government motion filed, but shall be not more than 4 levels.
Chapter Four, Part A is amended in the Introductory Commentary by striking “and § 4A1.3”.
The Commentary to § 4A1.1 captioned “Background” is amended by striking “In recognition of the imperfection of this measure however, § 4A1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances.”.
Section 4A1.2(h) is amended by striking “, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))”.
Section 4A1.2(i) is amended by striking “, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))”.
Section 4A1.2(j) is amended by striking “, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))”.
The Commentary to § 4A1.2 captioned “Applications Notes” is amended—
in Note 3 by striking the following:
“
(A)
For example, a defendant's criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are treated as a single sentence under § 4A1.2(a)(2). If the defendant received a one-year sentence of imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served concurrently, a total of 3 points is added under § 4A1.1(a). Because this particular robbery met the definition of a felony crime of violence and independently would have received 2 criminal history points under § 4A1.1(b), it may serve as a predicate under the career offender guideline.
Note, however, that if the sentences in the example above were imposed thirteen years ago, the robbery independently would have received no criminal history points under § 4A1.1(b), because it was not imposed
(B)
and inserting the following:
“
For example, a defendant's criminal history includes one robbery conviction and one theft conviction. The sentences for these offenses were imposed on the same day, eight years ago, and are treated as a single sentence under § 4A1.2(a)(2). If the defendant received a one-year sentence of imprisonment for the robbery and a two-year sentence of imprisonment for the theft, to be served concurrently, a total of 3 points is added under § 4A1.1(a). Because this particular robbery met the definition of a felony crime of violence and independently would have received 2 criminal history points under § 4A1.1(b), it may serve as a predicate under the career offender guideline.
Note, however, that if the sentences in the example above were imposed thirteen years ago, the robbery independently would have received no criminal history points under § 4A1.1(b), because it was not imposed within ten years of the defendant's commencement of the instant offense.
in Note 6 by striking the following paragraph:
“Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)).”;
and in Note 8 by striking “If the court finds that a sentence imposed outside this time period is evidence of similar, or serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)).”.
Chapter Four, Part A is amended by striking § 4A1.3 and its accompanying commentary in its entirety as follows:
(a)
(1)
(2)
(A) Prior sentence(s) not used in computing the criminal history category (
(B) Prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions.
(C) Prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order.
(D) Whether the defendant was pending trial or sentencing on another charge at the time of the instant offense.
(E) Prior similar adult criminal conduct not resulting in a criminal conviction.
(3)
(4)
(A)
(B)
(b)
(1)
(2)
(A)
(B)
(3)
(A)
(B)
(c)
(1) In the case of an upward departure, the specific reasons why the applicable criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
(2) In the case of a downward departure, the specific reasons why the applicable criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
1.
2.
(A)
(i) A previous foreign sentence for a serious offense.
(ii) Receipt of a prior consolidated sentence of ten years for a series of serious assaults.
(iii) A similar instance of large scale fraudulent misconduct established by an adjudication in a Securities and Exchange Commission enforcement proceeding.
(iv) Commission of the instant offense while on bail or pretrial release for another serious offense.
(B)
(C)
(i) The defendant was represented by a lawyer, had the right to a trial by jury, and received other due process protections consistent with those provided to criminal defendants under the United States Constitution.
(ii) The defendant received the due process protections required for criminal defendants under the Indian Civil Rights Act of 1968, Public Law 90-284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the Tribal Law and Order Act of 2010, Public Law 111-211.
(iv) The tribe was exercising expanded jurisdiction under the Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
(v) The tribal court conviction is not based on the same conduct that formed the basis for a conviction from another jurisdiction that receives criminal history points pursuant to this chapter.
(vi) The tribal court conviction is for an offense that otherwise would be counted under § 4A1.2 (Definitions and Instructions for Computing Criminal History).
3.
(A)
(i) The defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period.
(ii) The defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person.
(B)
The Commentary to § 4B1.1 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
The Commentary to § 4B1.2 captioned “Application Notes” is amended by striking Note 4 as follows:
“4.
The Commentary to § 4B1.4 captioned “Application Notes” is amended in Note 2 by striking the following paragraph:
“In a few cases, the rule provided in the preceding paragraph may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. 844(h), § 924(c), or § 929(a) (
The Commentary to § 4B1.4 captioned “Background” is amended by striking “In some cases, the criminal history category may not adequately reflect the defendant's criminal history;
The Commentary to § 4C1.1 captioned “Application Notes” is amended—
in the heading by striking “Notes” and inserting “Note”;
and by striking Note 2 as follows:
“2.
Chapter Five is amended—
in the heading by striking “Determining the Sentence” and inserting “Determining the Sentencing Range and Options Under the Guidelines”;
and in the Introductory Commentary by striking the following:
”For certain categories of offenses and offenders, the guidelines permit the court to impose either imprisonment or some other sanction or combination of sanctions. In determining the type of sentence to impose, the sentencing judge should consider the nature and seriousness of the conduct, the statutory purposes of sentencing, and the pertinent offender characteristics. A sentence is within the guidelines if it complies with each applicable section of this chapter. The court should impose a sentence sufficient, but not greater than necessary, to comply with the statutory purposes of sentencing. 18 U.S.C. 3553(a).”;
and inserting the following:
”Chapter Five sets forth the steps used to determine the applicable sentencing range based upon the guideline calculations made in Chapters Two through Four. Additionally, the provisions in this chapter set forth the sentencing requirements and options under the guidelines related to probation, imprisonment, supervision conditions, fines, and restitution for the particular guideline range. For example, for certain categories of offenses and offenders, the guidelines permit the court to impose either imprisonment or some other sanction or combination of sanctions. After applying the provisions of this chapter to determine the sentencing options recommended under the guidelines pursuant to subsection (a) of § 1B1.1 (Application Instructions), the court shall consider the other applicable factors in 18 U.S.C. 3553(a) to determine the length and type of sentence that is sufficient but not greater than necessary. A sentence is within the guidelines if it complies with each applicable section of this chapter.”.
The Commentary to § 5B1.1 captioned “Applications Notes” is amended by inserting at the end the following new Note 3:
“3.
(A)
(B)
(C)
(D)
(E)
(F)
The Commentary to § 5C1.1 captioned “Application Notes” is amended—
by striking Note 6 as follows:
“6.
In determining whether such a departure is appropriate, the court should consider, among other things, (1) the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant, and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant.
by redesignating Notes 7 through 10 as Notes 6 through 9, respectively;
and in Note 9 (as so redesignated) by striking the following:
“
(A)
(B)
and inserting the following:
“
The Commentary to § 5D1.1 captioned “Application Notes,” as amended by Amendment 4 of this document, is further amended—
in Note 3, as redesignated by Amendment 4 of this document, by striking “
by further redesignating Notes 5, 6, and 7 (as redesignated by Amendment 4 of this document) as Notes 8, 9, and 10, respectively;
and by inserting after Note 4, as redesignated by Amendment 4 of this document, the following new Notes 5, 6, and 7:
“5.
6.
7.
Section 5D1.3(b)(3)(D), as redesignated and amended by Amendment 4 of this document, is further amended by inserting after “possess alcohol.” the following: “If participation in a substance abuse program is required, the length of the term of supervised release should take into account the length of time necessary for the probation office to judge the success of the program.”.
The Commentary to § 5E1.2 captioned “Applications Notes” is amended—
by striking Note 4 as follows:
“4. The Commission envisions that for most defendants, the maximum of the guideline fine range from subsection (c) will be at least twice the amount of gain or loss resulting from the offense. Where, however, two times either the amount of gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline, an upward departure from the fine guideline may be warranted.
Moreover, where a sentence within the applicable fine guideline range would not be sufficient to ensure both the disgorgement of any gain from the offense that otherwise would not be disgorged (
and by redesignating Notes 5, 6, and 7 as Notes 4, 5, and 6, respectively.
The Commentary to § 5G1.1 is amended by striking “; a sentence of less than 48 months would be a guideline departure”; and by striking “; a sentence of more than 60 months would be a guideline departure”.
The Commentary to § 5G1.3 captioned “Application Notes,” as amended by Amendment 4 of this document, is further amended—
in Note 2(C) by striking “(iii) the undischarged term of imprisonment for which the adjustment is being given” and inserting “(iii) the undischarged term of imprisonment for which the adjustment is being given and the relevant case information (including docket number)”;
in Note 4(E) by striking the following:
“
To avoid confusion with the Bureau of Prisons' exclusive authority provided under 18 U.S.C. 3585(b) to grant credit for time served under certain circumstances, the Commission recommends that any downward departure under this application note be clearly stated on the Judgment in a Criminal Case Order as a downward departure pursuant to § 5G1.3(d), rather than as a credit for time served.”;
and inserting the following:
“
The court should note on the Judgment in a Criminal Case Order (i) that the sentence was imposed pursuant to 18 U.S.C. 3553(a); (ii) the amount of time by which the sentence is being adjusted; (iii) the undischarged term of imprisonment for which the adjustment is being given and the relevant case information (including docket number); and (iv) that the sentence imposed is to account for a period of imprisonment that will not be credited by the Federal Bureau of Prisons.”;
and in Note 5 by striking the following:
“
and inserting the following:
“
Chapter Five is amended by striking in its entirety Part H, as amended by Amendment 4 of this document, as follows:
This part addresses the relevance of certain specific offender characteristics in sentencing. The Sentencing Reform Act (the `Act') contains several provisions regarding specific offender characteristics:
Specific offender characteristics are taken into account in the guidelines in several ways. One important specific offender characteristic is the defendant's criminal history,
The Supreme Court has emphasized that the advisory guideline system should `continue to move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.'
Accordingly, the purpose of this part is to provide sentencing courts with a framework for addressing specific offender characteristics in a reasonably consistent manner. Using such a framework in a uniform manner will help `secure nationwide consistency,'
This part allocates specific offender characteristics into three general categories.
In the first category are specific offender characteristics the consideration of which Congress has prohibited (
In the second category are specific offender characteristics that Congress directed the Commission to take into account in the guidelines only to the
In the third category are specific offender characteristics that Congress directed the Commission to ensure are reflected in the guidelines and policy statements as generally inappropriate in recommending a term of imprisonment or length of a term of imprisonment.
As with the other provisions in this manual, these policy statements `are evolutionary in nature'.
The nature, extent, and significance of specific offender characteristics can involve a range of considerations. The Commission will continue to provide information to the courts on the relevance of specific offender characteristics in sentencing, as the Sentencing Reform Act contemplates.
Age may be relevant in determining whether a departure is warranted.
Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.
A downward departure also may be warranted due to the defendant's youthfulness at the time of the offense or prior offenses. Certain risk factors may affect a youthful individual's development into the mid-20's and contribute to involvement in criminal justice systems, including environment, adverse childhood experiences, substance use, lack of educational opportunities, and familial relationships. In addition, youthful individuals generally are more impulsive, risk-seeking, and susceptible to outside influence as their brains continue to develop into young adulthood. Youthful individuals also are more amenable to rehabilitation.
The age-crime curve, one of the most consistent findings in criminology, demonstrates that criminal behavior tends to decrease with age. Age-appropriate interventions and other protective factors may promote desistance from crime. Accordingly, in an appropriate case, the court may consider whether a form of punishment other than imprisonment might be sufficient to meet the purposes of sentencing.
Physical condition, which may be related to age, is addressed at § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).
Education and vocational skills are not ordinarily relevant in determining whether a departure is warranted, but the extent to which a defendant may have misused special training or education to facilitate criminal activity is an express guideline factor.
Education and vocational skills may be relevant in determining the conditions of probation or supervised release for rehabilitative purposes, for public protection by restricting activities that allow for the utilization of a certain skill, or in determining the appropriate type of community service.
Mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.
In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose.
Mental and emotional conditions may be relevant in determining the conditions of probation or supervised release;
Physical condition or appearance, including physique, may be relevant in determining whether a departure is warranted, if the condition or appearance, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. An extraordinary physical
Drug or alcohol dependence or abuse ordinarily is not a reason for a downward departure. Substance abuse is highly correlated to an increased propensity to commit crime. Due to this increased risk, it is highly recommended that a defendant who is incarcerated also be sentenced to supervised release with a requirement that the defendant participate in an appropriate substance abuse program (
In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose.
In a case in which a defendant who is a substance abuser is sentenced to probation, it is strongly recommended that the conditions of probation contain a requirement that the defendant participate in an appropriate substance abuse program (
Addiction to gambling is not a reason for a downward departure.
Employment record is not ordinarily relevant in determining whether a departure is warranted.
Employment record may be relevant in determining the conditions of probation or supervised release (
In sentencing a defendant convicted of an offense other than an offense described in the following paragraph, family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.
In sentencing a defendant convicted of an offense involving a minor victim under section 1201, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code, family ties and responsibilities and community ties are not relevant in determining whether a sentence should be below the applicable guideline range.
Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine.
1.
(A)
(i) The seriousness of the offense.
(ii) The involvement in the offense, if any, of members of the defendant's family.
(iii) The danger, if any, to members of the defendant's family as a result of the offense.
(B)
(i) The defendant's service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendant's family.
(ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident to incarceration for a similarly situated defendant. For example, the fact that the defendant's family might incur some degree of financial hardship or suffer to some extent from the absence of a parent through incarceration is not in itself sufficient as a basis for departure because such hardship or suffering is of a sort ordinarily incident to incarceration.
(iii) The loss of caretaking or financial support is one for which no effective remedial or ameliorative programs reasonably are available, making the defendant's caretaking or financial support irreplaceable to the defendant's family.
(iv) The departure effectively will address the loss of caretaking or financial support.
A defendant's role in the offense is relevant in determining the applicable guideline range (
A defendant's criminal history is relevant in determining the applicable criminal history category.
The degree to which a defendant depends upon criminal activity for a livelihood is relevant in determining the appropriate sentence.
These factors are not relevant in the determination of a sentence.
Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.
Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.
Lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds in determining whether a departure is warranted.”.
Chapter Five, Part K is amended in the heading by striking “DEPARTURES” and inserting “ASSISTANCE TO AUTHORITIES”.
Chapter Five, Part K, Subpart 1 is amended by striking the heading as follows:
Section 5K1.1 is amended by striking “the court may depart from the guidelines” and inserting “a sentence that is below the otherwise applicable guideline range may be appropriate”.
Chapter Five, Part K is amended by striking Subparts 2 and 3 in their entirety as follows:
(a)
(1)
(A) in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an aggravating circumstance,
of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), should result in a sentence different from that described.
(2)
(A)
(B)
(3)
(4)
(b)
(1) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, United States Code, taking account of any amendments to such sentencing guidelines or policy statements by act of Congress;
(2) has not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(3) should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole grounds that have been affirmatively and specifically identified as a permissible ground of downward departure in these sentencing guidelines and policy statements. Thus, notwithstanding any other reference to authority to depart downward elsewhere in this Sentencing Manual, a ground of downward departure has not been affirmatively and specifically identified as a permissible ground of downward departure within the meaning of section 3553(b)(2) unless it is expressly enumerated in this Part K as a ground upon which a downward departure may be granted.
(c)
(1) such offender characteristics or other circumstances, taken together, make the case an exceptional one; and
(2) each such offender characteristic or other circumstance is—
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for departure, even if such offender characteristic or other circumstance is not ordinarily relevant to a determination of whether a departure is warranted.
(d)
(1) Any circumstance specifically prohibited as a ground for departure in §§ 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the last sentence of 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction), and the last sentence of 5K2.12 (Coercion and Duress).
(2) The defendant's acceptance of responsibility for the offense, which may be taken into account only under § 3E1.1 (Acceptance of Responsibility).
(3) The defendant's aggravating or mitigating role in the offense, which may be taken into account only under § 3B1.1 (Aggravating Role) or § 3B1.2 (Mitigating Role), respectively.
(4) The defendant's decision, in and of itself, to plead guilty to the offense or to enter a plea agreement with respect to the offense (
(5) The defendant's fulfillment of restitution obligations only to the extent required by law including the guidelines (
(6) Any other circumstance specifically prohibited as a ground for departure in the guidelines.
(e)
1.
‘Circumstance’ includes, as appropriate, an offender characteristic or any other offense factor.
‘Depart’, ‘departure’, ‘downward departure’, and ‘upward departure’ have the meaning given those terms in Application Note 1 of the Commentary to § 1B1.1 (Application Instructions).
2.
(A)
Subsection (a) of this policy statement applies to upward departures in all cases covered by the guidelines and to downward departures in all such cases except for downward departures in child crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward departures in child crimes and sexual offenses.
(B)
3.
(A)
(i)
(ii)
(B)
(i)
(ii)
(C)
In addition, as required by subsection (e), each circumstance forming the basis for a departure described in this subparagraph shall be stated with specificity in the statement of reasons form.
4.
(A)
(B)
(i)
(ii)
5.
As acknowledged by Congress in the Sentencing Reform Act and by the Commission when the first set of guidelines was promulgated, `it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.' (
As reaffirmed in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the `PROTECT Act', Public Law 108-21), circumstances warranting departure should be rare. Departures were never intended to permit sentencing courts to substitute their policy judgments for those of Congress and the Sentencing Commission. Departure in such circumstances would produce unwarranted sentencing disparity, which the Sentencing Reform Act was designed to avoid.
In order for appellate courts to fulfill their statutory duties under 18 U.S.C. 3742 and for the Commission to fulfill its ongoing responsibility to refine the guidelines in light of information it receives on departures, it is essential that sentencing courts state with specificity the reasons for departure, as required by the PROTECT Act.
This policy statement, including its commentary, was substantially revised, effective October 27, 2003, in response to directives contained in the PROTECT Act, particularly the directive in section 401(m) of that Act to—
`(1) review the grounds of downward departure that are authorized by the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission; and
(2) promulgate, pursuant to section 994 of title 28, United States Code—
(A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures is substantially reduced;
(B) a policy statement authorizing a departure pursuant to an early disposition program; and
(C) any other conforming amendments to the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission necessitated by the Act, including a revision of . . . section 5K2.0'.
The substantial revision of this policy statement in response to the PROTECT Act was intended to refine the standards applicable to departures while giving due regard for concepts, such as the `heartland', that have evolved in departure jurisprudence over time.
Section 401(b)(1) of the PROTECT Act directly amended this policy statement to add subsection (b), effective April 30, 2003.
If death resulted, the court may increase the sentence above the authorized guideline range.
Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant's state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant's conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.
If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove
If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.
Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct.
If a person was abducted, taken hostage, or unlawfully restrained to facilitate commission of the offense or to facilitate the escape from the scene of the crime, the court may increase the sentence above the authorized guideline range.
If the offense caused property damage or loss not taken into account within the guidelines, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent to which the harm was intended or knowingly risked and on the extent to which the harm to property is more serious than other harm caused or risked by the conduct relevant to the offense of conviction.
If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase.
If the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected. Departure from the guidelines ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense, and unless the circumstances are unusual the guidelines will reflect the appropriate punishment for such interference.
If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct.
If the victim's wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense. In deciding whether a sentence reduction is warranted, and the extent of such reduction, the court should consider the following:
(1) The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
(2) The persistence of the victim's conduct and any efforts by the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant, including the victim's reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant's response to the victim's provocation.
Victim misconduct ordinarily would not be sufficient to warrant application of this provision in the context of offenses under Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this provision usually would not be relevant in the context of non-violent offenses. There may, however, be unusual circumstances in which substantial victim misconduct would warrant a reduced penalty in the case of a non-violent offense. For example, an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation.
Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government's policies were misdirected.
In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue. For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.
If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's
A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.
1. For purposes of this policy statement—
`Significantly reduced mental capacity' means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
If national security, public health, or safety was significantly endangered, the court may depart upward to reflect the nature and circumstances of the offense.
If the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a downward departure may be warranted. For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered. This provision does not apply where the motivating factor is the defendant's knowledge that discovery of the offense is likely or imminent, or where the defendant's disclosure occurs in connection with the investigation or prosecution of the defendant for related conduct.
If the defendant possessed a semiautomatic firearm capable of accepting a large capacity magazine in connection with a crime of violence or controlled substance offense, an upward departure may be warranted. A `semiautomatic firearm capable of accepting a large capacity magazine' means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (1) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (2) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. The extent of any increase should depend upon the degree to which the nature of the weapon increased the likelihood of death or injury in the circumstances of the particular case.
1. `Crime of violence' and `controlled substance offense' are defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).
If the defendant is subject to an enhanced sentence under 18 U.S.C. 521 (pertaining to criminal street gangs), an upward departure may be warranted. The purpose of this departure provision is to enhance the sentences of defendants who participate in groups, clubs, organizations, or associations that use violence to further their ends. It is to be noted that there may be cases in which 18 U.S.C. 521 applies, but no violence is established. In such cases, it is expected that the guidelines will account adequately for the conduct and, consequently, this departure provision would not apply.
(a)
(b)
(c)
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm or a dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking offense.
(4) The defendant has either of the following: (A) more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood) before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category); or (B) a prior federal or state felony conviction, or any other significant prior criminal behavior, regardless of whether the conviction or significant prior criminal behavior is countable under Chapter Four.
1.
`Dangerous weapon,' `firearm,' `otherwise used,' and `serious bodily injury' have the meaning given those terms in the Commentary to § 1B1.1 (Application Instructions).
`Serious drug trafficking offense' means any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. 844, that provides for a mandatory minimum term of imprisonment of five years or greater, regardless of whether the defendant meets the criteria of § 5C1.2 (Limitation on Applicability of Statutory Mandatory Minimum Sentences in Certain Cases).
2.
3.
The court may depart upward to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range.
In sentencing a defendant convicted of an offense involving a minor victim under section 1201, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code:
(1) Age may be a reason to depart downward only if and to the extent permitted by § 5H1.1.
(2) An extraordinary physical impairment may be a reason to depart downward only if and to the extent permitted by § 5H1.4.
(3) Drug, alcohol, or gambling dependence or abuse is not a reason to depart downward.
A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.
If, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716, an upward departure may be warranted.
1.
3. Early Disposition Programs
Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.
Chapter Six, Part A is amended by striking § 6A1.4 and its accompanying commentary in its entirety as follows:
Before the court may depart from the applicable sentencing guideline range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure. Rule 32(h), Fed. R. Crim. P.
Chapter Six, Part B is amended in the Introductory Commentary by striking “The policy statements also ensure that the basis for any judicial decision to depart from the guidelines will be explained on the record.”.
The Commentary to § 6B1.2 is amended—
in the paragraph that begins “Similarly, the court” by striking “As set forth in subsection (d) of § 5K2.0 (Grounds for Departure), however, the court may not depart below the applicable guideline range merely because of the defendant's decision to plead guilty to the offense or to enter a plea agreement with respect to the offense.”;
and in the paragraph that begins “The second paragraph of subsection (a)” by striking “Section 5K2.21 (Dismissed and Uncharged Conduct) addresses the use, as a basis for upward departure, of conduct underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement.”.
The Commentary to § 7B1.4 captioned “Application Notes,” as amended by Amendment 4 of this document, is further amended—
by striking Notes 2, 3, and 4 as follows:
“2. Departure from the applicable range of imprisonment in the Probation Revocation Table may be warranted when the court departed from the applicable range for reasons set forth in § 4A1.3 (Departures Based on Inadequacy of Criminal History Category) in originally imposing the sentence that resulted in probation. Additionally, an upward departure may be warranted when a defendant, subsequent to the federal sentence resulting in probation, has been sentenced for an offense that is not the basis of the violation proceeding.
3. In the case of a Grade C violation that is associated with a high risk of new felonious conduct (
4. Where the original sentence was the result of a downward departure (
and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
The Commentary to § 7C1.5 captioned “Application Notes,” as added by Amendment 4 of this document, is amended—
by striking Notes 2, 3, and 4 as follows:
“2. Departure from the applicable range of imprisonment in the Supervised Release Revocation Table may be warranted when the court departed from the applicable range for reasons set forth in § 4A1.3 (Departures Based on Inadequacy of Criminal History Category) in originally imposing the sentence that resulted in supervised release. Additionally, an upward departure may be warranted when a defendant, subsequent to the federal sentence resulting in supervised release, has been sentenced for an offense that is not the basis of the violation proceeding.
3. In the case of a Grade C violation that is associated with a high risk of new felonious conduct (
4. Where the original sentence was the result of a downward departure (
and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
Section 8A1.2(b) is amended—
in paragraph (4) by striking “For grounds for departure from the applicable guideline fine range, refer to Part C, Subpart 4 (Departures from the Guideline Fine Range)” and inserting “Determine whether a sentence below the otherwise applicable guideline range is appropriate upon motion of the government pursuant to § 8C4.1 (Substantial Assistance to Authorities—Organizations (Policy Statement))”;
and by inserting at the end the following new paragraph (5):
“(5) Consider as a whole the additional factors identified in 18 U.S.C. 3553(a) to determine the sentence that is sufficient, but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. 3553(a)(2).
The Commentary to § 8A1.2 captioned “Application Notes” is amended in Note 2 by striking “and E (Acceptance of Responsibility)” and inserting “E (Acceptance of Responsibility), and F (Early Disposition Programs)”.
The Commentary to § 8C2.3 captioned “Application Notes” is amended in Note 2 by striking “and E (Acceptance of Responsibility)” and inserting “E (Acceptance of Responsibility), and F (Early Disposition Programs)”.
The Commentary to § 8C2.8 captioned “Application Notes” is amended in Note 5 by striking “In a case involving a pattern of illegality, an upward departure may be warranted.”.
The Commentary to § 8C2.8 captioned “Background” is amended by striking “In unusual cases, factors listed in this section may provide a basis for departure.”.
Chapter Eight, Part C, Subpart 4 is amended—
in the heading by striking “DEPARTURES FROM THE GUIDELINE FINE RANGE” and inserting “SUBSTANTIAL ASSISTANCE TO AUTHORITIES”;
and by striking the Introductory Commentary as follows:
The statutory provisions governing departures are set forth in 18 U.S.C. 3553(b). Departure may be warranted if the court finds `that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' This subpart sets forth certain factors that, in connection with certain offenses, may not have been adequately taken into consideration by the guidelines. In deciding whether departure is warranted, the court should consider the extent to which that factor is adequately taken into consideration by the guidelines and the relative importance or substantiality of that factor in the particular case.
To the extent that any policy statement from Chapter Five, Part K (Departures) is relevant to the organization, a departure from the applicable guideline fine range may be warranted. Some factors listed in Chapter Five, Part K that are particularly applicable to organizations are listed in this subpart. Other factors listed in Chapter Five, Part K may be applicable in particular cases. While this subpart lists factors that the Commission believes may constitute grounds for departure, the list is not exhaustive.”.
Section 8C4.1(a) is amended by striking “the court may depart from the guidelines” and inserting “a fine that is below the otherwise applicable guideline fine range may be appropriate”.
The Commentary to § 8C4.1 captioned “Application Note” is amended in Note 1 by striking “Departure under this section” and inserting “Fine reduction under this section”.
Chapter Eight, Part C is further amended by striking §§ 8C4.2 through 8C4.11 in their entirety as follows:
If the offense resulted in death or bodily injury, or involved a foreseeable risk of death or bodily injury, an upward departure may be warranted. The extent of any such departure should depend, among other factors, on the nature of the harm and the extent to which the harm was intended or knowingly risked, and the extent to which such harm or risk is taken into account within the applicable guideline fine range.
If the offense constituted a threat to national security, an upward departure may be warranted.
If the offense presented a threat to the environment, an upward departure may be warranted.
If the offense presented a risk to the integrity or continued existence of a market, an upward departure may be warranted. This section is applicable to both private markets (
If the organization, in connection with the offense, bribed or unlawfully gave a gratuity to a public official, or attempted or conspired to bribe or unlawfully give a gratuity to a public official, an upward departure may be warranted.
If the organization is a public entity, a downward departure may be warranted.
If the members or beneficiaries, other than shareholders, of the organization are direct victims of the offense, a downward departure may be warranted. If the members or beneficiaries of an organization are direct victims of the offense, imposing a fine upon the organization may increase the burden upon the victims of the offense without achieving a deterrent effect. In such cases, a fine may not be appropriate. For example, departure may be appropriate if a labor union is convicted of embezzlement of pension funds.
If the organization has paid or has agreed to pay remedial costs arising from the offense that greatly exceed the gain that the organization received from the offense, a downward departure may be warranted. In such a case, a substantial fine may not be necessary in order to achieve adequate punishment and deterrence. In deciding whether departure is appropriate, the court should consider the level and extent of substantial authority personnel involvement in the offense and the degree to which the loss exceeds the gain. If an individual within high-level personnel was involved in the offense, a departure would not be appropriate under this section. The lower the level and the more limited the extent of substantial authority personnel involvement in the offense, and the greater the degree to which remedial costs exceeded or will exceed gain, the less will be the need for a substantial fine to achieve adequate punishment and deterrence.
If the organization's culpability score is reduced under § 8C2.5(f) (Effective Compliance and Ethics Program) and the organization had implemented its program in response to a court order or administrative order specifically directed at the organization, an upward departure may be warranted to offset, in part or in whole, such reduction.
Similarly, if, at the time of the instant offense, the organization was required by law to have an effective compliance and ethics program, but the organization did not have such a program, an upward departure may be warranted.
If the organization's culpability score is greater than 10, an upward departure may be appropriate.
If no individual within substantial authority personnel participated in, condoned, or was willfully ignorant of the offense; the organization at the time of the offense had an effective program to prevent and detect violations of law; and the base fine is determined under § 8C2.4(a)(1), § 8C2.4(a)(3), or a special instruction for fines in Chapter Two (Offense Conduct), a downward departure may be warranted. In a case meeting these criteria, the court may find that the organization had exceptionally low culpability and therefore a fine based on loss, offense level, or a special Chapter Two instruction results in a guideline fine range higher than necessary to achieve the purposes of sentencing. Nevertheless, such fine should not be lower than if determined under § 8C2.4(a)(2).”.
In
In the wake of
In the years since
To better align the guidelines to practices under current sentencing law and to acknowledge the growing shift away from the use of departures, the amendment revises the guidelines in multiple ways. First, the amendment moves the “Original Introduction to the Guidelines Manual” from Chapter One, Part A to an Appendix of the
In addition, the amendment seeks to better address the distinction between the statutory limitations on the Commission's ability to consider certain offense characteristics and individual circumstances in recommending a term of imprisonment or length of imprisonment, and the requirement that the court consider a broad range of individual and offense characteristics in determining an appropriate sentence pursuant to 18 U.S.C. 3553(a). More specifically, the amendment revises § 1A3.1 (Authority), which sets forth the Commission's authority in developing the guidelines. First, the provision is redesignated as § 1A1.1 and, for clarity, is retitled as “Commission's Authority.” Second, in addition to referring to 28 U.S.C. 994(a) as the basis of the Commission's authority to promulgate guidelines, policy statements, and commentary, the provision explains how the Commission has complied with the requirements placed on it by Congress, noting what is not considered by the Commission in formulating the guidelines. This ensures that the Commission has addressed the provisions of sections 994(c), (d), and (e).
A new background commentary to this section explains that the requirements and limitations imposed upon the Commission by 28 U.S.C. 994 do not apply to sentencing courts. Instead, the factors set forth by Congress in 18 U.S.C. 3553(a) “permit a sentencing court to consider the `widest possible breadth of information' about a defendant ensuring the court is in `possession of the fullest information possible concerning the defendant's life and characteristics.' ”
Consistent with the revised approach, the amendment deletes most departures previously provided throughout the
The amendment also makes several changes to Chapter Five. The chapter is retitled “Determining the Sentencing Range and Options Under the Guidelines” to focus on the rules pertaining to the calculation of the guideline range, and the introductory commentary is revised to better reflect the chapter's purpose by noting that “a sentence is within the guidelines if it complies with each applicable section of this chapter.” All provisions previously contained in Chapter Five, Part H (Specific Offender Characteristics), and most of the provisions in Chapter Five, Part K (Departures), are deleted. Only the provisions pertaining to substantial assistance are retained under § 5K1.1, and the provision pertaining to early disposition programs is moved from § 5K3.1 to Chapter Three, Part F.
Chapter Five is also amended at § 5B1.1 (Imposition of a Term of Probation), § 5D1.1 (Imposition of a Term of Supervised Release), and § 5D1.3 (Conditions of Supervised Release) to emphasize the factors courts are statutorily required to consider in determining the conditions of probation and supervised release. The commentary is further revised to retain factors that the Commission had previously identified as relevant in Chapter Five, Part H pursuant to the congressional guidance provided to the Commission in 28 U.S.C. 994(d) and (e).
Changes are also made to § 5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment) in response to comment urging the Commission to retain the guidance regarding certain undischarged or discharged terms of imprisonment currently contained in § 5G1.3, Application Note 4(E), and § 5K2.23 (Discharged Terms of Imprisonment (Policy Statement)). These procedural aspects of imposing a sentence are particularly complex and at times confusing for courts given the intersection of a court's authority to sentence and the Bureau of Prisons' authority to execute that sentence. The amendment thus makes several changes to the commentary in § 5G1.3 to ensure courts continue to receive guidance on the treatment of undischarged and discharged sentences not otherwise addressed in the guideline. First, a new application note is added at Application Note 4(E), which would provide that where the court accounts for an undischarged term of imprisonment covered by subsection (d), the court should clearly state that the sentence was imposed pursuant to 18 U.S.C. 3553(a), rather than as a credit for time served, to avoid confusion with the Federal Bureau of Prisons' exclusive authority under 18 U.S.C. 3585(b) to grant credit for time served under certain circumstances. Similarly, a new Application Note 5 would provide similar guidance on the court's authority to consider an already discharged term of imprisonment that would, if undischarged, qualify for consideration under § 5G1.3(b). This new Application Note would preserve the concept previously addressed in § 5K2.23.
Finally, in conjunction with the amendment, the Commission plans to compile the deleted departure provisions, as they were last provided in the 2024 edition of the
On April 30, 2025, the Commission submitted to the Congress amendments to the sentencing guidelines, policy statements, and official commentary, which become effective on November 1, 2025, unless Congress acts to the contrary. Such amendments and the reason for each amendment are included in this notice.
Section 3582(c)(2) of title 18, United States Code, provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pursuant to 28 U.S.C. 994(u), “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” The Commission lists in subsection (d) of § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) the specific guideline amendments that the court may apply retroactively under 18 U.S.C. 3582(c)(2).
The following amendments may have the effect of lowering guidelines ranges: Part A (Circuit Conflict Concerning “Physically Restrained” Enhancements) and Part B (Circuit Conflict Concerning the Meaning of “Intervening Arrest” in § 4A1.2(a)(2)) of Amendment 1; and Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to § 3B1.2) of Amendment 2. The Commission intends to consider whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any or all of these amendments should be included in § 1B1.10(d) as an amendment that may be applied retroactively to previously sentenced defendants. In considering whether to do so, the Commission will consider, among other things, a retroactivity impact analysis and public comment. Accordingly, the Commission seeks public comment on whether it should make any or all the subparts or parts of the amendments listed above available for retroactive application. To help inform public comment, the retroactivity impact analyses of these amendments will be made available to the public as soon as practicable.
The Background Commentary to § 1B1.10 lists the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range under § 1B1.10(b) as among the factors the Commission considers in selecting the amendments included in § 1B1.10(d). To the extent practicable, public comment should address each of these factors.
The Commission seeks comment on whether it should list in § 1B1.10(d) as changes that may be applied retroactively to previously sentenced defendants any or all of the following subparts and parts of these amendments: Part A (Circuit Conflict Concerning “Physically Restrained” Enhancements) and Part B (Circuit Conflict Concerning the Meaning of “Intervening Arrest” in § 4A1.2(a)(2)) of Amendment 1; and Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to § 3B1.2) of Part A of Amendment 2. For each subpart and part of the amendments listed above, the Commission requests comment on whether any such subpart or part should be listed in § 1B1.10(d) as an amendment that may be applied retroactively.
If the Commission does list any or all the subparts or parts of the amendments listed above in § 1B1.10(d) as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced?
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; proposed letters of authorization; request for comments.
NMFS has received a request from the U.S. Department of the Navy (including the U.S. Navy and the U.S. Marine Corps (Navy)) and on behalf of the U.S. Coast Guard (Coast Guard; hereafter, Navy and Coast Guard are collectively referred to as Action Proponents) for Incidental Take Regulations (ITR) and three associated Letters of Authorization (LOAs) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take of marine mammals incidental to training and testing activities conducted in the Atlantic Fleet Training and Testing (AFTT) Study Area over the course of seven years from November 2025 through November 2032. NMFS requests comments on this proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOAs; agency responses to public comments will be summarized in the final rule, if issued. The Action Proponents' 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 June 9, 2025.
A plain language summary of this proposed rule is available at
•
•
•
A copy of the Action Proponents' Incidental Take Authorization (ITA) application and supporting documents, as well as a list of the references cited in this document, may be obtained online at
Alyssa Clevenstine, Office of Protected Resources, NMFS, (301) 427-8401.
This proposed rule, if promulgated, would provide a framework under the authority of the MMPA (16 U.S.C. 1361
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; 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 monitoring and reporting of the takings. The MMPA defines “take” to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. The Preliminary Analysis and Negligible Impact Determination section discusses the definition of “negligible impact.”
The 2004 NDAA (Pub. L. 108-136) amended section 101(a)(5) of the MMPA to remove the “small numbers” and “specified geographical region” provisions and amended the definition of “harassment” as applied to a “military readiness activity” to read as follows (section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the
The major provisions of this proposed rule are:
(i) The proposed take of marine mammals by Level A harassment and/or Level B harassment;
(ii) The proposed take of marine mammals by mortality or serious injury (M/SI);
(iii) The proposed use of defined powerdown and shutdown zones (based on activity);
(iv) Proposed measures to reduce the likelihood of vessel strikes;
(v) Proposed activity limitations in certain areas and times that are biologically important (
(vi) The proposed implementation of a Notification and Reporting Plan (for dead, live stranded, or marine mammals struck by any vessel engaged in military readiness activities); and
(vii) The proposed implementation of a robust monitoring plan to improve our understanding of the environmental effects resulting from the Action Proponents' training and testing activities.
This proposed rule includes an adaptive management component that allows for timely modification of mitigation, monitoring, and/or reporting measures based on new information, when appropriate.
On May 28, 2024, NMFS received an application from the Action Proponents requesting authorization to take marine mammals, by Level A and Level B harassment, incidental to training and testing (characterized as military readiness activities) including the use of sonar and other transducers, in-water detonations, air guns, and impact and vibratory pile driving and extraction conducted within the AFTT Study Area. In addition, the Action Proponents are requesting authorization to take, by serious injury or mortality, a limited number of several marine mammal species from explosives during training exercises, ship shock trials, and vessel movement during military readiness activities conducted within the AFTT Study Area over the 7-year period of the LOAs. In response to our comments and following information exchange, the Action Proponents submitted a final revised application on August 16, 2024, that we determined was adequate and complete on August 19, 2024. On October 8, 2024, the Action Proponents submitted an updated application to revise take estimates on a subset of Navy activities. On September 20, 2024, we published a notice of receipt (NOR) of application in the
NMFS has previously promulgated incidental take regulations pursuant to the MMPA relating to similar military readiness activities in AFTT. NMFS published the first rule effective from January 22, 2009 through January 22, 2014 (74 FR 4844, January 27, 2009), the second rule effective from November 14, 2013 through November 13, 2018 (78 FR 73009, December 4, 2013), and the third rule effective from November 14, 2018 through November 13, 2023 (83 FR 57076, November 14, 2018), which was subsequently amended, extending the effective date until November 13, 2025 (84 FR 70712, December 23, 2019) pursuant to the 2019 NDAA. For this proposed rulemaking, the Action Proponents propose to conduct substantially similar training and testing activities within the AFTT Study Area that were conducted under previous rules.
The Action Proponents' application reflects the most up-to-date compilation of training and testing activities deemed necessary to accomplish military readiness requirements. The types and numbers of activities included in the proposed rule account for fluctuations in training and testing to meet evolving or emergent military readiness requirements. These proposed regulations would cover military readiness activities in the AFTT Study Area that would occur for a 7-year period following the expiration of the existing MMPA authorization on November 13, 2025.
