Vol. 85 Monday, No. 154 August 10, 2020

Pages 48075–48464

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 154

Monday, August 10, 2020

Agency for International Development Variable-Rate Federal Student Loans Made Under the NOTICES Federal Family Education Loan Program Prior to July Meetings: 1, 2010, 48233–48236 Board for International Food and Agricultural Variable-Rate Federal Student Loans Made Under the Development, 48149 William D. Ford Federal Direct Loan Program, 48231–48233 Agriculture Department See Commodity Credit Corporation Energy Department See Farm Service Agency See Federal Energy Regulatory Commission See Forest Service See National Nuclear Security Administration NOTICES Centers for Medicare & Medicaid Services Environmental Assessments; Availability, etc.: RULES Commercial Disposal of Defense Waste Processing Medicare Program: Facility Recycle Wastewater From the Savannah Inpatient Rehabilitation Facility Prospective Payment River Site, 48236–48239 System for Federal Fiscal Year 2021, 48424–48463 NOTICES Environmental Protection Agency Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 48255–48257 Air Quality State Implementation Plans; Approvals and Meetings: Promulgations: Advisory Panel on Hospital Outpatient Payment, 48257– Texas; Findings of Failure to Submit State 48259 Implementation Plans Required for Attainment of the 2010 1-Hour Primary Sulfur Dioxide National Civil Rights Commission Ambient Air Quality Standard, 48111–48113 NOTICES PROPOSED RULES Meetings: Air Quality State Implementation Plans; Approvals and Delaware Advisory Committee, 48151–48152 Promulgations: California; San Diego, 48127–48132 Coast Guard National Oil and Hazardous Substances Pollution RULES Contingency Plan; National Priorities List: Navigation and Navigable Waters, and Shipping; Partial Deletion the Anaconda Co. Smelter Superfund Correction, 48107–48108 Site, 48132–48134 Safety Zone: NOTICES Recurring Marine Event in the Long Island Sound Agency Information Collection Activities; Proposals, Captain of the Port Zone, 48110–48111 Submissions, and Approvals: Special Local Regulation: Modification of Secondary Treatment Requirements for North Atlantic Ocean, Ocean City, MD, 48108–48110 Discharges Into Marine Waters; Renewal, 48241– 48243 Commerce Department Meetings: See International Trade Administration Board of Scientific Counselors Homeland Security See National Oceanic and Atmospheric Administration Subcommittee, 48243–48244 Public Water System Supervision Program Approval: Commodity Credit Corporation Ohio, 48243 NOTICES Notice of Funds Availability for the Organic Certification Farm Service Agency Cost Share Program, 48149–48150 NOTICES Notice of Funds Availability for the Organic Certification Drug Enforcement Administration Cost Share Program, 48149–48150 NOTICES Decision and Order: Federal Aviation Administration Tommy L. Louisville, M.D., 48265–48267 RULES Airworthiness Directives: Education Department Daher Aircraft Design, LLC (Type Certificate Previously NOTICES Held by Quest Aircraft Design, LLC), Airplanes, Agency Information Collection Activities; Proposals, 48102–48104 Submissions, and Approvals: PROPOSED RULES Application Forms and Instructions for the Centers for Airworthiness Directives: International Business Education (84.220a) Program, The Boeing Company Airplanes, 48122–48124 48228–48229 Annual Notice of Interest Rates: Federal Communications Commission Fixed-Rate Federal Student Loans Made Under the RULES William D. Ford Federal Direct Loan Program, Radio Broadcasting Services: 48229–48231 Various Locations, 48120

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PROPOSED RULES NOTICES Protecting Against National Security Threats to the Guidance: Communications Supply Chain Through FCC Programs, Drug-Drug Interaction Assessment for Therapeutic 48134–48144 Proteins, 48259–48261 NOTICES Agency Information Collection Activities; Proposals, Forest Service Submissions, and Approvals, 48245–48255 NOTICES Meetings: Meetings: Communications Security, Reliability, and Missoula Resource Advisory Committee, 48150–48151 Interoperability Council, 48244–48245 Health and Human Services Department Federal Emergency Management Agency See Centers for Medicare & Medicaid Services RULES See Food and Drug Administration Prioritization and Allocation of Certain Scarce and Critical Health and Medical Resources for Domestic Use, 48113–48119 Homeland Security Department See Coast Guard Federal Energy Regulatory Commission See Federal Emergency Management Agency NOTICES Combined Filings, 48239–48241 Interior Department Records Governing Off-the-Record Communications, 48240 See Fish and Wildlife Service See Ocean Energy Management Bureau Federal Highway Administration NOTICES International Trade Administration Final Federal Agency Actions on Proposed Highway in NOTICES California, 48320–48321, 48327 Antidumping or Countervailing Duty Investigations, Orders, Final Federal Agency Actions: or Reviews: Michigan; Proposed Highway, 48321–48322 Drawn Stainless Steel Sinks From the