The Action Proponents request authorization to take marine mammals incidental to conducting military readiness activities. The Action Proponents have determined that acoustic and explosives stressors are most likely to result in take of marine mammals that could rise to the level of harassment, and take by serious injury or mortality may result from vessel movement, explosive use, and ship shock trials. Detailed descriptions of these activities are provided in chapter 2 of the 2024 AFTT Draft Supplemental Environmental Impact Statement (EIS)/Overseas EIS (OEIS) (2024 AFTT Draft Supplemental EIS/OEIS) (
The Navy's statutory mission is to organize, train, equip, and maintain combat-ready naval forces for the peacetime promotion of the national security interests and prosperity of the United States, and for prompt and sustained combat incident to operations essential to the prosecution of a naval campaign. These missions are mandated by Federal law (10 U.S.C. 8062 and 10 U.S.C. 8063), which requires the readiness of the naval forces of the United States. The Navy executes this responsibility by establishing and executing at-sea training and testing, often in designated operating areas (OPAREA) and testing and training ranges. The Navy must be able to access and utilize these areas and associated sea and air space to develop and maintain skills for conducting naval operations. The Navy's testing activities ensure naval forces are equipped with well-maintained systems that take advantage of the latest technological advances. The Navy's research and acquisition community conducts military readiness activities that involve testing. The Navy tests vessels, aircraft, weapons, combat systems, sensors, and
The mission of the Coast Guard is to ensure the maritime safety, security, and stewardship of the United States. To advance this mission, the Coast Guard must ensure its personnel can qualify and train jointly with, and independently of, the Navy and other services in the effective and safe operational use of Coast Guard vessels, aircraft, and weapons under realistic conditions. These activities help ensure the Coast Guard can safely assist in the defense of the United States by protecting the United States' maritime safety, security, and natural resources in accordance with its national defense mission (14 U.S.C. 102). Coast Guard training activities are described in more detail in appendix C of the 2024 AFTT Draft Supplemental EIS/OEIS and in the Action Proponents' application, and are summarized below.
The specified activities would occur at any time during the 7-year period of validity of the regulations. The proposed number of military readiness activities are described in the Detailed Description of the Specified Activity section (table 4 through table 9).
The AFTT Study Area includes areas of the western Atlantic Ocean along the east coast of North America, the Gulf of America, and portions of the Caribbean Sea, covering approximately 2.6 million nmi
The Action Proponents propose to conduct military readiness activities within the AFTT Study Area and have been conducting military readiness activities in the Study Area for well over a century and with active sonar for over 70 years. The tempo and types of military readiness activities have fluctuated due to the introduction of new technologies, the evolving nature of international events, advances in warfighting doctrine and procedures, and changes in force structure (organization of vessels, weapons, and personnel). Such developments influenced the frequency, duration, intensity, and location of required military readiness activities.
The Navy categorizes their activities into functional warfare areas called primary mission areas, while the Coast Guard categorizes their activities as operational mission programs. For the Navy, these activities generally fall into the following five primary mission areas (Coast Guard mission areas are discussed below). The Navy mission areas with activities that may result in incidental take of marine mammals (and stressors associated with training and testing activities within those mission areas) include the following:
(i) Amphibious warfare (in-water detonations);
(ii) Anti-submarine warfare (sonar and other transducers, in-water detonations);
(iii) Expeditionary warfare (in-water detonations, pile driving and extraction);
(iv) Mine warfare (sonar and other transducers, in-water detonations);
(v) Surface warfare (in-water detonations); and
(vi) Other (sonar and other transducers, air guns, vessel movement).
Most Navy activities conducted in AFTT are categorized under one of these primary mission areas; activities that do not fall within one of these areas are listed as “other activities.” In addition, ship shock (in-water detonations) trials, a specific Navy testing activity related to vessel evaluation, would be conducted. The testing community also categorizes most, but not all, of its testing activities under these primary mission areas. The testing community has three additional categories of activities: vessel evaluation (inclusive of ship shock trials), unmanned systems (
The Action Proponents describe and analyze the effects of their activities within the application (see the 2024 AFTT Draft Supplemental EIS/OEIS for additional details). In their assessment, the Action Proponents concluded that sonar and other transducers, underwater detonations, air guns, and pile driving/extraction were the stressors most likely to result in impacts on marine mammals that could rise to the level of harassment (and serious injury or mortality by explosives or by vessel movement) as defined under the MMPA. Therefore, the Action Proponents' application provides their assessment of potential effects from these stressors in terms of the primary warfare mission areas in which they would be conducted.
The Coast Guard has four major national defense missions:
(i) Maritime intercept operations;
(ii) Deployed port operations/security and defense;
(iii) Peacetime engagement; and
(iv) Environmental defense operations (which includes oil and hazardous substance response).
The Coast Guard manages 6 major operational mission programs with 11 statutory missions, which includes defense readiness. As part of the Coast Guard's defense mission, Title 14 U.S.C. 1 states the Coast Guard is “at all times an armed force of the United States.” As part of the Joint Forces, the Coast Guard maintains its readiness to carry out military operations in support of the policies and objectives of the U.S. government. As an armed force, the Coast Guard trains and operates in the joint military arena at any time and functions as a specialized service under the Navy in time of war or when directed by the President. Coast Guard service members are trained to respond immediately to support military operations and national security. Federal law created the framework for the relationship between the Navy and the Coast Guard (10 U.S.C. 101; 14 U.S.C. 2(7); 22 U.S.C.; 50 U.S.C.). To meet these statutory requirements and effectively carry out these missions, the Coast Guard's air and surface units train using realistic scenarios, including training with the Navy in their primary mission areas. Every Coast Guard unit is trained to support all statutory missions and, thus, trained to meet all mission requirements, which includes their defense mission requirements. Since all Coast Guard's missions entail the deployment of cutters or boats and either fixed-wing or rotary aircraft, the Coast Guard training requirements for one mission generally overlaps with the training requirements of other missions. Thus, when the Coast Guard is training for its defense mission, the same skill sets are utilized for its other statutory missions.
The Coast Guard's defense mission does not involve low- or mid-frequency active sonar (LFAS or MFAS), missiles, in-water detonations, pile driving and extraction, or air guns that would result in harassment of marine mammals. For additional information on all activities in the Coast Guard's mission programs see appendix C of the 2024 AFTT Draft Supplemental EIS/OEIS.
Below, we provide additional detail for each of the applicable primary mission areas.
The mission of amphibious warfare is to project military power from the sea to the shore (
Amphibious warfare training ranges from individual, crew, and small unit events to large task force exercises. Individual and crew training include amphibious vehicles and naval gunfire support training. Such training includes shore assaults, boat raids, airfield or port seizures, reconnaissance, and disaster relief. Large-scale amphibious exercises involve ship-to-shore maneuvers, naval fire support such as shore bombardment, air strikes, and attacks on targets that are near friendly forces.
Testing of guns, munitions, aircraft, ships, and amphibious vessels and vehicles used in amphibious warfare are often integrated into training activities and, in most cases, the systems are used in the same manner in which they are used for training activities. Amphibious warfare tests, when integrated with training activities or conducted separately as full operational evaluations on existing amphibious vessels and vehicles following maintenance, repair, or modernization, may be conducted independently or in conjunction with other amphibious ship and aircraft activities. Testing is performed to ensure effective ship-to-
The mission of anti-submarine warfare is to locate, neutralize, and defeat hostile submarine forces that threaten Navy forces. Anti-submarine warfare is based on the principle that surveillance and attack aircraft, ships, and submarines all search for hostile submarines. These forces operate together or independently to gain early warning and detection and to localize, track, target, and attack submarine threats.
Anti-submarine warfare training addresses basic skills such as detecting and classifying submarines, as well as evaluating sounds to distinguish between enemy submarines and friendly submarines, ships, and marine life. More advanced training integrates the full spectrum of anti-submarine warfare from detecting and tracking a submarine to attacking a target using either exercise torpedoes (
Testing of anti-submarine warfare systems is conducted to develop new technologies and assess weapon performance and operability with new systems and platforms, such as unmanned systems. Testing uses ships, submarines, and aircraft to demonstrate capabilities of torpedoes, missiles, countermeasure systems, and underwater surveillance and communications systems. Tests may be conducted as part of a large-scale fleet training event involving submarines, ships, fixed-wing aircraft, and helicopters. These integrated training events offer opportunities to conduct research and acquisition activities and to train aircrew in the use of new or newly enhanced systems during a large-scale, complex exercise.
The mission of expeditionary warfare is to provide security and surveillance in the littoral (at the shoreline), riparian (along a river), or coastal environments. Expeditionary warfare is wide ranging and includes defense of harbors, operation of remotely operated vehicles, defense against swimmers, and boarding/seizure operations.
Expeditionary warfare training activities include Navy, Marine Corps, and Coast Guard underwater construction team training, dive and salvage operations, and insertion/extraction via air, surface, and subsurface platforms.
The mission of mine warfare is to detect, classify, and avoid or neutralize (disable) mines to protect U.S. ships and submarines, and to maintain free access to ports and shipping lanes. Mine warfare training for the Navy and Coast Guard falls into two primary categories: mine detection and classification, and mine countermeasure and neutralization. Mine warfare also includes offensive mine laying to gain control of or deny the enemy access to sea space. Naval mines can be laid by ships, submarines, UUVs, or aircraft.
Mine warfare neutralization training includes exercises in which aircraft, ships, submarines, underwater vehicles, unmanned vehicles, or marine mammal detection systems search for mine shapes. Personnel train to destroy or disable mines by attaching underwater explosives to or near the mine or using remotely operated vehicles to destroy the mine.
Mine warfare testing is similar to training but focuses on the development of mine warfare systems to improve sonar, laser, and magnetic detectors intended to hunt, locate, and record the positions of mines for avoidance or subsequent neutralization. Mine detection and classification testing involves the use of air, surface, and subsurface platforms using a variety of systems to locate and identify objects underwater. Mine countermeasure and neutralization testing includes the use of air, surface, and subsurface platforms to evaluate the effectiveness of tracking devices, countermeasure and neutralization systems, and explosive munitions to neutralize mine threats. Most neutralization tests use mine shapes, or non-explosive practice mines, to evaluate a new or enhanced capability; however, a small percentage require the use of high-explosive mines to evaluate and confirm effectiveness of various systems.
The mission of surface warfare is to obtain control of sea space from which naval forces may operate and entails offensive action against other surface and subsurface targets while also defending against enemy forces. In surface warfare, aircraft use cannons, air-to-surface missiles, and other precision-guided munitions; ships employ torpedoes, naval guns, and surface-to-surface missiles; and submarines attack surface ships using torpedoes.
Surface warfare training includes Navy and Coast Guard surface-to-surface gunnery and missile exercises, air-to-surface gunnery, bombing, and missile exercises, submarine torpedo launch events, other munitions against surface targets, and amphibious operations in a contested environment.
Testing of weapons used in surface warfare is conducted to develop new technologies and to assess weapon performance and operability with new systems and platforms, such as unmanned systems. Tests include various air-to-surface guns and missiles, surface-to-surface guns and missiles, and bombing tests. Testing events may be integrated into training activities to test aircraft or aircraft systems in the delivery of ordnance on a surface target. In most cases the tested systems are used in the same manner in which they are used for training activities.
The Action Proponents routinely train in the AFTT Study Area in preparation for national defense missions. Training activities and exercises covered in this proposed rule are briefly described below and in more detail within appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS. The description, annual number of activities, and location of each training activity are provided by stressor category in table 4, table 5, and table 6. Each training activity described meets a requirement that can be traced ultimately to requirements set forth by the National Command Authority.
Within the Navy, a major training exercise (MTE) is comprised of multiple “unit-level” exercises conducted by several units operating together while commanded and controlled by a single commander (these units are collectively referred to as carrier and expeditionary strike groups). These exercises typically employ an exercise scenario developed to train and evaluate the strike group in tactical naval tasks. In a MTE, most of the operations and activities being directed and coordinated by the strike group commander are identical in nature to the operations conducted during individual, crew, and smaller unit-level training events. However, in MTEs, these disparate training tasks are conducted in concert rather than in isolation. Some integrated or coordinated anti-submarine warfare exercises are similar in that they are composed of several unit-level exercises
With a smaller fleet of approximately 250 cutters, Coast Guard activities are not as extensive as Navy activities due to differing mission requirements. However, the Coast Guard does train with the Navy and conducts some of the same training as the Navy. The Coast Guard does not conduct any exercises similar in scale to Navy MTEs/integrated exercises, and the use of mid- or low-frequency sonar, missiles, and underwater detonations are examples of actions that are not a part of the Coast Guard's mission requirements. Coast Guard training generally occurs close to the vessel homeport or close to shore, on established Navy testing and training ranges, or in transit to a scheduled patrol/mission. There are approximately 1,600 Coast Guard vessels (cutters up to 418 feet (ft; 127.4 meters (m)) and boats less than 65 ft (19.8 m)), and the largest cutters would be underway for 3 to 4 months, whereas the smaller cutters would be underway from a few days to 4 weeks. The busiest regions for the Coast Guard are the Gulf of America due to the number of busy commercial ports, and Hampton Roads due to many of the cutters being based at facilities in that area.
The MTEs and integrated/coordinated training activities analyzed for this request are Navy-led exercises in which the Coast Guard may participate and described in table 4. For additional information on these activities, see table 1.3-1 of the application and appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS. Table 5 describes the proposed Navy training activities analyzed within the AFTT Study Area while table 6 describes the proposed Coast Guard training activities analyzed within the AFTT Study Area. In addition to participating in Navy-led exercises, Coast Guard training activities include unit-level activities conducted independently of, and not in coordination with, the Navy.
While this proposed rule includes an evaluation of proposed training activities by both the Navy and Coast Guard, all testing activities evaluated in this proposed rule would only be conducted by the Navy. The Navy's research and acquisition community engages in a broad spectrum of testing activities, some of which ultimately support both Action Proponents. These activities include, but are not limited to, basic and applied scientific research and technology development; testing, evaluation, and maintenance of systems (
The Action Proponents operate in an ever-changing strategic, tactical, financially-constrained, and time-constrained environment. Testing activities occur in response to emerging science or fleet operational needs. For example, future Navy studies to develop a better understanding of ocean currents may be designed based on advancements made by non-government researchers not yet published in the scientific literature. Similarly, future but yet unknown Navy and Coast Guard operations within a specific geographic area may require development of modified Navy assets to address local conditions. Such modifications must be tested in the field to ensure they meet fleet needs and requirements. Accordingly, generic descriptions of some of these activities are the best that can be articulated in a long-term, comprehensive document.
Some testing activities are similar to training activities conducted by the fleet (
NAVAIR testing activities support its mission to provide full life cycle support of naval aviation aircraft, weapons, and systems to be operated by the Navy and Coast Guard. NAVAIR activities closely follow Navy primary mission areas, such as the testing of airborne mine warfare and anti-submarine warfare weapons and systems. NAVAIR activities include, but are not limited to, the testing of new aircraft platforms, weapons, and systems that have not yet been integrated into the Navy fleet and Coast Guard. In addition to testing new platforms and weapon systems, most aircraft and weapon systems that have been integrated into the fleet also require follow-on testing throughout their lifecycle in conjunction with maintenance and upgrades, such as software revisions, to ensure that they function as designed. While these types of activities do not fall within one of the fleet primary mission areas, most NAVAIR testing activities can be easily correlated to fleet training activities. Some testing activities may be conducted in different locations and in a different manner than similar fleet training activities and, therefore, the analysis for those events and the potential environmental effects may differ. Table 7 summarizes the proposed testing activities for NAVAIR analyzed within the AFTT Study Area.
NAVSEA activities are aligned with its mission of new ship construction, life cycle management, and weapon systems development. NAVSEA activities include pierside and at-sea testing of vessel systems, including sonar, acoustic countermeasures, radars, launch systems, weapons, unmanned systems, and radio equipment; tests to determine how the vessel or Coast Guard Cutter performs at sea (sea trials); developmental and operational test and evaluation programs for new technologies and systems; and testing on all vessels and systems that have undergone overhaul or maintenance. In the application, pierside testing at Navy contractor shipyards would consist only of system testing. At-sea test firing of shipboard weapon systems, including guns, torpedoes, and missiles, is also conducted. Testing activities are conducted throughout the life of a vessel, from construction to verification of performance and mission capabilities, and further to deactivation from the fleet. Table 8 summarizes the proposed testing activities for the NAVSEA analyzed within the AFTT Study Area.
One ship of each new class (or major upgrade) of combat ships constructed for the Navy typically undergoes an at-sea ship shock trial. A ship shock trial consists of a series of underwater detonations that send shock waves through the ship's hull to simulate near misses during combat. A shock trial allows the Navy to assess the survivability of the hull and ship's systems in a combat environment as well as the capability of the ship to protect the crew.
The ONR, as the Department of the Navy's science and technology provider, provides technology solutions for Navy and Marine Corps needs. The ONR's mission, defined by law, is to plan, foster, and encourage scientific research in recognition of its paramount importance as related to the maintenance of future naval power and the preservation of national security. The ONR manages the Navy's basic, applied, and advanced research to foster transition from science and technology to higher levels of research, development, test, and evaluation. The ONR is also a parent organization for the Naval Research Laboratory, which operates as the Navy's corporate research laboratory and conducts a broad multidisciplinary program of scientific research and advanced technological development. Testing activities conducted by the ONR and the Naval Research Laboratory include activities such as acoustic and oceanographic research, UUV research, and next generation mine countermeasures research. Table 9 summarizes the proposed testing activities for the ONR analyzed within the AFTT Study Area.
Vessels used as part of the proposed activities include both surface and sub-surface operations of both manned and unmanned vessels (USVs, UUVs). Navy vessels include ships, submarines, and boats ranging in size from small, 22 ft (7 m) rigid hull inflatable boats to aircraft carriers with lengths up to 1,092 ft (333 m). Unmanned systems may include vehicles ranging from 4-16 ft (1.2-4.9 m) but typical size of USVs is 36-328 ft (11-100 m), while UUVs are 33-98 ft (10-30 m) in length. The Marine Corps operates small boats from 10-50 ft (3-15.2 m) in length and include small unit riverine craft, rigid hull inflatable boats and amphibious combat vehicles. Coast Guard vessels range in size from small boats between 13 and 65 ft (3.9 to 19.8 m) to large cutters with lengths up to 418 ft (127.4 m).
Large ships greater than 65 ft (19.8 m) generally operate at speeds in the range of 10 to 15 knots (kn; 18.5 to 27.8 km per hour (km/hr)) for fuel conservation. Submarines generally operate at lower speeds in transit and even lower speeds for certain tactical maneuvers. Small craft (considered in this proposed rule to be less than 60 ft (18 m) in length) have much more variable speeds (dependent on the mission). While these speeds are representative of most events, some vessels need to temporarily operate outside of these parameters. For example, to produce the required relative wind speed over the flight deck, an aircraft carrier vessel group engaged in flight operations must adjust its speed through the water accordingly. Conversely, there are other instances such as launch and recovery of a small rigid hull inflatable boat, vessel boarding, search and seizure training events, or retrieval of a target when vessels will be stopped or moving slowly ahead to maintain steerage. Additionally, there are specific events including high speed tests of newly constructed vessels. High speed ferries may also be used to support Navy testing in Narragansett Bay.
The number of vessels used in the Study Area varies based on military readiness requirements, deployment schedules, annual budgets, and other unpredictable factors. Most military readiness activities involve the use of vessels. These activities could be widely dispersed throughout the Study Area, but would typically be conducted near naval ports, piers, and range areas. Activities involving vessel movements occur intermittently and are variable in duration, ranging from a few hours to multiple weeks.
Action Proponent vessel traffic would be concentrated near Naval Station Norfolk in Norfolk, Virginia and Naval Station Mayport in Jacksonville, Florida. There is no seasonal differentiation in vessel use. Large vessel movement primarily occurs with the majority of the traffic flowing between the installations and the OPAREAs and/or testing and training ranges. Support craft would be more concentrated in the coastal waters in the areas of naval installations, ports, and ranges.
The number of testing activities that include the use of vessels is around 12 percent lower than the number of training activities, but testing activities are more likely to include the use of larger unmanned vessels. In addition, testing often occurs jointly with a training event so it is likely that the testing activity would be conducted from a vessel that was also conducting a training activity. Vessel movement in conjunction with testing activities could occur throughout the Study Area, but would typically be conducted near naval ports, piers, and within range complexes.
Additionally, a variety of smaller craft will be operated within the Study Area. Small craft types, sizes, and speeds vary. During military readiness activities, speeds generally range from 10 to 14 kn (18.5 to 25.9 km/hr); however, vessels can and will, on occasion, operate within the entire spectrum of their specific operational capabilities. In all cases, the vessels/craft will be operated in a safe manner consistent with the local conditions.
Foreign militaries may participate in U.S. Navy training or testing activities in the AFTT Study Area. The Navy does not consider these foreign military activities as part of the “specified activity” under the MMPA, and NMFS defers to the applicant to describe the scope of its request for an authorization.
The participation of foreign navies varies from year to year but overall is infrequent compared with Navy's total training and testing activities. When foreign militaries are participating in a U.S. Navy-led exercise or event, foreign military use of sonar and explosives, when combined with the U.S. Navy's use of sonar and explosives, would not result in exceedance of the analyzed levels (within each Navy Acoustic Effects Model (NAEMO) modeled sonar and explosive bin) used for estimating predicted impacts, which formed the basis of our acoustic impacts effects analysis that was used to estimate take in this proposed rule. Please see the
For training and testing to be effective, Action Proponent personnel must be able to safely use their sensors, platforms, weapons, and other devices to their optimum capabilities and as intended for use in missions and combat operations. The Action Proponents have developed standard operating procedures through decades of experience to provide for safety and mission success. Because they are essential to safety and mission success, standard operating procedures are part of the Proposed Action and are considered in the environmental analysis for applicable resources (see chapter 3 (Affected Environment and Environmental Consequences) of the 2024 AFTT Draft Supplemental EIS/OEIS). Standard operating procedures recognized as providing a benefit to public safety or environmental resources are described in appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS. While standard operating procedures are designed for the safety of personnel and equipment and to ensure the success of training and testing activities, their implementation often yields additional benefits on environmental, socioeconomic, public health and safety, and cultural resources.
Because standard operating procedures are essential to safety and mission success, the Action Proponents consider them to be part of the proposed activities and have included them in the environmental analysis. Standard operating procedures that are recognized as providing a potential secondary benefit on marine mammals during training and testing activities are noted below.
(i) Vessel safety;
(ii) Weapons firing safety;
(iii) Target deployment safety;
(iv) Towed in-water device safety;
(v) Pile driving safety; and
(vi) Coastal zones.
Standard operating procedures (which are implemented regardless of their secondary benefits) are different from mitigation measures (which are designed entirely for the purpose of avoiding or reducing impacts). Information on mitigation measures is provided in the Proposed Mitigation Measures section below. Additional information on standard operating procedures is discussed in more detail in appendix A (Activity Descriptions) of
The Action Proponents use a variety of sensors, platforms, weapons, and other devices, and military readiness activities using these systems may introduce sound and energy into the environment. The proposed military readiness activities were evaluated to identify specific components that would act as stressors by having direct or indirect impacts on marine mammals and their habitat. This analysis included identification of the spatial variation of the identified stressors. The following subsections describe the acoustic and explosive stressors for marine mammals and their habitat within the AFTT Study Area. Each description contains a list of activities that may generate the stressor. Stressor/resource interactions that were determined to have negligible (as defined for the purposes of the NEPA analyses) or impacts that do not rise to the level of take under the MMPA (
Acoustic stressors include acoustic signals emitted into the water for a specific purpose, such as sonar, other transducers (devices that convert energy from one form to another—in this case, into sound waves), and air guns, as well as incidental sources of broadband sound produced as a byproduct of vessel movement, aircraft transits, use of weapons or other deployed objects, vibratory pile extraction, and vibratory and impact pile driving. Explosives also produce broadband sound but are characterized separately from other acoustic sources due to their unique hazardous characteristics. Characteristics of each of these sound sources are described in the following sections.
To better organize and facilitate the analysis of approximately 300 sources of underwater sound used for training and testing by the Action Proponents, including sonars and other transducers, air guns, and explosives, a series of source classifications, or source bins, were used. The acoustic source classification bins do not include the broadband noise produced incidental to pile driving, vessel and aircraft transits, and weapons firing. Noise produced from vessel, aircraft, and weapons firing activities are not carried forward because those activities were found to have
The use of source classification bins provides the following benefits:
(i) Allows new sensors or munitions to be used under existing authorizations as long as those sources fall within the parameters of a “bin”;
(ii) Improves efficiency of source utilization data collection and reporting requirements anticipated under the MMPA authorizations;
(iii) Ensures that impacts are not underestimated, as all sources within a given class are modeled as the most impactful source (highest source level, longest duty cycle, or largest net explosive weight) within that bin;
(iv) Allows analyses to be conducted in a more efficient manner, without any compromise of analytical results; and
(v) Provides a framework to support the reallocation of source usage (hours/explosives) between different source bins, as long as the total numbers of takes remain within the overall analyzed and authorized limits. This flexibility is required to support evolving training and testing requirements, which are linked to real world events.
Active sonar and other transducers emit non-impulsive sound waves into the water to detect objects, navigate safely, and communicate. Passive sonars differ from active sound sources in that they do not emit acoustic signals; rather, they only receive acoustic information about the environment, or listen. In this proposed rule, the terms sonar and other transducers will be used to indicate active sound sources unless otherwise specified.
The Action Proponents employ a variety of sonars and other transducers to obtain and transmit information about the undersea environment. Some examples are mid-frequency hull-mounted sonars used to find and track enemy submarines; high-frequency small object detection sonars used to detect mines; high-frequency underwater modems used to transfer data over short ranges; and extremely high-frequency (greater than 200 kilohertz (kHz)) Doppler sonars used for navigation, like those used on commercial and private vessels. The characteristics of these sonars and other transducers, such as source level (SL), beam width, directivity, and frequency, depend on the purpose of the source. Higher frequencies can carry more information or provide more information about objects off which they reflect, but attenuate more rapidly. Lower frequencies attenuate less rapidly, so they may detect objects over a longer distance, but with less detail.
Propagation of sound produced underwater is highly dependent on environmental characteristics such as bathymetry, seafloor type, water depth, temperature, and salinity. The sound received at a particular location will be different than near the source due to the interaction of many factors, including propagation loss; how the sound is reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher-frequency sounds propagate. The effects of these factors are explained in appendix D (Acoustic and Explosive Impacts Supporting Information) of the 2024 AFTT Draft Supplemental EIS/OEIS. Because of the complexity of analyzing sound propagation in the ocean environment, the Action Proponents rely on acoustic models in their environmental analyses that consider sound source characteristics and varying ocean conditions across the AFTT Study Area. For additional information on how propagation is accounted for, see the technical report
The sound sources and platforms typically used in military readiness activities analyzed in the application are described in appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS. Sonars and other transducers used to obtain and transmit information underwater during military readiness activities generally fall into several categories of use described below.
Sonar used during anti-submarine warfare training and testing would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in this proposed rule. Types of sonars used to detect potential enemy vessels include hull-mounted, towed, line array, sonobuoy, helicopter dipping, and torpedo sonars. In addition, acoustic targets and decoys (countermeasures) may be deployed to emulate the sound signatures of vessels or repeat received signals.
Most anti-submarine warfare sonars are mid-frequency (1-10 kHz) because mid-frequency sound balances sufficient resolution to identify targets with distance over which threats can be identified. However, some sources may use higher or lower frequencies. Duty cycles can vary widely, from rarely used to continuously active. Anti-submarine warfare sonars can be wide-ranging in a search mode or highly directional in a track mode.
Most anti-submarine warfare activities involving submarines or submarine targets would occur in waters greater than 600 ft (182.9 m) deep due to safety concerns about running aground at shallower depths. Sonars used for anti-submarine warfare activities would typically be used beyond 12 nmi (22.2 km) from shore. Exceptions include use of dipping sonar by helicopters, pierside testing and maintenance of systems while in port, and system checks while transiting to or from port.
Sonars used to locate mines and other small objects, as well as those used in imaging (
Mine detection sonar use would be concentrated in areas where practice mines are deployed, typically in water depths less than 200 ft (60.9 m), and at established training or testing minefields or temporary minefields close to strategic ports and harbors. Kingfisher mode on vessels is most likely to be used when transiting to and from port. Sound sources used for imaging would be used throughout the AFTT Study Area.
Similar to commercial and private vessels, the Action Proponents' vessels employ navigational acoustic devices, including speed logs, Doppler sonars for ship positioning, and fathometers. These may be in use at any time for safe vessel operation. These sources are typically highly directional to obtain specific navigational data.
Sound sources used to transmit data (such as underwater modems), provide location (pingers), or send a single brief release signal to seafloor-mounted devices (acoustic release) may be used throughout the AFTT Study Area. These sources typically have low duty cycles and are usually only used when it is necessary to send a detectable acoustic message.
Sonars and other transducers are grouped into bins based on their acoustic properties. Sonars and other transducers are now grouped into bins based on the frequency or bandwidth, source level, duty-cycle, and three-dimensional beam coverage. Unless stated otherwise, a reference distance of decibel (dB) microPascal (μPa) at 1 m (3.3 ft) is used for sonar and other transducers.
(i) Frequency of the non-impulsive acoustic source:
a. Low-frequency sources operate below 1 kHz;
b. Mid-frequency sources operate at or above 1 kHz, up to and including 10 kHz;
c. High-frequency sources operate above 10 kHz, up to and including 100 kHz; and
d. Very high-frequency sources operate above 100 kHz but below 200 kHz.
(ii) Sound pressure level (SPL):
a. Greater than 160 dB referenced to 1 microPascal (re 1 μPa), but less than 185 dB re 1 μPa;
b. Equal to 185 dB re 1 μPa and up to 205 dB re 1 μPa; and
c. Greater than 205 dB re 1 μPa.
Active sonar and other transducer use that was quantitatively analyzed in the Study Area are shown in table 10.
Air guns are essentially stainless steel tubes charged with high-pressure air via a compressor. An impulsive sound is generated when the air is almost instantaneously released into the surrounding water. Small air guns with capacities up to 60 cubic inches (in
Generated impulses would have short durations, typically a few hundred milliseconds, with dominant frequencies below 1 kHz. The root-mean-square (RMS) SPL and peak pressure (SPL peak) at a distance 1 m (3.3 ft) from the air gun would be approximately 215 dB re 1 μPa and 227 dB re 1 μPa, respectively, if operated at the full capacity of 60 in
Impact and vibratory pile driving and extraction would occur during Expeditionary Warfare, Port Damage Repair training in Gulfport, MS. The pile driving method, pile type and size, and assumptions for acoustic impact analysis are presented in table 12. This training activity would occur up to four times per year. Training events are typically 5 days each, for a total of 20 days per year. The training would involve the installation and extraction of 27-inch (0.69 m) steel sheets, installation of timber or plastic round 16-inch (0.41 m) piles using impact (impulsive) and vibratory (non-impulsive) methods, and the extraction of timber or plastic round 16-inch piles. When training events are complete, all piles and sheets are extracted using vibratory or dead pull methods. Crews would extract up to 12 piles in a 24-hour period.
Only one hammer would be used at any given point in time; there would not be any instances where multiple piles would be driven simultaneously. All piles and sheets would be extracted using the vibratory hammer. Timber or plastic piles would also be extracted using a dead pull method.
Impact pile driving would involve the use of an impact hammer with both it and the pile held in place by a crane. When the pile driving starts, the hammer part of the mechanism is raised up and allowed to fall, transferring energy to the top of the pile. The pile is thereby driven into the sediment by a repeated series of these hammer blows. Each blow results in an impulsive sound emanating from the length of the pile into the water column as well as from the bottom of the pile through the sediment. Broadband impulsive signals are produced by impact pile driving methods, with most of the acoustic energy concentrated below 1,000 hertz (Hz) (Hildebrand, 2009). For the purposes of this analysis, the Action Proponents assume the impact pile driver would generally operate on average 60 strikes per pile.
Vibratory installation and extraction would involve the use of a vibratory hammer suspended from the crane and attached to the top of a pile. The pile is then vibrated by hydraulic motors rotating eccentric weights in the mechanism, causing a rapid up and down vibration in the pile, driving the pile into the sediment. During extraction, the vibration causes the sediment particles in contact with the pile to lose frictional grip on the pile. The crane slowly lifts the vibratory driver and pile until the pile is free of the sediment. In some cases, the crane may be able to lift the pile and vibratory driver without vibrations from the driver (dead pull), in which case no noise would be introduced into the water. Vibratory driving and extraction create broadband, continuous, non-impulsive noise at low source levels, for a short duration with most of the energy dominated by lower frequencies. Port Damage Repair training would occur in shallow water, and sound would be transmitted on direct paths through the water, be reflected at the water surface or bottom, or travel through seafloor substrate. Soft substrates such as sand would absorb or attenuate the sound more readily than hard substrates (rock), which may reflect the acoustic wave. The predicted sound levels produced by pile driving by method, pile size, and type for Port Damage Repair training are presented in table 12.
In addition to underwater noise, the installation and extraction of piles also results in airborne noise in the environment, denoted dBA. dBA is an A-weighted decibel level that represents the relative loudness of sounds as perceived by the human ear. A-weighting gives more value to frequencies in the middle of human hearing and less value to frequencies at the edges as compared to a flat or unweighted decibel level. Impact pile driving creates in-air impulsive sound about 100 dBA re 20 μPa at a range of 15 m for 24-inch (0.61 m) steel piles (Illingworth and Rodkin, 2016). During vibratory extraction, the three aspects that generate airborne noise are the crane, the power plant, and the vibratory extractor. The average sound level recorded in air during vibratory extraction was about 85 dBA re 20 μPa (94 dB re 20 μPa) within a range of 32.8-49.2 ft (10-15 m) (Illingworth and Rodkin, 2015).
This section describes the characteristics of explosions during military readiness activities. The activities analyzed in the application that use explosives are described in appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS, and terminology and metrics used when describing explosives in the application are in appendix D (Acoustic and Explosive Impacts Supporting Information) of the 2024 AFTT Draft Supplemental EIS/OEIS.
The near-instantaneous rise from ambient to an extremely high peak pressure is what makes an explosive shock wave potentially damaging. Farther from an explosive, the peak pressures decay and the explosive waves propagate as an impulsive, broadband sound. Several parameters influence the effect of an explosive: the weight of the explosive warhead, the type of explosive material, the boundaries and characteristics of the propagation medium, and the detonation depth in water. The net explosive weight (NEW), the explosive power of a charge expressed as the equivalent weight of trinitrotoluene (commonly referred to as TNT), accounts for the first two parameters.
Explosive detonations during military readiness activities are associated with high-explosive munitions, including, but not limited to bombs, missiles, rockets, naval gun shells, torpedoes, mines, demolition charges, and explosive sonobuoys. Explosive detonations during military readiness activities involving the use of high-explosive munitions, including bombs, missiles, and naval gun shells, would occur in the air or near the water's surface. Explosive detonations associated with torpedoes and explosive sonobuoys would occur in the water column; mines and demolition charges would be detonated in the water column or on the ocean floor. The Coast Guard usage of explosives is limited to medium- and large-caliber munitions used during gunnery exercises. Most detonations would occur in waters greater than 200 ft (60.9 m) in depth and greater than 3 nmi (5.6 km) from shore, although mine warfare, demolition, and some testing detonations would occur in shallow water close to shore.
To better organize and facilitate the analysis of explosives used by the Action Proponents during military readiness activities that would detonate in water or at the water surface, explosive classification bins were
Propagation of explosive pressure waves in water is highly dependent on environmental characteristics such as bathymetry, seafloor type, water depth, temperature, and salinity, which affect how the pressure waves are reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher-frequency components of explosive broadband noise can propagate. Appendix D (Acoustic and Explosive Impacts Supporting Information) of the 2024 AFTT Draft Supplemental EIS/OEIS explains the characteristics of explosive detonations and how the above factors affect the propagation of explosive energy in the water. Because of the complexity of analyzing sound propagation in the ocean environment, the Action Proponents rely on acoustic models in their environmental analyses that consider sound source characteristics and varying ocean conditions across the Study Area.
NMFS also considered the likelihood that vessel movement during military readiness activities could result in an incidental, but intentional, strike of a marine mammal in the AFTT Study Area, which has the potential to result in serious injury or mortality. Vessel strikes are not specific to any specific military readiness activity but rather, a limited, sporadic, and incidental result of the Action Proponents' vessel movement during military readiness activities within the Study Area. Vessel strikes from commercial, recreational, and military vessels are known to seriously injure and occasionally kill cetaceans (Abramson
The Action Proponents' vessels transit at speeds that are optimal for fuel conservation or to meet training and testing requirements. From unpublished Navy data, average median speed for large Navy ships in the other Navy ranges from 2011-2015 varied from 10 to 15 kn (18.5 to 27.8 km/hr) depending on ship class and geographic location (
While these speeds for large Navy vessels are representative of most events, some of the Action Proponents' vessels may need to temporarily operate outside of these parameters. For example, to produce the required relative wind speed over the flight deck, an aircraft carrier engaged in flight operations must adjust its speed through the water accordingly. There are a few specific events, including high speed tests of newly constructed vessels, where the Action Proponents' vessel would operate at higher speeds. High speed ferries may also be used to support Navy testing in Narragansett Bay. By comparison, there are other instances when the Action Proponents vessel would be stopped or moving slowly ahead to maintain steerage, such as launch and recovery of a small rigid hull inflatable boat; vessel boarding, search, and seizure training events; or retrieval of a target.
Large Navy vessels (greater than 65 ft (19.8 m)) and Coast Guard vessels within the offshore areas of range complexes and testing ranges operate differently from commercial vessels, which may reduce potential vessel strikes of large whales. Surface ships operated by or for the Navy have multiple personnel assigned to stand watch at all times, when a ship or surfaced submarine is moving through the water (underway). A primary duty of personnel standing watch on surface ships is to detect and report all objects and disturbances sighted in the water that may indicate a threat to the vessel
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation Measures section, Proposed Monitoring section, and Proposed Reporting section).
Marine mammal species and their associated stocks that have the potential to occur in the AFTT Study Area are presented in table 14 along with each stock's Endangered Species Act (ESA) and MMPA statuses, abundance estimate and associated coefficient of variation (CV) value, minimum abundance estimate, potential biological removal (PBR), annual M/SI, and potential occurrence in the AFTT Study Area. The Action Proponents request authorization to take individuals of 41 species (81 stocks) by Level A and Level B harassment incidental to military readiness activities from the use of sonar and other transducers, in-water detonations, air guns, pile driving/extraction, and vessel movement in the AFTT Study Area. Of note, the 2019 AFTT Final Rule (84 FR 70712, December 23, 2019) refers to the Northern Gulf of America stock of Bryde's whales (
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. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 14 incorporates the best available science, including data from the U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Report (Hayes
The species carried forward for analysis (and described in table 14) are those likely to be found in the AFTT Study Area based on the most recent data available and do not include species that may have once inhabited or transited the area but have not been sighted in recent years (
In addition to the species listed above, several stocks that did not overlap areas in or near modeled activities in the AFTT Study Area were not analyzed. These stocks include the West Greenland and Gulf of St. Lawrence stocks of fin whale; the West Greenland stock of minke whale; the Labrador Sea stock of sei whale; and the Gulf of St. Lawrence, Newfoundland, and Greenland stocks of harbor porpoise. NMFS agrees with the Action Proponents' assessment that these species are unlikely to occur in the AFTT Study Area, and they are not discussed further. Further, neither NMFS nor Navy anticipates take of the Puerto Rico/U.S. Virgin Islands stock of sperm whale, as U.S. Navy training activities in the Vieques Naval Training Range ceased in 2003.
Three species of marine mammals, walrus (
Below, we consider additional information about the marine mammals in the area of the specified activities that informs our analysis, such as identifying known areas of important habitat or behaviors, or where Unusual Mortality Events (UME) have been designated.
Currently, only the NARW has ESA-designated critical habitat in the AFTT Study Area. However, NMFS has recently published a proposed rule proposing new ESA-designated critical habitat for the Rice's whale (88 FR 47453, July 24, 2023).