People’s Republic Proposed Highway Projects in Texas, 48322–48326 of China, 48152–48153 Federal Maritime Commission International Trade Commission NOTICES NOTICES Agreements Filed, 48255 Investigations; Determinations, Modifications, and Rulings, etc.: Federal Reserve System Certain Electronic Devices, Including Computers, Tablet NOTICES Computers, and Components and Modules Thereof, Changes in Bank Control: 48263–48264 Acquisitions of Shares of a Bank or Bank Holding Certain Movable Barrier Operator Systems and Company, 48255 Components Thereof, 48264–48265 Financial Crimes Enforcement Network RULES Justice Department Financial Crimes Enforcement Network; Repeal of Special See Drug Enforcement Administration Measure Involving Banco Delta Asia, 48105–48107 NOTICES Financial Crimes Enforcement Network; Withdrawal of the Agency Information Collection Activities; Proposals, Notice of Finding Involving Banco Delta Asia SARL, Submissions, and Approvals: 48104–48105 Application for Permit To Export Controlled Substances, NOTICES Application for Permit To Export Controlled Agency Information Collection Activities; Proposals, Substances for Subsequent Re-Export, 48267–48268 Submissions, and Approvals: Application for Permit To Import Controlled Substances Imposition of a Special Measure Concerning Bank of for Domestic and/or Scientific Purposes, 48270 Dandong as a Financial Institution of Primary Money Controlled Substances Import/Export Declaration, 48267 Laundering Concern, 48327–48329 Import/Export Declaration for List I and List II Chemicals, 48269–48270 Fish and Wildlife Service Reports of Loss or Disappearance of Listed Chemicals and RULES Regulated Transactions in Tableting/Encapsulating Endangered and Threatened Species: Machines, 48268–48269 12-Month Finding on a Petition To Identify the Northwest Atlantic Leatherback Turtle as a Distinct Labor Department Population Segment and List It as Threatened Under NOTICES the Endangered Species Act, 48332–48421 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Food and Drug Administration Certification of Funeral Expenses, 48270–48271 PROPOSED RULES Disclosures to Workers Under the Migrant and Seasonal Request for Information: Agricultural Worker Protection Act, 48271–48272 Consumption of Certain Uncommon Produce Meetings: Commodities in the United States; Establishment of Labor Advisory Committee for Trade Negotiations and a Public Docket, 48124–48127 Trade Policy, 48271

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National Nuclear Security Administration Scheduling of Annual Leave by Employees Determined NOTICES Necessary to Respond to Certain National Emergencies, Meetings: 48096–48102 Defense Programs Advisory Committee, 48239 Science and Technology Policy Office National Oceanic and Atmospheric Administration NOTICES RULES Request for Information: Atlantic Highly Migratory Species: Positioning, Navigation, and Timing Resilience, 48273– Atlantic Bluefin Tuna Fisheries, 48120–48121 48274 Endangered and Threatened Species: 12-Month Finding on a Petition To Identify the Northwest Atlantic Leatherback Turtle as a Distinct Securities and Exchange Commission Population Segment and List It as Threatened Under NOTICES the Endangered Species Act, 48332–48421 Self-Regulatory Organizations; Proposed Rule Changes: PROPOSED RULES Cboe BZX Exchange, Inc., 48318–48320 Endangered and Threatened Wildlife and Plants: Cboe C2 Exchange, Inc., 48312–48315 90-Day Finding on a Petition To List the Black Teatfish Cboe Exchange, Inc., 48306–48309 as Threatened or Endangered Under the Endangered Investors Exchange, LLC, 48315–48318 Species Act, 48144–48148 LCH SA, 48295–48303 NOTICES Nasdaq BX, Inc., 48274–48295 Atlantic Highly Migratory Species: NYSE Chicago, Inc., 48303–48306 Southeast Data, Assessment, and Review Workshops The Nasdaq Stock Market, LLC, 48309–48312 Advisory Panel, 48226–48227 Fisheries off West Coast States: Transportation Department Highly Migratory Fisheries; Exempted Fishing Permit To See Federal Aviation Administration Fish With Longline Gear in the West Coast Exclusive See Federal Highway Administration Economic Zone, 48205–48206 Meetings: Treasury Department Fisheries of the South Atlantic; South Atlantic Fishery See Financial Crimes Enforcement Network Management Council, 48227–48228 New England Fishery Management Council, 48204 Pacific Fishery Management Council, 48226 Separate Parts In This Issue Science Advisory Board, 48203–48204 Takes of Marine Mammals Incidental to Specified Activities: Part II Hampton Roads Bridge-Tunnel Expansion Project, Commerce Department, National Oceanic and Atmospheric Hampton-Norfolk, Virginia, 48153–48179 Administration, 48332–48421 Marine Site Characterization Surveys, 48179–48203 Interior Department, Fish and Wildlife Service, 48332– Transit Protection Program Pier and Support Facilities 48421 Project at Naval Base Kitsap Bangor, Washington, 48206–48225 Part III Health and Human Services Department, Centers for Nuclear Regulatory Commission Medicare & Medicaid Services, 48424–48463 NOTICES Meetings; Sunshine Act, 48272–48273 Ocean Energy Management Bureau Reader Aids NOTICES Consult the Reader Aids section at the end of this issue for Agency Information Collection Activities; Proposals, phone numbers, online resources, finding aids, and notice Submissions, and Approvals: of recently enacted public laws. Pollution Prevention and Control, 48261–48263 To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/ Personnel Management Office accounts/USGPOOFR/subscriber/new, enter your e-mail RULES address, then follow the instructions to join, leave, or Paid Parental Leave, 48075–48096 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