On February 26, 2016, NMFS issued a final rule (81 FR 4838) to replace the critical habitat for NARW with two new areas. The areas now designated as critical habitat contain approximately 29,763 nmi
Unit 1 encompasses the Gulf of Maine and Georges Bank region including the large embayments of Cape Cod Bay and Massachusetts Bay and deep underwater basins, as well as state waters, except for inshore areas, bays, harbors, and inlets, from Maine through Massachusetts in addition to Federal waters, all of which are key areas (see figure 4.1-1 of the application). It also does not include waters landward of the 72 COLREGS lines (33 CFR part 80). The essential physical and biological features of foraging habitat for NARW are: (1) The physical oceanographic conditions and structures of the Gulf of Maine and Georges Bank region that combine to distribute and aggregate
Unit 2 consists of all marine waters from Cape Fear, North Carolina, southward to approximately 27 nmi below Cape Canaveral, Florida, within the area bounded on the west by the shoreline and the 72 COLREGS lines, and on the east by rhumb lines connecting the specific points described below (see figure 4.1-2 of the application). The essential physical and biological features correlated with the distribution of NARW in the southern critical habitat area provide an optimum environment for calving. These are: (1) Calm sea surface conditions of Force 4 or less on the Beaufort Wind Scale; (2) sea surface temperatures from a minimum of 44.6 °F (7 °C), and never more than 62.6 °F (17 °C); and (3) water depths of 19.7 to 91.9 ft (6 to 28 m), where these features simultaneously co-occur over contiguous areas of at least 231 nmi
On August 23, 2021, NMFS published a final rule that revised the listing of Rice's whales under the ESA to reflect the change in the scientifically accepted taxonomy and nomenclature of this species (86 FR 47022). Prior to this revision, the Rice's whale was listed in 2019 under the ESA as an endangered subspecies of the Bryde's whale (Gulf of America subspecies (referred to as the Gulf of Mexico subspecies in 86 FR 47022)). The 2019 listing rule indicated that, with a total abundance of approximately 100 individuals, small population size and restricted range are the most serious threats to this species (84 FR 15446, April 15, 2019). However, other threats such as energy exploration, development, and production; oil spills and oil spill responses; vessel collision; fishing gear entanglement; and anthropogenic noise were also identified as threats that contribute to the risk of extinction.
The specific occupied areas proposed for designation as critical habitat for the Rice's whale contain approximately 28,270.65 mi
In the final listing rule, NMFS stated that critical habitat was not determinable at the time of the listing, because sufficient information was not currently available on the geographical area occupied by the species (84 FR 15446, April 15, 2019). On July 24, 2023, NMFS published a proposed rule describing the proposed critical habitat designation, including supporting information on Rice's whale biology, distribution, and habitat use, and the methods used to develop the proposed designation (88 FR 47453). The physical and biological features essential to the conservation of the species identified in the proposed rule are:
(i) Sufficient density, quality, abundance, and accessibility of small demersal and vertically migrating prey species, including scombriformes, stomiiformes, myctophiformes, and myopsida;
(ii) Marine water with:
A. Elevated productivity,
B. Bottom temperatures of 50-66.2 °F (10-19 °C), and
C. Levels of pollutants that do not preclude or inhibit any demographic function; and
(iii) Sufficiently quiet conditions for normal use and occupancy, including intraspecific communication, navigation, and detection of prey, predators, and other threats.
LaBrecque
On the East Coast, 19 of the 24 identified BIAs fall within or overlap with the AFTT Study Area: 10 feeding (2 for minke whale, 1 for sei whale, 3 for fin whale, 3 for NARW, and 1 for humpback), 1 migration (NARW), 2 reproduction (NARW), and 6 small and resident population (1 for harbor porpoise and 5 for bottlenose dolphin). Figures 4.1-1 through 4.1-14 of the application illustrate how these BIAs overlap with OPAREAs on the East Coast. In the Gulf of America, 4 of the 12 identified BIAs for small and resident populations overlap the AFTT Study Area (1 for Rice's (Bryde's) whale and 3 for bottlenose dolphin). Figures 4.1-9 through 4.1-13 of the application illustrates how these BIAs overlap with OPAREAs in the Gulf of America.
Two minke whale feeding BIAs are located in the northeast Atlantic from March through November in waters less than 200 m (656 ft) in the southern and southwestern section of the Gulf of Maine including Georges Bank, the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen Bank, Cape Anne, and Jeffreys Ledge (LaBrecque
LaBrecque
In addition to the BIAs described above, an area south of Martha's Vineyard and Nantucket, primarily along the western side of Nantucket Shoals, was recently described as an important feeding area (Kraus
LaBrecque
LaBrecque
LaBrecque
The Rice's (previously Bryde's) whale is a very small population that is genetically distinct from Bryde's whales and not genetically diverse within the Gulf of America (Rosel and Wilcox, 2014; Rosel
Under Title III of the Marine Protection, Research, and Sanctuaries Act of 1972 (also known as the National Marine Sanctuaries Act (NMSA)), NOAA can establish as national marine sanctuaries (NMS) areas of the marine environment with special conservation, recreational, ecological, historical, cultural, archaeological, scientific, educational, or aesthetic qualities. Sanctuary regulations prohibit destroying, causing the loss of, or injuring any sanctuary resource managed under the law or regulations for that sanctuary (15 CFR part 922). NMS are managed on a site-specific basis, and each sanctuary has site-specific regulations. Most, but not all sanctuaries have site-specific regulatory exemptions from the prohibitions for certain military activities. Separately, section 304(d) of the NMSA requires Federal agencies to consult with the Office of National Marine Sanctuaries whenever their Proposed Activities are likely to destroy, cause the loss of, or injure a sanctuary resource. There are five designated NMSs and one proposed NMS within the AFTT Study Area (see section 6.1.3 of the 2024 AFTT Draft Supplemental EIS/OEIS). Two of these sanctuaries, Flower Garden Banks NMS in the Gulf of America and Monitor NMS off of North Carolina, do not inform our assessment of impacts to marine mammals and their habitat.
Three NMSs and one proposed NMS within the AFTT Study Area are
An Unusual Mortality Event (UME) is defined under section 410(6) of the MMPA as a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response. Three UMEs with ongoing investigations in the AFTT Study Area that inform our analysis are discussed below. The 2022 Maine Pinniped UME has closed, and the 2018 Northeast Pinniped UME is non-active and pending closure.
Beginning in 2017, elevated mortalities in NARW were documented in Canada and the United States and necessitated an UME be declared. The whales impacted by the UME include dead, injured, and sick individuals, who represent more than 20 percent of the population, which is a significant impact on an endangered species where deaths are outpacing births. Additionally, research demonstrates that only about one third of right whale deaths are documented. The preliminary cause of mortality, serious injury, and morbidity (sublethal injury and illness) in most of these whales is from entanglements or vessel strikes. Endangered NARW are approaching extinction. There are approximately 372 individuals remaining, including fewer than 70 reproductively active females. Human impacts continue to threaten the survival of this species. The many individual whales involved in the UME are a significant setback to the recovery of this endangered species.
Since 2017, dead, seriously injured, sublethally injured, or ill NARW along the United States and Canadian coasts have been documented, necessitating a UME declaration and investigation. The leading category for the cause of death for this ongoing UME is “human interaction,” specifically from entanglements or vessel strikes. As of January 2, 2025, there have been 41 confirmed mortalities (dead, stranded, or floating) and 39 seriously injured free-swimming whales for a total of 80 whales. The UME also considers animals with sublethal injury or illness (
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. This event was declared a UME in April 2017. Partial or full necropsy examinations have been conducted on approximately half of the 244 known cases (as of February 6, 2025). Of the whales examined (approximately 90), about 40 percent had evidence of human interaction either from vessel strike or entanglement. While a portion of the whales have shown evidence of pre-mortem vessel strike, this finding is not consistent across all whales examined, and more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. More information is available at:
Elevated minke whale mortalities detected along the Atlantic coast from Maine through South Carolina resulted in the declaration of an on-going UME in 2017. As of February 10, 2025, a total of 198 minke whales have stranded during this UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings show evidence of human interactions or infectious disease, but these findings are not consistent across all of the minke whales examined, so more research is needed. More information is available at:
Harbor and gray seals have experienced two UMEs since 2018, although one was recently closed (2022 Pinniped UME in Maine) and closure of the other, described here, is pending. Beginning in July 2018, elevated numbers of harbor seal and gray seal mortalities occurred across Maine, New Hampshire, and Massachusetts. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers, therefore the UME investigation encompassed all seal strandings from Maine to Virginia. A total of 3,152 reported strandings (of all species) occurred from July 1, 2018, through March 13, 2020. Full or partial necropsy examinations were conducted on some of the seals and samples were collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME, which is pending closure. Information on this UME is available online at:
In 2010, the BP-operated
At its maximum extent, oil covered over 15,444 mi
DWH oil was found to cause problems with the regulation of stress hormone secretion from adrenal cells and kidney cells, which will affect an animal's ability to regulate body functions and respond appropriately to stressful situations, thus leading to reduced fitness. Bottlenose dolphins living in habitats contaminated with DWH oil showed signs of adrenal dysfunction, and dead, stranded dolphins from areas contaminated with DWH oil had smaller adrenal glands (Schwacke
Due to the difficulty of investigating marine mammals in pelagic environments and across the entire region impacted by the event, the injury assessment focused on health assessments conducted on bottlenose dolphins in nearshore habitats and used these populations as case studies for extrapolating to coastal and oceanic populations that received similar or worse exposure to DWH oil, with appropriate adjustments made for differences in behavior, anatomy, physiology, life histories, and population dynamics among species. Investigators then used a population modeling approach to capture the overlapping and synergistic relationships among the metrics for injury, and to quantify the entire scope of DWH marine mammal injury to populations into the future, expressed as “lost cetacean years” due to the DWH oil spill (which represents years lost due to premature mortality as well as the resultant loss of reproductive output). This approach allowed for consideration of long-term impacts resulting from immediate losses and reproductive failures in the few years following the spill, as well as expected persistent impacts on survival and reproduction for exposed animals well into the future (Takeshita
The results of the quantification exercise for each affected shelf and oceanic stock, and for northern and western coastal stocks of bottlenose dolphin, are presented in table 15. This is likely a conservative estimate of impacts, because: (1) Shelf and oceanic species experienced long exposures (up to 90 days) to very high concentrations of fresh oil and a diverse suite of response activities, while estuarine dolphins were not exposed until later in the spill period and to weathered oil products at lower water concentrations; (2) oceanic cetaceans dive longer and to deeper depths, and it is possible that the types of lung injuries observed in estuarine dolphins may be more severe for oceanic cetaceans; and (3) cetaceans in deeper waters were exposed to very high concentrations of volatile gas compounds at the water's surface near the wellhead. No analysis was performed for Fraser's dolphins or killer whales; although they are present in the Gulf of America, sightings are rare and there were no historical sightings in the oil spill footprint during the surveys used in the quantification process. These stocks were likely injured, but no information was available on which to base a quantification effort at that time.
However, a recent study by Frasier
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. Not all marine mammal species have equal hearing capabilities (
For more detail concerning these groups and associated frequency ranges, please see NMFS (2024) for a review of available information.
The Navy adjusted these hearing groups using data from recent hearing measurements in minke whales (Houser
This section provides a discussion of the ways in which components of the specified activity may impact marine mammals and their habitat. The
The Action Proponents have requested authorization for the take of marine mammals that may occur incidental to training and testing activities in the AFTT Study Area. The Action Proponents analyzed potential impacts to marine mammals from acoustic and explosive sources and from vessel use in the application. NMFS carefully reviewed the information provided by the Action Proponents and concurs with their synthesis of science, along with independently reviewing applicable scientific research and literature and other information to evaluate the potential effects of the Action Proponents' activities on marine mammals, which are presented in this section (see appendix D in the 2024 AFTT Draft Supplemental EIS/OEIS for additional information).
Other potential impacts to marine mammals from training and testing activities in the AFTT Study Area were analyzed in the 2024 AFTT Draft Supplemental EIS/OEIS, in consultation with NMFS as a cooperating agency, and determined to be unlikely to result in marine mammal take. Therefore, the Action Proponents have not requested authorization for take of marine mammals incidental to other components of their proposed Specified Activities, and we agree that incidental take is unlikely to occur from those components. In this proposed rule, NMFS analyzes the potential effects on marine mammals from the activity components that may cause the take of marine mammals: exposure to acoustic or explosive stressors including non-impulsive (sonar and other transducers, and vibratory pile driving) and impulsive (explosives, impact pile driving, and air guns) stressors and vessel movement.
For the purpose of MMPA incidental take authorizations, NMFS' effects assessments serve four primary purposes: (1) to determine whether the specified activities would have a negligible impact on the affected species or stocks of marine mammals (based on whether it is likely that the activities would adversely affect the species or stocks through effects on annual rates of recruitment or survival); (2) to determine whether the specified activities would have an unmitigable adverse impact on the availability of the species or stocks for subsistence uses; (3) to prescribe the permissible methods of taking (
In this section, NMFS provides a description of the ways marine mammals may be generally affected by these activities in the form of mortality, physical injury, sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particular stress responses), behavioral disturbance, or habitat effects. Explosives and vessel strikes, which have the potential to result in incidental take by serious injury and/or mortality, will be discussed in more detail in the
The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far (ANSI, 1995). The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources, which may include physical (
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound from active acoustic sources can possibly result in one or more of the following: temporary or permanent hearing impairment, other auditory injury, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson
Richardson
We also describe more severe potential effects (
Marine mammals have adapted hearing based on their biology and habitat: amphibious marine mammals (
The hearing sensitivity of marine mammals is also directional, meaning the angle between an animal's position and the location of a sound source impacts the animal's hearing threshold, thereby impacting an animal's ability to perceive the sound emanating from that source. This directionality is likely useful for determining the general location of a sound, whether for detection of prey, predators, or members of the same species, and can be dependent upon the frequency of the sound (Accomando
An acoustic signal refers to the sound waves used to communicate underwater, and marine mammals use a variety of acoustic signals for socially important functions, such as communicating, as well as biologically important functions, such as echolocating (Richardson
Marine mammal species typically produce sounds at frequencies within their own hearing range, though auditory and vocal ranges do not perfectly align (
Marine mammals, like all mammals, lose their ability to hear over time due to age-related degeneration of auditory pathways and sensory cells of the inner ear. This natural, age-related hearing loss is distinct from acute noise-induced hearing loss (Møller, 2013). Noise-induced hearing loss can be temporary (
TTS can last from minutes or hours to days (
The following physiological mechanisms are thought to play a role in inducing auditory threshold shift: effects to sensory hair cells in the inner ear that reduce their sensitivity; modification of the chemical environment within the sensory cells; residual muscular activity in the middle ear; displacement of certain inner ear membranes; increased blood flow; and post-stimulatory reduction in both efferent and sensory neural output (Southall
Generally, TTS increases with SEL in a non-linear fashion, where lower SEL exposures will elicit a steady rate of TTS increase while higher SEL
Although TTS increases non-linearly in marine mammals, recovery from TTS typically occurs in a linear fashion with the logarithm of time (Finneran, 2015; Finneran
In some cases, intense noise exposures have caused AUD INJ (
Irreparable damage to the inner or outer cochlear hair cells may cause PTS; however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall
While many studies have examined noise-induced hearing loss in marine mammals (see Finneran (2015) and Southall
• The method used to test hearing may affect the resulting amount of measured TTS, with neurophysiological measures producing larger amounts of TTS compared to psychophysical measures (Finneran
• The amount of TTS varies with the hearing test frequency. As the exposure SPL increases, the frequency at which the maximum TTS occurs also increases (Kastelein
• The amount of TTS increases with exposure SPL and duration and is correlated with SEL, especially if the range of exposure durations is relatively small (Kastak
• Gradual increases of TTS may not be directly observable with increasing exposure levels, before the onset of PTS (Reichmuth
• The amount of TTS depends on the exposure frequency. Sounds at low frequencies, well below the region of best sensitivity, are less hazardous than those at higher frequencies, near the region of best sensitivity (Finneran and Schlundt, 2013). The onset of TTS—defined as the exposure level necessary to produce 6 dB of TTS (
• TTS can accumulate across multiple exposures, but the resulting TTS will be less than the TTS from a single, continuous exposure with the same SEL (Finneran
• The amount of observed TTS tends to decrease with increasing time following the exposure; however, the relationship is not monotonic (
Nachtigall
Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Depending on the degree and frequency range, the effects of AUD INJ on an animal could also range in severity, although it is considered generally more serious than TTS because it is a permanent condition (Reichmuth
As the amount of research on hearing sensitivity has grown, so, too, has the understanding that marine mammals may be able to self-mitigate, or protect, against noise-induced hearing loss. An animal may learn to reduce or suppress their hearing sensitivity when warned of an impending intense sound exposure, or if the duty cycle of the sound source is predictable (Finneran, 2018; Finneran
Behavioral responses to sound are highly variable and context-specific (Nowacek
Studies by DeRuiter
Ellison
Friedlaender
Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable responses: increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall
Mysticetes responses to sonar and other duty-cycled tonal sounds are dependent upon the characteristics of the signal, behavioral state of the animal, sensitivity and previous experience of an individual, and other contextual factors including distance of the source, movement of the source, physical presence of vessels, time of year, and geographic location (Goldbogen
Similarly, while the rates of foraging lunges decrease in humpback whales due to sonar exposure, there was variability in the response across individuals, with one animal ceasing to forage completely and another animal starting to forage during the exposure (Sivle
Building on this work, Durbach
Odontocetes have varied, context-dependent behavioral responses to sonar and other transducers. Much of the research on odontocetes has been focused on understanding the impacts of sonar and other transducers on beaked whales because they were hypothesized to be more susceptible to behavioral disturbance after several strandings of beaked whales in which military MFAS was identified as a contributing factor (see
During a BRS in Southern California, a tagged Baird's beaked whale exposed to simulated MFA sonar within 3 km increased swim speed and modified its dive behavior (Stimpert
Long-term tagging work during the same BRS demonstrated that the longer duration dives considered a behavioral response by DeRuiter
During a BRS in Norway, northern bottlenose whales avoided a sonar sound source over a wide range of distances (0.5 to 17.4 mi (0.8 to 28 km)) and estimated avoidance thresholds ranging from received SPLs of 117 to 126 dB re 1 μPa. The behavioral response characteristics and avoidance thresholds were comparable to those previously observed in beaked whale studies; however, researchers did not observe an effect of distance on behavioral response and found that onset and intensity of behavioral response were better predicted by received SPL. There was one instance where an individual northern bottlenose whale approached the vessel, circled the sound source (source level was only 122 dB re 1 μPa), and resumed foraging after the exposure. Conversely, one northern bottlenose whale exposed to a sonar source was documented performing the longest and deepest dive on record for the species, and continued swimming away from the source for more than 7 hours (Miller
Research on Blainville's beaked whales at the Atlantic Undersea Test and Evaluation Center (AUTEC) range has shown that individuals move off-range during sonar use, only returning after the cessation of sonar transmission (Boyd
The probability of Blainville's beaked whale group vocal periods on the Pacific Missile Range Facility were modeled during periods of (1) no naval activity, (2) naval activity without hull-mounted MFA sonar, and (3) naval activity with hull-mounted MFA sonar (Jacobson
Stanistreet
Goose-beaked whale behavioral responses (
Harbor porpoise behavioral responses have been researched extensively using acoustic deterrent and acoustic harassment devices; however, BRSs using sonar are limited. Kastelein
Behavioral responses by odontocetes (other than beaked whales and harbor porpoises) to sonar and other transducers include horizontal avoidance, reduced breathing rates, changes in behavioral state, changes in dive behavior (Antunes
In controlled exposure experiments on captive odontocetes, Houser
While several opportunistic observations of odontocete (other than beaked whales and harbor porpoises) responses have been recorded during previous Navy activities and BRSs that employed sonar and sonar-like sources, it is difficult to definitively attribute responses of non-focal species to sonar exposure. Responses range from no response to potential highlight-impactful responses, such as the separation of a killer whale calf from its group (Miller
Pinniped behavioral response to sonar and other transducers is context-dependent (
Impulsive signals have a rapid rise time and higher instantaneous peak pressure than other signal types, particularly at close range, which means they are more likely to cause startle or avoidance responses. At long distances, however, the rise time increases as the signal duration lengthens (similar to a “ringing” sound), making the impulsive signal more similar to a non-impulsive signal (Hastie
Mysticetes have varied responses to impulsive sound sources, including avoidance, aggressive directed movement towards the source, reduced surface intervals, altered swimming behavior, and changes in vocalization rates (Gordon
If an individual is engaged in migratory behavior, it may be more likely to respond to impulsive noise, and some species may be more sensitive than others. Migrating gray whales showed avoidance responses to seismic vessels at received levels between 164 and 190 dB re 1 μPa (Malme
Proximity of the impulsive source is another important factor to consider when assessing the potential for behavioral responses in marine mammals. Dunlop
In contrast, noise from seismic surveys was not found to impact feeding behavior or exhalation rates in western gray whales while resting or diving off the coast of Russia (Gailey
Mysticetes seem to be the most behaviorally sensitive taxonomic group of marine mammals to impulsive sound sources, with possible avoidance responses occurring out to 18.6 mi (30 km) and vocal changes occurring in response to sounds over 62.1 mi (100 km) away. However, they are also the most studied taxonomic group, yielding a larger sample size and greater chance of finding behavioral responses to impulsive noise. Also, their responses appear to be behavior-dependent, with most avoidance responses occurring during migration behavior and little observed response during feeding behavior. These response patterns are likely to hold true for impulsive sources used by the Action Proponents; however, their impulsive sources would largely be stationary (
Odontocete responses to impulsive noise are not well studied and the majority of data have come from seismic (
Although odontocetes are generally considered less sensitive, impulsive noise does impact toothed whales in a variety of ways. In one study, dolphin detections were compared during 30 second periods before, during, and after underwater detonations near naval mine neutralization exercises in VACAPES. Lammers
When exposed to multiple impulses from a seismic air gun, Finneran
Similarly, harbor porpoises seem to have an avoidance response to seismic surveys by leaving the area and decreasing foraging activity within 3.1-6.2 mi (5-10 km) of the survey, as evidenced by both a decrease in vocalizations near the survey and an increase in vocalizations at a distance (Pirotta
Pile driving, another activity that produces impulsive sound, elicited a similar response in harbor porpoises. Benhemma-Le Gall
Overall, odontocete behavioral responses to impulsive sound sources are likely species- and context-dependent. Responses might be expected close to a noise source, under specific behavioral conditions such as females with offspring, or for sensitive species such as harbor porpoises, while many other species demonstrate little to no behavioral response.
Pinnipeds seem to be the least sensitive marine mammal group to impulsive noise (Richardson
Ringed seals exhibited little or no response to pile driving noise with mean underwater levels of 157 dB re 1 μPa and in-air levels of 112 dB re 20 μPa (Blackwell
Hastie
Mysticetes have varied responses to vessel noise and presence, from having no response to approaching vessels to exhibiting an avoidance response by both horizontal (swimming away) and vertical (increased diving) movement (Baker
Similarly, sei whales have been observed ignoring the presence of vessels entirely and even pass close to vessels (Reeves
Mysticete behavioral responses to vessels may also be affected by vessel behavior (Di Clemente
Overall, mysticete responses to vessel noise and traffic are varied, and habituation or changes to vocalization are predominant long-term responses. When baleen whales do avoid vessels, they seem to do so by altering their swim and dive patterns to move away from the vessel. Although a lack of response in the presence of a vessel may minimize potential disturbance from passing vessels, it does increase the whales' vulnerability to vessel strike, which may be of greater concern for mysticetes than vessel noise.
Odontocete responses due to vessel noise are varied and context-dependent, and it is difficult to separate the impacts of vessel noise from the impacts of vessel presence. Vessel presence has been shown to interrupt feeding behavior in delphinids in some studies (Meissner
While most odontocetes have documented neutral responses to vessels, avoidance (Bejder
Arranz
Smaller vessels tend to generate more noise in higher frequency bands, are more likely to approach odontocetes directly, and spend more time near an animal. Carrera
Information is limited on beaked whale responses to vessel noise, but Würsig
Porpoises and small delphinids are known to be sensitive to vessel noise, as well. Frankish
Lusseau and Bejder (2007) have reported some long-term consequences of vessel noise on odontocetes but, overall, there is little information on the long-term and cumulative impacts of vessel noise (National Academies of Sciences Engineering and Medicine, 2017; National Marine Fisheries Service, 2007). Many researchers speculate that long-term impacts may occur on odontocete populations that experience repeated interruption of foraging behaviors (Stockin
Context and experience likely play a role in pinnipeds response to vessel noise, which vary from negative responses including increased vigilance and alerting to avoidance to reduced time spent doing biologically important activities (
Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, interpret, or discriminate between acoustic signals of interest (
Most research on auditory masking is focused on energetic masking, or the ability of the receiver (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting natural behavioral patterns to the point where the behavior is abandoned or significantly altered. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which only occurs during the sound exposure. Because masking (without resulting in threshold shift) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
Richardson
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
High-frequency sounds may mask the echolocation calls of toothed whales. Human data indicate low-frequency sound can mask high-frequency sounds (
Impacts on signal detection, measured by masked detection thresholds, are not the only important factors to address when considering the potential effects of masking. As marine mammals use sound to recognize conspecifics, prey, predators, or other biologically significant sources (Branstetter
As marine mammals use sound to recognize predators (Allen
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or anthropogenic noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The dominant background noise may be highly directional if it comes from a particular anthropogenic source such as a vessel or industrial site. Directional hearing may significantly reduce the masking effects of these sounds by improving the effective signal-to-noise ratio.
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009; Cholewiak
The functional hearing ranges of mysticetes, odontocetes, and pinnipeds underwater overlap the frequencies of the sonar sources used in the Action Proponents' LFAS/MFAS/high-frequency active sonar (HFAS) training and the Navy's testing exercises. Additionally, almost all affected species' vocal repertoires span across the frequencies of these sonar sources used by the Action Proponents. The closer the characteristics of the masking signal to the signal of interest, the more likely masking is to occur. Masking by LFAS or MFAS with relatively low-duty cycles is not anticipated (or would be of very short duration) for most cetaceans as sonar signals occur over a relatively short duration and narrow bandwidth (overlapping with only a small portion of the hearing range). LFAS could overlap in frequency with mysticete vocalizations, however LFAS does not overlap with vocalizations for most marine mammal species. For example, in the presence of LFAS, humpback whales were observed to increase the length of their songs (Fristrup
As described in additional detail in the 2024 AFTT Draft Supplemental EIS/OEIS, high duty-cycle or CAS have more potential to mask vocalizations. These sonars transmit more frequently (greater than 80 percent duty cycle) than traditional sonars, but typically at lower source levels. HFAS, such as pingers that operate at higher repetition rates, also operate at lower source levels and have faster attenuation rates due to the higher frequencies used. These lower source levels limit the range of impacts, however, compared to traditional sonar systems, individuals close to the source are likely to experience masking at longer time scales. The frequency range at which high-duty cycle systems operate overlaps the vocalization frequency of many mid-frequency cetaceans. Continuous noise at the same frequency of communicative vocalizations may cause disruptions to communication, social interactions, and acoustically mediated cooperative behaviors (Sørensen
While there are currently few studies of the impacts of high-duty cycle sonars on marine mammals, masking due to these systems is likely analogous to masking produced by other continuous sources (
von Benda-Beckmann
Impulsive sound sources, including explosions, are intense and short in duration. Since impulsive noise is intermittent, the length of the gap between sounds (duty-cycle) and received level are relevant when considering the potential for masking. Impulsive sounds with lower duty cycles or lower received levels are less likely to result in masking than higher duty cycles or received levels. There are no direct observations of masking in marine mammals due to exposure to explosive sources. Potential masking from explosive sounds or weapon noise is likely similar to masking studied for other impulsive sounds, such as air guns or pile-driving.
Masking of mysticete calls could occur due to the overlap between their low-frequency vocalizations and the dominant frequencies of impulsive sources (Castellote
Masking of pinniped communication sounds at 100 Hz center frequency is possible when vocalizations occur at the same time as an air gun pulse (Sills
While a masking effect of impulsive noise can depend on the received level (Blackwell
In general, impulsive noise has the potential to mask sounds that are biologically important for marine mammals, reducing communication space or resulting in noise-induced vocal modifications that might impact marine mammals. Masking by close-range impulsive sound sources is most likely to impact marine mammal communication.
Masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as vessels. Several studies have shown decreases in marine mammal communication space and changes in behavior as a result of the presence of vessel noise. For example, NARW were observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks
Physiological stress is a natural and adaptive process that helps an animal survive changing conditions. When an animal perceives a potential threat, whether or not the stimulus actually poses a threat, a stress response is triggered (Seyle, 1950; Moberg, 2000; Sapolsky
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic functions. For example, when a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle, 1950) or “allostatic loading” (McEwen and Wingfield, 2003). This pathological state of distress will last until the animal replenishes its energetic reserves sufficiently to restore normal function.
According to Moberg (2000), in the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine systems or sympathetic nervous systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress, including immune competence, reproduction, metabolism, and behavior, are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier and Rivest, 1991), altered metabolism (Elasser
Marine mammals naturally experience stressors within their environment and as part of their life histories. Changing weather and ocean conditions, exposure to disease and naturally occurring toxins, lack of prey availability, and interactions with predators all contribute to the stress a marine mammal experiences (Atkinson
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments for both laboratory and free-ranging animals (
The ability to make predictions from stress hormones about impacts on individuals and populations exposed to various forms of natural and anthropogenic stressors relies on understanding the linkages between changes in stress hormones and resulting physiological impacts. Currently, the sound characteristics that correlate with specific stress responses in marine mammals are poorly understood, as are the ultimate consequences of these changes. Several research efforts have improved the understanding of, and the ability to predict, how stressors ultimately affect marine mammal populations (
Non-impulsive sources of sound can cause direct physiological effects including noise-induced loss of hearing sensitivity (or “threshold shift”) or other auditory injury, nitrogen decompression, acoustically-induced bubble growth, and injury due to sound-induced acoustic resonance. Separately, an animal's behavioral response to an acoustic exposure might lead to physiological effects that might ultimately lead to injury or death, which is discussed later in the
Several experimental studies have measured the heart rate response of a variety of marine mammals. For example, Miksis
Kvadsheim
Two captive harbor porpoises showed significant bradycardia (reduced heart rate), below that which occurs with diving, when they were exposed to pinger-like sounds with frequencies between 100-140 kHz (Teilmann
Limited evidence across several different species suggests that increased heart rate might occur as part of the acute stress response of marine mammals that are at the surface. However, the decreased heart rate typical of diving marine mammals can be enhanced in response to an acute stressor, suggesting that the context of the exposure is critical to understanding the cardiac response. Furthermore, in instances where a cardiac response was noted, there appears to be rapid habituation when repeat exposures occur. Additional research is required to understand the interaction of dive bradycardia, noise-induced cardiac responses, and the role of habituation in marine mammals.
What is known about the function of the various stress hormones is based largely upon observations of the stress response in terrestrial mammals. The endocrine response of marine mammals to stress may not be the same as that of terrestrial mammals because of the selective pressures marine mammals faced during their evolution in an ocean environment (Atkinson
Catecholamines increase during breath-hold diving in seals, co-occurring with a reduction in heart rate, peripheral vasoconstriction (constriction of blood vessels), and an increased reliance on anaerobic metabolism during extended dives (Hance
Yang
Whereas a limited amount of work has addressed the potential for acute sound exposures to produce a stress response, almost nothing is known about how chronic exposure to acoustic stressors affects stress hormones in marine mammals, particularly as it relates to survival or reproduction. In what is probably the only study of chronic noise exposure in marine mammals associating changes in a stress hormone with changes in anthropogenic noise, Rolland
Considerably more work has been conducted in an attempt to determine the potential effect of vessel disturbance on smaller cetaceans, particularly killer whales (Bain, 2002; Erbe, 2002; Lusseau, 2006; Noren
Non-auditory injury, or direct injury, is considered less likely to occur in the context of the Action Proponents' activities than auditory injury and the primary anticipated source of non-auditory injury for these activities is exposure to the pressure generated by explosive detonations, which is discussed in the
One theoretical cause of injury to marine mammals is rectified diffusion (Crum and Mao, 1996), the process of increasing the size of a bubble by exposing it to a sound field. This process could be facilitated if the environment in which the ensonified bubbles exist is supersaturated with gas. Repetitive diving by marine mammals can cause the blood and some tissues to accumulate gas to a greater degree than is supported by the surrounding environmental pressure (Ridgway and Howard, 1979). The deeper and longer dives of some marine mammals (for example, beaked whales) are theoretically predicted to induce greater supersaturation (Houser
It is unlikely that the short duration (in combination with the source levels) of sonar pings would be long enough to drive bubble growth to any substantial size, if such a phenomenon occurs. However, an alternative but related hypothesis has also been suggested: stable bubbles could be destabilized by high-level sound exposures such that bubble growth then occurs through static diffusion of gas out of the tissues. In such a scenario the marine mammal would need to be in a gas-supersaturated state for a long enough period of time for bubbles to become of a problematic size. Recent research with
Yet another hypothesis (decompression sickness) has speculated that rapid ascent to the surface following exposure to a startling sound might produce tissue gas saturation sufficient for the evolution of nitrogen bubbles (Jepson
Although theoretical predictions suggest the possibility for acoustically mediated bubble growth, there is considerable disagreement among scientists as to its likelihood (Piantadosi and Thalmann, 2004; Evans and Miller, 2003; Cox
As described in additional detail in the Behaviorally Mediated Injury section of appendix D the 2024 AFTT Draft Supplemental EIS/OEIS, marine mammals generally are thought to deal with nitrogen loads in their blood and other tissues, caused by gas exchange from the lungs under conditions of high ambient pressure during diving, through anatomical, behavioral, and physiological adaptations (Hooker
In 2009, Hooker
Bernaldo de Quiros
To summarize, while there are several hypotheses, there is little data directly connecting intense, anthropogenic underwater sounds with non-auditory physical effects in marine mammals. The available data do not support identification of a specific exposure level above which non-auditory effects can be expected (Southall
An object exposed to its resonant frequency will tend to amplify its vibration at that frequency, a phenomenon called acoustic resonance. Acoustic resonance has been proposed as a potential mechanism by which a sonar or sources with similar operating characteristics could damage tissues of marine mammals. In 2002, NMFS convened a panel of government and private scientists to investigate the potential for acoustic resonance to occur in marine mammals (NOAA, 2002). They modeled and evaluated the likelihood that Navy MFAS (2-10 kHz) caused resonance effects in beaked whales that eventually led to their stranding. The workshop participants concluded that resonance in air-filled structures was not likely to have played a primary role in the Bahamas stranding in 2000. They listed several reasons supporting this finding including (among others): tissue displacements at resonance are estimated to be too small to cause tissue damage (
Underwater explosive detonations send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals and the potential effects of an explosive injury to marine mammals would consist of primary blast injury, which refers to injuries resulting from the compression of a body exposed to a blast wave. Blast effects are greatest at the gas-liquid interface (Landsberg, 2000) and are usually observed as barotrauma of gas-containing structures (
The near instantaneous high magnitude pressure change near an explosion can injure an animal where tissue material properties significantly differ from the surrounding environment, such as around air-filled cavities in the lungs or gastrointestinal tract. Large pressure changes at tissue-air interfaces in the lungs and gastrointestinal tract may cause tissue rupture, resulting in a range of injuries depending on degree of exposure. The lungs are typically the first site to show any damage, while the solid organs (
Injuries resulting from a shock wave take place at boundaries between tissues of different densities. Different velocities are imparted to tissues of different densities, and this can lead to their physical disruption. Intestinal walls can bruise or rupture, with subsequent hemorrhage and escape of gut contents into the body cavity. Less severe gastrointestinal tract injuries include contusions, petechiae (small red or purple spots caused by bleeding in the skin), and slight hemorrhaging (Yelverton
Relatively little is known about auditory system trauma in marine mammals resulting from explosive exposure, although it is assumed that auditory structures would be vulnerable to blast injuries because the ears are the most sensitive to pressure and, therefore, they are the organs most sensitive to injury (Ketten, 2000). Sound-related damage associated with sound energy from detonations can be theoretically distinct from injury from the shock wave, particularly farther from the explosion. If a noise is audible to an animal, it has the potential to damage the animal's hearing by causing decreased sensitivity (Ketten, 1995). Lethal impacts are those that result in immediate death or serious debilitation in or near an intense source and are not, technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts include hearing loss, which is caused by exposures to perceptible sounds. Severe damage (from the shock wave) to the ears includes tympanic membrane rupture, fracture of the ossicles, damage to the cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle ear. Moderate injury implies partial hearing loss due to tympanic membrane rupture and blood in the middle ear. Permanent hearing loss also can occur when the hair cells are damaged by one very loud event, as well as by prolonged exposure to a loud noise or chronic exposure to noise. The level of impact from blasts depends on both an animal's location and, at outer zones, on its sensitivity to the residual noise (Ketten, 1995). Auditory trauma was found in 2 humpback whales that died after the detonation of a 11,023 lb (5,000 kg) explosive used off Newfoundland during demolition of an offshore oil rig platform (Ketten
In general, models predict that an animal would be less susceptible to injury near the water surface because the pressure wave reflected from the water surface would interfere with the direct path pressure wave, reducing positive pressure exposure (Goertner, 1982; Yelverton & Richmond, 1981). This is shown in the records of humans exposed to blast while in the water, which show that the gastrointestinal tract was more likely to be injured than the lungs, likely due to the shallower exposure geometry of the lungs (
Controlled tests with a variety of lab animals (mice, rats, dogs, pigs, sheep, and other species) are the best data sources on actual injury to mammals due to underwater exposure to explosions. In the early 1970s, the Lovelace Foundation for Medical Education and Research conducted a series of tests in an artificial pond at Kirtland Air Force Base, New Mexico, to determine the effects of underwater explosions on mammals, with the goal of determining safe ranges for human divers. The resulting data were summarized in two reports (Richmond
In the Lovelace studies, the first positive acoustic impulse was found to be the metric most related to degree of injury, and size of an animal's gas-containing cavities was thought to play a role in blast injury susceptibility. For these shallow exposures of small terrestrial mammals (masses ranging from 3.4 to 50 kg) to underwater detonations, Richmond
Goertner (1982) suggested a peak overpressure gastrointestinal tract injury criterion because the size of gas bubbles in the gastrointestinal tract are variable, and their oscillation period could be short relative to primary blast wave exposure duration. The potential for gastrointestinal tract injury, therefore, may not be adequately modeled by the single oscillation bubble methodology used to estimate lung injury due to impulse. Like impulse, however, high instantaneous pressures may damage many parts of the body, but damage to the gastrointestinal tract is used as an indicator of any peak pressure-induced injury due to its vulnerability.
Because gas-containing organs are more vulnerable to primary blast injury, adaptations for diving that allow for collapse of lung tissues with depth may make animals less vulnerable to lung injury with depth. Adaptations for diving include a flexible thoracic cavity, distensible veins that can fill space as air compresses, elastic lung tissue, and resilient tracheas with interlocking cartilaginous rings that provide strength and flexibility (Ridgway, 1972). Denk
The different ways that marine mammals respond to sound are sometimes indicators of the ultimate effect that exposure to a given stimulus will have on the well-being (survival, reproduction,
Lusseau and Bejder (2007) present data from three long-term studies illustrating the connections between disturbance from whale-watching boats and population-level effects in cetaceans. In Shark Bay Australia, the abundance of bottlenose dolphins was compared within adjacent control and tourism sites over three consecutive 4.5-year periods of increasing tourism levels. Between the second and third time periods, in which tourism doubled, dolphin abundance decreased by 15 percent in the tourism area and did not change significantly in the control area. In Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) of bottlenose dolphins with tourism levels that differed by a factor of seven were observed and significant increases in travelling time and decreases in resting time were documented for both. Consistent short-term avoidance strategies were observed in response to tour boats until a threshold of disturbance was reached (average 68 minutes between interactions), after which the response switched to a longer-term habitat displacement strategy. For one population, tourism only occurred in a part of the home range. However, tourism occurred throughout the home range of the Doubtful Sound population and once boat traffic increased beyond the 68-minute threshold (resulting in abandonment of their home range/preferred habitat), reproductive success drastically decreased (increased stillbirths) and abundance decreased significantly (from 67 to 56 individuals in a short period). Last, in a study of Northern Resident killer whales off Vancouver Island, exposure to boat traffic was shown to reduce foraging opportunities and increase traveling time. A simple bioenergetics model was applied to show that the reduced foraging opportunities equated to a decreased energy intake of 18 percent, while the increased traveling incurred an increased energy output of 3-4 percent, which suggests that a management action based on avoiding interference with foraging might be particularly effective.