5 CFR 630 (2 documents) ...... 48075, 48096 14 CFR 39...... 48102 Proposed Rules: 39...... 48122 21 CFR Proposed Rules: 112...... 48124 31 CFR 1010 (2 documents) ...... 48104, 48105 33 CFR 100...... 48108 165 (2 documents) ...... 48107, 48110 40 CFR 52...... 48111 Proposed Rules: 52...... 48127 300...... 48132 42 CFR 412...... 48424 44 CFR 328...... 48113 47 CFR 73...... 48120 Proposed Rules: 1...... 48134 54...... 48134 50 CFR 17...... 48332 223...... 48332 224...... 48332 635...... 48120 Proposed Rules: 223...... 48144 224...... 48144

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Rules and Regulations Federal Register Vol. 85, No. 154

Monday, August 10, 2020

This section of the FEDERAL REGISTER implement provisions of the Federal was effective on December 20, 2019— contains regulatory documents having general Employee Paid Leave Act (subtitle A of the date FEPLA was enacted. applicability and legal effect, most of which title LXXVI of division F of the National Section 7606 of FEPLA, dealing with are keyed to and codified in the Code of Defense Authorization Act for Fiscal the coverage of screener personnel Federal Regulations, which is published under Year 2020, Pub. L. 116–92, December employed by the Transportation 50 titles pursuant to 44 U.S.C. 1510. 20, 2019), which will hereafter be Security Administration (TSA) under The Code of Federal Regulations is sold by referred to as ‘‘FEPLA.’’ FEPLA makes the title 5 FMLA law, was effective on the Superintendent of Documents. paid parental leave available to certain December 20, 2019, the date FEPLA was categories of Federal civilian employees. enacted. However, as noted above, use These OPM regulations will implement of paid parental leave by TSA screener OFFICE OF PERSONNEL FEPLA provisions dealing with Federal personnel under the title 5 FMLA law MANAGEMENT employees covered by the Family and is available only in connection with the Medical Leave Act (FMLA) provisions birth or placement (for adoption or 5 CFR Part 630 in subchapter V of chapter 63 of title 5, foster care) of a son or daughter that RIN 3206–AN96 United States Code, which were occurs on or after October 1, 2020. originally enacted through title II of the Summary of Law Paid Parental Leave Family and Medical Leave Act of 1993. (See sections 7602, 7605(a), and 7606 of A summary of the paid parental leave AGENCY: Office of Personnel provisions incorporated within the title Management. FEPLA.) The title 5 FMLA provisions, which apply to the majority of civilian 5 FMLA provisions is provided below. ACTION: Interim final rule; request for An employee is eligible for paid Federal employees, are administered by comments. parental leave only if he or she is a OPM. (See 5 CFR part 630, subpart L.) covered ‘‘employee’’ under the SUMMARY: The Office of Personnel FEPLA amended 5 U.S.C. 6382(d) to definition in 5 U.S.C. 6381(1)(A) and Management is issuing an interim final allow the substitution of up to 12 weeks has completed at least 12 months of rule to implement the Federal Employee of paid parental leave for FMLA unpaid service as such an employee, as required Paid Leave Act, which provides 12 leave granted in connection with the by 5 U.S.C. 6381(1)(B). (See also 5 CFR weeks of paid parental leave to certain birth of an employee’s son or daughter 630.1201(b).) We note that the section Federal employees covered by the or the placement of a son or daughter 6381(1)(A) definition of ‘‘employee’’ Family and Medical Leave Act (FMLA). with an employee for adoption or foster excludes individuals employed on a Implementation of the new law also care. (See 5 U.S.C. 6382(a)(1)(A) and temporary or intermittent basis. Unlike requires changes to OPM’s existing (B).) In order to implement FEPLA, the title 29 FMLA eligibility FMLA regulations. OPM is adding a new subpart—subpart requirements, employees under the title DATES: Effective date: October 1, 2020. Q (Paid Parental Leave)—in part 630 5 FMLA are not required to be Comments: Comments must be (Absence and Leave) of title 5, Code of employed by a specific employer for at received on or before September 9, Federal Regulations, and making least 12 months or to have at least 1,250 2020. necessary clarifications, changes, and hours of service during the previous 12- additions in subpart L (Family and ADDRESSES: month period; instead, they need only You may submit comments, Medical Leave). identified by docket number and/or 12 months of covered service performed Regulatory Information Number (RIN) Effective Dates at any time in the past. Also, although and title, by the following method: title 29 FMLA limits to 12 workweeks • Section 7602(c) of FEPLA provides the combined FMLA leave entitlement Federal Rulemaking Portal: http:// that the amendments to 5 U.S.C. 6382 www.regulations.gov. Follow the for two parents of the same child who dealing with paid parental leave are not are spouses and who are employed by instructions for submitting comments. effective with respect to any birth or All submissions received must the same employer, there is no such placement (for adoption or foster care) include the agency name and docket limitation under title 5 FMLA; instead, occurring before October 1, 2020. Thus, number or RIN for this document. The each parent-employee has a separate 12- by law, paid parental leave is available general policy for comments and other workweek entitlement. to covered employees only in submissions from members of the public A covered employee may elect to connection with the birth or placement is to make these submissions available substitute up to 12 weeks of paid of a son or daughter that occurs on or for public viewing at http:// parental leave for FMLA unpaid leave after October 1, 2020. Since paid www.regulations.gov as they are granted under 5 U.S.C. 6382(a)(1)(A) or parental leave may not be used prior to received without change, including any (B) in connection with the occurrence of the birth or placement involved, paid personal identifiers or contact the birth or placement (for adoption or parental leave may not be used for any information. foster care) of a son or daughter. Such period of time prior to October 1, 2020. FMLA unpaid leave may be used to care FOR FURTHER INFORMATION CONTACT: Section 7605(a) of FEPLA, dealing for the newly born or placed son or Bryce Baker by email at pay-leave- with the crediting of certain periods of daughter, and thus allows for bonding [email protected] or by telephone at (202) active duty in the uniformed services between parent and child. 606–2858. performed by members of the National By law, FMLA unpaid leave is SUPPLEMENTARY INFORMATION: The Office Guard or Reserves for the purpose of the generally limited to a total of 12 weeks of Personnel Management (OPM) is 12-month service requirement for FMLA in any 12-month period. The FMLA issuing an interim final rule to leave eligibility in 5 U.S.C. 6381(1)(B), unpaid leave is permitted for various

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specified purposes, not just a birth or employee is unable to return to work paid parental leave may be substituted placement event. Thus, use of FMLA because of the continuation, recurrence, for FMLA unpaid leave only for periods unpaid leave for other purposes (e.g., or onset of a serious health condition after birth or placement of a child, based on the employee’s own serious (including mental health) of the employees will still be able to use health condition or to care for certain employee or the newly born/placed FMLA unpaid leave for certain purposes family members with a serious health child—but only if the condition is related to an anticipated future birth or condition) can—depending on the related to the applicable birth or placement and will be able to substitute timeframe in which it is taken—limit placement. annual or sick leave (as appropriate) for the amount of FMLA unpaid leave If an employee fails to return to work such unpaid FMLA leave. available for a birth or placement event, for the required 12 weeks, the § 630.1201—Purpose, Applicability, and and thus limit the amount of paid employing agency ‘‘may’’ (but is not Agency Responsibilities parental leave that can be substituted for required to) recover from the employee it. (Employees may request to use their an amount equal to the total amount of The section heading for § 630.1201 is annual or sick leave to cover other Government contributions paid by the revised to specifically reference agency periods of time outside of FMLA leave agency under 5 U.S.C. 8906 on behalf of responsibilities, which are described in periods in accordance with governing the employee to maintain the an amended paragraph (c). (In current statutes and regulations.) employee’s health insurance coverage regulations, § 630.1203(g) also addresses Paid parental leave may be used only during the period of paid parental leave. agency responsibilities. We believe it is ‘‘in connection with the birth or This reimbursement provision may not better to address agency responsibilities placement involved’’ (5 U.S.C. be applied if the employee is unable to in one place in the introductory 6382(d)(2)(B)(i))—that is, after the return to work based on the conditions § 630.1201. We are revising occurrence of the birth or placement that qualify for waiver described in the § 630.1203(g) to address other matters.) involved—which results in the preceding paragraph. Also, this We have added a sentence to