An important variable to consider is duration of disturbance. Severity scales used to assess behavioral responses or marine mammals to acute sound exposures are not appropriate to apply to sustained or chronic exposures, which requires considering the health of a population over time rather than a focus on immediate impacts to individuals (Southall
Marine mammals exposed to frequent or intense anthropogenic activities may leave the area, habituate to the activity, or tolerate the disturbance and remain in the area (Wartzok
Longer term displacement can lead to changes in abundance or distribution patterns of the species in the affected region (Bejder
Population characteristics (
Population models are necessary to understand and link short-term effects to individuals from disturbance (anthropogenic impacts or environmental change) to long-term population consequences. Population models require inputs for the population size and changes in vital rates of the population (
The U.S. National Research Council (NRC) committee on Characterizing Biologically Significant Marine Mammal Behavior developed an initial conceptual model to link acoustic disturbance to population effects and inform data and research needs (NRC, 2005). This Population Consequences of Acoustic Disturbance, or PCAD, conceptual model linked the parameters of sound exposure, behavior change, life function immediately affected, vital rates, and population effects. In its report, the committee found that the relationships between vital rates and population effects were relatively well understood, but that the relationships between the other components of the model were not well-known or easily observed.
Following the PCAD framework (NRC, 2005), an ONR working group developed the Potential Consequences of Disturbance (PCoD), outlining an updated conceptual model of the relationships linking disturbance to changes in behavior and physiology, health, vital rates, and population dynamics. The PCoD model considers all types of disturbance, not solely anthropogenic or acoustic, and incorporates physiological changes, such as stress or injury, along with behavioral changes as a direct result of disturbance (National Academies of Sciences Engineering and Medicine, 2017). In this framework, behavioral and physiological changes can have direct (acute) effects on vital rates, such as when changes in habitat use or increased stress levels raise the probability of mother-calf separation or predation; they can have indirect and long-term (chronic) effects on vital rates, such as when changes in time/energy budgets or increased disease susceptibility affect health, which then affects vital rates; or they can have no effect to vital rates (New
The PCoD model identifies the types of data that would be needed to assess population-level impacts. These data are lacking for many marine mammal species (Booth
A population's movement ecology determines the potential for spatiotemporal overlap with a disturbance. Resident populations or populations that rely on spatially limited habitats for critical life functions (
Bioenergetics frameworks that examine the impact of foraging disruption on body reserves of individual whales found that rates of daily foraging disruption can predict the number of days to terminal starvation for various life stages (Farmer
Resource limitation can impact marine mammal population growth rate regardless of additional anthropogenic disturbance. Stochastic Dynamic Programming models have been used to explore the impact declining prey species has on focal marine mammal predators (McHuron
Even when modeled alongside several anthropogenic sources of disturbance (
PCoD models have been used to assess the impacts of multiple and recurring stressors. A marine mammal population that is already subject to chronic stressors like climate change will likely be more vulnerable to acute disturbances. Models that have looked at populations of cetaceans who are exposed to multiple stressors over several years have found that even one major chronic stressor (
Farmer
Not all stressors have the same impact for all species and all locations. Another model analyzed the effect of a number of chronic disturbances on two bottlenose dolphin populations in Australia over 5 years (Reed
Recurring stressors can impact population abundance even when individual instances of disturbance are short and have minimal behavioral impact on an individual. A model on California sea lions introduced a generalized disturbance at different times throughout the breeding cycle, with their behavior response being an increase in the duration of a foraging trip by the female (McHuron
The definition for a stranding under title IV of the MMPA is that (A) a marine mammal is dead and is (i) on a beach or shore of the United States; or (ii) in waters under the jurisdiction of the United States (including any navigable waters); or (B) a marine mammal is alive and is (i) on a beach or shore of the United States and is unable to return to the water; (ii) on a beach or shore of the United States and, although able to return to the water, is in need of apparent medical attention; or (iii) in the waters under the jurisdiction of the United States (including any navigable waters), but is unable to return to its natural habitat under its own power or without assistance (see MMPA section 410(3)). This definition is useful for considering stranding events even when they occur beyond lands and waters under the jurisdiction of the United States.
Marine mammal strandings have been linked to a variety of causes, such as illness from exposure to infectious agents, biotoxins, or parasites; starvation; unusual oceanographic or weather events; or anthropogenic causes including fishery interaction, vessel strike, entrainment, entrapment, sound exposure, or combinations of these stressors sustained concurrently or in series. Historically, the cause or causes of most strandings have remained unknown (Geraci
Numerous studies suggest that the physiology, behavior, habitat, social relationships, age, or condition of cetaceans may cause them to strand or might predispose them to strand when exposed to another phenomenon. These suggestions are consistent with the conclusions of numerous other studies that have demonstrated that combinations of dissimilar stressors commonly combine to kill an animal or dramatically reduce its fitness, even though one exposure without the other does not produce the same result (Bernaldo de Quiros
Historically, stranding reporting and response efforts have been inconsistent, although significant improvements have occurred over the last 25 years. Reporting forms for basic (“Level A”) information, rehabilitation disposition, and human interaction have been standardized nationally (available at
In the United States from 2006-2022, there were 27,781 cetacean strandings and 79,572 pinniped strandings (107,353 total) (P. Onens, NMFS,
Worldwide, there have been several efforts to identify relationships between cetacean mass stranding events and military active sonar (Cox
Most of the stranding events reviewed by the IWC involved beaked whales. A mass stranding of goose-beaked whales in the eastern Mediterranean Sea occurred in 1996 (Frantzis, 1998), and mass stranding events involving Gervais' beaked whales, Blainville's beaked whales, and goose-beaked whales occurred off the coast of the Canary Islands in the late 1980s (Simmonds and Lopez-Jurado, 1991). The stranding events that occurred in the Canary Islands and Kyparissiakos Gulf in the late 1990s and the Bahamas in 2000 have been the most intensively-studied mass stranding events and have been associated with naval maneuvers involving the use of tactical sonar. Other cetacean species with naval sonar implicated in stranding events include harbor porpoise (Norman
Over the past 21 years, there have been 5 stranding events coincident with military MFAS use in which exposure to sonar is believed to have been a contributing factor: Greece (1996); the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain (2006) (Cox
Twelve goose-beaked whales stranded atypically (in both time and space) along a 23.7 mi (38.2 km) strand of the Kyparissiakos Gulf coast on May 12 and 13, 1996 (Frantzis, 1998). From May 11 through May 15, the North Atlantic Treaty Organization (NATO) research vessel Alliance was conducting sonar tests with signals of 600 Hz and 3 kHz and source levels of 228 and 226 dB re 1 μPa, respectively (D'Amico and Verboom, 1998; D'Spain
Necropsies of eight of the animals were performed but were limited to basic external examination and sampling of stomach contents, blood, and skin. No ears or organs were collected, and no histological samples were preserved. No significant apparent abnormalities or wounds were found, however examination of photos of the animals, taken soon after their death, revealed that the eyes of at least four of the individuals were bleeding (Frantzis, 2004). Stomach contents contained the flesh of cephalopods, indicating that feeding had recently taken place (Frantzis, 1998).
All available information regarding the conditions associated with this stranding event was compiled, and many potential causes were examined including major pollution events, prominent tectonic activity, unusual physical or meteorological events, magnetic anomalies, epizootics, and conventional military activities (International Council for the Exploration of the Sea, 2005). However, none of these potential causes coincided in time or space with the mass stranding, or could explain its characteristics (International Council for the Exploration of the Sea, 2005). The robust condition of the animals, plus the recent stomach contents, is inconsistent with pathogenic causes. In addition, environmental causes can be ruled out as there were no unusual environmental circumstances or events before or during this time period and within the general proximity (Frantzis, 2004).
Because of the rarity of this mass stranding of goose-beaked whales in the Kyparissiakos Gulf (first one in historical records), the probability for the two events (the military exercises and the strandings) to coincide in time and location, while being independent of each other, was thought to be extremely low (Frantzis, 1998). However, because full necropsies had not been conducted, and no abnormalities were noted, the cause of the strandings could not be precisely determined (Cox
NMFS and the Navy prepared a joint report addressing the multi-species stranding in the Bahamas in 2000, which took place within 24 hours of U.S. Navy ships using MFAS as they passed through the Northeast and Northwest Providence Channels on March 15-16, 2000. The ships, which operated both AN/SQS-53C and AN/SQS-56, moved through the channel while emitting sonar pings approximately every 24 seconds. Of the 17 cetaceans that stranded over a 36-hour period (goose-beaked whales, Blainville's beaked whales, minke whales, and a spotted dolphin), 7 animals died on the beach (5 goose-beaked whales, 1 Blainville's beaked whale, and 1 spotted dolphin), while the other 10 were returned to the water alive (though their ultimate fate is unknown). As discussed in the Bahamas report (DOC/DON, 2001), there is no likely association between the minke whale and spotted dolphin strandings and the operation of MFAS.
Necropsies were performed on five of the stranded beaked whales. All five necropsied beaked whales were in good body condition, showing no signs of infection, disease, vessel strike, blunt trauma, or fishery related injuries, and three still had food remains in their stomachs. Auditory structural damage was discovered in four of the whales, specifically bloody effusions or hemorrhaging around the ears. Bilateral intracochlear and unilateral temporal region subarachnoid hemorrhage, with blood clots in the lateral ventricles, were found in two of the whales. Three of the whales had small hemorrhages in their acoustic fats (located along the jaw and in the melon).
A comprehensive investigation was conducted and all possible causes of the stranding event were considered, whether they seemed likely at the outset or not. Based on the way in which the strandings coincided with ongoing naval activity involving tactical MFAS use, in terms of both time and geography, the nature of the physiological effects experienced by the dead animals, and the absence of any other acoustic sources, the investigation team concluded that MFAS aboard U.S. Navy ships that were in use during the active sonar exercise in question were the most plausible source of this acoustic or impulse trauma to beaked whales. This sound source was active in a complex environment that included the presence of a surface duct, unusual and steep bathymetry, a constricted channel with limited egress, intensive use of multiple, active sonar units over an extended period of time, and the presence of beaked whales that appear to be sensitive to the frequencies produced by these active sonars. The investigation team concluded that the cause of this stranding event was the confluence of the Navy MFAS and these contributory factors working together, and further recommended that the Navy avoid operating MFAS in situations where these five factors would be likely to occur. This report does not conclude
From May 10-14, 2000, three goose-beaked whales were found atypically stranded on two islands in the Madeira archipelago, Portugal (Cox
The bodies of the three stranded whales were examined postmortem (Woods Hole Oceanographic Institution, 2005), though only one of the stranded whales was fresh enough (24 hours after stranding) to be necropsied (Cox
Several observations on the Madeira stranded beaked whales, such as the pattern of injury to the auditory system, are the same as those observed in the Bahamas strandings. Blood in and around the eyes, kidney lesions, pleural hemorrhages, and congestion in the lungs are particularly consistent with the pathologies from the whales stranded in the Bahamas, and are consistent with stress and pressure related trauma. The similarities in pathology and stranding patterns between these two events suggest that a similar pressure event may have precipitated or contributed to the strandings at both sites (Woods Hole Oceanographic Institution, 2005).
Even though no definitive causal link can be made between the stranding event and naval exercises, certain conditions may have existed in the exercise area that, in their aggregate, may have contributed to the marine mammal strandings (Freitas, 2004): exercises were conducted in areas of at least 547 fathoms (1,000 m) depth near a shoreline where there is a rapid change in bathymetry on the order of 547 to 3,281 fathoms (1,000 to 6,000 m) occurring across a relatively short horizontal distance (Freitas, 2004); multiple ships were operating around Madeira, though it is not known if MFAS was used, and the specifics of the sound sources used are unknown (Cox
The southeastern area within the Canary Islands is well known for aggregations of beaked whales due to its ocean depths of greater than 547 fathoms (1,000 m) within a few hundred meters of the coastline (Fernandez
Eight goose-beaked whales, one Blainville's beaked whale, and one Gervais' beaked whale were necropsied, 6 of them within 12 hours of stranding (Fernandez
The association of NATO MFAS use close in space and time to the beaked whale strandings, and the similarity between this stranding event and previous beaked whale mass strandings coincident with sonar use, suggests that a similar scenario and causative mechanism of stranding may be shared between the events. Beaked whales stranded in this event demonstrated brain and auditory system injuries, hemorrhages, and congestion in multiple organs, similar to the pathological findings of the Bahamas and Madeira stranding events. In addition, the necropsy results of the Canary Islands stranding event lead to the hypothesis that the presence of disseminated and widespread gas bubbles and fat emboli were indicative of nitrogen bubble formation, similar to what might be expected in decompression sickness (Jepson
On July 3 and 4, 2004, approximately 150 to 200 melon-headed whales occupied the shallow waters of Hanalei Bay, Kaua'i, Hawaii for over 28 hours. Attendees of a canoe blessing observed the animals entering the Bay in a single wave formation at 7 a.m. on July 3, 2004. The animals were observed moving back into the shore from the mouth of the Bay at 9 a.m. The usually pelagic animals milled in the shallow bay and were returned to deeper water with human assistance beginning at 9:30 a.m. on July 4, 2004, and were out of sight by 10:30 a.m.
Only one animal, a calf, was known to have died following this event. The animal was noted alive and alone in the Bay on the afternoon of July 4, 2004, and was found dead in the Bay the morning of July 5, 2004. A full necropsy, magnetic resonance imaging, and computerized tomography examination were performed on the calf to determine the manner and cause of death. The combination of imaging, necropsy and histological analyses found no evidence of infectious, internal traumatic, congenital, or toxic factors. Cause of death could not be definitively determined, but it is likely that maternal separation, poor nutritional condition, and dehydration contributed to the final demise of the animal. Although it is not known when the calf was separated from its mother, the animals' movement into the Bay and subsequent milling and re-grouping may have contributed to the separation or lack of nursing, especially if the maternal bond was weak or this was an inexperienced mother with her first calf.
Environmental factors, abiotic and biotic, were analyzed for any anomalous occurrences that would have contributed to the animals entering and remaining in Hanalei Bay. The Bay's bathymetry is similar to many other sites within the Hawaiian Island chain and dissimilar to sites that have been associated with mass strandings in other parts of the United States. The weather conditions appeared to be normal for that time of year with no fronts or other significant features noted. There was no evidence of unusual distribution, occurrence of predator or prey species, or unusual harmful algal blooms, although Mobley
The Hanalei event was spatially and temporally correlated with RIMPAC. Official sonar training and tracking exercises in the Pacific Missile Range Facility (PMRF) warning area did not commence until approximately 8 a.m. on July 3 and were thus ruled out as a possible trigger for the initial movement into the bay. However, six naval surface vessels transiting to the operational area on July 2 intermittently transmitted active sonar (for approximately 9 hours total from 1:15 p.m. to 12:30 a.m.) as they approached from the south. The potential for these transmissions to have triggered the whales' movement into Hanalei Bay was investigated. Analyses with the information available indicated that animals to the south and east of Kaua'i could have detected active sonar transmissions on July 2, and reached Hanalei Bay on or before 7 a.m. on July 3. However, data limitations regarding the position of the whales prior to their arrival in the Bay, the magnitude of sonar exposure, behavioral responses of melon-headed whales to acoustic stimuli, and other possible relevant factors preclude a conclusive finding regarding the role of sonar in triggering this event. Propagation modeling suggests that transmissions from sonar use during the July 3 exercise in the PMRF warning area may have been detectable at the mouth of the bay. If the animals responded negatively to these signals, it may have contributed to their continued presence in the bay. The U.S. Navy ceased all active sonar transmissions during exercises in this range on the afternoon of July 3. Subsequent to the cessation of sonar use, the animals were herded out of the bay.
While causation of this stranding event may never be unequivocally determined, NMFS considers the active sonar transmissions of July 2-3, 2004, a plausible, if not likely, contributing factor in what may have been a confluence of events. This conclusion is based on the following: (1) the evidently anomalous nature of the stranding; (2) its close spatiotemporal correlation with wide-scale, sustained use of sonar systems previously associated with stranding of deep-diving marine mammals; (3) the directed movement of two groups of transmitting vessels toward the southeast and southwest coast of Kaua'i; (4) the results of acoustic propagation modeling and an analysis of possible animal transit times to the bay; and (5) the absence of any other compelling causative explanation. The initiation and persistence of this event may have resulted from an interaction of biological and physical factors. The biological factors may have included the presence of an apparently uncommon, deep-diving cetacean species (and possibly an offshore, non-resident group), social interactions among the animals before or after they entered the bay, and/or unknown predator or prey conditions. The physical factors may have included the presence of nearby deep water, multiple vessels transiting in a directed manner while transmitting active sonar over a sustained period, the presence of surface sound ducting conditions, and/or intermittent and random human interactions while the animals were in the bay.
A separate event involving melon-headed whales and rough-toothed dolphins took place over the same period of time in the Northern Mariana Islands (Jefferson
The Spanish Cetacean Society reported an atypical mass stranding of four beaked whales that occurred January 26, 2006, on the southeast coast of Spain, near Mojácar (Gulf of Vera) in the Western Mediterranean Sea. According to the report, two of the whales were discovered the evening of January 26 and were found to be still alive. Two other whales were discovered during the day on January 27 but had already died. The first three animals were located near the town of Mojácar and the fourth animal was found dead, a few kilometers north of the first three animals. From January 25-26, 2006, Standing NATO Response Force Maritime Group Two (five of seven ships including one U.S. ship under NATO Operational Control) had conducted active sonar training against a Spanish submarine within 50 nmi (93 km) of the stranding site.
Veterinary pathologists necropsied the two male and two female goose-beaked whales. According to the pathologists, the most likely primary cause of this type of beaked whale mass stranding event was anthropogenic acoustic activities, most probably anti-submarine MFAS used during the military naval exercises. However, no positive acoustic link was established as a direct cause of the stranding. Even though no causal link can be made between the stranding event and naval exercises, certain conditions may have existed in the exercise area that, in their aggregate, may have contributed to the marine mammal strandings (Freitas, 2004). Exercises were conducted in areas of at least 547 fathoms (1,000 m) depth near a shoreline where there is a rapid change in bathymetry on the order of 547 to 3,281 fathoms (1,000 to 6,000 m) occurring across a relatively short horizontal distance (Freitas, 2004). Multiple ships (in this instance, five) were operating MFAS in the same area over extended periods of time (in this case, 20 hours) in close proximity; and exercises took place in an area surrounded by landmasses, or in an embayment. Exercises involving multiple ships employing MFAS near land may have produced sound directed towards a channel or embayment that may have cut off the lines of egress for the affected marine mammals (Freitas, 2004).
On March 25, 2022, a beaked whale (species unknown) stranded in Honaunau Bay, Hawaii. The animal was observed swimming into shore and over rocks. Bystanders intervened to turn the animal off of the rocks, and it swam back out of the Bay on its own. Locals reported hearing a siren or alarm type of sound underwater on the same day, and a Navy vessel was observed from shore on the following day. The Navy confirmed it used CAS within 27 nmi (50 km) and 48 hours of the time of stranding, though the stranding has not been definitively linked to the Navy's CAS use.
Although the confluence of Navy MFAS with the other contributory factors noted in the 2001 NMFS/Navy joint report was identified as the cause of the 2000 Bahamas stranding event, the specific mechanisms that led to that stranding (or the others) are not well understood, and there is uncertainty regarding the ordering of effects that led to the stranding. It is unclear whether beaked whales were directly injured by sound (
Although causal relationships between beaked whale stranding events and active sonar remain unknown, several authors have hypothesized that stranding events involving these species in the Bahamas and Canary Islands may have been triggered when the whales changed their dive behavior in a startled response to exposure to active sonar or to further avoid exposure (Cox
Because many species of marine mammals make repetitive and prolonged dives to great depths, it has long been assumed that marine mammals have evolved physiological mechanisms to protect against the effects of rapid and repeated decompressions. Although several investigators have identified physiological adaptations that may protect marine mammals against nitrogen gas supersaturation (alveolar collapse and elective circulation; Kooyman
Zimmer and Tyack (2007) modeled nitrogen tension and bubble growth in several tissue compartments for several hypothetical dive profiles and concluded that repetitive shallow dives (defined as a dive where depth does not exceed the depth of alveolar collapse, approximately 236 ft (72 m) for goose-beaked whale), perhaps as a consequence of an extended avoidance response to sonar sound, could pose a risk for decompression sickness and that this risk should increase with the duration of the response. Their models also suggested that unrealistically rapid rates of ascent from normal dive behaviors are unlikely to result in supersaturation to the extent that bubble formation would be expected. Tyack
Additional predictive modeling conducted to date has been performed with many unknowns about the respiratory physiology of deep-diving breath-hold animals. For example, Denk
If marine mammals respond to an Action Proponent vessel that is transmitting active sonar in the same way that they might respond to a predator, their probability of flight responses could increase when they perceive that Action Proponent vessels are approaching them directly, because a direct approach may convey detection and intent to capture (Burger and Gochfeld, 1981, 1990; Cooper, 1997; Cooper, 1998). The probability of flight responses could also increase as received levels of active sonar increase (and the ship is, therefore, closer) and as ship speeds increase (that is, as approach speeds increase). For example, the probability of flight responses in Dall's sheep (
Despite the many theories involving bubble formation (both as a direct cause of injury, see Non-Auditory Injury section and an indirect cause of stranding), Southall
During a Navy training event on March 4, 2011, at the Silver Strand Training Complex in San Diego, California, three or possibly four dolphins were killed in an explosion. During an underwater detonation training event, a pod of 100 to 150 long-beaked common dolphins were observed moving towards the 700-yd (640.1-m) exclusion zone around the explosive charge, monitored by personnel in a safety boat and participants in a dive boat. Approximately 5 minutes remained on a time-delay fuse connected to a single 8.76 lb (3.97 kg) explosive charge (C-4 and detonation cord). Although the dive boat was placed between the pod and the explosive in an effort to guide the dolphins away from the area, that effort was unsuccessful and three long-beaked common dolphins near the explosion died. The Navy recovered those animals and transferred them to the local stranding network for necropsy. In addition to the three dolphins found dead on March 4, the remains of a fourth dolphin were discovered on March 7, 2011, near Oceanside, California (3 days later and approximately 42 mi (68 km) north of the detonation), which might also have been related to this event. Upon necropsy, all four animals were found to have sustained typical mammalian primary blast injuries (Danil and St Leger, 2011). Association of the fourth stranding with the training event is uncertain because dolphins strand on a regular basis in the San Diego area. Details such as the dolphins' depth and distance from the explosive at the time of the detonation could not be estimated from the 250 yd (228.6 m) standoff point of the observers in the dive boat or the safety boat.
These dolphin mortalities are the only known occurrence of a Navy training or testing event involving impulsive energy (underwater detonation) that caused mortality or injury to a marine mammal. Despite this being a rare occurrence, the Navy reviewed training requirements, safety procedures, and possible mitigation measures and implemented changes to reduce the potential for this to occur in the future.
On July 22, 2011, a mass stranding event involving long-finned pilot whales occurred at Kyle of Durness, Scotland. An investigation by Brownlow
Stranded marine mammals are reported along the entire Atlantic Coast and Gulf of America each year. Marine mammals strand due to natural or anthropogenic causes; the majority of reported type of occurrences in marine mammal strandings in this region include fishery interactions, illness, predation, and vessel strikes (Henry
Vessel strikes of marine mammals can result in death or serious injury of the animal. Wounds resulting from vessel strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. Lethal interactions are typically associated with large whales, which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
Wounds resulting from vessel strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. Impact forces increase with speed as does the probability of a strike at a given distance (Silber
Jensen and Silber (2003) detailed 292 records of known or probable vessel strikes of all large whale species from 1975 to 2002. Of these, vessel speed at the time of collision was reported for 58 cases. Of these 58 cases, 39 (or 67 percent) resulted in serious injury or death (19 of those resulted in serious injury as determined by blood in the water, propeller gashes or severed tailstock, and fractured skull, jaw, vertebrae, hemorrhaging, massive bruising or other injuries noted during necropsy and 20 resulted in death). Operating speeds of vessels that struck various species of large whales ranged from 2 to 51 kn (3.7 to 94.5 km/hr). The majority (79 percent) of these strikes occurred at speeds of 13 kn (24 km/hr) or greater. The average speed that resulted in serious injury or death was 18.6 kn (34.4 km/hr). Pace and Silber (2005) found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 kn (18.5 to 25.9 km/hr), and exceeded 90 percent at 17 kn (31.5 km/hr). Higher speeds during strikes result in greater force of impact and also appear to increase the chance of severe injuries or death. While modeling studies have suggested that hydrodynamic forces pulling whales toward the vessel hull increase with increasing speed (Clyne, 1999; Knowlton
In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 kn (15.9 and 27.8 km/hr). The chances of a lethal injury decline from approximately 80 percent at 15 kn to approximately 20 percent at 8.6 kn (15.9 km/hr). At speeds below 11.8 kn (21.9 km/hr), the chances of lethal injury drop below 50 percent, while the probability asymptotically increases toward 100 percent above 15 kn (27.8 km/hr). Garrison
The Jensen and Silber (2003) report notes that the database represents a minimum number of strikes, because the vast majority probably goes undetected or unreported. In contrast, Action Proponent vessels are likely to detect any strike that does occur because of the required personnel training and Lookouts (as described in the Proposed Mitigation Measures section), and they are required to report all vessel strikes involving marine mammals.
In the AFTT Study Area, commercial traffic is heaviest in the nearshore waters, near major ports and in the shipping lanes along the entire U.S. East Coast and along the northern coast of the Gulf of America, while military vessel traffic is primarily concentrated between the mouth of the Chesapeake Bay and Jacksonville, Florida (Mintz, 2016). An examination of vessel traffic within the AFTT Study Area determined that military vessel occurrence is two orders of magnitude lower than that of commercial traffic. The study also revealed that while commercial traffic is relatively steady throughout the year, military vessel usage within the range complexes is episodic, based on specific exercises being conducted at different times of the year (Mintz, 2012); however, military vessel use within inshore waters occurs regularly and routinely consists of high-speed small craft movements. Juvenile whales of some species may be particularly vulnerable to vessel strikes due to their particular habitat use and surface foraging behavior in nearshore waters, where smaller vessel numbers are higher (Stepanuk
Over a period of 18 years from 1995 to 2012 there were a total of 19 Navy vessel strikes in the AFTT Study Area. Eight of the strikes resulted in a confirmed death; but in 11 of the 19 strikes, the fate of the animal was unknown. It is possible that some of the 11 reported strikes resulted in recoverable injury or were not marine mammals at all, but another large marine species (
Between 2007 and 2009, the Navy developed and distributed additional training, mitigation, and reporting tools to Navy operators to improve marine mammal protection and to ensure compliance with permit requirements. In 2009, the Navy implemented Marine Species Awareness Training designed to improve effectiveness of visual observation for marine mammals and other marine resources. In subsequent years, the Navy issued refined policy guidance on vessel strikes in order to collect the most accurate and detailed data possible in response to a possible incident (also see the Notification and Reporting Plan for this proposed rule). For over a decade, the Navy has implemented the Protective Measures Assessment Protocol software tool, which provides operators with notification of the required mitigation and a visual display of the planned training or testing activity location overlaid with relevant environmental data.
The proposed training and testing activities could potentially affect marine mammal habitat through the introduction of impacts to the prey species of marine mammals, acoustic habitat (sound in the water column), water quality, and biologically important habitat for marine mammals. Each of these potential effects was considered in the 2024 AFTT Draft Supplemental EIS/OEIS and was determined not to have adverse effects on marine mammal habitat. Based on the information below and the supporting information included in the 2024 AFTT Draft Supplemental EIS/OEIS, NMFS has determined that the proposed training and training activities would not have adverse or long-term impacts on marine mammal habitat.
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fishes, like other vertebrates, have a variety of different sensory systems to glean information from ocean around them (Astrup and Mohl, 1993; Astrup, 1999; Braun and Grande, 2008; Carroll
In terms of physiology, multiple scientific studies have documented a lack of mortality or physiological effects to fish from exposure to low- and mid-frequency sonar and other sounds (Halvorsen
In terms of behavioral responses, Juanes
It is also possible for fish to be injured or killed by an explosion in the immediate vicinity of the surface from dropped or fired ordnance, or near the bottom from shallow water bottom-placed underwater mine warfare detonations. Physical effects from pressure waves generated by underwater sounds (
Fish not killed or driven from a location by an explosion might change their behavior, feeding pattern, or distribution. Changes in behavior of fish have been observed as a result of sound produced by explosives, with effect intensified in areas of hard substrate (Wright, 1982). However, Navy explosive use avoids hard substrate to the best extent practical during underwater detonations, or deep-water surface detonations. Stunning from pressure waves could also temporarily immobilize fish, making them more susceptible to predation. The abundances of various fish (and invertebrates) near the detonation point for explosives could be altered for a few hours before animals from surrounding areas repopulate the area. However, these populations would likely be replenished as waters near the detonation point are mixed with adjacent waters. Repeated exposure of individual fish to sounds from underwater explosions is not likely and exposures are expected to be short-term and localized. Long-term consequences for fish populations would not be expected. Several studies have demonstrated that air gun sounds might affect the distribution and behavior of
For fishes exposed to military sonar, there would be limited sonar use spread out in time and space across large offshore areas such that only small areas are actually ensonified (tens of miles) compared to the total life history distribution of fish prey species. There would be no probability for mortality or physical injury from sonar, and for most species, no or little potential for hearing or behavioral effects, except to a few select fishes with hearing specializations (
Vessels and in-water devices do not normally collide with adult fish, particularly those that are common marine mammal prey, most of which can detect and avoid them. Exposure of fishes to vessel strike stressors is limited to those fish groups that are large, slow-moving, and may occur near the surface, such as ocean sunfish, whale sharks, basking sharks, and manta rays. With the exception of sturgeon, these species are distributed widely in offshore portions of the AFTT Study Area. Any isolated cases of a military vessel striking an individual could injure that individual, impacting the fitness of an individual fish. Vessel strikes would not pose a risk to most of the other marine fish groups, because many fish can detect and avoid vessel movements, making strikes rare and allowing the fish to return to their normal behavior after the ship or device passes. As a vessel approaches a fish, they could have a detectable behavioral or physiological response (
In addition to fish, prey sources such as marine invertebrates could potentially be impacted by sound stressors as a result of the proposed activities. However, most marine invertebrates' ability to sense sounds is very limited. In most cases, marine invertebrates would not respond to impulsive and non-impulsive sounds, although they may detect and briefly respond to nearby low-frequency sounds. These short-term responses would likely be inconsequential to invertebrate populations.
Invertebrates appear to be able to detect sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive to low-frequency sounds (Packard
Cephalopods have a specialized sensory organ inside the head called a statocyst that may help an animal determine its position in space (orientation) and maintain balance (Budelmann, 1992). Packard
Explosions and pile driving would likely kill or injure nearby marine invertebrates. Vessels also have the potential to impact marine invertebrates by disturbing the water column or sediments, or directly striking organisms (Bishop, 2008). The propeller wash (water displaced by propellers used for propulsion) from vessel movement and water displaced from vessel hulls can potentially disturb marine invertebrates in the water column and is a likely cause of zooplankton mortality (Bickel
There is little information concerning potential impacts of noise on zooplankton populations. However, one study (McCauley
Notably, a recently described study produced results inconsistent with those of McCauley
Military expended materials resulting from training and testing activities could potentially result in minor long-term changes to benthic habitat, however the impacts of small amounts of expended materials are unlikely to have measurable effects on overall populations. Military expended materials may be colonized over time by benthic organisms that prefer hard substrate and would provide structure that could attract some species of fish or invertebrates.
Overall, the combined impacts of sound exposure, explosions, vessel strikes, and military expended materials resulting from the proposed activities would not be expected to have measurable effects on populations of marine mammal prey species. Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects. Mortality from decompression injuries is possible in close proximity to a sound, but only limited data on mortality in response to air gun noise exposure are available (Fields
Acoustic habitat is the soundscape which encompasses all of the sound present in a particular location and time, as a whole when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Together, sounds made by animals and the geophysical environment (
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of air gun arrays) or for military training and testing purposes (as in the use of sonar and explosives and other acoustic sources). Anthropogenic noise varies widely in its frequency, content, duration, and loudness, and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please also see the previous discussion in the Masking section), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). For more detail on these concepts see,
The term “listening area” refers to the region of ocean over which sources of sound can be detected by an animal at the center of the space. Loss of communication space concerns the area over which a specific animal signal (used to communicate with conspecifics in biologically important contexts such as foraging or mating) can be heard, in noisier relative to quieter conditions (Clark
The sounds produced during training and testing activities can be widely dispersed or concentrated in small areas for varying periods. Sound produced from training and testing activities in the AFTT Study Area is temporary and transitory. Any anthropogenic noise attributed to training and testing activities in the AFTT Study Area would be temporary and the affected area would be expected to immediately return to the original state when these activities cease.
Training and testing activities may introduce water quality constituents into the water column. Based on the analysis of the 2024 AFTT Draft Supplemental EIS/OEIS, military expended materials (
Indirect effects of explosives and unexploded ordnance to marine mammals via sediment is possible in the immediate vicinity of the ordnance. Degradation products of Royal Demolition Explosive are not toxic to marine organisms at realistic exposure levels (Rosen and Lotufo, 2010). Relatively low solubility of most explosives and their degradation products means that concentrations of these contaminants in the marine environment are relatively low and readily diluted. Furthermore, while explosives and their degradation products were detectable in marine sediment approximately 6-12 inches (0.15-0.3 m) away from degrading ordnance, the concentrations of these compounds were not statistically distinguishable from background beyond 3-6 ft (1-2 m) from the degrading ordnance. Taken together, it is possible that marine mammals could be exposed to degrading explosives, but it would be within a very small radius of the explosive (1-6 ft (0.3-2 m)).
Equipment used by the Action Proponents within the AFTT Study Area, including ships and other marine vessels, aircraft, and other equipment, are also potential sources of by-products. All equipment is properly maintained in accordance with applicable Navy, Coast Guard and legal requirements. All such operating equipment meets Federal water quality standards, where applicable.
This section indicates the number of takes that NMFS is proposing to authorize, which is based on the amount of take that NMFS anticipates is reasonably likely to occur. NMFS coordinated closely with the Action Proponents in the development of their incidental take application, and preliminarily agrees that the methods the Action Proponents have put forth described herein to estimate take (including the model, thresholds, and density estimates), and the resulting numbers are based on the best available science and appropriate for authorization.
Takes would be predominantly in the form of harassment, but a small number of mortalities are also possible. 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).
Proposed authorized takes would primarily be in the form of Level B harassment, as use of the acoustic (
Generally speaking, for acoustic impacts NMFS estimates the amount and type of harassment by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals would experience behavioral disturbance or incur some degree of temporary or permanent hearing impairment; (2) the area or volume of water that would be ensonified above these levels in a day or event; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) the number of days of activities or events.
Using the best available science, NMFS, in coordination with the Navy, has established acoustic thresholds that identify the most appropriate received
NMFS' 2024 Technical Guidance (NMFS, 2024) identifies dual criteria to assess AUD INJ (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 Updated Technical Guidance also identifies criteria to predict TTS, which is not considered injury and falls into the Level B harassment category. The Action Proponents' specified activities include the use of non-impulsive (sonar, vibratory pile driving) and impulsive (explosives, air guns, impact pile driving) sources.
For the consideration of impacts on hearing in Phase IV, marine mammals were divided into nine groups for analysis: very low-frequency cetaceans (VLF), low-frequency cetaceans (LF), high-frequency cetaceans (HF), very high-frequency cetaceans (VHF), sirenians (SI), phocid carnivores in water and in air (PCW and PCA, respectively), and otariids and other non-phocid marine carnivores in water and air (OCW and OCA, respectively). For each group, a frequency-dependent weighting function and numeric thresholds for the onset of TTS and the onset of AUD INJ were estimated. The onset of TTS is defined as a TTS of 6 dB measured approximately 2-5 minutes after exposure. A TTS of 40 dB is used as a proxy for the onset of AUD INJ;
To compare Phase IV weighting functions and TTS/AUD INJ SEL thresholds to those used in Phase III, both the weighting function shape and the weighted threshold values were considered; the weighted thresholds by themselves only indicate the TTS/AUD INJ threshold at the most susceptible frequency (based on the relevant weighting function). In contrast, the TTS/AUD INJ exposure functions incorporate both the shape of the weighting function and the weighted threshold value and provide the best means of comparing the frequency-dependent TTS/AUD INJ thresholds for Phase III and Phase IV.
The most significant differences between the Phase III and Phase IV functions and thresholds include the following:
(1) Mysticetes were divided into two groups (VLF and LF), with the upper hearing limit for the LF group increased from Phase III to match recent hearing measurements in minke whales (Houser
(2) Group names were changed from Phase III to be consistent with Southall
(3) For the HF group, Phase IV onset TTS/AUD INJ thresholds are lower compared to Phase III at frequencies below approximately 10 kHz. This is a result of new TTS onset data for dolphins at low frequencies (Finneran
(4) For the PCW group, new TTS data for harbor seals (Kastelein
(5) For group OCW, new TTS data for California sea lions (Kastelein
Of note, the thresholds and weighting function for the LF cetacean hearing group in NMFS' 2024 Technical Guidance (NMFS, 2024) match the Navy's VLF cetacean hearing group. However, the weighting function for those hearing groups differs between the two documents (
These thresholds (table 17 and table 18) were developed by compiling and synthesizing the best available science and soliciting input multiple times from both public and peer reviewers. The references, analysis, and methodology used in the development of the thresholds are described in Updated Technical Guidance, which may be accessed at:
Based on the best available science, the Action Proponents (in coordination with NMFS) used the acoustic and pressure thresholds indicated in table 17 to predict the onset of behavioral harassment, AUD INJ, TTS, non-auditory injury, and mortality due to explosive sources.
For explosive activities using single detonations (
The criterion for mortality is based on severe lung injury observed in terrestrial mammals exposed to underwater explosions as recorded in Goertner (1982). The criteria for non-auditory injury are based on slight lung injury or gastrointestinal (G.I.) tract injury observed in the same data set. Mortality and slight lung injury impacts to marine mammals are estimated using impulse thresholds based on both calf/pup/juvenile and adult masses (see the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” technical report (U.S. Department of the Navy, 2024)). The peak pressure threshold applies to all species and age classes. Unlike the prior analysis (Phase III), this analysis relies on the onset rather than the mean estimated threshold for these effects. This revision results in a small increase in the predicted non-auditory injuries and mortalities for the same event versus prior analyses. Thresholds are provided in table 19 for use in non-auditory injury assessment for marine mammals exposed to underwater explosives.
Though significantly driven by received level and distance, the onset of Level B harassment by behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors and can be difficult to predict (Southall
Despite the rapidly evolving science, there are still challenges in quantifying expected behavioral responses that qualify as take by Level B harassment, especially where the goal is to use one or two predictable indicators (
In its analysis of impacts associated with sonar acoustic sources (which was coordinated with NMFS), the Action Proponents used an updated approach, as described below. Many of the behavioral responses identified using the Action Proponents' quantitative analysis are most likely to be of moderate severity as described in the Southall
As noted above, the Action Proponents coordinated with NMFS to develop behavioral harassment thresholds specific to their military readiness activities utilizing active sonar that identify at what received level and distance Level B harassment by behavioral disturbance would be expected to result. These behavioral harassment thresholds consist of behavioral response functions (BRFs) and associated distance cut-off conditions, and are also referred to, together, as “the criteria.” These criteria are used to estimate the number of animals that may exhibit a behavioral response that rises to the level of a take when exposed to sonar and other transducers. The way the criteria were derived is discussed in detail in the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” technical report (U.S. Department of the Navy, 2024). Developing these behavioral harassment criteria involved multiple steps. All peer-reviewed published behavioral response studies conducted both in the field and on captive animals were examined in order to understand the breadth of behavioral responses of marine mammals to sonar and other transducers. Marine mammals were divided into four groups for analysis: mysticetes (all baleen whales), odontocetes (most toothed whales, dolphins, and porpoises), sensitive species (beaked whales and harbor porpoise), and pinnipeds (true seals, sea lions, walruses, sea otters, polar bears). These groups are like the groups used in the behavioral response analysis (Phase III), with the exception of combining beaked whales and harbor porpoise into a single curve. For each group, a biphasic BRF was developed using the
The analysis of BRFs differs from the previous phase (Phase III) due to the addition of new data and the separation of some species groups. The Sensitive Species BRF is more sensitive at lower received levels but less sensitive at higher received levels than the prior beaked whale and harbor porpoise functions. The Odontocete BRF is less sensitive across all received levels due to including additional behavioral response research, which will result in a lower number of behavioral responses than in the prior analysis for the same event, but also reduces the avoidance of auditory effects. The Pinnipeds (in-water) BRF is more sensitive due to the inclusion of additional captive pinniped data (only three behavioral studies using captive pinnipeds were available for the derivation of the BRF). Behavioral studies of captive animals can be difficult to extrapolate to wild animals due to several factors (
The BRFs only relate the highest received level of sound to the probability that an animal will have a behavioral response. The BRFs do not account for the duration or pattern of use of any individual sound source or of the activity as a whole; the number of sound sources that may be operating simultaneously; or how loud the animal may perceive the sonar signal to be based on the frequency of the sonar versus the animal's hearing range.
Criteria for assessing marine mammal behavioral responses to sonars use the metric of highest received sound level (rms) to evaluate the risk of immediate responses by exposed animals. Currently, there are limited data to develop criteria that include the context of an exposure, characteristics of individual animals, behavioral state, duration of an exposure, sound source duty cycle, and the number of individual sources in an activity (although these factors certainly influence the severity of a behavioral response) and, further, even where certain contextual factors may be predictive where known, it is difficult to reliably predict when such factors will be present.
The BRFs also do not account for distance. At moderate to low received levels the correlation between probability of response and received level is very poor and it appears that other variables mediate behavioral responses (
Data suggest that beyond a certain distance, significant behavioral responses are unlikely. At shorter ranges (less than 10 km) some behavioral responses have been observed at received levels below 140 dB re 1 μPa. Thus, proximity may mediate behavioral responses at lower received levels. Since most data used to derive the BRFs are within 10 km of the source, probability of response at farther ranges is not well-represented. Therefore, the source-receiver range must be considered separately to estimate likely significant behavioral responses.
This analysis applies behavioral cut-off conditions to responses predicted using the BRFs. Animals within a specified distance and above a minimum probability of response are assumed to have a significant behavioral response. The cut-off distance is based on the farthest source-animal distance across all known studies where animals exhibited a significant behavioral response. Animals beyond the cut-off distance but with received levels above the sound pressure level associated with a probability of response of 0.50 on the BRF are also assumed to have a significant behavioral response. The actual likelihood of significant behavioral responses occurring beyond the distance cut-off is unknown. Significant behavioral responses beyond 100 km are unlikely based on source-animal distance and attenuated received levels. The behavioral cut-off conditions and additional information on the derivation of the cut-off conditions can be found in table 2.2-3 of the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” technical report (U.S. Department of the Navy, 2024).
The Action Proponents used cutoff distances beyond which the potential of significant behavioral responses (and therefore Level B harassment) is considered to be unlikely (see table 20). These distances were determined by examining all available published field observations of behavioral responses to sonar or sonar-like signals that included the distance between the sound source and the marine mammal. Behavioral effects calculations are based on the maximum SPL to which a modeled marine mammal is exposed. There is empirical evidence to suggest that animals are more likely to exhibit significant behavioral responses to moderate levels sounds that are closer and less likely to exhibit behavioral responses when exposed to moderate levels of sound from a source that is far away. To account for this, the Action Proponents have implemented behavioral cutoffs that consider both received sound level and distance from the source. These updated cutoffs conditions are unique to each behavioral hearing group, and are outlined in table 20.
The Action Proponents and NMFS have used the best available science to address the challenging differentiation between significant and non-significant behavioral responses (
Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses generalized acoustic thresholds based on received level to estimate the onset of behavioral harassment for sources other than active sonar. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (
While the best available science for assessing behavioral responses of marine mammals to impulsive sounds relies on data from seismic and pile driving sources, it is likely that these predicted responses using a threshold based on seismic and pile driving represent a worst-case scenario compared to behavioral responses to explosives used in military readiness activities, which would typically consist of single impulses or a cluster of impulses rather than long-duration, repeated impulses (
For single explosions at received sound levels below hearing loss thresholds, the most likely behavioral response is a brief alerting or orienting response. Since no further sounds follow the initial brief impulses, significant behavioral responses would not be expected to occur. If a significant response were to occur, the Action Proponents' analysis assumes it would be as a result of an exposure at levels within the range of auditory impacts (TTS and AUD INJ). Because of this approach, the number of auditory impacts is higher than the number of behavioral impacts in the quantified results for some stocks.
If more than one explosive event occurs within any given 24-hour period during a military readiness activity, behavioral disturbance is considered more likely to occur and specific criteria are applied to predict the number of animals that may have a behavioral response. For events with multiple explosions, the behavioral threshold used in this analysis is 5 dB less than the TTS onset threshold. This value is derived from observed onsets of behavioral response by test subjects (bottlenose dolphins) during non-impulse TTS testing (Schlundt
The Navy Acoustic Effects Model (NAEMO) is their standard model for assessing acoustic effects on marine mammals. NAEMO calculates sound energy propagation from sonar and other transducers, air guns, and explosives during military readiness activities and the sound received by animat dosimeters. Animat dosimeters are virtual representations of marine mammals distributed in the area around the modeled activity and each dosimeter records its individual sound “dose.” The model bases the distribution of animats over the AFTT Study Area on the density values in the Navy Marine Species Density Database (NMSDD) and distributes animats in the water column proportional to the known time that species spend at varying depths.
The model accounts for environmental variability of sound propagation in both distance and depth when computing the sound level received by the animats. The model conducts a statistical analysis based on multiple model runs to compute the estimated effects on animals. The number of animats that exceed the thresholds for effects is tallied to provide an estimate of the number of marine mammals that could be affected.
Assumptions in NAEMO intentionally err on the side of overestimation when there are unknowns. The specified activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that the implementation of power downs or shut downs are not modeled or, thereby,
The model estimates the acoustic impacts caused by sonars and other transducers, explosives, and air guns during individual military readiness exercises. During any individual modeled event, impacts to individual animats are considered over 24-hour periods. The animats do not represent actual animals, but rather they represent a distribution of animals based on density and abundance data, which allows for a statistical analysis of the number of instances that marine mammals may be exposed to sound levels resulting in an effect. Therefore, the model estimates the number of instances in which an effect threshold was exceeded over the course of a year, but does not estimate the number of individual marine mammals that may be impacted over a year (
As NAEMO interrogates the simulation data in the Animat Processor, exposures that are both outside the distance cutoff and below the received level cutoff are omitted when determining the maximum SPL for each animat. This differs from Phase III, in which only distance cutoffs were applied, meaning that all exposures outside the distance cutoffs were omitted, with no consideration of received level.
The presence of the two cutoff criteria in Phase IV provides a more accurate and conservative estimation of behavioral effects because louder exposures that would have been omitted previously, when only a distance cutoff was applied, are considered in Phase IV, while the estimation of behavioral effects still omits exposures at distances and received levels that would be unlikely to produce a significant behavioral response. NAEMO retains the capability of calculating behavioral effects without the cutoffs applied, depending on user preference.
The impulsive behavioral criteria are not based on the probability of a behavioral response but rather on a single SPL metric. For consideration of impulsive behavioral effects, the cutoff conditions in table 20 are not applied.
The Action Proponents performed a quantitative analysis without NAEMO to estimate the number of times marine mammals could be affected by pile driving and extraction used during proposed training activities. The analysis considered details of the activity, sound exposure criteria, and the number and distribution of marine mammals. This information was then used in an “area*density” model in which the areas within each footprint (
Then, these areas were multiplied by the density of each marine species within the nearshore environment to estimate the number of effects. Uniform density values for species expected to be present in the nearshore areas where pile driving could occur were estimated using the NMSDD or available survey data specific to the activity location. More detail is provided in the 2024 AFTT Draft Supplemental EIS/OEIS. Since the same animal can be “taken” every day (
This section provides range (distance) to effects for sonar and other active acoustic sources as well as explosives to specific acoustic thresholds determined using NAEMO. Ranges are determined by modeling the distance that noise from a source will need to propagate to reach exposure level thresholds specific to a hearing group that will cause behavioral response, TTS, AUD INJ, non-auditory injury, and mortality. Ranges to effects (tables 22 through 42) are utilized to help predict impacts from acoustic and explosive sources and assess the benefit of mitigation zones. Marine mammals exposed within these ranges for the shown duration are predicted to experience the associated effect. Range to effects is important information in not only predicting acoustic impacts, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects to marine mammals.
Ranges to effects for sonar were determined by modeling the distance that sound would need to propagate to reach exposure level thresholds specific to a hearing group that would cause behavioral response, TTS, and AUD INJ, as described in the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” technical report (U.S. Department of the Navy, 2024). The ranges do not account for an animal avoiding a source nor for the movement of the platform, both of which would influence the actual range to onset of auditory effects during an actual exposure.
Table 22 through table 26 below provide the ranges to TTS and AUD INJ for marine mammals from exposure durations of 1, 30, 60, and 120 seconds for six sonar systems proposed for use (see also appendix A of the application). Due to the lower acoustic thresholds for TTS versus AUD INJ, ranges to TTS are larger. Successive pings can be expected to add together, further increasing the range to the onset of TTS and AUD INJ.
Ranges to effects for air guns were determined by modeling the distance that sound would need to propagate to reach exposure level thresholds specific to a hearing group that would cause behavioral response, TTS, and AUD INJ, as described in the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” report (U.S. Department of the Navy, 2024)). The air gun ranges to effects for TTS and AUD INJ in table 27 are based on the metric (
Only two stocks of bottlenose dolphins (Gulf of America Northern Coastal stock and Mississippi Sound, Lake Borgne, and Bay Boudreau stock) are expected to be present in the nearshore waters of Gulfport, Mississippi, where impact and vibratory pile driving and extraction is proposed to occur up to four times per year. Table 28 shows the predicted ranges to AUD INJ, TTS, and behavioral response for the HF hearing group (the only functional hearing group expected in the vicinity of pile driving and extraction activities) that were analyzed for their exposure to impact and vibratory pile driving. These ranges were estimated based on activity parameters described in the Acoustic Stressors section of the Explosive and Acoustic Analysis Report (see appendix A of the application) and using the calculations described in the Quantitative Analysis Technical Report (see “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase IV Training and Testing” (U.S. Department of the Navy, 2024)).
The following section provides the range (distance) over which specific physiological or behavioral effects are expected to occur based on the explosive criteria (see section 6.2.1 (Impacts from Explosives) of the application and the “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase 4)” report (U.S. Department of the Navy, 2024)) and the explosive propagation calculations from NAEMO. The range to effects are shown for a range of explosive bins, from E1 (0.1-0.25 lb NEW) to E16 (greater than 7,250-14,500 lb NEW (ship shock trial only)) (table 29 through table 33). Ranges are determined by modeling the distance that noise from an explosion would need to propagate to reach exposure level thresholds specific to a hearing group that would cause behavioral response (to the degree of Level B behavioral harassment), TTS, and AUD INJ. NMFS has reviewed the range distance to effect data provided by the Action Proponents and concurs with the analysis. Range to effects is important information in not only predicting impacts from explosives, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially injury to marine mammals. For additional information on how ranges to impacts from explosions were estimated, see the technical report “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase IV Training and Testing” (U.S. Department of the Navy, 2024).
Table 29 through table 33 show the minimum, average, and maximum ranges to onset of auditory and likely behavioral effects that rise to the level of Level B harassment for all functional hearing groups based on the developed thresholds. Ranges are provided for a representative source depth and cluster size (the number of rounds fired, or buoys dropped, within a very short duration) for each bin. Ranges for behavioral response are only provided if more than one explosive cluster occurs. As noted previously, single explosions at received sound levels below TTS and AUD INJ thresholds are most likely to result in a brief alerting or orienting response. For events with multiple explosions, sound from successive explosions can be expected to accumulate and increase the range to the onset of an impact based on SEL thresholds. Modeled ranges to TTS and AUD INJ based on peak pressure for a single explosion generally exceed the modeled ranges based on SEL even when accumulated for multiple explosions. Peak pressure-based ranges are estimated using the best available science; however, data on peak pressure at far distances from explosions are very limited. The explosive ranges to effects for TTS and AUD INJ that are in the tables are based on the metric (
Table 34 shows ranges to non-auditory injury and mortality as a
A quantitative analysis of impacts on a species or stock requires data on their abundance and distribution that may be affected by anthropogenic activities in the potentially impacted area. The most appropriate metric for this type of analysis is density, which is the number of animals present per unit area. Marine species density estimation requires a significant amount of effort to both collect and analyze data to produce a reasonable estimate. Unlike surveys for terrestrial wildlife, many marine species spend much of their time submerged and are not easily observed. In order to collect enough sighting data to make reasonable density estimates, multiple observations are required, often in areas that are not easily accessible (
For most cetacean species, abundance is estimated using line-transect surveys or mark-recapture studies (
Ideally, density data would be available for all species throughout the Study Area year-round, in order to best estimate the impacts of specified activities on marine species. However, in many places, vessel availability, lack of funding, inclement weather conditions, and high sea states prevent the completion of comprehensive year-round surveys. Even with surveys that are completed, poor conditions may result in lower sighting rates for species that would typically be sighted with greater frequency under favorable conditions. Lower sighting rates preclude having an acceptably low uncertainty in the density estimates. A high level of uncertainty, indicating a low level of confidence in the density estimate, is typical for species that are rare or difficult to sight. In areas where survey data are limited or non-existent, known or inferred associations between marine habitat features and the likely presence of specific species are sometimes used to predict densities in the absence of actual animal sightings. Consequently, there is no single source of density data for every area, species, and season because of the fiscal costs, resources, and effort involved in providing enough survey coverage to sufficiently estimate density.
To characterize the marine species density for large oceanic regions, the Action Proponents review, critically assess, and prioritize existing density estimates from multiple sources, requiring the development of a systematic method for selecting the most appropriate density estimate for each combination of species/stock, area, and season. The selection and compilation of the best available marine species density data resulted in the NMSDD, which includes seasonal density values for every marine mammal species and stock present within the AFTT Study Area. This database is described in the “U.S. Navy Marine Species Density Database Phase IV for the Atlantic Fleet Training and Testing Study Area” technical report (U.S. Department of the Navy, 2024),
A variety of density data and density models are needed to develop a density database that encompasses the entirety of the AFTT Study Area. Because these data are collected using different methods with varying amounts of accuracy and uncertainty, the Action Proponents have developed a hierarchy to ensure the most accurate data is used when available. The Density Technical Report describes these models in detail and provides detailed explanations of the models applied to each species density estimate. The below list describes possible models in order of preference and use:
1. Density estimates from spatial models are preferred and used when available because they provide an estimate with the least amount of uncertainty by deriving estimates for divided segments of the sampling area. These models (see DiMatteo
2. Design-based density models predict animal density based on survey data. Like spatial density models, they are applied to areas with survey data. Design-based density models may be stratified, in which a density is predicted for each sub-region of a survey area, allowing for better prediction of species distribution across the density model area. In the AFTT Study Area, stratified density models are used for certain species on both the east coast and the Gulf of America. In addition, a few species' stratified density models are applied to areas east of regions with available survey data and cover a substantial portion of the Atlantic Ocean portion of the AFTT Study Area.
3. Extrapolative models are used in areas where there is insufficient or no survey data. These models use a limited set of environmental variables to predict probable species densities based on environmental observations during actual marine mammal surveys (see Mannocci
4. Existing relative environmental suitability models include a high degree of uncertainty, but are applied when no other model is available.
When interpreting the results of the quantitative analysis, as described in the Density Technical Report for Phase III (U.S. Department of the Navy, 2017), “it is important to consider that even the best estimate of marine species density is really a model representation of the values of concentration where these animals might occur. Each model is limited to the variables and assumptions considered by the original data source provider. No mathematical model representation of any biological population is perfect and with regards to marine species biodiversity, any single model method will not completely explain the actual distribution and abundance of marine mammal species. It is expected that there would be anomalies in the results that need to be evaluated, with independent information for each case, to support if we might accept or reject a model or portions of the model.”
The Action Proponents' estimates of abundance (based on density estimates used in the AFTT Study Area) utilize NMFS' SARs. For some species, the stock assessment for a given species may exceed the Navy's density prediction because those species' home range extends beyond the Study Area boundaries. For other species, the stock assessment abundance may be much less than the number of animals in the Navy's modeling given that the AFTT Study Area extends beyond the U.S. waters covered by the SAR abundance estimate. The primary source of density estimates are geographically specific survey data and either peer-reviewed line-transect estimates or habitat-based density models that have been extensively validated to provide the most accurate estimates possible.
NMFS coordinated with the Navy in the development of its take estimates and concurs that the Navy's approach for density appropriately utilizes the best available science. Later, in the Preliminary Analysis and Negligible Impact Determination section, we assess how the estimated take numbers compare to stock abundance in order to better understand the potential number of individuals impacted, and the rationale for which abundance estimate is used is included there.
The 2024 AFTT Draft Supplemental EIS/OEIS considered all military readiness activities proposed to occur in the AFTT Study Area that have the potential to result in the MMPA defined take of marine mammals. The Action Proponents determined that the three stressors below could result in the incidental taking of marine mammals. NMFS has reviewed the Action Proponents' data and analysis and determined that it is complete and accurate and agrees that the following stressors have the potential to result in takes by harassment of marine mammals from the specified activities:
• Acoustics (sonars and other transducers, air guns, pile driving/extraction);
• Explosives (explosive shock wave and sound, assumed to encompass the risk due to fragmentation); and
• Vessel strike.
Acoustic and explosive sources are likely to result in incidental takes of marine mammals by harassment. Explosive sources and vessel strikes have the potential to result in incidental take by injury, serious injury, and/or mortality.
The quantitative analysis process used for the 2024 AFTT Draft Supplemental EIS/OEIS and the application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is detailed in the technical report titled “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase IV Training and Testing” (U.S. Department of the Navy, 2024).
Regarding how avoidance of loud sources is considered in the take estimation, NAEMO does not simulate horizontal animat movement during an event. However, NAEMO approximates marine mammal avoidance of high sound levels due to exposure to sonars
Regarding the consideration of mitigation effectiveness in the take estimation, during military readiness activities, there is typically at least one, if not numerous, support personnel involved in the activity (
Unlike activity-based mitigation, in some cases, implementation of the proposed geographic mitigation areas are incorporated into the quantitative analysis. The extent to which the mitigation areas reduce impacts on the affected species is addressed in the Preliminary Analysis and Negligible Impact Determination section.
For additional information on the quantitative analysis process, refer to the technical report titled “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase IV Training and Testing” (U.S. Department of the Navy, 2024) and sections 6 and 11 of the application.
As a general matter, NMFS does not prescribe the methods for estimating take for any applicant, but we review and ensure that applicants use the best available science, and methodologies that are logical and technically sound. Applicants may use different methods of calculating take (especially when using models) and still get to a result that is representative of the best available science and that allows for a rigorous and accurate evaluation of the effects on the affected populations. There are multiple pieces of the Navy's take estimation methods—propagation models, animat movement models, and behavioral thresholds, for example. NMFS evaluates the acceptability of these pieces as they evolve and are used in different rules and impact analyses. Some of the pieces of the Action Proponents' take estimation process have been used in Navy incidental take rules since 2009 and undergone multiple public comment processes; all of them have undergone extensive internal Navy review, and all of them have undergone comprehensive review by NMFS, which has sometimes resulted in modifications to methods or models.
The Navy uses rigorous review processes (verification, validation, and accreditation processes; peer and public review) to ensure the data and methodology it uses represent the best available science. For instance, NAEMO is the result of a NMFS-led Center for Independent Experts (CIE) review of the components used in earlier models. The acoustic propagation component of NAEMO (CASS/GRAB) is accredited by the Oceanographic and Atmospheric Master Library (OAML), and many of the environmental variables used in NAEMO come from approved OAML databases and are based on in-situ data collection. The animal density components of NAEMO are base products of the NMSDD, which includes animal density components that have been validated and reviewed by a variety of scientists from NMFS Science Centers and academic institutions. Several components of the model, for example the Duke University habitat-based density models, have been published in peer reviewed literature. Additionally, NAEMO simulation components underwent quality assurance and quality control (QA/QC) review and validation for model parts such as the scenario builder, acoustic builder, scenario simulator,
In summary, we believe the Action Proponents' methods, including the method for incorporating avoidance, are the most appropriate methods for predicting AUD INJ, non-auditory injury, TTS, and behavioral disturbance. But even with the consideration of avoidance, given some of the more conservative components of the methodology (
Based on the methods discussed in the previous sections and NAEMO, the Action Proponents provided their take estimate and request for authorization of takes incidental to the use of acoustic and explosive sources for military readiness activities annually (based on the maximum number of activities that could occur per 12-month period) and over the 7-year period, as well as the Navy's take request for ship shock trials, covered by the application. The following species/stocks present in the AFTT Study Area were modeled by the Navy and estimated to have 0 takes of any type from any activity source: Central Georgia Estuarine System stock of bottlenose dolphin, Northern South Carolina Estuarine System stock of bottlenose dolphin, and the Puerto Rico and U.S. Virgin Islands stock of sperm whale. NMFS has reviewed the Action Proponents' data, methodology, and analysis and determined that it is complete and accurate. NMFS agrees that the estimates for incidental takes by harassment from all sources requested for authorization are the maximum number of instances in which marine mammals are reasonably expected to be
Table 35, table 36, and table 37 summarize the maximum annual and 7-year total amount and type of Level A harassment and Level B harassment that NMFS concurs is reasonably expected to occur by species and stock for Navy training activities, Navy testing activities, and Coast Guard training activities, respectively.
Table 38, table 39, and table 40 provide estimated effects from sonar and other transducers, including the comparative amounts of TTS and behavioral disturbance for each species and stock annually, noting that if a modeled marine mammal was “taken” through exposure to both TTS and behavioral disturbance in the model, it was recorded as a TTS. Of note, a higher proportion of the takes by Level B harassment of mysticetes include the potential for TTS (as compared to other taxa and prior rules) due to a combination of the fact that mysticetes are relatively less sensitive to behavioral disturbance and the number of auditory impacts from sonar (both TTS and AUD INJ) have increased for some species since the Phase III analysis (84 FR 70712, December 23, 2019) largely due to changes in how avoidance was modeled; for some stocks, changes in densities in areas that overlap activities have also contributed to increased or decreased impacts compared to those modeled in Phase III.
Additionally, although the Navy proposes to use substantially fewer hours of hull-mounted sonars in this action compared to the Phase III analysis, the updated HF cetacean criteria reflect greater susceptibility to auditory effects at low and mid-frequencies than previously analyzed. Consequently, the predicted auditory effects due to sources under 10 kHz, including but not limited to MF1 hull-mounted sonar and other anti-submarine warfare sonars, are substantially higher for this auditory group than in prior analyses of the same activities. Thus, for activities with sonars, some modeled exposures that would previously have been categorized as significant behavioral responses may now instead be counted as auditory effects (TTS and AUD INJ). Similarly, the updated HF cetacean criteria reflect greater susceptibility to auditory effects at low and mid-frequencies in impulsive sounds. For VHF cetaceans, susceptibility to auditory effects has not changed substantially since the prior analysis.
Table 41 provides estimated effects from air guns, including the comparative amounts of TTS and behavioral disturbance for each species and stock annually, noting that if a modeled marine mammal was “taken” through exposure to both TTS and behavioral disturbance in the model, it was recorded as a TTS.
Table 42 provides the estimated effects from pile driving and extraction, including the comparative amounts of TTS and behavioral disturbance for each species and stock annually, noting that if a modeled marine mammal was “taken” through exposure to both TTS and behavioral disturbance in the model, it was recorded as a TTS.
Table 43 provides estimated effects from explosives during Navy training activities and table 44 provides estimated effects from explosives including small ship shock trials from Navy testing activities. Table 45 provides estimated effects from small ship shock trials over a maximum year (two events) of Navy testing activities, which is a subset of the information included in table 44. Table 46 provides estimated effects from explosives during Coast Guard training activities.
Vessel strikes from commercial, recreational, and military vessels are known to affect large whales and have resulted in serious injury and fatalities to cetaceans (Abramson
Numerous studies of interactions between surface vessels and marine mammals have demonstrated that free-ranging marine mammals often, but not always (
The marine mammals most vulnerable to vessel strikes are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
Some researchers have suggested the relative risk of a vessel strike can be assessed as a function of animal density and the magnitude of vessel traffic (
There are some key differences between the operation of military and non-military vessels which make the likelihood of a military vessel striking a whale lower than some other vessels (
• Military vessels have personnel assigned to stand watch at all times, day and night, when moving through the water (
• The bridges of many military vessels are positioned closer to the bow, offering better visibility ahead of the vessel (compared to a commercial merchant vessel);
• Military readiness activities often involve aircraft (which can serve as part of the Lookout team), that can more readily detect cetaceans in the vicinity of a vessel or ahead of a vessel's present course, often before crew on the vessel would be able to detect them;
• Military vessels are generally more maneuverable than commercial merchant vessels, and are therefore capable of changing course more quickly in the event cetaceans are spotted in the vessel's path;
• Military vessels operate at the slowest speed practical consistent with operational requirements. While minimum speed is intended as a fuel conservation measure particular to a certain ship class, secondary benefits include a better ability to detect and avoid objects in the water, including marine mammals;
• Military ships often operate within a defined area for a period of time, in contrast to point-to-point commercial shipping over greater distances;
• The crew size on military vessels is generally larger than merchant vessels, allowing for stationing more trained Lookouts on the bridge. At all times when the Action Proponents' vessels are underway, trained Lookouts and bridge navigation teams are used to detect objects on the surface of the water ahead of the ship, including cetaceans. Some events may have additional personnel (beyond the minimum number of required Lookouts) who are already standing watch in or on the platform conducting the event or additional participating platforms and would have eyes on the water for all or part of an event. These additional personnel serve as members of the Lookout team; and
• When submerged, submarines are generally slow moving (to avoid detection); as a result, marine mammals at depth with a submarine are likely able to avoid collision with the submarine. When a submarine is transiting on the surface, the Navy posts Lookouts serving the same function as they do on surface vessels.
Vessel strike to marine mammals is not associated with any specific military readiness activity. Rather, vessel strike is a limited and sporadic, but possible, accidental result of military vessel movement within the AFTT Study Area or while in transit.
Prior to 2009, there is limited information on vessel strikes from military readiness activities in the AFTT Study Area. One known incident of vessel strike in the AFTT Study Area occurred in 2001, when a 505 ft (154 m) Navy vessel struck and killed a sperm whale 20 mi (32.2 km) south of Puerto Rico (Jensen and Silber, 2004). (Of note, at the time of the strike, the Navy still used the Vieques Naval Training Range; activities in this area ceased in 2003, and since then, vessel traffic has significantly decreased, and there are
Since 2009, there have been six recorded vessel strikes of large whales by the Action Proponents in the AFTT Study Area: three by the Navy and three by the Coast Guard. The Navy struck one whale in 2011 (species unknown), two whales in 2012 (species unknown), and has not struck a large whale in the AFTT Study Area since 2012. All strikes during this timeframe occurred in the VACAPES OPAREA: one strike in the VACAPES Range Complex in 2011, one strike in the VACAPES Range Complex in 2012, and one strike in the Lower Chesapeake Bay in 2012. The Coast Guard struck two whales in 2009 (both reported as NARW), and one whale in May 2024 (species unknown). On December 14, 2009, an 87 ft (26.5 m) Coast Guard patrol boat traveling at a speed of 9.2 kn (17 km/hr) struck two whales (reported as NARW) at the same time near Cape Henry, Virginia, and observed the animals swimming away without apparent injuries, though it is important to note that not all injuries are evident when a whale is struck and the fate of these two NARW is unknown. It is also important to note that not all whale strikes result in mortality, however, given the potential for non-visible injuries, NMFS conservatively assumes that these strikes resulted in mortality of both whales.
In light of the key differences between the operation of military and non-military vessels discussed above, it is highly unlikely that a military vessel would strike any type of marine mammal without detecting it. Specifically, Lookouts posted on or near the ship's bow can visually detect a strike in the absence of other indications that a strike has occurred. The Action Proponents' internal procedures and mitigation requirements include reporting of any vessel strikes of marine mammals, and the Action Proponents' discipline, extensive training (not only for detecting marine mammals, but for detecting and reporting any potential navigational obstruction), and strict chain of command give NMFS a high level of confidence that all strikes are reported. Accordingly, NMFS is confident that the Navy and Coast Guard's reported strikes are accurate and appropriate for use in the analysis.
When generally compared to mysticetes, odontocetes are more capable of physically avoiding a vessel strike and since some species occur in large groups, they are more easily seen when they are closer to the water surface. The smaller size and maneuverability of dolphins, small whales (not including large whale calves), porpoises, and pinnipeds generally make vessel strike very unlikely. For as long as records have been kept, neither the Navy nor the Coast Guard have any record of any small whales or pinnipeds being struck by a vessel as a result of military readiness activities. Over the same time period, NMFS, the Navy, and the Coast Guard have only one record of a dolphin being struck by a vessel as a result of Navy or Coast Guard activities. The dolphin was accidentally struck by a Navy small boat in fall 2021 in Saint Andrew's Pass, Florida. Other than this one reported strike of a dolphin in 2021, NMFS has never received any reports from other LOA or Incidental Harassment Authorization holders indicating that these species have been struck by vessels. Worldwide vessel strike records show little evidence of strikes of these groups or marine mammals from the shipping sector and larger vessels (though for many species, records do exist,
In order to account for the accidental nature of vessel strike to large whales in general, and the potential risk from vessel movement within the AFTT Study Area within the 7-year period of this proposed authorization, the Action Proponents requested incidental takes based on probabilities derived from a Poisson distribution. A Poisson distribution is often used to describe random occurrences when the probability of an occurrence is small. Count data, such as cetacean sighting data, or in this case strike data, are often described as a Poisson or over-dispersed Poisson distribution. The Poisson distribution was calculated using vessel strike data between 2009-2024 in the AFTT Study Area, historical at-sea days in the AFTT Study Area for the Navy and the Coast Guard (described in detail in section 6 of the application), and estimated potential at-sea days for both Action Proponents during the 7-year period from 2025-2032 covered by the requested regulations. The Navy evaluated data beginning in 2009 as that was the start of the Navy's Marine Species Awareness Training and adoption of additional mitigation measures to address vessel strike, which will remain in place along with additional and modified mitigation measures during the 7 years of this rulemaking. Navy vessel strike data only accounts for vessels larger than 65 ft (19.8 m) and does not include USVs/UUVs as the Navy does not yet have data on their use in the AFTT Study Area. The Poisson vessel strike calculations do not include any specific number of at-sea days for USVs. Historically, the USVs used in the AFTT Study Area were equivalent to small boats. While it is anticipated that larger USVs will begin testing in the AFTT Study Area during the 7-year period, it was assessed that the addition of any at-sea days associated with the limited number of medium or large USVs being tested in AFTT would not be large enough to change the results of the analysis. In addition, there is no historical strike data for USVs. The analysis for the period of 2025 to 2032 is described in detail below and in section 6.3.2 (Probability of Vessel Strike of Large Whale Species) of the application.
Between 2009 and early 2024, there were a total of 42,748 Navy at-sea days and 26,756 Coast Guard at-sea days in the AFTT Study Area. During that same time, there were three Navy vessel strikes of large whales and three Coast Guard vessel strikes of large whales. From 2025 through 2032, the Navy anticipates 18,702 at-sea days, and the Coast Guard anticipates 11,706 at-sea days.
To calculate a vessel strike rate for each Action Proponent for the period of 2009 through 2024, the Action Proponents used the respective number of past vessel strikes of large whales and the respective number of at-sea days. Navy at-sea days (for vessels greater than 65 ft (19.8 m)) from 2009 through 2024 was estimated to be 42,748 days. Dividing the three known Navy strikes during that period by the at-sea days (
Based on the average annual at-sea days from 2009 to early 2024, the Action Proponents estimated that 18,702 Navy and 11,706 Coast Guard at-sea days would occur over the 7-year period associated with the requested authorization. Given a strike rate of
Using this predicted number of strikes, the Poisson distribution predicted the probabilities of a specific number of strikes (
While the Poisson distribution allows the Action Proponents and NMFS to determine the likelihood of vessel strike of all large whales, it does not indicate the likelihood of each strike occurring to a particular species or stock. As described above, the Action Proponents have not always been able to identify the species of large whale struck during previous known vessel strikes. Therefore, the Action Proponents requested authorization for take by serious injury or mortality by vessel strike of any combination of the following stocks in the AFTT Study Area, with no more than two takes total from any single stock: humpback whale (Gulf of Maine stock), fin whale (Western North Atlantic stock), sei whale (Nova Scotia stock), minke whale (Canadian East Coast stock), blue whale (Western North Atlantic stock), and sperm whale (North Atlantic stock).
After concurring that take of up to six large whales could occur (three takes by each Action Proponent), and in consideration of the Navy's request, NMFS considered which species could be among the six large whales struck. NMFS conducted an analysis that considered several factors: (1) The relative likelihood of striking one stock versus another based on available strike data from all vessel types as denoted in the SARs, (2) whether each Action Proponent has ever struck an individual from a particular species or stock in the AFTT Study Area, and if so, how many times, and (3) whether implementation of the proposed mitigation measures (
To address number (1) above, NMFS compiled information from the SARs (Hayes
To inform the likelihood of a single action proponent striking a particular species of large whale, we multiplied the percent of total annual strikes for a given species in table 47 by the total percent likelihood of a single action proponent striking at least one whale (
The percent likelihood calculated (as described above) are then considered in combination with the information indicating the known species that the Navy or Coast Guard has struck in the AFTT Study Area since 2000 (table 48). We note that for the lethal take of species specifically denoted in table 48 below, most of those struck by the Navy or Coast Guard remained unidentified. However, given the information on known stocks struck, the analysis below remains appropriate.
Accordingly, stocks that have no record of ever having been struck by any vessel are considered to have a zero percent likelihood of being struck by the Navy in the 7-year period of the rule. While the Western North Atlantic stock of blue whales, Northern Gulf of America stock of Rice's whale, Nova Scotia stock of sei whales, and North Atlantic stock of sperm whales have a reported annual rate of M/SI from vessel strike of 0, each of these stocks have records of strikes prior to the period reported in the SAR (Hayes
While Bryde's whales in the Atlantic are not a NMFS-managed stock, the low number of estimated takes by harassment (11 takes by Level B harassment) indicate very low overlap of this stock with the Action Proponents' activities. As such, and given that there are no records of either action proponent having struck Bryde's whale in the Atlantic in the past, NMFS neither anticipates, nor proposes to authorize, serious injury or mortality by vessel strike of Bryde's whale.
To address number (2) above, the percent likelihoods of a certain number of strikes of each stock are then considered in combination with the information indicating the species that the Action Proponents have definitively struck in the AFTT Study Area since 2009. As noted above, since 2009, the U.S. Navy and Coast Guard have each struck three whales in the AFTT Study Area. The Navy struck one unidentified species in June 2011, one unidentified species (thought to likely be a humpback) in February 2012, and one unidentified species in October 2012. The Coast Guard struck two whales (reported as NARW) in December 2009, and one unidentified large whale (thought to likely be a humpback) in 2024.
Stocks that have never been struck by the Navy, have rarely been struck by other vessels, and have a low percent likelihood based on the historical vessel strike calculation are also considered to have a zero percent likelihood to be struck by the Navy during the 7-year rule. As noted in table 48, in 2001, the Navy struck an unidentified whale in the Gulf of America, and given the stocks that occur there, that this strike was of either a sperm whale or Rice's whale. Given the relative abundance of these two stocks, NMFS expects that this strike was likely of a sperm whale (Northern Gulf of America stock). Therefore, this step in the analysis rules out take by vessel strike of blue whale and Rice's whale. Even if the 2001 strike had been of a Rice's whale, consideration of the proposed geographic mitigation for Rice's whale (see Proposed Mitigation Measures section below) and the low stock abundance further supports the conclusion that vessel strike of Rice's whale is unlikely. This leaves the following stocks for further analysis: fin whale (Western North Atlantic stock), humpback whale (Gulf of Maine stock), minke whale (Canadian Eastern Coastal stock), NARW (Western stock), sei whale (Nova Scotia stock), and sperm whale (North Atlantic and Northern Gulf of America stocks).
Based on the information summarized in table 47, and the fact that there is potential for up to six large whales to be struck over the 7-year duration of this rulemaking, NMFS anticipates that each action proponent could strike one of each of the following stocks (two total per stock across both action proponents): fin whales (Western North Atlantic stock), minke whales (Canadian Eastern Coastal stock), sei whales (Nova Scotia stock), and sperm whales (North Atlantic stock). NMFS also anticipates that the Navy may strike up to one sperm whale (Northern Gulf of America stock) given the 2001 likely sperm whale strike. Given the already lower likelihood of striking this stock given the relatively lower vessel activity in the Gulf of America portion of the AFTT Study Area, and the relatively lower Coast Guard vessel traffic compared to Navy vessel traffic, NMFS neither anticipates, nor proposes to authorize, a Coast Guard strike of this stock. NMFS anticipates that each Action Proponent could strike up to two humpback whales (Gulf of Maine stock) given the higher relative strike likelihood indicated in table 47, and the Action
Following the conclusion for the stocks above, NARW is the only remaining stock. NARW are known to be particularly susceptible to vessel strike, and vessel strike is one of the greatest threats to this stock. NMFS' quantitative analysis (table 47) indicates a 15 percent likelihood of one strike of NARW over the 7-year duration of this proposed rulemaking. However, for the reasons described below, NMFS does not anticipate vessel strike of NARW by either action proponent. As stated previously, in 2009, the Coast Guard struck two whales (reported as NARW). Since 2009, the Navy has had no known strikes of NARW, and it has been implementing extensive mitigation measures to avoid vessel strike of NARW. The lack of known strikes of NARWs indicates that the mitigation used by the Navy since 2009 and included here for the Action Proponents has likely been successful. Given that the Navy will continue to implement this mitigation for NARW, and the Coast Guard will begin implementing it also, (
In conclusion, although it is generally unlikely that any whales will be struck in a year, based on the information and analysis above, NMFS anticipates that no more than six takes of large whales by serious injury or mortality could occur over the 7-year period of the rule, with no more than three by each Action Proponent. Of those six whales over the 7 years, no more than four may come from the Gulf of Maine stock of humpback whale; no more than two may come from the Western North Atlantic stock of fin whale, the Canadian East Coast stock of minke whale, the Nova Scotia stock of sei whale, and the North Atlantic stock of sperm whale; no more than one strike by the Navy may come from the Northern Gulf of America stock of sperm whale. Accordingly, NMFS has evaluated under the negligible impact standard the M/SI of 0.14, 0.29 or 0.57 whales annually from each of these species or stocks (
Table 49 and table 50 summarize the Action Proponents' take proposed by harassment type and effect type, respectively.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable adverse impact on the 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 subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for least practicable adverse impact. The 2004 NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that a determination of “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. For additional discussion of NMFS' interpretation of the least practicable adverse impact standard, see the Mitigation Measures section of the Gulf of Alaska Study Area final rule (88 FR 604, January 4, 2023).
Here, we discuss how we determine whether a measure or set of measures meets the “least practicable adverse impact” standard. Our separate analysis of whether the take anticipated to result from the Action Proponents' activities meets the “negligible impact” standard appears in the Preliminary Analysis and Negligible Impact Determination section below.
Our evaluation of potential mitigation measures includes consideration of two primary factors: (1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, or their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation; and (2) The practicability of the measure(s) for applicant implementation. Practicability of implementation may consider such things as cost, impact on activities, and, in the case of a military readiness activity, specifically considers personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
While the language of the least practicable adverse impact standard calls for minimizing impacts to affected species or stocks, we recognize that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis focuses on measures that are designed to avoid or minimize impacts on individual marine mammals that are more likely to increase the probability or severity of population-level effects.
While direct evidence of impacts to species or stocks from a specified activity is rarely available, and additional study is still needed to understand how specific disturbance events affect the fitness of individuals of certain species, there have been improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may often be inferred given a detailed understanding of the activity, the environment, and the affected species or stocks—and the best available science has been used here. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening effects (or the risk thereof) to species or stocks. We also acknowledge that there is always the potential that new information, or a new recommendation, could become available in the future and necessitate reevaluation of mitigation measures (which may be addressed through adaptive management) to see if further reductions of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability), and are carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. Analysis of how a potential mitigation measure may reduce adverse impacts on a marine mammal stock or species, consideration of personnel safety, practicality of implementation, and consideration of the impact on effectiveness of military readiness activities are not issues that can be meaningfully evaluated through a yes/no lens. The manner in which, and the degree to which, implementation of a measure is expected to reduce impacts, as well as its practicability in terms of these considerations, can vary widely. For example, a time/area restriction could be of very high value for decreasing population-level impacts (
1.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species- or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of effects have greater value in reducing the likelihood or severity of adverse species- or stock-level impacts: avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these
The status of the species or stock is also relevant in evaluating the appropriateness of potential mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: the stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the potential biological removal (PBR) level (as defined in MMPA section 3(20)); the affected species or stock is a small, resident population; or the stock is involved in a UME or has other known vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat. We consider available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective nor successful, then either that measure should be modified or the potential value of the measure to reduce effects should be lowered.