paragraph employee assuming a ‘‘parental’’ role provision may not be applied if the (a) to note that the subpart L regulations with respect to the newly born or placed employee fails to meet the 12-week also are used in establishing eligibility child. An employee may take unpaid work obligation for any other for paid parental leave under subpart Q. FMLA leave under 5 U.S.C. circumstance beyond the employee’s Paragraph (b) is revised to (1) address 6382(a)(1)(A) or (B) before the birth or control (see 5 CFR 630.1705(h)). the coverage of TSA screener personnel, placement to cover certain activities consistent with section 7606 of FEPLA; Interim Final Rule related to the birth or placement but (2) clarify that temporary and cannot substitute paid parental leave for OPM is issuing interim final intermittent employees in each listed those pre-birth/placement FMLA regulations that will provide more detail category of employees are excluded unpaid leave periods. However, an regarding the implementation of the from FMLA coverage; (3) correct employee could substitute annual leave statutory provisions summarized above. obsolete references to the Secretary of or sick leave for pre-birth/placement In order to implement FEPLA, OPM is Transportation (related to the fact that FMLA unpaid leave periods (e.g., sick amending part 630 (Absence and Leave) Coast Guard nonappropriated fund leave for prenatal care up to the point of title 5, Code of Federal Regulations, instrumentalities are now located in the of birth or in connection with pre- by amending subpart L (Family and Department of Homeland Security); and placement activities necessary to allow Medical Leave) and adding a new (4) address the creditability of certain an adoption to proceed). subpart Q (Paid Parental Leave). OPM is active duty service by employees who Paid parental leave may be used no making changes in subpart L to establish are members of the National Guard or later than the end of the 12-month how the FMLA provisions will now Reserves towards the 12-month service period beginning on the date of the birth operate, since the appropriate requirement, consistent with section or placement involved. At the end of substitution of paid parental leave for 7605(a) of FEPLA. that 12-month period, any unused FMLA unpaid leave hinges on having a § 630.1202—Definitions balance of paid parental leave granted in complete understanding of the connection with the given birth or standards for granting FMLA unpaid Section 630.1202 is amended by (1) placement permanently expires and is leave. Below we provide a section-by- removing the definitions for regularly not available for future use. No payment section explanation of the changes in scheduled, regularly scheduled may be made for unused paid parental subpart L and the new provisions in the administrative workweek, and tour of leave or paid parental leave that has new subpart Q. Hereafter in this duty; (2) revising the definitions of expired. Paid parental leave is not SUPPLEMENTARY INFORMATION, references administrative workweek, family and considered to be annual leave and thus to statutory provisions in title 5 of the medical leave, leave without pay, and may not be included in a lump-sum United States Code and to regulatory reduced leave schedule; and (3) adding payment for annual leave following provisions in title 5 of the Code of new definitions for birth, placement, separation (5 U.S.C. 6382(d)(2)(D)). Federal Regulations will generally be and scheduled tour of duty. The new Under the law, an employee may not referred to by section number without term scheduled tour of duty is replacing use any paid parental leave unless the restating the title 5 reference. other terms in order to clarify that the employee agrees in writing, before tour referenced in the FMLA regulations commencement of the leave, to Revisions of FMLA Regulations in is the tour of duty established for subsequently work for the applicable Subpart L of 5 CFR Part 630 purposes of charging leave when an employing agency for at least 12 weeks. Subpart L deals with FMLA unpaid employee is absent. The definition of This 12-week work obligation is leave. We are making conforming that term also clarifies that there is no triggered once the employee’s paid changes to the provisions dealing with tour of duty during the off-season period parental leave concludes. The work the substitution of paid leave for FMLA for seasonal employees; thus, FMLA obligation is statutorily fixed at 12 unpaid leave. We are also making unpaid leave and paid parental leave weeks regardless of the amount of leave various changes to clarify the would not apply during such an off- used by an employee. An agency head appropriate application of the rules season period. The revised definition of must waive the work obligation if an governing FMLA unpaid leave. While family and medical leave includes new