2.
NMFS has fully reviewed the specified activities and the mitigation measures included in the application and the 2024 AFTT Draft Supplemental EIS/OEIS to determine if the mitigation measures would result in the least practicable adverse impact on marine mammals and their habitat. NMFS worked with the Action Proponents in the development of their initially proposed measures, which are informed by years of implementation and monitoring. A complete discussion of the Action Proponents' evaluation process used to develop, assess, and select mitigation measures, which was informed by input from NMFS, can be found in chapter 5 (Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS. The process described in chapter 5 (Mitigation) and appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS robustly supported NMFS' independent evaluation of whether the mitigation measures would meet the least practicable adverse impact standard. The Action Proponents would be required to implement the mitigation measures identified in this rule for the full 7 years to avoid or reduce potential impacts from acoustic, explosive, and physical disturbance and strike stressors.
As a general matter, where an applicant proposes measures that are likely to reduce impacts to marine mammals, the fact that they are included in the application indicates that the measures are practicable, and it is not necessary for NMFS to conduct a detailed analysis of the measures the applicant proposed (rather, they are simply included). However, it is still necessary for NMFS to consider whether there are additional practicable measures that would meaningfully reduce the probability or severity of impacts that could affect reproductive success or survivorship.
Overall the Action Proponents have agreed to mitigation measures that would reduce the probability and/or severity of impacts expected to result from acute exposure to acoustic sources or explosives, vessel strike, and impacts to marine mammal habitat. Specifically, the Action Proponents would use a combination of delayed starts, powerdowns, and shutdowns to avoid mortality or serious injury, minimize the likelihood or severity of AUD INJ or non-auditory injury, and reduce instances of TTS or more severe behavioral disturbance caused by acoustic sources or explosives. The Action Proponents would also implement multiple time/area restrictions that would reduce take of marine mammals in areas or at times where they are known to engage in important behaviors, such as calving, where the disruption of those behaviors would have a higher probability of resulting in impacts on reproduction or survival of individuals that could lead to population-level impacts.
The Action Proponents assessed the practicability of the proposed measures in the context of personnel safety, practicality of implementation, and their impacts on the Action Proponents' ability to meet their Congressionally mandated requirements and found that the measures are supportable. As described in more detail below, NMFS has independently evaluated the measures the Action Proponents proposed in the manner described earlier in this section (
The Action Proponents also evaluated numerous measures in the 2024 AFTT Draft Supplemental EIS/OEIS that were not included in the application, and NMFS independently reviewed and preliminarily concurs with the Action Proponents' analysis that their inclusion was not appropriate under the least practicable adverse impact standard based on our assessment. The Action Proponents considered these additional potential mitigation measures in the context of the potential benefits to marine mammals and whether they are practical or impractical.
Section 5.9 (Measures Considered but Eliminated) of chapter 5 (Mitigation) of
As described in section 5.9 (Measures Considered but Eliminated) of the 2024 AFTT Draft Supplemental EIS/OEIS, the Action Proponents considered reducing the overall amount of training, reducing explosive use, modifying sound sources, completely replacing live training with computer simulation, and including time of day restrictions. Many of these mitigation measures could potentially reduce the number of marine mammals taken via direct reduction of the activities or amount of sound energy put in the water. However, as described in chapter 5 (Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS, the Action Proponents need to train in the conditions in which they fight—and these types of modifications fundamentally change the activity in a manner that would not support the purpose and need for the training (
Also in chapter 5 (Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS, the Action Proponents evaluated additional potential activity-based mitigation measures, including increased mitigation zones, ramp-up measures, additional passive acoustic and visual monitoring, and decreased vessel speeds. Some of these measures have the potential to incrementally reduce take to some degree in certain circumstances, though the degree to which this would occur is typically low or uncertain. However, as described in the Action Proponents' analysis, the measures would have significant direct negative effects on mission effectiveness and are considered impracticable (see chapter 5 of the 2024 AFTT Draft Supplemental EIS/OEIS). NMFS independently reviewed the Action Proponents' evaluation and concurs with this assessment, which supports NMFS' preliminary findings that the impracticability of this additional mitigation would greatly outweigh any potential minor reduction in marine mammal impacts that might result; therefore, these additional mitigation measures are not warranted.
Last, chapter 5 (Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS also describes a comprehensive analysis of potential geographic mitigation that includes consideration of both a biological assessment of how the potential time/area limitation would benefit the species and its habitat (
NMFS has reviewed the Action Proponents' analysis in chapter 5 (Mitigation) and appendix A (Activity Descriptions) of the 2024 AFTT Draft Supplemental EIS/OEIS, which consider the same factors that NMFS considers to satisfy the least practicable adverse impact standard, and concurs with the analysis and conclusions. Therefore, NMFS is not proposing to include any of the measures that the Action Proponents ruled out in the 2024 AFTT Draft Supplemental EIS/OEIS. Below are the mitigation measures that NMFS has preliminarily determined would ensure the least practicable adverse impact on all affected species and their habitat, including the specific considerations for military readiness activities. Table 51 describes the information designed to aid Lookouts and other applicable personnel with their observation, environmental compliance, and reporting responsibilities. The following sections describe the mitigation measures that would be implemented in association with the activities analyzed in this document. The mitigation measures are organized into two categories: activity-based mitigation and geographic mitigation areas.
Of note, according to the U.S. Navy, consistent with customary international law, when a foreign military vessel participates in a U.S. Navy exercise within the U.S. territorial sea (
Activity-based mitigation is mitigation that the Action Proponents would implement whenever and wherever an applicable military readiness activity takes place within the AFTT Study Area. Previously referred to as “Procedural Mitigation,” the primary objective of activity-based mitigation is to reduce overlap of marine mammals with stressors that have the potential to cause injury or mortality in real time. Activity-based mitigations are fundamentally consistent across stressor activity, although specific variations account for differences in platform configuration, event characteristics, and stressor types. The Action Proponents customize mitigation for each applicable activity category or stressor. Activity-based mitigation generally involves: (1) The use of one or more trained Lookouts to diligently observe for marine mammals and other specific biological resources (
The Action Proponents must implement the proposed mitigation measures described in table 52 through table 70, as appropriate, in response to an applicable sighting within, or entering into, the relevant mitigation zone for acoustic stressors, explosives, and non-explosive munitions. Each table describes the activities that the requirements apply to, the required mitigation zones in which the action proponents must take a mitigation action, the required number of Lookouts and observation platform, the required mitigation actions that the action proponents must take before, during, and/or after an activity, and a required wait period prior to commencing or recommencing an activity after a delay, power down, or shutdown of an activity.
The Action Proponents proposed wait periods because events cannot be delayed or ceased indefinitely for the purpose of mitigation due to impacts on safety, sustainability, and the ability to meet mission requirements. Wait periods are designed to allow animals the maximum amount of time practical to resurface (
If an applicable species (identified in relevant mitigation table) is observed within a required mitigation zone prior to the initial start of the activity, the Action Proponents must: (1) relocate the event to a location where applicable species are not observed, or (2) delay the initial start of the event (or stressor use) until one of the “Mitigation Zone All-Clear Conditions” (defined below) has been met. If an applicable stressor is observed within a required mitigation zone during the event (
For all activities, an activity may not commence or recommence until one of the following “Mitigation Zone All-Clear Conditions” have been met: (1) a Lookout observes the applicable species exiting the mitigation zone, (2) a Lookout determines the applicable species has exited the mitigation zone based on its observed course and speed relative to the mitigation zone, (3) a Lookout affirms the mitigation zone has been clear from additional sightings for a designated “wait period,” or (4) for mobile events, the stressor has transited a distance equal to double the mitigation zone size beyond the location of the last sighting.
Mitigation measures for acoustic stressors are provided below and include active acoustic sources (table 52), pile driving and extraction (table 53), and weapons firing noise (table 54). Activity-based mitigation for acoustic stressors does not apply to:
(i) sources not operated under positive control (
(ii) sources used for safety of navigation;
(iii) sources used or deployed by aircraft operating at high altitudes;
(iv) sources used, deployed, or towed by unmanned platforms except when escort vessels are already participating in the event and have positive control over the source;
(v) sources used by submerged submarines;
(vi)
(vii) long-duration sources, including those used for acoustic and oceanographic research; and
(viii) vessel-based, unmanned vehicle-based, or towed in-water sources when marine mammals (
Mitigation measures for explosive stressors are provided below and include explosive bombs (table 55), explosive gunnery (table 56), explosive line charges (table 57), explosive mine countermeasure and neutralization without divers (table 58), explosive mine neutralization with divers (table 59), explosive missiles and rockets (table 60), explosive sonobuoys and research-based sub-surface explosives (table 61), explosive torpedoes (table 62), ship shock trials (table 63), and SINKEX (table 64). After the event, the Action Proponents must observe the area for marine mammals. Post-event observations are intended to aid incident reporting requirements for marine mammals. Practicality and the duration of post-event observations will be determined on site by fuel restrictions and mission-essential follow-on commitments. For example, it is more challenging to remain on-site for extended periods of time for some activities due to factors such as range from the target or altitude of an aircraft. Activity-based mitigation for explosive stressors does not apply to explosives:
(i) deployed by aircraft operating at high altitudes;
(ii) deployed by submerged submarines, except for explosive torpedoes;
(iii) deployed against aerial targets;
(iv) during vessel-launched missile or rocket events;
(v) used at or below the
(vi) deployed by unmanned platforms except when escort vessels are already participating in the event and have positive control over the explosive.
Mitigation measures for non-explosive ordnance are provided below and include non-explosive aerial-deployed mines and bombs (table 65), non-explosive gunnery (table 66), and non-explosive missiles and rockets (table 67). Explosive aerial-deployed mines do not detonate upon contact with the water surface and are therefore considered non-explosive when mitigating the potential for a mine shape to strike a marine mammal at the water surface. Activity-based mitigation for non-explosive ordnance does not apply to non-explosive ordnance deployed:
(i) by aircraft operating at high altitudes;
(ii) against aerial targets;
(iii) during vessel-launched missile or rocket events; and
(iv) by unmanned platforms except when escort vessels are already participating in the event and have positive control over ordnance deployment.
Mitigation measures for physical disturbance and strike stressors are provided below and include manned surface vessels (table 68), unmanned vehicles (table 69), and towed in-water devices (table 70).
In addition to activity-based mitigation, the Action Proponents would implement mitigation measures within mitigation areas to avoid or minimize potential impacts on marine mammals (see figure 11.6-1 of the application). A full technical analysis of the mitigation areas that the Action Proponents considered for marine mammals is provided in section 5.7 (Geographic Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS. The Action Proponents took into account public comments received on the 2018 AFTT Draft EIS/OEIS, the best available science, and the practicability of implementing additional mitigation measures and has enhanced its mitigation areas and mitigation measures beyond those that were included in the 2018-2025 regulations to further reduce impacts to marine mammals.
Information on the mitigation measures that the Action Proponents propose to implement within mitigation areas are provided in table 71 through table 78. The mitigation applies year-round unless specified otherwise in the tables.
NMFS conducted an independent analysis of the mitigation areas that the Action Proponent proposed, which are described below. NMFS preliminarily concurs with the Action Proponents' analysis, which indicates that the measures in these mitigation areas are both practicable and will reduce the likelihood, magnitude, or severity of adverse impacts to marine mammals or their habitat in the manner described in the Action Proponents' analysis and this rule. NMFS is heavily reliant on the Action Proponents' description of operational practicability, since the Action Proponents are best equipped to describe the degree to which a given mitigation measure affects personnel safety or mission effectiveness, and is practical to implement. The Action Proponents consider the measures in this proposed rule to be practicable, and NMFS concurs. We further discuss the manner in which the Geographic Mitigation Areas in the proposed rule will reduce the likelihood, magnitude, or severity of adverse impacts to marine mammal species or their habitat in the Preliminary Analysis and Negligible Impact Determination section.
Table 71 details geographic mitigation related to ship shock trials, which involve the use of explosives. Ship shock trials are conducted only within established ship shock trial boxes within the Gulf of America and overlapping the Jacksonville OPAREA. The boundaries of the mitigation areas match the boundaries of each ship shock trial box. Mitigation is a continuation of existing measures, except for new mitigation related to the location of the northern Gulf of America ship shock trial box as described in table 71.
Table 72 details geographic mitigation related to MTEs (
Table 73 details geographic mitigation related to active sonar and explosives (and special reporting for their use), and physical disturbance and strike stressors off the northeastern United States. The mitigation area extent matches that of the NARW foraging critical habitat designated in 2016 (81 FR 4838, February 26, 2016). Mitigation is a continuation of existing measures, with clarification that requirements pertain to in-water stressors (
Table 74 details geographic mitigation related to active sonar and special reporting for the use of active sonar and in-water explosives within the Gulf of Maine. Mitigation is a continuation of existing measures. Special reporting for the use of acoustics and explosives is also required for this area (see Proposed Reporting section for details).
Table 75 details geographic mitigation related to active sonar and explosives (and special reporting for their use), and physical disturbance and strike stressors in the Jacksonville OPAREA. Mitigation is a continuation of existing measures, with clarification that requirements pertain to in-water stressors (
Table 76 details geographic mitigation related to active sonar and explosives (and special reporting for their use), and physical disturbance and strike stressors off the Southeastern U.S. Mitigation is a continuation of existing measures, with clarification that requirements pertain to the use of in-water stressors (
Table 77 details geographic mitigation related to active sonar, explosives, and physical disturbance and strike stressors off the U.S. east coast to the boundary of the U.S. EEZ. Mitigation is a continuation of existing measures, with clarification that requirements pertain to the use of in-water stressors (
Table 78 details geographic mitigation related to active sonar and explosives (and special reporting for their use) in the northeastern Gulf of America. Mitigation is a continuation of existing measures. The mitigation area extent aligns with this species' small and resident population area identified by NMFS in its 2016 status review (Rosel
NMFS has carefully evaluated the Action Proponents' proposed mitigation measures—many of which were developed with NMFS' input during the previous phases of AFTT authorizations but several of which are new since implementation of the 2018 to 2025 regulations—and considered a broad range of other measures (
Based on our evaluation of the Action Proponents' proposed measures, as well as other measures considered by the Action Proponents and NMFS (see section 5.9 (Measures Considered but Eliminated) of chapter 5 (Mitigation) of the 2024 AFTT Draft Supplemental EIS/OEIS), NMFS has preliminarily determined that these proposed mitigation measures are appropriate means of effecting the least practicable adverse impact on marine mammal species and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and considering specifically personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Additionally, an adaptive management component helps further ensure that mitigation is regularly assessed and provides a mechanism to improve the mitigation, based on the factors above, through modification as appropriate.
The proposed rule comment period provides the public an opportunity to submit recommendations, views, and/or concerns regarding the Action Proponents' activities and the proposed mitigation measures. While NMFS has preliminarily determined that the Action Proponents' proposed mitigation measures would effect the least practicable adverse impact on the affected species and their habitat, NMFS will consider all public comments to help inform our final determination. Consequently, proposed mitigation measures may be refined, modified, removed, or added prior to the issuance of the final rule based on public comments received and, as appropriate, analysis of additional potential mitigation measures.
Section 101(a)(5)(A) of the MMPA states that in order to authorize incidental take for an activity, 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 incidental take 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.
Although the Navy has been conducting research and monitoring for over 20 years in areas where it has been training, it developed a formal marine species monitoring program in support of the AFTT Study Area MMPA and ESA processes in 2009. Across all Navy training and testing study areas, the robust marine species monitoring program has resulted in hundreds of technical reports and publications on marine mammals that have informed Navy and NMFS analyses in environmental planning documents, rules, and Biological Opinions. The reports are made available to the public on the Navy's marine species monitoring website (
The Navy would continue collecting monitoring data to inform our understanding of the occurrence of marine mammals in the AFTT Study Area; the likely exposure of marine mammals to stressors of concern in the AFTT Study Area; the response of marine mammals to exposures to stressors; the consequences of a particular marine mammal response to their individual fitness and, ultimately, populations; and the effectiveness of implemented mitigation measures. Taken together, mitigation and monitoring comprise the Navy's integrated approach for reducing environmental impacts from the specified activities. The Navy's overall monitoring approach seeks to leverage and build on existing research efforts whenever possible.
As agreed upon between the Action Proponents and NMFS, the monitoring measures presented here, as well as the mitigation measures described above, focus on the protection and management of potentially affected marine mammals. A well-designed monitoring program can provide important feedback for validating assumptions made in analyses and allow for adaptive management of marine mammals and their habitat, and other marine resources. Monitoring is required under the MMPA, and details of the monitoring program for the specified activities have been developed through coordination between NMFS and the Action Proponents through the regulatory process for previous Navy at-sea training and testing activities.
The initial structure for the U.S. Navy's marine species monitoring efforts was developed in 2009 with the Integrated Comprehensive Monitoring Program (ICMP). The intent of the ICMP was to provide an overarching framework for coordination of the Navy's monitoring efforts during the early years of the program's establishment. A Strategic Planning Process (U.S. Department of the Navy, 2013) was subsequently developed and together with the ICMP framework serves as a planning tool to focus marine species monitoring priorities defined by ESA and MMPA requirements, and to coordinate monitoring efforts across regions based on a set of common objectives. Using an underlying conceptual framework incorporating a progression of knowledge from occurrence to exposure/response, and ultimately consequences, the Strategic Planning Process was developed as a tool to help guide the investment of resources to address top level objectives and goals of the monitoring program most efficiently. The Strategic Planning Process identifies Intermediate Scientific Objectives, which form the basis of evaluating, prioritizing, and selecting new monitoring projects or investment topics and serve as the basis for developing and executing new monitoring projects across the Navy's training and testing ranges (both Atlantic and Pacific).
Monitoring activities relating to the effects of military readiness activities on marine species are generally designed address one or more of the following top-level goals:
(i) An increase in the understanding of the likely occurrence of marine mammals and ESA-listed marine species in the vicinity of the action (
(ii) An increase in the understanding of the nature, scope, or context of the likely exposure of marine mammals and ESA-listed species to any of the potential stressors associated with the action (
A. The nature of the action and its surrounding environment (
B. The affected species (
C. The likely co-occurrence of marine mammals and ESA-listed marine species with the action (in whole or part), or
D. The likely biological or behavioral context of exposure to the stressor for the marine mammal and ESA-listed marine species (
(iii) An increase in the understanding of how individual marine mammals or ESA-listed marine species respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible (
(iv) An increase in the understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either:
A. The long-term fitness and survival of an individual; or
B. The population, species, or stock (
(v) An increase in the understanding of the effectiveness of mitigation and monitoring measures.
(vi) A better understanding and record of the manner in which the authorized entity complies with the Incidental Take Authorization and Incidental Take Statement.
(vii) An increase in the probability of detecting marine mammals (through improved technology or methods), both specifically within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals; and
(viii) Ensuring that adverse impact of activities remains at the least practicable level.
The Navy's Marine Species Monitoring Program investments are evaluated through the Adaptive Management Review process to (1) assess overall progress, (2) review goals and objectives, and (3) make recommendations for refinement and evolution of the monitoring program's focus and direction. The Marine Species Monitoring Program has developed and matured significantly since its inception and now supports a portfolio of several dozen active projects across a range of geographic areas and protected species taxa addressing both regional priorities (
A Research and Monitoring Summit was held in early 2023 to evaluate the current state of the Marine Species Monitoring Program in terms of progress, objectives, priorities, and needs, and to solicit valuable input from meeting participants including NMFS, Marine Mammal Commission, Navy, and scientific experts. The overarching goal of the summit was to facilitate updating the ICMP framework for guiding marine species research and monitoring investments, and to identify data gaps and priorities to be addressed over the next 5-10 years across a range of basic research through applied monitoring. One of the outcomes of this summit meeting is a refreshed strategic framework effectively replacing the ICMP which will provide increased coordination and synergy across the Navy's protected marine species investment programs (see section 13.1 of the application). This will contribute to the collective goal of supporting improved assessment of effects from training and testing activities through
The Navy's monitoring program has undergone significant changes since the first rule was issued for the AFTT Study Area in 2008 through the process of adaptive management. The monitoring program developed for the first cycle of environmental compliance documents (
Progress has also been made on the conceptual framework categories from the Scientific Advisory Group for Navy Marine Species Monitoring (U.S. Department of the Navy, 2011), ranging from occurrence of animals, to their exposure, response, and population consequences. The Navy continues to manage the Atlantic and Pacific program as a whole, with monitoring in each range complex taking a slightly different but complementary approach. The Navy has continued to use the approach of layering multiple simultaneous components in many of the range complexes to leverage an increase in return of the progress toward answering scientific monitoring questions. This includes in the AFTT Study Area, for example, (a) Analysis of Acoustic Ecology of North Atlantic Shelf Break Cetaceans and Effects of Anthropogenic Noise Impacts; (b) Mid-Atlantic Nearshore and Mid-shelf Baleen Whale Monitoring; (c) Atlantic Behavioral Response Study; and (d) Occurrence of Rice's Whale in the Northeastern Gulf of America.
Numerous publications, dissertations, and conference presentations have resulted from research conducted under the marine species monitoring program (
Furthermore, collaboration between the monitoring program and the Navy's research and development (
NMFS and the Navy also consider data collected during mitigations as monitoring. Data are collected by shipboard personnel on hours spent training, hours of observation, hours of sonar, and marine mammals observed within the mitigation zones when mitigations are implemented. These data are provided to NMFS in both classified and unclassified annual exercise reports, which would continue under this proposed rule.
NMFS has received multiple years' worth of annual exercise and monitoring reports addressing active sonar use and explosive detonations within the AFTT Study Area and other Navy range complexes. The data and information contained in these reports have been considered in developing mitigation and monitoring measures for the proposed military readiness activities within the AFTT Study Area. The Navy's annual exercise and monitoring reports may be viewed at:
The Navy's marine species monitoring program supports several monitoring projects in the AFTT Study Area at any given time. Additional details on the scientific objectives for each project can be found at:
Specific monitoring under the 2018-2025 regulations included the following projects:
(i) Atlantic Behavioral Response Study;
(ii) Behavioral Response Analysis of Two Populations of Short-Finned Pilot Whales to Mid-Frequency Active Sonar;
(iii) Behavioral Response of Humpback Whales to Vessel Traffic;
(iv) Analysis of Acoustic Ecology of North Atlantic Shelf Break Cetaceans and Effects of Anthropogenic Noise Impacts;
(v) North Atlantic Right Whale Monitoring, Conservation, and Protection;
(vi) Atlantic Marine Assessment Program for Protected Species (AMAPPS);
(vii) Haul-Out Counts and Photo-Identification of Pinnipeds in Virginia;
(viii) Time-lapse Camera Surveys of Pinnipeds in Southeastern Virginia;
(ix) Pinniped Monitoring in the Northeast;
(x) Jacksonville Shallow Water Training Range Vessel Surveys;
(xi) Mid-Atlantic Autonomous Passive Acoustic Monitoring;
(xii) Mid-Atlantic Nearshore & Mid-shelf Baleen Whale Monitoring;
(xiii) Mid-Atlantic Offshore Cetacean Study; and
(xiv) Occurrence of Rice's Whale in the Northeastern Gulf of America.
Future monitoring efforts by the Action Proponents in the AFTT Study Area are anticipated to continue along the same objectives: establish the baseline habitat uses and movement patterns; establish the baseline behavior (foraging, dive patterns,
Currently planned monitoring projects and their Intermediate Scientific Objective for the 2025-2032 rule are listed below, many of which are continuations of projects currently underway. Other than those ongoing projects, monitoring projects are typically planned one year in advance; therefore, this list does not include all projects that will occur over the entire period of the rule.
(i) Atlantic Behavioral Response Study (ongoing)—The objective is to evaluate behavioral responses of marine mammals exposed to Navy training and testing activities.
(ii) Behavioral Response Analysis of Two Populations of Short-Finned Pilot Whales to Mid-Frequency Active Sonar
(iii) Analysis of Acoustic Ecology of North Atlantic Shelf Break Cetaceans and Effects of Anthropogenic Noise Impacts (ongoing)—The objectives are to (1) establish the baseline vocalization behavior of marine mammals where Navy training and testing activities occur; and (2) evaluate trends in distribution and abundance of populations that are regularly exposed to sonar and underwater explosives.
(iv) North Atlantic Right Whale Monitoring, Conservation, and Protection (ongoing)—The objectives are to (1) Establish the baseline habitat uses and movement patterns of marine mammals where Navy training and testing activities occur; and (2) establish the baseline behavior (foraging, dive patterns,
(v) Haul-Out Counts and Photo-Identification of Pinnipeds in Virginia (ongoing)—The objectives are to (1) estimate the density of marine mammals and sea turtles in Navy range complexes and in specific training areas; (2) establish the baseline habitat uses and movement patterns of marine mammals and sea turtles where Navy training and testing activities occur; and (3) evaluate trends in distribution and abundance of populations that are regularly exposed to sonar and underwater explosives.
(vi) Time-lapse Camera Surveys of Pinnipeds in Southeastern Virginia (ongoing)—The objectives are to (1) estimate the density of marine mammals and sea turtles in Navy range complexes and in specific training areas; (2) establish the baseline habitat uses and movement patterns of marine mammals and sea turtles where Navy training and testing activities occur; and (3) evaluate trends in distribution and abundance of populations that are regularly exposed to sonar and underwater explosives.
(vii) Jacksonville Shallow Water Training Range Vessel Surveys (ongoing)—The objectives are to (1) establish the baseline habitat uses and movement patterns of marine mammals and sea turtles where Navy training and testing activities occur; (2) determine what populations of marine mammals are exposed to Navy training and testing activities; and (3) evaluate trends in distribution and abundance of populations that are regularly exposed to Navy training and testing activities.
(viii) Mid-Atlantic Autonomous Passive Acoustic Monitoring (ongoing)—The objectives are to (1) establish the baseline habitat uses and movement patterns of marine mammals where Navy training and testing activities occur; and (2) establish the baseline behavior (foraging, dive patterns,
(ix) Mid-Atlantic Nearshore & Mid-shelf Baleen Whale Monitoring (ongoing)—The objectives are to (1) establish the baseline habitat uses and movement patterns of marine mammals where Navy training and testing activities occur; (2) establish the baseline behavior (foraging, dive patterns,
(x) Mid-Atlantic Offshore Cetacean Study (ongoing)—The objectives are to (1) establish the baseline habitat uses and movement patterns of marine mammals where Navy training and testing activities occur; and (2) establish the baseline behavior (foraging, dive patterns,
The proposed regulations governing the take of marine mammals incidental to military readiness activities in the AFTT Study Area contain an adaptive management component. Our understanding of the effects of military readiness activities (
The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes to existing mitigation and monitoring requirements are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Action Proponents regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring and if the measures are practicable. If the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS would publish a notice of the planned LOAs in the
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring and exercise reports, as required by MMPA authorizations; (2) compiled results of Navy-funded research and development studies; (3) results from specific stranding investigations; (4) results from general marine mammal and sound research; and (5) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. The results from monitoring reports and other studies may be viewed at
In order to issue incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects will be posted to the Navy's Marine Species Monitoring web portal:
There are several different reporting requirements for the Navy pursuant to the current regulations. All of these reporting requirements would be continued for the Navy under this proposed rule for the 7-year period.
The following sections describe special reporting for geographic mitigation areas that the Action Proponents must include in the Annual AFTT Training and Testing Reports. Special reporting for these areas is designed to aid the Action Proponents and NMFS in continuing to analyze potential impacts of training and testing in the mitigation areas. In addition to the mitigation area-specific requirements described below, for all mitigation areas, should national security require the Action Proponents to exceed the activity restrictions in a given mitigation area, Action Proponent personnel must provide NMFS with advance notification and include the information (
The Action Proponents must report the total annual hours and counts of active sonar and in-water explosives (including underwater explosives and explosives deployed against surface targets) used in the mitigation area.
The Action Proponents must report the total annual hours and counts of active sonar and in-water explosives (including underwater explosives and explosives deployed against surface targets) used in the mitigation area.
The Action Proponents must report the total annual hours and counts of active sonar and in-water explosives (including underwater explosives and explosives deployed against surface targets) used in the mitigation area from November 15 to April 15.
The Action Proponents must report the total annual hours and counts of active sonar and in-water explosives (including underwater explosives and explosives deployed against surface targets) used within the mitigation area from November 15 to April 15. The mitigation area extent aligns with the boundaries of the North Atlantic right whale critical habitat for reproduction designated by NMFS in 2016 (81 FR 4838, January 27, 2016).
The Action Proponents must report the total annual hours and counts of active sonar and in-water explosives (including underwater explosives and explosives deployed against surface targets) used in the mitigation area.
The Action Proponents would consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when injured, live stranded, or dead marine mammals are detected. The Notification and Reporting Plan is available for review at
The Action Proponents would submit an annual AFTT Study Area marine species monitoring report describing the implementation and results from the previous calendar year. Data collection methods will be standardized across range complexes and the AFTT Study Area to allow for comparison in different geographic locations. The draft report must be submitted to the Director of the Office of Protected Resources of NMFS annually as specified in the LOAs. NMFS will submit comments or questions on the report, if any, within 3 months of receipt. The report will be considered final after the Action Proponents have addressed NMFS' comments, or 3 months after submittal of the draft if NMFS does not provide comments on the draft report. The report would describe progress of knowledge made with respect to intermediate scientific objectives within the AFTT Study Area associated with the ICMP. Similar study questions would be treated together so that progress on each topic can be summarized across all Navy ranges. The report need not include analyses and content that do not provide direct assessment of cumulative progress on the monitoring plan study questions.
In the event that the analyzed sound levels were exceeded, the Action Proponents would submit a preliminary report(s) detailing the exceedance within 21 days after the anniversary date of issuance of the LOAs. Regardless of whether analyzed sound levels were exceeded, the Navy would submit a detailed report (AFTT Annual Training Exercise Report and Testing Activity Report) and Coast Guard would submit a detailed report (AFTT Annual Training Exercise Report) to NMFS annually as specified in the LOAs. NMFS will submit comments or questions on the reports, if any, within 1 month of receipt. The reports will be considered final after the Action Proponents have addressed NMFS' comments, or 1 month after submittal of the drafts if NMFS does not provide comments on the draft reports. The annual report shall contain information on MTEs, ship shock trials, SINKEX events, and a summary of all sound sources used (total hours or quantity (per the LOA)) of each bin of sonar or other non-impulsive source; total annual number of each type of explosive exercises; and total annual expended/detonated rounds (missiles, bombs, sonobuoys,
The Action Proponents would continue to report and coordinate with NMFS for the following:
(i) Annual marine species monitoring technical review meetings that also include researchers and the Marine Mammal Commission; and
(ii) Annual Adaptive Management meetings that also include the Marine Mammal Commission (and could occur in conjunction with the annual marine species monitoring technical review meetings).
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 (
In the Estimated Take of Marine Mammals section, we identified the subset of potential effects that would be expected to rise to the level of takes both annually and over the 7-year period covered by this proposed rule, and then identified the maximum number of takes we believe could occur (mortality) or are reasonably expected to occur (harassment) based on the methods described. The impact that any given take will have is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
The specified activities reflect representative levels of military readiness activities. The Description of the Proposed Activity section describes annual activities. There may be some flexibility in the exact number of hours, items, or detonations that may vary from year to year, but take totals would not exceed the maximum annual totals and 7-year totals indicated in table 35, table 36, and table 37. We base our analysis and negligible impact determination on the maximum number of takes that would be reasonably expected to occur annually and are proposed to be authorized, although, as stated before, the number of takes are only one part of the analysis, which includes extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the affected individuals. To avoid repetition, we provide some general analysis immediately below that applies to all the species listed in table 35, table 36, and table 37, given that some of the anticipated effects of the Action Proponents' military readiness activities on marine mammals are expected to be relatively similar in nature. Below that, we provide additional information specific to Mysticetes, Odontocetes, and Pinnipeds and, finally, break our analysis into species (and/or stocks), or groups of species (and the associated stocks) where relevant similarities exist, to provide more specific information related to the anticipated effects on individuals of a specific stock or where there is information about the status or structure of any species that would lead to a differing assessment of the effects on the species or stock. Organizing our analysis by grouping species or stocks that share common traits or that will respond similarly to effects of the Action Proponents' activities and then providing species- or stock-specific information allows us to avoid duplication while assuring that we have analyzed the effects of the specified activities on each affected species or stock.
The Action Proponents' harassment take request is based on one model for pile driving, and a second model (NAEMO) for all other acoustic stressors, which NMFS reviewed and concurs appropriately estimate the maximum amount of harassment that is reasonably likely to occur. As described in more detail above, NAEMO calculates sound energy propagation from sonar and other transducers, air guns, and explosives during military readiness activities; the sound or impulse received by animat dosimeters representing marine mammals distributed in the area around the modeled activity; and whether the sound or impulse energy received by a marine mammal exceeds the thresholds for effects. Assumptions in the Navy models intentionally err on the side of overestimation when there are unknowns. The effects of the specified activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that no activity-based mitigation is considered (
The Action Proponents and NMFS anticipate more severe effects from takes resulting from exposure to higher received levels (though this is in no way a strictly linear relationship for behavioral effects throughout species, individuals, or circumstances) and less severe effects from takes resulting from exposure to lower received levels. However, there is also growing evidence of the importance of distance in predicting marine mammal behavioral response to sound—
In the ocean, the use of sonar and other active acoustic sources is often transient and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise. However, for some individuals of some species, repeated exposures across different activities could occur over the year, especially where events occur in generally the same area with more resident species. In short, for some species, we expect that the total anticipated takes represent exposures of a smaller number of individuals of which some would be exposed multiple times, but based on the nature of the specified activities and the movement patterns of marine mammals, it is unlikely that individuals from most stocks would be taken over more than a few days within a given year. This means that even where repeated takes of individuals are likely to occur, they are more likely to result from non-sequential exposures from different activities, and, even if sequential, individual animals are not predicted to be taken for more than several days in a row, at most. As described elsewhere, the nature of the majority of the exposures would be expected to be of a less severe nature, and based on the numbers, it is likely that any individual exposed multiple times is still only taken on a small percentage of the days of the year. The greater likelihood is that not every individual is taken, or perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that, for most species or stocks, any individuals would be taken a significant portion of the days of the year.
Some of the lower level physiological stress responses (
The estimates calculated using the BRF do not differentiate between the different types of behavioral responses that rise to the level of Level B harassment. As described in the application, the Action Proponents identified (with NMFS' input) that moderate behavioral responses, as characterized in Southall
Use of sonar and other transducers would typically be transient and temporary. The majority of acoustic effects to individual animals from sonar and other active sound sources during military readiness activities would be primarily from anti-submarine warfare events. It is important to note although anti-submarine warfare is one of the warfare areas of focus during MTEs, there are significant periods when active anti-submarine warfare sonars are not in use. Nevertheless, behavioral responses are assumed more likely to be significant during MTEs than during other anti-submarine warfare activities due to the duration (
To help assess this, for sonar (LFAS/MFAS/HFAS) used in the AFTT Study Area, the Action Proponents provided information estimating the instances of take by Level B harassment by behavioral disturbance under each BRF
Many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral responses to noise exposure, when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat, are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Durations of Navy activities utilizing tactical sonar sources and explosives vary and are fully described in chapter 2 of the 2024 AFTT Draft Supplemental EIS/OEIS. Sonar used during anti-submarine warfare would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the application and include hull-mounted, towed, line array, sonobuoy, helicopter dipping, and torpedo sonars. Most anti-submarine warfare sonars are MFAS (1-10 kHz); however, some sources may use higher or lower frequencies. Anti-submarine warfare training activities using hull-mounted sonar proposed for the AFTT Study Area generally last for only a few hours. However, anti-submarine warfare testing activities range from several hours, to days, to more than 10 days for large integrated anti-submarine warfare MTEs (see table 4 and table 5). For these multi-day exercises there will typically be extended intervals of non-activity in between active sonar periods. Because of the need to train in a large variety of situations, the Navy conducts anti-submarine warfare training exercises in varying locations. Given the average length and dynamic nature of anti-submarine warfare exercises (times of sonar use) and typical vessel speed, combined with the fact that the majority of the cetaceans would not likely remain in proximity to the sound source, it is unlikely that an animal would be exposed to LFAS/MFAS/HFAS at levels or durations likely to result in a substantive response that would then be carried on for more than one day or on successive days.
Most planned explosive events are instantaneous or scheduled to occur over a short duration (less than 2 hours) and the explosive component of these activities only lasts for minutes. Although explosive exercises may sometimes be conducted in the same general areas repeatedly, because of their short duration and the fact that they are in the open ocean and animals can easily move away, it is similarly unlikely that animals would be exposed for long, continuous amounts of time, or demonstrate sustained behavioral responses. Although SINKEXs may last for up to 48 hours (4-8 hours typically, possibly 1-2 days), they are almost always completed in a single day and only one event is planned annually for the AFTT Study Area (see table 6). They are stationary and conducted in deep, open water (where fewer marine mammals would typically be expected to be randomly encountered), and they have rigorous monitoring (see table 64) and shutdown procedures all of which make it unlikely that individuals would be exposed to the exercise for extended periods or on consecutive days, though some individuals may be exposed on multiple days.
As described previously, Navy modeling uses the best available science to predict the instances of exposure above certain acoustic thresholds, which are equated, as appropriate, to harassment takes. As further noted, for
In the ocean, unlike a modeling simulation with static animals, the transient nature of sonar use makes it unlikely to repeatedly expose the same individual animals within a short period, for example, within one specific exercise. However, some repeated exposures across different activities could occur over the year with more resident species. In short, we expect the total anticipated takes represent exposures of a smaller number of individuals of which some could be exposed multiple times, but based on the nature of the Action Proponents' activities and the movement patterns of marine mammals, it is unlikely that any particular subset would be taken over more than several sequential days (with a few possible exceptions discussed in the species-specific conclusions). In other cases, such as during pierside sonar testing at Naval Station Norfolk, repeated exposures of the same individuals may be more likely given the concentrated area within which the operations occur and the likelihood that a smaller number of animals would routinely use the affected habitat.
When calculating the proportion of a population taken (
The SAR and NMSDD abundance estimates can differ substantially because these estimates may be based on different methods and data sources. For example, the SARs only consider data from the past 8 year period, whereas the NMSDD considers a longer data history. Further, the SARs estimate the number of animals in a population but not spatial densities. NMSDD uses predictive density models to estimate species presence, even where sighting data is limited or lacking altogether. Thus, NMSDD density models beyond the U.S. EEZ have greater uncertainty than those within the U.S. EEZ, where most proposed activities would occur. Each density model is limited to the variables and assumptions considered by the original data source provider. NMFS considered these factors and others described in the Density Technical Report (U.S. Department of the Navy, 2024) when comparing the estimated takes to current population abundances for each species or stock.
In consideration of the factors described above, to estimate repeated impacts across large areas relative to species geographic distributions, comparing the impacts predicted in NAEMO to abundances predicted using the NMSDD models is usually preferable. By comparing estimated take to the NMSDD abundance estimates, impacts and abundance estimates are based on the same underlying assumptions about a species' presence. NMFS has compared the estimated take to the NMSDD abundance estimates herein for all stocks, with the exception of stocks where the abundance information fits into one of the following scenarios, in which case NMFS concluded that comparison to the SAR abundance estimate is more appropriate: (1) a species' or stocks' range extends beyond the U.S. EEZ and the SAR abundance estimate is greater than the NMSDD abundance. For highly migratory species (
NMFS and the Navy have estimated that all species of marine mammals may incur some level of TTS from active sonar. As mentioned previously, in general, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor
(i) Frequency—Available data suggest that most TTS occurs in the frequency range of the source up to one octave higher than the source (with the maximum TTS at
(ii) Degree of the shift (
(iii) Duration of TTS (recovery time)—In the TTS laboratory studies (as discussed in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section), some using exposures of almost an hour in duration or up to 217 dB SEL, almost all individuals recovered within 1 day (or less, often in minutes), although in one study (Finneran
Compared to laboratory studies, marine mammals are likely to experience lower SELs from sonar used in the AFTT Study Area due to movement of the source and animals, and because of the lower duty cycles typical of higher power sources (though some of the Navy MF1C sources have higher duty cycles). Therefore, TTS resulting from MFAS would likely be of lesser magnitude and duration compared to laboratory studies. Also, for the same reasons discussed in the Preliminary Analysis and Negligible Impact Determination—Diel Cycle section, and because of the short distance between the source and animals needed to reach high SELs, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that hearing recovery is impeded. Additionally, though the frequency range of TTS that marine mammals might incur would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations or other critical auditory cues.