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language addressing leave to care for birth or placement, and the employee periods, the employee could have more covered servicemembers under section will be eligible to start a new than 12 weeks of FMLA unpaid leave 6382(a)(3), which is being regulated for entitlement to FMLA unpaid leave after under § 630.1203(a)(1); however, only the first time in a new paragraph (j) in the prior FMLA period ends. (See 12 weeks of paid parental leave could be § 630.1203. section 630.1203(c).) If the employee substituted in connection with this The new definition of placement uses FMLA unpaid leave after obtaining particular birth or placement during the clarifies that it refers to a new that new entitlement, a new 12-month 12-month period that begins on the date placement. Thus, the term excludes the FMLA period will commence, and the of the child’s birth or placement. Thus, adoption of a stepchild or a foster child employee will be able to use 12 weeks the employee could substitute 12 weeks who has already been a member of the of FMLA unpaid leave during that of paid parental leave for any period employee’s household and has an period. However, no FMLA unpaid during which the employee used FMLA existing parent-child relationship with leave for birth or placement purposes unpaid leave under § 630.1203(a)(1) an adopting parent. This definition of may be used after the date that is 12 from October 15, 2021 through October placement is consistent with months after birth or placement. Paid 14, 2022. Department of Labor FMLA guidance at parental leave may be substituted for Section 630.1203(d) is also revised to https://www.dol.gov/sites/dolgov/files/ FMLA unpaid leave used after birth or address the circumstances under which _ _ _ _ WHD/legacy/files/2005 08 26 1A placement even if there are two 12- an employee may use FMLA unpaid FMLA.pdf. If a foster child is later month periods involved; however, the leave because of an anticipated birth adopted, the placement has already total amount of paid parental leave in (under § 630.1203(a)(1)) or because of an occurred; there is no new placement connection with any given birth or anticipated placement (under with a family that would warrant placement is limited to 12 weeks. § 630.1203(a)(2)) prior to the date of the another use of FMLA leave for the same birth or placement. In the case of an For example, after not using FMLA child. anticipated birth, the allowed leave for at least 12 months, an Also, in the definitions of birth and circumstances involve a pregnancy- employee uses a type of FMLA leave placement, we are clarifying that the related health condition of the expectant described in § 630.1203(a) (i.e., for birth, terms may refer to an anticipated birth mother that prevents her from working placement, serious health condition of or placement. This aligns with the or prenatal care provided to that employee or certain family members, or regulation in § 630.1203(d), which expectant mother by health care provides that FMLA unpaid leave based exigency related to certain family providers. This provision applies not on birth or placement of a child may be members being called to active duty) on only to an employee who is an used prior to the actual birth or June 1, 2021, triggering the expectant mother but also to an placement. commencement of a 12-month FMLA employee who is the other parent of the period. The total amount of FMLA § 630.1203—Leave Entitlement expected child, to the extent that other unpaid leave used during the period parent is providing necessary care for Section 630.1203(a)(2) is revised to from June 1, 2021, through May 31, the expectant mother. We rely on the clarify that FMLA leave taken ‘‘because 2022, may not exceed 12 weeks. The definition of ‘‘serious health condition’’ of the placement’’ of a son or daughter employee uses 5 weeks of FMLA unpaid in § 630.1202 in applying this provision. for adoption or foster care includes the leave in June and July of 2021. Then the We recognize that an employee may be care of the newly placed son or daughter employee has a child born on October able to use FMLA unpaid leave before after the placement. This is consistent 15, 2021. Because of the 12-week limit, birth based on § 630.1203(a)(1) or with the ‘‘care’’ language in the the employee would be able to use no § 630.1203(a)(3) or (a)(4) based on the provision dealing with FMLA leave for more than 7 additional weeks of FMLA same set of circumstances. We note that a newly born son or daughter. unpaid leave before the end of the 12- certain statutory and regulatory rules Section 630.1203(b) is revised to give month FMLA period expiring on May differ based on which provisions are an employee who was incapacitated 31, 2022. On October 15, 2021, the invoked (e.g., certification more time to retroactively invoke FMLA employee invokes FMLA leave under requirements). In the case of an leave. The employee must retroactively § 630.1203(a)(1) based on the birth of, anticipated placement, the permissible invoke FMLA leave within 5 and need to care for, the new child, and circumstances are limited to those in workdays—instead of 2 workdays—after uses 7 weeks of FMLA unpaid