As a general point, the majority of the TTS takes are the result of exposure to hull-mounted MFAS (MF narrower band sources), with fewer from explosives (broad-band lower frequency sources), and even fewer from LFAS or HFAS sources (narrower band). As described above, we expect the majority of these takes to be in the form of mild, short-term (minutes to hours), narrower band (only affecting a portion of the animal's hearing range) TTS. This means that for one to several times per year, for several minutes, maybe a few hours, or at most in limited circumstances a few days, a taken individual will have diminished hearing sensitivity (more than natural variation, but nowhere near total deafness). More often than not, such an exposure would occur within a narrower mid- to higher frequency band that may overlap part (but not all) of a communication, echolocation, or predator range, but sometimes across a lower or broader bandwidth. The significance of TTS is also related to the auditory cues that are germane within the time period that the animal incurs the TTS. For example, if an odontocete has TTS at echolocation frequencies, but incurs it at night when it is resting and not feeding, it is not impactful. In short, the expected results of any one of these small number of mild TTS occurrences could be that (1) it does not overlap signals that are pertinent to that animal in the given time period, (2) it overlaps parts of signals that are important to the animal, but not in a manner that impairs interpretation, or (3) it reduces
The ultimate potential impacts of masking on an individual (if it were to occur) are similar to those discussed for TTS, but an important difference is that masking only occurs during the time of the signal, versus TTS, which continues beyond the duration of the signal. Fundamentally, masking is referred to as a chronic effect because one of the key harmful components of masking is its duration—the fact that an animal would have reduced ability to hear or interpret critical cues becomes much more likely to cause a problem the longer it is occurring. Also inherent in the concept of masking is the fact that the potential for the effect is only present during the times that the animal and the source are in close enough proximity for the effect to occur (and further, this time period would need to coincide with a time that the animal was utilizing sounds at the masked frequency). As our analysis has indicated, because of the relative movement of vessels and the sound sources primarily involved in this rule, we do not expect the exposures with the potential for masking to be of a long duration.
Masking is fundamentally more of a concern at lower frequencies, because low frequency signals propagate significantly farther than higher frequencies and because they are more likely to overlap both the narrower LF calls of mysticetes, as well as many non-communication cues such as fish and invertebrate prey, and geologic sounds that inform navigation. Masking is also more of a concern from continuous sources (versus intermittent sonar signals) where there is no quiet time between pulses and detection and interpretation of auditory signals is likely more challenging. For these reasons, dense aggregations of, and long exposure to, continuous LF activity are much more of a concern for masking, whereas comparatively short-term exposure to the predominantly intermittent pulses of often narrow frequency range MFAS or HFAS, or explosions are not expected to result in a meaningful amount of masking. While the Action Proponents occasionally use LF and more continuous sources, it is not in the contemporaneous aggregate amounts that would be expected to accrue to degrees that would have the potential to affect reproductive success or survival. Additional detail is provided below.
Standard hull-mounted MFAS typically pings every 50 seconds. Some hull-mounted anti-submarine sonars can also be used in an object detection mode known as “Kingfisher” mode (
Most anti-submarine warfare sonars and countermeasures use MF frequencies and a few use LF and HF frequencies. Most of these sonar signals are limited in the temporal, frequency, and spatial domains. The duration of most individual sounds is short, lasting up to a few seconds each. A few systems operate with higher duty cycles or nearly continuously, but they typically use lower power, which means that an animal would have to be closer, or in the vicinity for a longer time, to be masked to the same degree as by a higher level source. Nevertheless, masking could occasionally occur at closer ranges to these high-duty cycle and continuous active sonar systems, but as described previously, it would be expected to be of a short duration. While data are lacking on behavioral responses of marine mammals to continuously active sonars, mysticete species are known to habituate to novel and continuous sounds (Nowacek
Other sources used in the Action Proponents' training and testing that are not explicitly addressed above, many of either higher frequencies (meaning that the sounds generated attenuate even closer to the source) or used less frequently, would be expected to contribute to masking over far smaller areas and/or times. For the reasons described here, any limited masking that could potentially occur would be minor and short-term.
In conclusion, masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as from vessels, however, the duration of temporal and spatial overlap with any individual animal and the spatially separated sources that the Action Proponents use would not be expected to result in more than short-term, low impact masking that would not affect reproduction or survival.
Table 38 through table 46 indicate the number of takes of each species by Level A harassment in the form of auditory injury resulting from exposure to active sonar and/or explosives is estimated to occur, and table 50 indicates the totals across all activities. The number of takes estimated to result from auditory injury annually from sonar, air guns, and explosives for each species/stock from all activities combined ranges from 0 to 180 (the 180 is for the Western North Atlantic stock of dwarf sperm whale). Nineteen stocks (all odontocetes) have the potential to incur non-auditory injury from explosives, and the number of individuals from any given stock from all activities combined ranges from 1 to 3 (the 3 is for the Northern Gulf of America stock of pantropical spotted dolphin). As described previously, the Navy's model likely overestimates the number of injurious takes to some degree. Nonetheless, these Level A harassment take numbers represent the maximum number of instances in which marine mammals would be reasonably expected to incur auditory and/or non-auditory injury, and we have analyzed them accordingly.
If a marine mammal is able to approach a surface vessel within the distance necessary to incur auditory injury in spite of the mitigation measures, the likely speed of the vessel (nominally 10-15 kn (18.5-27.8 km/hr)) and relative motion of the vessel would make it very difficult for the animal to remain in range long enough to accumulate enough energy to result in more than a mild case of auditory injury. As discussed previously in relation to TTS, the likely consequences to the health of an individual that incurs auditory injury can range from mild to more serious, and is dependent upon the degree of auditory injury and the frequency band associated with auditory injury. The majority of any auditory injury incurred as a result of exposure to Navy sources would be expected to be in the 2-20 kHz range (resulting from the most powerful hull-mounted sonar) and could overlap a small portion of the communication frequency range of many odontocetes, whereas other marine mammal groups have communication calls at lower frequencies. Because of the broadband nature of explosives, auditory injury incurred from exposure to explosives would occur over a lower, but wider, frequency range. Regardless of the frequency band, the more important point in this case is that any auditory injury accrued as a result of exposure to Navy activities would be expected to be of a small amount (single digits). Permanent loss of some degree of hearing is a normal occurrence for older animals, and many animals are able to compensate for the shift, both in old age or at younger ages as the result of stressor exposure. While a small loss of hearing sensitivity may include some degree of energetic costs for compensating or may mean some small loss of opportunities or detection capabilities, at the expected scale it would be unlikely to impact behaviors, opportunities, or detection capabilities to a degree that would interfere with reproductive success or survival.
The Action Proponents implement mitigation measures (described in the Proposed Mitigation Measures section) during explosive activities, including delaying detonations when a marine mammal is observed in the mitigation zone. Nearly all explosive events would occur during daylight hours thereby improving the sightability of marine mammals and mitigation effectiveness. Observing for marine mammals during the explosive activities would include visual and passive acoustic detection methods (the latter when they are available and part of the activity) before the activity begins, in order to cover the mitigation zones that can range from 200 yd (183 m) to 2,500 yd (2,286 m) depending on the source (
The type and amount of take by Level A harassment are indicated for all species and species groups in table 81, table 83, table 85, table 87, table 89, and table 91. Generally speaking, non-auditory injuries from explosives could range from minor lung injuries (the most sensitive organ and first to be affected) that consist of some short-term reduction of health and fitness immediately following the injury that heals quickly and will not have any discernible long-term effects, up to more impactful permanent injuries across multiple organs that may cause health problems and negatively impact reproductive success (
NMFS is authorizing a very small number of serious injuries or mortalities that could occur in the event of a vessel strike or as a result of marine mammal exposure to explosive detonations (mostly during ship shock trials). We note here that the takes from potential vessel strikes or explosive exposures enumerated below could result in non-serious injury, but their worst potential outcome (mortality) is analyzed for the purposes of the negligible impact determination.
The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (
Below we describe how PBR is considered in NMFS M/SI analysis. Please see the 2020 Northwest Training and Testing Final Rule (85 FR 72312, November 12, 2020) for a background discussion of PBR and how it was adopted for use authorizing incidental take under section 101(a)(5)(A) for specified activities such as the Action Proponent's training and testing in the AFTT Study Area.
When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we utilize a two-tiered analysis for each stock for which M/SI is proposed for authorization:
(i)
(ii)
Additional detail regarding the two tiers of the evaluation are provided below.
As indicated above, the goal of the Tier 1 assessment is to determine whether total annual human-caused mortality, including from the specified activity, would exceed PBR. To aid in the Tier 1 evaluation and get a clearer picture of the amount of annual M/SI that remains without exceeding PBR, for each species or stock, we first calculate a “residual PBR,” which equals PBR minus the ongoing annual human-caused M/SI (
To reiterate the Tier 1 analysis overview in the context of residual PBR, if the M/SI from the specified activity does not exceed PBR, the impacts of the authorized M/SI on the species or stock are generally considered to be negligible. As a simplifying analytical tool in the Tier 1 evaluation, we first consider whether the M/SI from the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR, which we consider an “insignificance threshold.” If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone will clearly not adversely affect annual rates of recruitment and survival and for which additional analysis or discussion of the anticipated M/SI is not required because the negligible impact standard clearly will not be exceeded on that basis alone.
When the M/SI from the specified activity is above the insignificance threshold in the Tier 1 evaluation, it does not indicate that the M/SI associated with the specified activities is necessarily approaching a level that would exceed negligible impact. Rather, it is used a cue to look more closely if and when the M/SI for the specified activity approaches residual PBR, as it becomes increasingly necessary (the closer the M/SI from the specified activity is to 100 percent residual PBR) to carefully consider whether there are other factors that could affect reproduction or survival, such as take by Level A and/or Level B harassment that has been predicted to impact reproduction or survival of individuals, or other considerations such as information that illustrates high uncertainty involved in the calculation of PBR for some stocks. Recognizing that the impacts of harassment of any authorized incidental take (by Level A or Level B harassment from the specified activities) would not combine with the effects of the authorized M/SI to adversely affect the stock through effects on recruitment or survival, if the proposed authorized M/SI for the specified activity is less than residual PBR, the M/SI, alone, would be considered to have a negligible impact on the species or stock. If the proposed authorized M/SI is greater than residual PBR, then the assessment should proceed to Tier 2.
For the Tier 2 evaluation, recognizing that the total annual human-caused M/SI exceeds PBR, we consider whether the incremental effects of the proposed authorized M/SI for the specified activity, specifically, would be expected to result in a negligible impact on the affected species or stocks. For the Tier 2 assessment, consideration of other factors (positive or negative), including those described above (
Also, as referenced above, in some cases the ongoing human-caused mortality from activities other than those being evaluated already exceeds PBR and, therefore, residual PBR is negative. In these cases, any additional mortality, no matter how small, and no matter how small relative to the mortality caused by other human activities, would result in greater exceedance of PBR. PBR is helpful in
Accordingly, we may find that the impacts of the taking from the specified activity may (alone) be negligible even when total human-caused mortality from all activities exceeds PBR if (in the context of a particular species or stock). Specifically, where the authorized M/SI would be less than or equal to 10 percent of PBR and management measures are being taken to address M/SI from the other contributing activities (
As noted above, while PBR is useful in informing the evaluation of the effects of M/SI in section 101(a)(5)(A) determinations, it is one consideration to be assessed in combination with other factors and is not determinative. For example, as explained above, the accuracy and certainty of the data used to calculate PBR for the species or stock must be considered. And we reiterate the considerations discussed above for why it is not appropriate to consider PBR an absolute cap in the application of this guidance. Accordingly, we use PBR as a trigger for concern while also considering other relevant factors to provide a reasonable and appropriate means of evaluating the effects of potential mortality on rates of recruitment and survival, while acknowledging that it is possible for total human-caused M/SI to exceed PBR (or for the M/SI from the specified activity to exceed 10 percent of PBR in the case where other human-caused mortality is exceeding PBR, as described in the last paragraph) by some small amount and still make a negligible impact determination under section 101(a)(5)(A).
We note that on June 17, 2020, NMFS finalized new Criteria for Determining Negligible Impact under MMPA section 101(a)(5)(E). The guidance explicitly notes the differences in the negligible impact determinations required under section 101(a)(5)(E), as compared to sections 101(a)(5)(A) and 101(a)(5)(D), and specifies that the procedure in that document is limited to how the agency conducts negligible impact analyses for commercial fisheries under section 101(a)(5)(E). In this proposed rule, NMFS has described its method for considering PBR to evaluate the effects of potential mortality in the negligible impact analysis. NMFS has reviewed the 2020 guidance and determined that our consideration of PBR in the evaluation of mortality as described above and in the proposed rule remains appropriate for use in the negligible impact analysis for the Action proponent's activities under section 101(a)(5)(A).
Our evaluation of the M/SI for each of the species and stocks for which mortality or serious injury could occur follows.
We first consider maximum potential incidental M/SI from the Action Proponents' vessel strike analysis for the affected large whales (table 79) and from the Action Proponents' explosive detonations for the affected small cetaceans (table 80) in consideration of NMFS' threshold for identifying insignificant M/SI take. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, as described above, we begin our evaluation of whether the potential incremental addition of M/SI through vessel strikes and explosive detonations may affect the species' or stocks' annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
Based on the methods discussed previously, NMFS is proposing to authorize six mortalities of large whales due to vessel strike over the course of the 7-year rule, three by each Action Proponent. Across the 7-year duration of the rule, two takes by mortality (annual average of 0.29 takes) of fin whale (Western North Atlantic stock), minke whale (Canadian East Coast stock), sei whale (Nova Scotia stock), and sperm whale (North Atlantic stock) could occur and are proposed for authorization table 79); one take by mortality (annual average of 0.14 takes) of the Northern Gulf of America stock of sperm whale could occur and is proposed for authorization; four takes by mortality (annual average of 0.57 takes) of humpback whale (Gulf of Maine stock) could occur and are proposed for authorization (table 79). To calculate the annual average of M/SI by vessel strike, we divided the 7-year proposed take by serious injury or mortality by seven.
The Action Proponents also requested a small number of takes by M/SI from explosives. Across the 7-year duration of the rule, NMFS is proposing to authorize five takes by M/SI (annual average of 0.71 takes) of pantropical spotted dolphin (Northern Gulf of America stock), two takes by M/SI (annual average of 0.29 takes) of striped dolphin (Northern Gulf of America stock), two takes by M/SI (annual average of 0.29 takes) of bottlenose dolphin (Western North Atlantic Offshore stock), one take by M/SI (annual average of 0.14 takes) of Tamanend's bottlenose dolphin (Western North Atlantic South Carolina/Georgia Coastal), and three takes by M/SI (annual average of 0.43 takes) of Clymene dolphin (Western North Atlantic stock) (table 80). To calculate the annual average of M/SI from explosives, we divided the 7-year proposed take by serious injury or mortality by seven (table 80), the same method described for vessel strikes.
As noted above, for a species or stock with M/SI proposed for authorization less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (
For this stock, PBR is currently set at 22. The total annual M/SI from other sources of anthropogenic mortality is estimated to be 12.15. This yields a residual PBR of 9.85. The additional 0.57 annual mortalities that are authorized in this rule are below the insignificance threshold (10 percent of residual PBR, in this case 0.985). Nonetheless, since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. As of February 6, 2025, there have been 244 known strandings, and of the whales examined, about 40 percent had evidence of human interaction either from vessel strike or entanglement. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. However, even in consideration of the UME, the incremental increase in annual mortality from the Action Proponents' specified activities is not expected to adversely affect annual rates of recruitment or survival.
For this stock, PBR is currently set at 170. The total annual M/SI from other sources of anthropogenic mortality is estimated to be 9.4. In addition, 1 annual mortality has been authorized for this same stock in the current incidental take regulations for NMFS' Northeast Fisheries Science Center (86 FR 58434, October 21, 2021). This yields a residual PBR of 159.6. The additional 0.29 annual mortalities that are authorized in this rule are well below the insignificance threshold (10 percent of residual PBR, in this case 16.0). Nonetheless, minke whale mortalities detected along the Atlantic coast from Maine through South Carolina resulted in the declaration of an on-going UME in 2017. Preliminary findings show evidence of human interactions or infectious disease, but these findings are not consistent across all of the minke whales examined, so more research is needed. As of February 10, 2025, a total of 198 minke whales have stranded during this UME, averaging about 25 animals per year. However, even in consideration of the UME, the incremental increase in annual mortality from the Action Proponents' activities is not expected to adversely affect annual rates of recruitment or survival.
For the Northern Gulf of America stock of sperm whale, PBR is currently set at 2 and the total annual M/SI is estimated at 9.6, yielding a residual PBR of −7.6. NMFS is proposing to authorize one M/SI (U.S. Navy only) over the 7-year duration of the rule (indicated as 0.14 annually for the purposes of comparing to PBR and evaluating overall effects on annual rates of recruitment and survival), which means that residual PBR is exceeded by 7.74. However, as described above, given that the negligible impact determination is based on the assessment of take of the activity being analyzed, when total annual mortality from human activities is higher, but the impacts from the specific activity being analyzed are very small, NMFS may still find the impact of the authorized take from a specified activity to be negligible even if total human-caused mortality exceeds PBR—specifically if the authorized mortality is less than 10 percent of PBR and management measures are being taken to address serious injuries and mortalities from the other activities causing mortality (
As discussed, we also take into consideration management measures in place to address M/SI caused by other activities. As reported in the SAR, of the total annual M/SI of this stock (9.6), 9.4 of those M/SI are from the DWH oil spill. (The remaining 0.2 are fishery-related M/SI.) Since the DWH spill, there have been numerous recovery efforts for marine mammals. The DWH oil spill NRDA settlement allocated $144,000,000 to marine mammal restoration, and as of 2021, $30,968,016 has been allocated (DWH NRDA Trustees, 2021). Projects have focused
In this case, 0.14 M/SI means one mortality in 1 of the 7 years and zero mortalities in 6 of those 7 years. Therefore, the Action Proponents would not be contributing to the total human-caused mortality at all in 6 of the 7, or 85.7 percent, of the years covered by this rulemaking. That means that even if a Northern Gulf of America stock of sperm whale were to be taken by mortality from vessel strike, in 6 of the 7 years there could be no effect on annual rates of recruitment or survival from Action Proponent-caused M/SI. Additionally, the loss of a male would have far less, if any, effect on population rates and absent any information suggesting that one sex is more likely to be struck than another, we can reasonably assume that there is a 50 percent chance that the single strike authorized by this rulemaking would be a male, thereby further decreasing the likelihood of impacts on the population rate. In situations like this where potential M/SI is fractional, consideration must be given to the lessened impacts anticipated due to the absence of M/SI in 6 of the 7 years and the fact that the single strike could be a male. Lastly, we reiterate that PBR is a conservative metric and also not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. This is especially important given the minor difference between zero and one across the 7-year period covered by this rulemaking, which is the smallest distinction possible when considering mortality. As noted above, Wade
For striped dolphin (Northern Gulf of America stock), PBR is currently set at 12 and the total annual M/SI is estimated at greater than or equal to 13. As described in the SAR, these 13 M/SI are predicted M/SI from the DWH oil spill. In addition, 0.6 annual mortalities have been authorized for this same stock in the current incidental take regulations for NMFS' Southeast Fisheries Science Center (85 FR 27028, May 6, 2020). This yields a residual PBR of −1.6. NMFS is proposing to authorize two M/SI for the Navy over the 7-year duration of the rule (indicated as 0.29 annually for the purposes of comparing to PBR and evaluating overall effects on annual rates of recruitment and survival), which means that residual PBR is exceeded by 1.74. However, as described above, given that the negligible impact determination is based on the assessment of take of the activity being analyzed, when total annual mortality from human activities is higher, but the impacts from the specific activity being analyzed are very small, NMFS may still find the impact of the authorized take from a specified activity to be negligible even if total human-caused mortality exceeds PBR—specifically if the authorized mortality is less than 10 percent of PBR and management measures are being taken to address serious injuries and mortalities from the other activities causing mortality (
As discussed, we also take into consideration management measures in place to address M/SI caused by other activities. As reported in the SAR, all 13 of the total annual M/SI of this stock are from the DWH oil spill. As described in the previous section in more detail, since the DWH spill, there have been numerous recovery efforts for marine mammals, including some efforts to minimize impacts to marine mammals from ocean noise, such as pilot projects to test existing alternatives to traditional airgun seismic surveys, engineering solutions for vessel quieting, and operational approaches for quieting commercial vessels while underway (Southall
Additionally of note, in this case, 0.29 M/SI means one mortality in 1 of the 7 years and zero mortalities in 6 of those 7 years. Therefore, the Action Proponents would not be contributing to the total human-caused mortality at all in 6 of the 7, or 85.7 percent, of the years covered by this rulemaking. That means that even if a striped dolphin were to be taken by mortality from explosives, in 6 of the 7 years there could be no effect on annual rates of recruitment or survival from Action Proponent-caused M/SI. Additionally, the loss of a male would have far less, if any, effect on population rates and absent any information suggesting that one sex is more likely to be injured than another, we can reasonably assume that there is a 50 percent chance that the two mortalities authorized by this rulemaking would be a male, thereby further decreasing the likelihood of impacts on the population rate. In
As discussed in the earlier
Due to the scope of the spill, the magnitude of potentially injured populations, and the difficulties and limitations of working with marine mammals, it is impossible to quantify injury without uncertainty. Wherever possible, the quantification results represent ranges of values that encapsulate the uncertainty inherent in the underlying datasets. The population model outputs shown in table 15 best represent the temporal magnitude of the injury and the potential recovery time from the injury (DWH NRDA Trustees, 2016). The values in the table inform the baseline levels of both individual health and susceptibility to additional stressors, as well as stock status, with which the effects of the Action Proponents' takes are considered in the negligible impact analysis. Additionally, estimates of annual mortality for many stocks now include mortality attributed to the effects of the DWH oil spill (see table 15) (Hayes
In this section, we build on the general analysis that applies to all marine mammals in the AFTT Study Area from the previous sections. We first include information and analysis that applies to mysticetes or, separately, odontocetes, or pinnipeds, and then within those three sections, more specific information that applies to smaller groups, where applicable, and the affected species or stocks. The specific authorized take numbers are also included in the analyses below, and so here we provide some additional context and discussion regarding how we consider the authorized take numbers in those analyses.
The maximum amount and type of incidental take of marine mammals reasonably likely to occur and therefore proposed to be authorized from exposures to sonar and other active acoustic sources and explosions during the 7-year activity period are shown in table 35, table 36, and table 37, and the subset attributable to ship shock trials is included in table 45.
In the discussions below, the estimated takes by Level B harassment represent instances of take, not the number of individuals taken (the much lower and less frequent Level A harassment takes are far more likely to be associated with separate individuals), and in some cases individuals may be taken more than one time. As part of our evaluation of the magnitude and severity of impacts to marine mammal individuals and the species, and specifically in an effort to better understand the degree to which the modeled and estimated takes likely represent repeated takes of the individuals of a given species/stock, we consider the total annual numbers of take by harassment (auditory injury, non-auditory injury, TTS, and behavioral disturbance) for species or stocks as compared to their associated abundance estimates—specifically, take numbers higher than the stock abundance clearly indicate that some number of individuals are being taken on more than one day in the year, and broadly higher or lower ratios of take to abundance may reasonably be considered to equate to higher or lower likelihood of repeated takes, respectively, other potentially influencing factors being equal. In addition to the mathematical consideration of estimated take compared to abundance, we also consider other factors or circumstances that may influence the likelihood of repeated takes, where known, such as circumstances where activities resulting in take are focused in an area and time (
Occasional, milder behavioral responses are unlikely to cause long-term consequences for individual animals or populations, and even if some smaller subset of the takes are in the form of a longer (several hours or a day) and more severe response, if they are not expected to be repeated over a comparatively longer duration of sequential days, impacts to individual fitness are not anticipated. Nearly all studies and experts agree that infrequent exposures of a single day or less are unlikely to impact an individual's overall energy budget (Farmer
To assist in understanding what this analysis means, we clarify a few issues related to estimated takes and the analysis here. An individual that incurs AUD INJ or TTS may sometimes, for example, also be subject to behavioral disturbance at the same time. As described above in this section, the degree of auditory injury, and the degree and duration of TTS, expected to be incurred from the Navy's activities are not expected to impact marine mammals such that their reproduction or survival could be affected. Similarly, data do not suggest that a single instance in which an animal accrues auditory injury or TTS and is also subjected to behavioral disturbance would result in impacts to reproduction or survival. Alternately, we recognize that if an individual is subjected to behavioral disturbance repeatedly for a longer duration and on consecutive days, effects could accrue to the point that reproductive success is impacted. Accordingly, in analyzing the number of takes and the likelihood of repeated and sequential takes, we consider the total takes, not just the takes by Level B harassment by behavioral disturbance, so that individuals potentially exposed to both threshold shift and behavioral disturbance are appropriately considered. The number of takes by Level A harassment by auditory injury are so low (and zero in some cases) compared to abundance numbers that it is considered highly unlikely that any individual would be taken at those levels more than once.
Use of sonar and other transducers would typically be transient and temporary. The majority of acoustic effects to most marine mammal stocks from sonar and other active sound sources during the specified military readiness activities would be primarily from anti-submarine warfare events. On the less severe end, exposure to comparatively lower levels of sound at a detectably greater distance from the animal, for a few or several minutes, could result in a behavioral response such as avoiding an area that an animal would otherwise have moved through or fed in, or breaking off one or a few feeding bouts. More severe behavioral effects could occur when an animal gets close enough to the source to receive a comparatively higher level of sound, is exposed continuously to one source for a longer time, or is exposed intermittently to different sources throughout a day. Such effects might result in an animal having a more severe flight response and leaving a larger area for a day or more, or potentially losing feeding opportunities for a day. However, such severe behavioral effects are expected to occur infrequently. In addition to the proximity to the source, the type of activity and the season and location during which an animal is exposed, can inform the impacts. These factors, including the numbers and types of effects that are estimated in areas known to be biologically important for certain species are discussed in the group and species-specific sections, below.
Further, as described in the Proposed Mitigation Measures section, this proposed rule includes mitigation measures that would reduce the probability and/or severity of impacts expected to result from acute exposure to acoustic sources or explosives, vessel strike, and impacts to marine mammal habitat. Specifically, the Action Proponents would use a combination of delayed starts, powerdowns, and shutdowns to avoid mortality or serious injury, minimize the likelihood or severity of AUD INJ or non-auditory injury, and reduce instances of TTS or more severe behavioral disturbance caused by acoustic sources or explosives. The Action Proponents would also implement multiple time/area restrictions that would reduce take of marine mammals in areas or at times where they are known to engage in important behaviors, such as calving, where the disruption of those behaviors would have a higher probability of resulting in impacts on reproduction or survival of individuals that could lead to population-level impacts.
These time/area restrictions include ship shock trial mitigation areas throughout the Study Area, MTE Planning Awareness Mitigation Areas in the Northeast and Mid-Atlantic, a Gulf of Maine Marine Mammal Mitigation Area, several mitigation areas specific to NARW, and a Rice's Whale Mitigation Area. Mitigation areas for NARW and Rice's whale specifically are discussed in those species-specific sections below. However, it is important to note that measures in those areas, while developed to protect those species, would also benefit other marine mammals in those areas. Therefore, they are discussed here also.
Regarding ship shock trials, the Action Proponents will not conduct ship shock trials within the Rice's whale core distribution area in the northern Gulf of America or within the portion of the ship shock trial box that overlaps the Jacksonville OPAREA from November 15 through April 15. These mitigation measures would avoid potential exposure of Rice's whales to injurious levels of sound and avoid potential injurious and behavioral impacts to NARW during calving season. Additionally, pre-event planning for ship shock trials will include the selection of sites where marine mammal abundance is expected to be the lowest during the planned event and prioritize sites more than 2 nmi (3.7 km) from the western boundary of the Gulf Stream where marine mammals would be expected in greater concentrations for foraging and migration. Overall, the benefits of Ship Shock Trial Mitigation Areas would be substantial for all marine mammal taxa because ship shock trials use the largest NEW of any explosive activity conducted in the AFTT Study Area.
Regarding MTEs, the Action Proponents will not conduct any MTEs or any portion of any MTE in the Major Training Exercise Planning Awareness Mitigation Areas in the northeast. This would restrict MTEs from occurring within NARW foraging critical habitat, on Georges Bank, and in areas that contain underwater canyons (
In the Gulf of Maine Marine Mammal Mitigation Area, the Action Proponents would use no more than 200 hours of surface ship hull-mounted MFAS annually. This measure is designed to reduce exposure of marine mammals to potentially injurious levels of sound from surface ship hull-mounted MFAS, the type of active sonar with the highest power source used in the Study Area.
Additionally, the action proponents would implement four mitigation areas specifically designed to protect NARW. These include the Northeast North Atlantic Right Whale Mitigation Area, Jacksonville Operating Area North Atlantic Right Whale Mitigation Area, Southeast North Atlantic Right Whale Mitigation Area, and the Dynamic North Atlantic Right Whale Mitigation Areas. These areas are designed to reduce exposure of NARWs to acoustic and explosive stressors as well as vessel strike risk in foraging critical habitat, reproduction critical habitat, and in areas and times when the species has a higher occurrence in these areas. The Northeast North Atlantic Right Whale Mitigation Area would also protect other marine mammal species, including those with BIAs that overlap the mitigation area, including fin whale, humpback whale, minke whale, sei whale, and harbor porpoise (LaBrecque
In addition to the nature and context of the disturbance, including whether take occurs in a known BIA, species-specific factors affect the severity of impacts to individual animals and population consequences of disturbance. Keen
Regarding movement ecology, resident animals that have small home ranges relative to the size and duration of an impact zone would have a higher risk of repeated exposures to an ongoing activity. Animals that are nomadic over a larger range may have less predictable risk of repeated exposure. For resident and nomadic populations, overlap of a stressor with feeding or reproduction depends more on time of year rather than location in their habitat range. In contrast, migratory animals may have higher or reduced potential for exposure during feeding and reproduction based on both location, time of the year, and duration of an activity. The risk of repeated exposure during individual events may be lower during migration as animals maintain directed transit through an area.
Reproduction is energetically expensive for female marine mammals, and reproductive strategy can influence an animal's sensitivity to disturbance. Mysticetes and phocids are capital breeders. Capital breeders rely on their capital, or energy stores, to migrate, maintain pregnancy, and nurse a calf. Capital breeders would be more resilient to short-term foraging disruption due to their reliance on built-up energy reserves, but are vulnerable to prolonged foraging impacts during gestation. Otariids and most odontocetes are income breeders, which rely on some level of income, or regular foraging, to give birth and nurse a calf. Income breeders would be more sensitive to the consequences of disturbances that impact foraging during lactation. Some species exhibit traits of both, such as beaked whales.
Smaller animals require more food intake per unit body mass than large animals. They must consume food on a regular basis and are likely to be non-migratory and income breeders. The smallest odontocetes, the porpoises, must maintain high metabolisms to maintain thermoregulation and cannot rely on blubber stores for long periods of time, whereas larger odontocetes can more easily thermoregulate. The larger size of other odontocetes is an adaptation for deep diving that allows them to access high quality mesopelagic and bathypelagic prey. Both small and large odontocetes have lower foraging efficiency than the large whales. The filter-feeding large whales (mysticetes) consume most of their food within several months of the year and rely on extensive lipid reserves for the remainder of the year. The metabolism of mysticetes allows for fasting while seeking prey patches during foraging season and prolonged periods of fasting outside of foraging season (Goldbogen
Populations with a fast pace of life are characterized by early age of maturity, high birth rates, and short life spans, whereas populations with a slow pace of life are characterized by later age of maturity, low birth rates, and long life spans. The consequences of disturbance in these populations differ. Although reproduction in populations with a fast pace of life are more sensitive to foraging disruption, these populations are quick to recover. Reproduction in populations with a slow pace of life is resilient to foraging disruption, but late maturity and low birth rates mean that long-term impacts to breeding adults have a longer-term effect on population growth rates. Pace of life was categorized for each species in this analysis by comparing age at sexual maturity, birth rate interval, life span, body size, and feeding and reproductive strategy.
Southall
In consideration of the factors outlined above, if impacts to individuals increase in magnitude or severity such that repeated and sequential higher severity impacts occur (the probability of this goes up for an individual the higher total number of takes it has) or the total number of moderate to more severe impacts increases substantially, especially if occurring across sequential days, then it becomes more likely that the aggregate effects could potentially interfere with feeding enough to reduce energy budgets in a manner that could impact reproductive success via longer cow-calf intervals, terminated pregnancies, or calf mortality. It is important to note that these impacts only accrue to females, which only comprise approximately 50 percent of the population. Based on energetic models, it takes energetic impacts of a significantly greater magnitude to cause the death of an adult marine mammal, and females will always terminate a pregnancy or stop lactating before allowing their health to deteriorate. Also, the death of an adult female has significantly more impact on population growth rates than reductions in reproductive success, while the death of an adult male has very little effect on
Thus, our analysis below considers the effects of the specified activities on each affected species or stock even where discussion is organized by functional hearing group and/or information is evaluated at the group level. Where there are meaningful differences between a species or stock that would further differentiate the analysis, they are either described within the section or the discussion for those species or stocks is included as a separate subsection. Specifically below, we first give broad descriptions of the mysticete, odontocete, and pinniped groups and then differentiate into further groups as appropriate.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different stocks will incur, the applicable mitigation for each stock, and the status and life history of the stocks to support the negligible impact determinations for each stock. We have already described above why we believe the incremental addition of the small number of low-level auditory injury takes will not have any meaningful effect towards inhibiting reproduction or survival. We have also described above in this section the unlikelihood of any masking or habitat impacts having effects that would impact the reproduction or survival of any of the individual marine mammals affected by the Action Proponents' activities. For mysticetes, there is no predicted non-auditory injury from explosives for any stock. Regarding the severity of individual takes by Level B harassment by behavioral disturbance for mysticetes, the majority of these responses are anticipated to occur at received levels below 172 dB, and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Much of the discussion below focuses on the behavioral effects and the mitigation measures that reduce the probability or severity of effects in biologically important areas or other habitat. Because there are multiple stock-specific factors in relation to the status of the species, as well as mortality take for several stocks, at the end of the section we break out stock-specific findings.
In table 81 below for mysticetes, we indicate the total annual mortality, Level A harassment, and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
In table 82 below, we indicate the status, life history traits, important habitats, and threats that inform our analysis of the potential impacts of the estimated take on the affected mysticete stocks.
North Atlantic right whales are listed as endangered under the ESA and as both a depleted and strategic stock under the MMPA. The current stock abundance estimate is 372 animals. As described in the
As described in the Description of Marine Mammals and Their Habitat in the Area of the Specified Activities section, the AFTT Study Area overlaps the NARW migratory corridor BIA, which represent areas and months within which a substantial portion of a species or population is known to migrate (LeBrecque
NARW are threatened due to a low population abundance, compromised body condition, high mortality rates, and low reproductive rates. They face several chronic anthropogenic and non-anthropogenic risk factors, including vessel strike, entanglement, and climate change, among others. Recent studies have reported individuals showing high stress levels (
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 2 and 414, respectively. Given the current status of the NARW, the loss of even one individual could significantly impact the population. However, no mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (from minutes to, at most, several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with NARW communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. NARWs are large-bodied capital breeders with a slow pace of life, which would generally be less susceptible to impacts from shorter duration foraging disruptions.
Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 81), it is likely that some portion of the individuals taken are taken repeatedly over a small number of days, particularly in the Northeast (70 percent of the takes predicted are in this region) during the winter and spring where and when a combined 58 percent of takes of this stock would occur and animals are likely feeding. This is when North Atlantic right whales have a higher density at feeding grounds located near and south of Cape Cod, including areas overlapped by the Narragansett Bay OPAREA in the Northeast Range Complexes, and in the migratory corridor through the northeast region. However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, the fact that
Given the magnitude and severity of the impacts discussed above to NARW (considering annual take maxima and the total across 7 years) and their habitat, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival. Further, we have considered the UME for NARW species described above, and even in consideration of the fact that some of the affected individuals may have compromised health, given the anticipated impacts of the activity, the proposed take is not expected to exacerbate the effects of the UME or otherwise impact the population. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on the Western stock of NARW.
Blue whales are listed as endangered under the ESA and as both depleted and strategic under the MMPA. The stock abundance is currently unknown, though NMFS' SAR reports an N
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 1 and 71, respectively. No mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration, and mostly not in a frequency band that would be expected to interfere with blue whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Blue whales are large-bodied capital breeders with a slow pace of life, and are therefore generally less susceptible to impacts from shorter duration foraging disruptions. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the lower number of takes by harassment as compared to the stock/species abundance (see table 81), their migratory movement pattern, and the absence of take concentrated in areas in which animals are known to congregate, it is unlikely that any individual blue whales would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival.
Given the magnitude and severity of the impacts discussed above to blue whales (considering annual take maxima and the total across 7 years) and their habitat, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on the Western North Atlantic stock of blue whales.
This population of Bryde's whales spans the mid- and southern Atlantic. They have not been designated as a stock under the MMPA, are not ESA-listed, and there is no current reported population trend. There are no UMEs or other factors that cause particular concern for this stock and no known biologically important areas for Bryde's whale in the AFTT Study Area. Most Bryde's whales congregate in tropical waters south of the AFTT Study Area, and only occasionally travel as far north as Virginia. Bryde's whales generally face several chronic anthropogenic and non-anthropogenic risk factors, including vessel strike, entanglement, and climate change, among others.
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level B harassment is 11. No mortality is anticipated or proposed for authorization, and nor is any auditory or non-auditory injury (Level A harassment). The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with TTS, as described in the Temporary Threshold Shift section above, any takes in the form of TTS are expected to be lower-level, of short duration, and mostly not in a frequency band that would be expected to interfere with Bryde's whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the low number of takes by harassment (see table 81), their migratory movement pattern, and the absence of take concentrated in areas in which animals are known to congregate, it is unlikely that any individual Bryde's whales would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival.
Given the magnitude and severity of the impacts discussed above to this population of Bryde's whales (considering annual take maxima and the total across 7 years) and their habitat, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on Bryde's whales.
Fin whales are listed as endangered under the ESA throughout the species' range and as both depleted and strategic under the MMPA. The Western North Atlantic stock abundance is 6,802 animals. There are no UMEs or other factors that cause particular concern for this stock. As described in the Description of Marine Mammals and Their Habitat in the Area of the Specified Activities section, the AFTT Study Area overlaps three fin whale feeding BIAs: (1) June to October in the northern Gulf of Maine; (2) year-round in the southern Gulf of Maine, and (3) March to October east of Montauk Point (LeBrecque
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 21 and 2,616, respectively. As indicated, the rule also allows for up to 2 takes by serious injury or mortality over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. No non-auditory injury is anticipated or proposed for authorization. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (even the longest recovering in less than a day), and mostly not in a frequency band that would be expected to interfere with fin whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Of the takes by Level B harassment, 5 would occur east of Montauk Point between March and October, and 52 would occur in the southern Gulf of Maine, both areas known to be biologically important for fin whale foraging. None of the takes by Level A harassment would occur in areas known to be biologically important. However, given that fin whales are large-bodied capital breeders with a slow pace of life, and are therefore generally less susceptible to impacts from shorter duration foraging disruptions, as well as the small number of takes anticipated to occur in the BIA, we do not anticipate that takes in this BIA would occur to any individual fin whale on more than a small number of days within a year, as described further below. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 81), it is likely that some portion of the individuals taken are taken repeatedly over a small number of days. However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that repeated takes would occur either in numbers or clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival of any individuals is are likely to be impacted. Further, this stock is migratory, and the takes are not concentrated within a specific season.