leave which the employee must be absent to returning to work. A parallel deadline is during the October-December 2021 engage in activities necessary to allow being established for cases of period. However, when the 12-month an anticipated adoption or a foster care incapacitation in the paid parental leave FMLA period ends on May 31, 2022, the arrangement to proceed. For example, regulations in subpart Q. employee may start a new 12-month an employee may be required to attend Section 630.1203(d) is revised to entitlement to FMLA unpaid leave counseling sessions, appear in court, or delete language that seems to suggest under § 630.1203(a)(1) to care for the consult with an attorney or a doctor. that there is always only one 12-month child. If the employee invokes FMLA Section 630.1203(e) is revised to period in connection with FMLA leave in order to care for the child clarify how the entitlement of 12 unpaid leave used in connection with a starting on June 1, 2022, a new 12- administrative workweeks of family and birth or placement. As provided in month FMLA period would begin at that medical leave is converted to hours or section 6382(a)(2) and § 630.1203(d), the time. However, the entitlement to FMLA days, depending on the nature of an entitlement to use FMLA unpaid leave unpaid leave based on the birth of a employee’s scheduled tour of duty and in connection with a birth or placement child ends 12 months after the date of whether leave is charged on an hourly terminates at the end of the 12-month birth; therefore, the employee would or daily basis. For example, for a regular period beginning on the date of birth or have the period from June 1, 2022, full-time employee who has 80 hours in placement. However, if an employee through October 14, 2022, to use up to the biweekly scheduled tour of duty and uses FMLA unpaid leave before birth or 12 weeks of additional FMLA leave who is charged leave on an hourly basis, placement, the associated 12-month under § 630.1203(a)(1). Since the 12- 12 administrative workweeks translate FMLA period may end during the 12- month period after birth or placement into 480 hours. (12 weeks = 6 biweekly month period that begins on the date of includes parts of two 12-month FMLA periods. 6 times 80 hours = 480 hours.)

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Paragraph (e) also addresses employees reside in the same home as the birth substitution for a 12-month period with part-time work schedules or mother and the new child. The father commencing on the date of birth or uncommon tours or who are charged could receive FMLA unpaid leave and placement because the entitlement to leave on a daily basis. associated paid parental leave only for FMLA unpaid leave for birth or Section 630.1203(f) is revised to the care activities described in this placement expires at the end of that 12- clarify how to recalculate an employee’s paragraph. month period). unused balance of family and medical A new paragraph (j) in § 630.1203 § 630.1206—Substitution of Paid Leave leave if there is a change in an provides regulations on FMLA leave to Section 630.1206, dealing with employee’s scheduled tour of duty care for a covered servicemember, as substitution of paid leave for FMLA during any 12-month FMLA period that provided in 5 U.S.C. 6382(a)(3)–(4). unpaid leave, is revised to reflect commenced due to use of family and OPM has not issued final regulations to changes in the law and to clarify certain medical leave. For example, if a regular address this type of FMLA leave, which matters. Section 7602(a) of FEPLA full-time employee has a balance of 120 was added by Public Law 110–181 in amended section 6382(d) of title 5, hours of unused family and medical 2008. This FMLA unpaid leave to care United States Code, by making the leave for a 12-month FMLA period that for covered servicemembers is subject to statutory leave substitution rules that is in progress and then converts to a special rules, including special rules had applied to all types of FMLA leave part-time schedule of 20 hours per related to the substitution of annual and week, the balance would be recalculated apply only to FMLA leave granted sick leave. Since we are revising the under subparagraphs (C), (D), and (E) of to be 60 hours. (The new part-time tour leave substitution regulations in is 40 hours biweekly, compared to 80 section 6382(a)(1) and section § 630.1206 to address changes made by for a regular full-time tour. 40/80 times 6382(a)(3)—which deal with an FEPLA, we determined we should 120 equals 60 hours remaining under employee’s care of certain family address FMLA leave for care of covered the new scheduled tour of duty.) members who have a serious health Paragraph (g) in § 630.1203 is revised. servicemembers in subpart L. (See condition, the incapacitation of an The current paragraph (g) deals with revised § 630.1206(d), which links to employee due to a serious health agency responsibilities to provide § 630.1203(j).) In contrast to other types condition, a qualifying exigency related information