As analyzed and described in the Mortality section above, given the status of the stock and in consideration of other ongoing human-caused mortality, the M/SI proposed for authorization for the Western North Atlantic stock of fin whales (2 over the course of the 7-year rule, or 0.29 annually) would not, alone, be expected to adversely affect the stock through rates of recruitment or survival. Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation
The West Indies DPS of humpback whales is not listed as threatened or endangered under the ESA, and the Gulf of Maine stock, which includes individuals from the West Indies DPS, is not considered depleted or strategic under the MMPA. The stock abundance is 1,396 animals. As described in the Description of Marine Mammals and Their Habitat in the Area of the Specified Activities section, humpback whales along the Atlantic Coast have been experiencing an active UME as elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately 40 percent had evidence of human interaction (vessel strike or entanglement). As also described in the Description of Marine Mammals and Their Habitat in the Area of the Specified Activities section, the AFTT Study Area overlaps a humpback whale feeding BIA (LeBrecque
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 12 and 844, respectively. As indicated, the rule also allows for up to 4 takes by serious injury or mortality over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. No non-auditory injury is anticipated or proposed for authorization. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (even the longest recovering in several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with humpback whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Humpback whales are large-bodied capital breeders with a slow pace of life, and are therefore generally less susceptible to impacts from shorter duration foraging disruptions. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 81) and the fact that a portion of the takes occur in BIAs, it is likely that some portion of the individuals taken are taken repeatedly over a small number of days. However, given the migratory nature of the stock, the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas (
Minke whales are not listed as threatened or endangered under the ESA and are not considered depleted or strategic under the MMPA. The stock abundance is 21,968 animals (Hayes
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 56 and 4,643, respectively. As indicated, the rule also allows for up to 2 takes by serious injury or mortality over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration, and mostly not in a frequency band that would be expected to interfere with minke whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Minke whales are medium-to-large-bodied capital breeders with a slow pace of life, and are therefore generally less susceptible to impacts from shorter duration foraging disruptions. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the lower number of takes by harassment as compared to the stock/species abundance (see table 81), their migratory movement pattern, and the absence of take concentrated in areas in which animals are known to congregate, it is unlikely that any individual minke whales would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival.
As analyzed and described in the Mortality section above, given the status of the stock and in consideration of other ongoing human-caused mortality, the M/SI proposed for authorization for Canadian East Coast minke whales (2 over the course of the 7-year rule, or 0.29 annually) would not, alone, be expected to adversely affect the stock through rates of recruitment or survival. Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the take by harassment proposed for authorization is unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival either alone or in combination with the M/SI proposed for authorization. Last, we have both considered the effects of the UME on this stock in our analysis and findings regarding the impact of the activity on the stock, and, also, determined that we do not expect the proposed take to exacerbate the effects of the UME or otherwise impact the population. For these reasons, we have determined that the take anticipated and proposed for authorization would have a negligible impact on the Canadian East Coast stock of minke whales.
Rice's whales are listed as endangered under the ESA and as both depleted and strategic under the MMPA. The stock abundance is 51 animals (Hayes
Although there is new evidence of Rice's whale occurrence in the central and western Gulf of America from passive acoustic detections (Soldevilla
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 3 and 303, respectively. No mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule is indicated in table 49. Most impacts to Rice's whale are due to unmanned underwater vehicle testing, which may use sonars at a variety of frequencies for multiple hours most days of the year on the testing range. 44 percent of takes of this stock would occur during the winter when Rice's whale densities are predicted to be highest in the northeastern Gulf of America.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (from minutes to, at most, several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with Rice's whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Rice's whales are large-bodied capital breeders with a slow pace of life, which would generally be expected to be less susceptible to impacts from shorter-term foraging disruption. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 81), it is likely that some portion of the individuals taken are taken repeatedly over a moderate number of days. However, unlike most large whales, Rice's whales are not migratory but are nomadic, so the risk of repeated impacts on individuals is likely similar within the population as animals move throughout their range. Further, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that takes would occur either in numbers or clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival are likely to be impacted. While Rice's whale core habitat is in the northeastern portion of the Gulf of America which has been identified as biologically important (LaBrecque
Given the magnitude and severity of the impacts discussed above to Rice's whale (considering annual take maxima and the total across 7 years) and their habitat, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival. Last, we are aware that Rice's whales have experienced lower rates of reproduction and survival since the DWH oil spill, however, those effects are reflected in the SARs and other data considered in these analyses and do not change our findings. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on Rice's whale.
Sei whales are listed as endangered under the ESA throughout its range and are considered depleted and strategic under the MMPA. The Nova Scotia stock abundance is 6,292 animals. There are no UMEs or other factors that cause particular concern for this stock. As described in the Description of Marine Mammals and Their Habitat in the Area of the Specified Activities section, the AFTT Study Area overlaps a sei whale feeding BIA. There is no ESA-designated critical habitat for sei whales in the AFTT Study Area. The highest sei whale abundance in U.S. waters occurs during spring, with sightings concentrated along the eastern margin of Georges Bank, into the Northeast Channel area, south of Nantucket, and along the southwestern edge of Georges Bank (CETAP 1982; Hayes
As shown in table 81, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 7 and 747, respectively. As indicated, the rule also allows for up to 2 takes by serious injury or mortality over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration, and mostly not in a frequency band that would be expected to interfere with sei whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Sei whales are large-bodied capital breeders with a slow pace of life, and are therefore generally less susceptible to impacts from shorter duration foraging disruptions. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the lower number of takes by harassment as compared to the stock/species abundance (see table 81) and their migratory movement pattern, it is unlikely that any individual sei whales would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival.
As analyzed and described in the Mortality section above, given the status of the stock and in consideration of other ongoing human-caused mortality, the M/SI proposed for authorization for the Nova Scotia stock of sei whales (2 over the course of the 7-year rule, or 0.29 annually) would not, alone, be expected to adversely affect the stock through rates of recruitment or survival. Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the take by harassment proposed for authorization is unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival either alone or in combination with the M/SI proposed for authorization. For these reasons, we have determined that the take anticipated and proposed for authorization would have a negligible impact on the Nova Scotia stock of sei whales.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different stocks will incur, the applicable mitigation for each stock, and the status and life history of the stocks to support the negligible impact determinations for each stock. We have already described above why we believe the incremental addition of the small number of low-level auditory injury takes will not have any meaningful effect towards inhibiting reproduction or survival. We have also described above in this section the unlikelihood of any masking or habitat impacts having effects that would impact the reproduction or survival of any of the individual marine mammals affected by the Action Proponents' activities. Some odontocete stocks have predicted non-auditory injury from explosives, discussed further below. Regarding the severity of individual takes by Level B harassment by behavioral disturbance for odontocetes, the majority of these responses are anticipated to occur at received levels below below 178 dB for most odontocete species and below 154 dB for sensitive species (
In table 83 (sperm whales, dwarf sperm whales, and pygmy sperm whales), table 85 (beaked whales), table 87 (dolphins and small whales), table 89 (porpoises), and table 91 (pinnipeds), we indicate the total annual mortality, Level A harassment, and Level B harassment, and a number indicating the instances of total take as a percentage of abundance.
In table 84 (sperm whales, dwarf sperm whales, and pygmy sperm whales), table 86 (beaked whales), table 88 (dolphins and small whales), table 90 (porpoises), and table 92 (pinnipeds), below, we indicate the status, life history traits, important habitats, and threats that inform our analysis of the potential impacts of the estimated take on the affected odontocete stocks.
Sperm whales are listed as endangered under the ESA and the North Atlantic stock is considered depleted and strategic under the MMPA. Neither dwarf sperm whale nor pygmy sperm whale is listed under the ESA, and none of the stocks are considered depleted or strategic. The stock abundances range from 510 (combined estimate for the Northern Gulf of America stocks of dwarf and pygmy sperm whales from Navy's NMSDD) to 5,895 for the North Atlantic stock of sperm whale. There are no UMEs or other factors that cause particular concern for the stocks in the Atlantic Ocean, and there are no known biologically important areas for these stocks in the AFTT Study Area. These stocks face several chronic anthropogenic and non-anthropogenic risk factors, including entanglement and climate change, among others.
As shown in table 83, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment range from 7 (North Atlantic stock of sperm whale) to 180 (Western North Atlantic stock of dwarf sperm whale) and 175 (Northern Gulf of America stock of pygmy sperm whale) to 12,590 (North Atlantic stock of sperm whale), respectively. As indicated, the rule also allows for up to 2 takes by serious injury or mortality of North Atlantic sperm whales over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. The total take allowable for each stock across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (even the longest recovering in several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with odontocete echolocation, overlap more than a relatively narrow portion of the vocalization range of any single species or stock, or preclude detection or interpretation of important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness. The rule also allows for one take of North Atlantic sperm whale by non-auditory injury (table 50). As described above, given the small number of potential exposures and the anticipated effectiveness of the mitigation measures in minimizing the pressure levels to which any individuals are exposed, these injuries are unlikely to impact reproduction or survival.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 178 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Pygmy and dwarf sperm whales are small-medium bodied income breeders with a fast pace of life. They are generally more sensitive to missed foraging opportunities, especially during lactation, but would be quick to recover given their fast pace of life. Sperm whales are large-bodied income breeders with a slow pace of life, and are likely more resilient to missed foraging opportunities due to acoustic disturbance than smaller odontocetes. However, they may be more susceptible to impacts due to lost foraging opportunities during reproduction, especially if they occur during lactation (Farmer
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 83) and the fact that the majority of takes of the Northern Gulf of America stock of pygmy and dwarf sperm whale occur in the Gulf of America (95 and 96 percent, respectively), and the majority of takes of the North Atlantic stock of sperm whale and Western North Atlantic stock of pygmy and dwarf sperm whale occur in the mid-Atlantic (80, 72, and 73 percent, respectively) it is likely that some portion of the individuals taken are taken repeatedly over a small number of days. However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that repeated takes would occur either in numbers or clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival are likely to be impacted. Further, sperm whales are nomadic, and there are no known foraging areas or other areas within which animals from any of these stocks are known to congregate.
As analyzed and described in the Mortality section above, given the status of the stock and in consideration of other ongoing human-caused mortality, the M/SI proposed for authorization for the North Atlantic stock of sperm whales (2 over the course of the 7-year rule, or 0.29 annually) would not, alone, be expected to adversely affect the stock through rates of recruitment or survival. Given the magnitude and severity of the take by harassment for each stock discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the take by harassment proposed for authorization is unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival of any of these stocks either alone or, for the North Atlantic stock of sperm whale, in combination with the M/SI proposed for authorization. Last, we are aware that some Northern Gulf of America stocks have experienced lower rates of reproduction and survival since the DWH oil spill, however, those effects are reflected in the SARs and other data considered in these analyses and do not change our findings. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on the North Atlantic stock of sperm whale, Northern Gulf of America stocks of dwarf and pygmy sperm whales, and Western
Sperm whales are listed as endangered under the ESA and the Northern Gulf of America stock is considered depleted and strategic under the MMPA. The Navy's NMSDD estimates the stock abundance as 1,614 animals. Sperm whales aggregate at the mouth of the Mississippi River and along the continental slope in or near cyclonic cold-core eddies (counterclockwise water movements in the northern hemisphere with a cold center) or anticyclone eddies (clockwise water movements in the northern hemisphere) (Davis
As shown in table 83, the maximum annual allowable instances of take under this proposed rule by Level B harassment is 275. As indicated, the rule also allows for up to 1 takes by serious injury or mortality over the course of the 7-year rule, the impacts of which are discussed above in the Serious Injury and Mortality section. No Level A harassment (auditory or non-auditory injury) is proposed for authorization. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with TTS, as described in the Temporary Threshold Shift section above, any takes in the form of TTS are expected to be lower-level, of short duration (even the longest recovering in several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with sperm whale communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 178 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Sperm whales are large-bodied income breeders with a slow pace of life, and are likely more resilient to missed foraging opportunities due to acoustic disturbance than smaller odontocetes. However, they may be more susceptible to impacts due to lost foraging opportunities during reproduction, especially if they occur during lactation (Farmer
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the lower number of takes by harassment as compared to the stock/species abundance (see table 83), their migratory movement pattern, and the absence of take concentrated in areas in which animals are known to congregate, it is unlikely that any individual sperm whales would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival.
As analyzed and described in the Mortality section above, given the status of the stock and in consideration of other ongoing human-caused mortality, the M/SI proposed for authorization for the Northern Gulf of America stock of sperm whales (one over the course of the 7-year rule, or 0.14 annually) would not, alone, be expected to adversely affect the stock through rates of recruitment or survival. Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the take by harassment proposed for authorization is unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival either alone or in combination with the M/SI proposed for authorization. Last, we are aware that some Northern Gulf of America stocks have experienced lower rates of reproduction and survival since the DWH oil spill, however, those effects are reflected in the SARs and other data considered in these analyses and do not change our findings. For these reasons, we have determined that the take anticipated and proposed for authorization would have a negligible impact on the Northern Gulf of America stock of sperm whales.
This section builds on the broader odontocete discussion above (
These stocks are not listed as endangered or threatened under the ESA, and they are not considered depleted or strategic under the MMPA. The stock abundance estimates generally range from 1,279 (Sowerby's beaked whale, NMSDD) to 8,595 (Gervais' beaked whale). The SAR states that the abundance of Western North Atlantic northern bottlenose whale is unknown, and the NMSDD estimates the stock abundance as 82 animals, but reports that the estimate is from within the EEZ and is lower than the overall population abundance given that the range of the stock exceeds the EEZ boundary. See the Density Technical Report (U.S. Department of the Navy, 2024) for additional information. There are no UMEs or other factors that cause particular concern for this stock, and there are no known biologically important areas for beaked whales in the AFTT Study Area, though of note, these stocks generally occur in higher densities year-round in deep waters over the Atlantic continental shelf margins. The Western North Atlantic stocks of goose-beaked whales and Blainville's beaked whales generally congregate over continental shelf margins from Canada to North Carolina, with goose-beaked whales reported as far south as the Caribbean and Blainville's beaked whales as far south as the Bahamas. The Western North Atlantic stock of Gervais' beaked whales generally congregate over continental shelf margins from New York to North Carolina. The Western North Atlantic stock of Sowerby's beaked whales is the most northerly distributed stock of deep-diving mesoplodonts, and they generally congregate over continental shelf margins from Labrador to Massachusetts. The Western North Atlantic stock of True's beaked whales generally congregate over continental shelf margins from Nova Scotia to Cape Hatteras, with northern occurrence likely relating to the Gulf Stream. The Western North Atlantic stock of Northern bottlenose whales is uncommon in U.S. waters and generally congregates in areas of high relief, including shelf breaks and submarine canyons from the Davis Strait to New England, although strandings have occurred as far south as North Carolina. Western North Atlantic beaked whales face several chronic anthropogenic and non-anthropogenic risk factors, including entanglement and climate change, among others.
As shown in table 85, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment range from 0 to 2 and 1,651 to 112,070, respectively. No mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment (for True's beaked whale, TTS only), as described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, any takes in the form of TTS are expected to be lower-level, of short duration (from minutes to, at most, several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with odontocete echolocation, overlap more than a relatively narrow portion of the vocalization range of any single species or stock, or preclude detection or interpretation of important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities (for all Western North Atlantic beaked whales except True's beaked whales) are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 154 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Beaked whales are medium-to-large-bodied odontocetes with a medium pace of life and likely moderately resilient to missed foraging opportunities due to acoustic disturbance. They are mixed breeders (
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 85), it is likely that some portion of the individuals taken are taken repeatedly over a small (Western North Atlantic northern bottlenose whale and Gervais' beaked whale) to moderate (all other stocks) number of days, with the exception of Sowerby's beaked whales (discussed below). However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that takes would occur clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival are likely to be impacted. Further, while there are several known high-density areas for goose-beaked whales, around canyons, seamounts, and Cape Hatteras, which is common for multiple species, there are no known foraging areas or other areas within which animals are known to congregate for reproductive or other important behaviors, and nor are the takes concentrated within a specific region and season.
Regarding the magnitude of repeated takes for the Sowerby's beaked whales, given the high number of takes by harassment as compared to the stock abundance, it is more likely that some number of individuals would experience a comparatively higher number of repeated takes over a potentially fair number of sequential days. Due to the higher number of repeated takes, it is more likely that a portion of the individuals taken by harassment (approximately 50 percent of which would be female) could be repeatedly interrupted during foraging in a manner and amount such that impacts to the energy budgets of a small number of females (from either losing feeding opportunities or expending considerable energy moving away from sound sources or finding alternative feeding options) could cause them to forego reproduction for a year (noting that beaked whale calving intervals may be about 2 years) (New
Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals of the Western North Atlantic stocks of beaked whales (Blainville's beaked whale, goose-beaked whale, Gervais' beaked whale, northern bottlenose dolphin, and True's beaked whale), with the exception of Sowerby's beaked whales, and thereby unlikely to affect annual rates of recruitment or survival. For Sowerby's beaked whales, as described above, we do not anticipate the relatively small number of individuals that might be taken over repeated days within the year in a manner that results in a year of foregone reproduction to adversely affect either stock through effects on rates of recruitment or survival, given the statuses of these stocks. For these reasons, we have determined that the total take (considering annual maxima and across seven years) anticipated and proposed for authorization would have a negligible impact on all Western North Atlantic beaked whales.
These stocks are not listed as endangered or threatened under the ESA, and they are not considered depleted or strategic under the MMPA. The estimated abundances of these Blainville's beaked whale, goose-beaked whale, and Gervais' beaked whale are 99, 368, and 386, respectively, as indicated in the Navy's NMSDD estimates. There are no known biologically important areas for beaked whales in the Gulf of America. These stocks all occur year-round in deep water areas in the Gulf of America and Key West. Beaked whales in the Gulf of America face several chronic anthropogenic and non-anthropogenic risk factors, including energy exploration and development, entanglement, and climate change, among others.
As shown in table 85, the maximum annual allowable instances of take under this proposed rule by Level B harassment is 126, 460, and 125 for Blainville's beaked whale, goose-beaked whale, and Gervais' beaked whale, respectively. No mortality is anticipated or proposed for authorization, and nor is any auditory or non-auditory injury (Level A harassment). The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with TTS, as described in the Temporary Threshold Shift section above, any takes in the form of TTS are expected to be lower-level, of short duration (from minutes to, at most, several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with odontocete echolocation, overlap more than a relatively narrow portion of the vocalization range of any single species or stock, or preclude detection or interpretation of important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 154 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Beaked whales are medium-bodied odontocetes with a medium pace of life and likely moderately resilient to missed foraging opportunities due to acoustic disturbance. They are mixed breeders (
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundances (see table 85) and the fact that 60-65 percent of the takes occur around Key West, it is likely that some portion of the individuals taken are taken repeatedly over a small number of days. However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that repeated takes would occur either in numbers or clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival are likely to be impacted.
Given the magnitude and severity of the impacts discussed above to Northern Gulf of America stocks of beaked whales (considering annual take maxima and the total across 7 years) and their habitat, and in consideration of the other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival. Last, we are aware that some Northern Gulf of America stocks of beaked whales have experienced lower rates of reproduction and survival since the DWH oil spill, however, those effects are reflected in the SARs and other data considered in these analyses and do not change our findings. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on the Northern Gulf of America stocks of beaked whales.
Of the 53 stocks of dolphins and small whales (Delphinidae) for which incidental take is proposed for authorization (see table 87), none are listed as endangered or threatened under the ESA. Only spinner dolphins are listed as depleted under the MMPA, however, about a third of the species are listed as strategic, including 14 stocks of bottlenose dolphins, Northern Gulf of America stocks of Clymene, striped, and spinner dolphins, and the Western Northern Atlantic stocks of spinner dolphins and short-finned pilot whales. As shown in table 87 and table 88, these Delphinids vary in stock abundance, body size, and movement ecology from, for example, the small-bodied, nomadic/migratory Western North Atlantic white-beaked dolphins that range well beyond the U.S. EEZ and outside the AFTT Study Area and have a SAR abundance over 500,000, to the medium-sized resident Bay stocks of bottlenose dolphins with abundances under 200, to the large-bodied nomadic Western North Atlantic killer whale, for which the abundance is unknown. While there are several small and resident populations of bottlenose dolphins, there are no other known biologically important areas (
As shown in table 87, the maximum annual allowable instances of take by Level B harassment for Delphinid stocks ranges from 1 (Sabine Lake bottlenose dolphin stock) to 269,405 for the Western North Atlantic common dolphin, with 24 stocks below 2,000, seven stocks above 70,000, and the remainder between 2,000 and 38,000. Take by Level A harassment is 0 for 17 of the 53 stocks, above 15 for 11 stocks, and 11 or fewer for the remaining stocks. As indicated, the rule also allows for 1-2 takes annually by serious M/SI for five stocks (the Northern Gulf of America stocks of striped and pantropical dolphins, the Western North Atlantic offshore stock of bottlenose dolphins, the Western North Atlantic South Carolina/Georgia Coastal stock of Tamanend's bottlenose dolphin, and the Western North Atlantic stock of Clymene dolphins), the impacts of which are discussed above in the Mortality section. The total take allowable across all 7 years of the rule is indicated in table 49.
All but two Delphinid stocks are expected to incur some number of takes in the form of TTS. As described in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section above, these temporary hearing impacts are expected to be lower-level, of short duration (from minutes to at most several hours or less than a day), and mostly not in a frequency band that would be expected to interfere with delphinid echolocation, overlap more than a relatively narrow portion of the vocalization range of any single species or stock, or preclude detection or interpretation of important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. About two-thirds of the affected Delphinid stocks will incur some number of takes by AUD INJ, the majority of single digits, with higher numbers exceding 50 and up to 161 for several stocks. For reasons similar to those discussed for TTS, while AUD INJ impacts are permanent, given the anticipated effectiveness of the mitigation and the likelihood that individuals are expected to avoid higher levels associated with more severe impacts, the lower anticipated levels of PTS that could be reasonably expected to result from these activities are unlikely to affect the fitness of any individuals. Five stocks are projected to incur notably higher numbers of take by AUD INJ (85-161, the Western North Atlantic stocks of Atlantic spotted dolphins, common dolphins, Clymene dolphins, striped dolphins, and offshore bottlenose dolphins) and while the conclusions above are still applicable, it is further worth noting that these five stocks have relatively large abundances and limited annual mortality as compared to PBR. The rule also allows for a limited number of takes by non-auditory injury (1-3) for 15 stocks. As described above in the Auditory Injury from Sonar Acoustic Sources and Explosives and Non-Auditory Injury from Explosives section, given the small number of potential exposures and the anticipated effectiveness of the mitigation measures in minimizing the pressure levels to which any individuals are exposed, these non-auditory injuries are unlikely to be of a nature or level that would impact reproduction or survival.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 178 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Delphinids are income breeders with a medium pace of life, meaning that while they can be sensitive to the consequences of disturbances that impact foraging during lactation, from a population standpoint, they can be moderately quick to recover. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In the case of just over half of the delphinid stocks (see the Maximum Annual Harassment As Percentage of Stock Abundance column in table 87), given the low number of takes by harassment as compared to the stock/species abundance alone, and also in consideration of their migratory movement pattern and whether take is concentrated in areas in which animals are known to congregate, it is unlikely that these individual Delphinids would be taken on more than a small number of days within a year and, therefore, the anticipated behavioral disturbance is not expected to affect reproduction or survival. In the case of the rest of the stocks, with the exception of the Northern North Carolina Estuarine System stock of bottlenose dolphins (addressed below), given the number of takes by harassment as compared to the stock/species abundance, it is likely that some portion of the individuals taken are taken repeatedly over a small to moderate number of days (as indicated in the Greatest Degree Any Individual Expected to be Taken Repeatedly Across Multiple days column of table 87). However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, for all but one of the stocks (addressed below), it is unlikely that the anticipated small to moderate number of repeated takes for a given individual would occur clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival of any individuals are likely to be impacted. Further, many of these stocks are nomadic or migratory and apart from the few small resident dolphin populations, there are no known foraging areas or other areas within which animals are known to congregate for important behaviors, and nor are the takes concentrated within a specific region and season.
Regarding the magnitude of repeated takes for the Northern North Carolina Estuarine System stock of bottlenose dolphins, given the number of takes by harassment as compared to the stock/species abundance, the small resident population, the fact that the predicted takes all occur in summer and are primarily from hull-mounted sonar pierside or navigating out of Norfolk (see appendix A to the application), it is more likely that some number of individuals occupying that area during the summer months would experience a comparatively higher number of repeated takes over a potentially fair number of sequential days. Due to the higher number of repeated takes focused within a limited time period, it is thereby more likely that a portion of the individuals occupying the area near Norfolk in the summer (approximately 50 percent of which would be female) could be repeatedly interrupted during foraging in a manner and amount such that impacts to the energy budgets of a
Given the magnitude and severity of the take by harassment discussed above and any anticipated habitat impacts, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals of Delphinid stocks, with the exception of the five stocks for which 1-2 takes by M/SI are predicted and the one stock for which an increased calving interval could potentially occur. Regarding the Northern North Carolina Estuarine System stock of bottlenose dolphins, as described above, we do not anticipate the relatively small number of individuals that might be taken over repeated days within the year in a manner that results in a year of foregone reproduction to adversely affect the stock through effects on rates of recruitment or survival, given the status of the stock. Regarding the Northern Gulf of America stocks of striped and pantropical dolphins, the Western North Atlantic offshore stock of bottlenose dolphins, the Western North Atlantic offshore South Carolina/Georgia stock of Tamanend's bottlenose dolphins, and the Western North Atlantic Clymene dolphins, as described in the Mortality section, given the status of the stocks and in consideration of other ongoing anthropogenic mortality, the amount of allowed M/SI take proposed here would not, alone, nor in combination with the impacts of the take by harassment discussed above (which are not expected to impact the reproduction or survival of any individuals for those stocks), be expected to adversely affect rates of recruitment and survival. Last, we are aware that some Northern Gulf of America stocks of delphinids have experienced lower rates of reproduction and survival since the DWH oil spill, however, those effects are reflected in the SARs and other data considered in these analyses and do not change our findings. For these reasons, we have determined that the total take (considering annual maxima and across seven years) anticipated and proposed for authorization would have a negligible impact on all Delphinid species and stocks.
Harbor porpoise are not listed as endangered or threatened under the ESA, and the Gulf of Maine/Bay of Fundy stock is not considered depleted or strategic under the MMPA. The stock abundance is 85,765 animals. There are no UMEs or other factors that cause particular concern for this stock. A small and resident population BIA has been identified for this stock (LeBrecque
As shown in table 89, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment is 147 and 87,119, respectively. No mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as VHF cetaceans, harbor porpoises are more susceptible to auditory impacts in mid- to high frequencies and from explosives than other species. As described in the Temporary Threshold Shift section above, any takes in the form of TTS are expected to be lower-level, of short duration (even the longest recovering in less than a day), and mostly not in a frequency band that would be expected to interfere with porpoise communication or other important auditory cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Harbor porpoises are more susceptible to behavioral disturbance than other species. They are highly sensitive to many sound sources and generally demonstrate strong avoidance of most types of acoustic stressors. The information currently available regarding harbor porpoises suggests a very low threshold level of response for both captive (Kastelein
As small odontocetes and income breeders with a fast pace of life, harbor porpoises are less resilient to missed foraging opportunities than larger odontocetes. Although reproduction in populations with a fast pace of life are more sensitive to foraging disruption, these populations are quick to recover. Further, as described in the
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. In this case, given the number of takes by harassment as compared to the stock/species abundance (see table 89), the small resident population and concentration of takes (85 percent) in the Northeast, it is likely that some portion of the individuals taken are taken repeatedly over a small number of days. However, given the variety of activity types that contribute to take across separate exercises conducted at different times and in different areas, and the fact that many result from transient activities conducted at sea, it is unlikely that repeated takes would occur either in numbers or clumped across sequential days in a manner likely to impact foraging success and energetics or other behaviors such that reproduction or survival of any individuals is are likely to be impacted.
Given the magnitude and severity of the impacts discussed above to harbor porpoises (considering annual take maxima and the total across seven years) and their habitat, and in consideration of the required mitigation measures and other information presented, the Action Proponents' activities are unlikely to result in impacts on the reproduction or survival of any individuals and, thereby, unlikely to affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and proposed for authorization would have a negligible impact on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
This section builds on the broader discussion above and brings together the discussion of the different types and amounts of take that different stocks will incur, the applicable mitigation for each stock, and the status and life history of the stocks to support the negligible impact determinations for each stock. We have already described above why we believe the incremental addition of the small number of low-level auditory injury takes will not have any meaningful effect towards inhibiting reproduction or survival. We have also described above in this section the unlikelihood of any masking or habitat impacts having effects that would impact the reproduction or survival of any of the individual marine mammals affected by the Action Proponents' activities. For pinnipeds, there is no predicted non-auditory injury from explosives for any stock, and no predicted mortality for any stock. Regarding the severity of individual takes by Level B harassment by behavioral disturbance for pinnipeds, the majority of these responses are anticipated to occur at received levels below 172 dB, and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, foraging interruptions, vocalization changes, or disruption of other social behaviors, lasting from a few minutes to several hours. Because of the small magnitude and severity of effects for all of the species, it is not necessary to break out the findings by species or stock.
In table 91 below for pinnipeds, we indicate the total annual mortality, Level A harassment, and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. In table 92 below, we indicate the status, life history traits, important habitats, and threats that inform our analysis of the potential impacts of the estimated take on the affected pinniped stocks.
Gray seal, harbor seal, harp seal, and hooded seal are not listed as endangered or threatened under the ESA, and these stocks are not considered depleted or strategic under the MMPA. The
As shown in table 91, the maximum annual allowable instances of take under this proposed rule by Level A Harassment and Level B harassment range from 2 (hooded seal) to 32 (harbor seal) and 1,726 (hooded seal) to 25,792 (harp seal), respectively. No mortality is anticipated or proposed for authorization, and nor is any non-auditory injury. The total take allowable across all 7 years of the rule for each stock is indicated in table 49.
Regarding the potential takes associated with auditory impairment, as described above, any takes in the form of TTS are expected to be lower-level, of short duration, and mostly not in a frequency band that would be expected to interfere with pinniped communication or other important low-frequency cues. Any associated lost opportunities or capabilities individuals might experience as a result of TTS would not be at a level or duration that would be expected to impact reproductive success or survival. For similar reasons, while auditory injury impacts last longer, the low anticipated levels of AUD INJ that could be reasonably expected to result from these activities are unlikely to have any effect on fitness.
Regarding the likely severity of any single instance of take by behavioral disturbance, as described above, the majority of the predicted exposures are expected to be below 172 dB SPL and last from a few minutes to a few hours, at most, with associated responses most likely in the form of moving away from the source, increased swimming speeds, increased surfacing time, or foraging interruptions, lasting from a few minutes to several hours. Pinnipeds have a fast pace of life, but have a relatively lower energy requirement for their body size, which may moderate any impact due to foraging disruption. However, of note, harp seals have a large inter-annual variability in reproductive rates due to variations in prey abundance (rely primarily on capelin as their preferred prey) and mid-winter ice coverage and may not reproduce as quickly as other pinnipeds. Also of note, gray seals are likely to be exposed to Navy noise sources when in their more southern habitats in the northeast region, especially in colder months when they breed and give birth.
As described above, in addition to evaluating the anticipated impacts of the single instances of takes, it is important to understand the degree to which individual marine mammals may be disturbed repeatedly across multiple days of the year. For gray seals and harbor seals the SARs do not provide stock abundances that reflect the full ranges of the stocks. For hooded seals, the SAR does not provide an up-to-date abundance estimate for any portion of the stock's range. The Navy's NMSDD abundance estimate for hooded seals was 1,097; however, this estimate appears to be underestimated by several orders of magnitude, as the most recent SAR estimate (2018 SAR; Hayes
Given the magnitude and severity of the impacts discussed above (considering annual maxima and across 7 years) and in consideration of the required mitigation measures and other information presented, for each pinniped stock, the Action Proponents' activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. Last, we have both considered the effects of the Northeast Pinniped UME, pending closure, in our analysis and findings regarding the impact of the activity on these stocks and also determined that we do not expect the proposed take to exacerbate the effects of the UME or otherwise impact the populations. For these reasons, we have determined that the take by harassment anticipated and to be authorized would have a negligible impact on all pinniped stocks.
Based on the analysis contained herein of the likely effects of the specified activities on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the specified 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.
There are six marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA with confirmed or possible occurrence in the AFTT Study Area: blue whale, fin whale, NARW, Rice's whale, sei whale, and sperm whale. The NARW has critical habitat designated under the ESA in the AFTT Study Area (81 FR 4837, February 26, 2016) and the Rice's whale has proposed critical habitat in the AFTT Study Area (88 FR 47453, July 24, 2023).
The Action Proponents will consult with NMFS pursuant to section 7 of the ESA for the AFTT Study Area activities. NMFS will also consult internally on the issuance of the regulations and three LOAs under section 101(a)(5)(A) of the MMPA.
The Action Proponents and NMFS will work with NOAA's Office of National Marine Sanctuaries to fulfill our responsibilities under the National Marine Sanctuaries Act as warranted and will complete any NMSA requirements prior to a determination on the issuance of the final rule and LOAs.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the MMPA rule and request for LOAs.
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The RFA requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The Action Proponents are the only entities that would be affected by this rulemaking, and the Action Proponents are not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, would be applicable only to the Action Proponents. NMFS does not expect the issuance of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect only the Action Proponents and not any small entities, NMFS concludes that the action would not result in a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Endangered and threatened species, Fish, Fisheries, Marine mammals, Penalties, Reporting and recordkeeping requirements, Transportation, Wildlife.
For reasons set forth in the preamble, NMFS proposes to amend 50 CFR part 218 as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and U.S. Coast Guard (Coast Guard) (collectively referred to as the “Action Proponents”) for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to the activities listed in paragraph (c) of this section.
(b) The taking of marine mammals by the Action Proponents under this subpart may be authorized in Letters of Authorization (LOAs) only if it occurs within the Atlantic Fleet Training and Testing (AFTT) Study Area. The AFTT Study Area includes areas of the western Atlantic Ocean along the east coast of North America, the Gulf of America, and portions of the Caribbean Sea, covering approximately 2.6 million nmi
(c) The taking of marine mammals by the Action Proponents is only authorized if it occurs incidental to the Action Proponents conducting training and testing activities, including the following:
(1) Amphibious warfare;
(2) Anti-submarine warfare;
(3) Expeditionary warfare;
(4) Mine warfare;
(5) Surface warfare;
(6) Vessel evaluation;
(7) Unmanned systems;
(8) Acoustic and oceanographic science and technology;
(9) Vessel movement; and
(10) Other training and testing activities.
Regulations in this subpart are effective from November 14, 2025, through November 13, 2032.
(a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.87, the Holder of the LOAs (hereinafter “Action Proponents”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.80(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives, as well as serious injury or mortality associated with vessel strikes and explosives, provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the applicable LOAs.
(b) The incidental take of marine mammals by the activities listed in § 218.80(c) is limited to the following species:
(a) Except incidental take described in § 218.82 and authorized by a LOA issued under this subpart, it shall be unlawful for any person to do the following in connection with the activities described in this subpart:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter, 218.86, or 218.87;
(2) Take any marine mammal not specified in § 218.82(b);
(3) Take any marine mammal specified in § 218.82(b) in any manner other than as specified in the LOAs; or
(4) Take a marine mammal specified in § 218.82(b) after NMFS determines such taking results in more than a negligible impact on the species or stock of such marine mammal.
(b) [Reserved]
(a) When conducting the activities identified in § 218.80(c), the mitigation measures contained in this section and any LOA issued under §§ 218.86 or 218.87 must be implemented by Action Proponent personnel or contractors who are trained according to the requirements in the LOA. If Action Proponent contractors are serving in a role similar to Action Proponent personnel, Action Proponent contractors must follow the mitigation applicable to Action Proponent personnel. These mitigation measures include, but are not limited to:
(1)
(i)
(A)
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(C)
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(D)
(ii)
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(B)
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(C)
(
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(D)
(iii)
(A)
(
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(B)
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(
(C)
(
(
(D)
(iv)
(A)
(
(
(B)
(
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(C)
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(D)
(v)
(A)
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(B)
(
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(C)
(
(
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(D)
(vi)
(A)
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(
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(B)
(
(
(C)
(
(
(
(D)
(vii)
(A)
(
(
(B)
(
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(C)
(
(
(
(D)
(viii)
(A)
(
(
(B)
(
(
(C)
(
(
(
(D)
(ix)
(A)
(
(
(B)
(
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(C)
(
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(
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(
(
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(D)
(x)
(A)
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(B)
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(C)
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(D)
(xi)
(A)
(
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(B)
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(C)
(
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(D)
(xii)
(A)
(
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(B)
(
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(C)
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(D)
(xiii)
(A)
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(B)
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(C)
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(D)
(xiv)
(A)
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(B)
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(C)
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(D)
(xv)
(A)
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(B)
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(C)
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(D)
(xvi)
(A)
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(B)
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(C)
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(D)
(xvii)
(A)
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(B)
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(C)
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(D)
(xviii)
(A)
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(B)
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(C)
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(xix)
(A)
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(xx)
(A)
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(xxi)
(A)
(B)
(C)
(D)
(xxii)
(A) Sources not operated under positive control (
(B) Sources used for safety of navigation (
(C) Sources used or deployed by aircraft operating at high altitudes (
(D) Sources used, deployed, or towed by unmanned platforms except when escort vessels are already participating in the event and have positive control over the source;
(E) Sources used by submerged submarines (
(F) De minimis sources (
(G) Long-duration sources, including those used for acoustic and oceanographic research; and
(H) Vessel-based, unmanned vehicle-based, or towed in-water sources when marine mammals (
(2)
(i)
(A)
(B)
(C)
(ii)
(A)
(B)
(iii)
(A)
(B)
(C)
(D)
(E)
(
(
(
(
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(
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(F)
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(G)
(iv)
(A)
(B) [Reserved]
(v)
(A)
(B)
(vi)
(A)
(B)
(C)
(D)
(E)
(F)
(vii)
(A)
(B)
(viii)
(A)
(B)
(ix)
(b) [Reserved]
The Action Proponents must implement the following monitoring and reporting requirements when conducting the specified activities:
(a)
(b)
(c)
(d)
(e)
(f)
(1)
(i)
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sonar sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, and other platforms participating in each exercise.
(G) Total hours of all active sonar source operation.
(H) Total hours of each active sonar source bin.
(I) Wave height (high, low, and average) during exercise.
(ii)
(A) Date, time, and location of sighting.
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor (
(E) Indication of specific type of platform observation was made from (including, for example, what type of surface vessel or testing platform).
(F) Length of time observers maintained visual contact with marine mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal was less than 200 yd (182.9 m), 200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m), 1,000 to 2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd (1,828.8 m) from sonar source.
(K) Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and the length of the delay.
(L) If source in use was hull-mounted, true bearing of animal from the vessel, true direction of vessel's travel, and estimation of animal's motion relative to vessel (opening, closing, parallel).
(M) Lookouts must report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as
(iii)
(A) This evaluation must identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(B) [Reserved]
(2)
(i)
(A) Location.
(B) Date and time exercise began and ended.
(C) Total hours of observation by Lookouts before, during, and after exercise.
(D) Total number and types of explosive source bins detonated.
(E) Number and types of passive acoustic sources used in exercise.
(F) Total hours of passive acoustic search time.
(G) Number and types of vessels, aircraft, and other platforms participating in exercise.
(H) Wave height in feet (high, low, and average) during exercise.
(I) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illustrating how marine mammal detection was conducted.
(ii)
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indicate whale, dolphin, or pinniped).
(C) Number of individuals.
(D) Initial detection sensor (
(E) Length of time observers maintained visual contact with marine mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, or after detonations/exercise, and how many minutes before or after.
(I) Distance of marine mammal from actual detonations (or target spot if not yet detonated): Less than 200 yd (182.9 m), 200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m), 1,000 to 2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd (1,828.8 m).
(J) Lookouts must report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming
(K) The report must indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long.
(L) If observation occurred while explosives were detonating in the water, indicate munition type in use at time of marine mammal detection.
(3)
(i)
(ii)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(g)
(1)
(2)
(3)
(a) To incidentally take marine mammals pursuant to this subpart, the Action Proponents must apply for and obtain LOAs.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision of § 218.87(c)(1)) required by an LOA, the Action Proponent must apply for and obtain a modification of the LOA as described in § 218.87.
(d) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (
(4) Requirements for monitoring and reporting.
(e) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the findings
(f) Notice of issuance or denial of the LOA(s) will be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 218.86 for the activity identified in § 218.80(c) shall be modified, upon request by the LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOAs under this subpart were implemented.
(b) For LOA modification requests by the applicants that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA should be modified provided that:
(1) NMFS determines that the change(s) to the activity or the mitigation, monitoring or reporting do not change the findings made for the regulations and do not result in more than a minor change in the total estimated number of takes (or distribution by species or stock or years), and
(2) NMFS may publish a notice of proposed modified LOA in the
(c) An LOA issued under §§ 216.106 and 218.86 of this chapter for the activities identified in § 218.80(c) may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) After consulting with the Action Proponents regarding the practicability of the modifications, through adaptive management, NMFS may modify (including remove, revise or add to) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures set forth in this subpart.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from the Action Proponents' monitoring report and annual exercise reports from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA(s) in the
(2) If the NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.86, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the