to employees. This matter is of FMLA leave, the leave entitlement for to certain family members’ Armed now addressed in a revised FMLA leave to care for a covered service Forces deployments, and an employee’s § 630.1201(c). The revised paragraph (g) member is 26 administrative workweeks care of certain covered servicemembers, establishes that FMLA unpaid leave during a single 12-month period. If an respectively. The paid leave substitution linked to a birth event includes leave employee uses other types of FMLA rules for FMLA unpaid leave granted necessary for an employee who is the leave in that single 12-month period, the under subparagraphs (A) and (B) of birth mother to recover from giving combined amount of FMLA leave is section 6382(a)(1)—dealing with a child birth, even if the employee is not limited to 26 administrative workweeks. birth event and with the placement of a involved in caring for the son or Thus, there could be circumstances child for adoption or foster care, daughter during portions of that where the substitution of paid parental respectively—are now addressed in a recovery period. (The recovery period leave for a period of FMLA unpaid leave new subsection (d)(2) of section 6382. would be whatever is specified by a for birth or adoption purposes would Section 630.1206 addresses paid leave health care provider. The medical potentially be affected by the 26- substitution for the various categories of standard for a normal recovery period is workweek limit. (See revised FMLA unpaid leave. generally 6 weeks for vaginal birth and § 630.1203(j)(3).) For example, consider Section 630.1206(b) provides that 8 weeks for caesarian section, unless an employee who invokes FMLA paid parental leave may be substituted complications arise.) The birth event unpaid leave to care for a covered for FMLA unpaid leave based on a birth provision in law states that it applies to servicemember and uses 16 weeks of or placement event as provided in the leave taken ‘‘because of the birth of a such leave starting on August 15, 2022. new subpart Q. Paragraph (b) also son or daughter of the employee and in If the same employee gave birth to a addresses the possibility of substituting order to care for such son or daughter’’ child on October 7, 2022, the employee annual and sick leave for FMLA unpaid (section 6382(a)(1)(A)). A birth mother’s would be able to use only 10 weeks of leave based on birth or placement. If an need to recover from giving birth is FMLA unpaid leave under employee has not already (before birth clearly ‘‘because of the birth’’ of a child. § 630.1203(a)(1) during the single 12- or placement) begun a 12-month FMLA A new paragraph (i) in § 630.1203 month period from August 15, 2022, to period, the employee could have no clarifies that FMLA unpaid leave taken August 14, 2023, since there is a 26- more than 12 weeks of FMLA unpaid to care for a newly born child generally week limit for that single 12-month leave between the date of birth or refers to leave covering periods when period. That would also limit the placement and the date that is 12 the parent-employee is in the home with employee to no more than 10 weeks of months after the date of birth or the child or is otherwise involved in paid parental leave during that single placement. Thus, the 12 weeks of paid spending time with the child (bonding). 12-month period. However, the parental leave would completely fill any Such FMLA unpaid leave may also be employee would be able to use FMLA FMLA unpaid leave for birth or used to cover short periods away from unpaid leave under § 630.1203(a)(1)— placement purposes, and there would be the child’s physical presence to support and to substitute 2 weeks of paid no opportunity to substitute annual or the care of the child (e.g., buying baby parental leave for that unpaid leave— sick leave. food, diapers, or other supplies). after August 14, 2023, and no later than However, if an employee has a 12- However, leave would not be October 6, 2023 (the expiration of the month ‘‘FMLA period’’ (as established appropriate if an employee is engaged in 12-month period following the birth on under § 630.1203(c)) in progress at the activities not directly connected to care October 7, 2022)—since only 12 weeks time of birth or placement, that 12- of the child or if the employee is outside of paid parental leave is available in month FMLA period would end after the local geographic area where the connection with any given birth or birth or placement and before the date child is located. For example, it is placement (i.e., only 12 weeks of paid that is 12 months after the birth or possible that a biological father may not parental leave is available for placement. When that 12-month FMLA

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period ends, the employee will be FMLA leave without pay. Paragraph (4) § 630.1213—Records and Reports eligible to start a new 12-month adds a statement, not previously Section 630.1213, dealing with entitlement to FMLA unpaid leave for included in the FMLA regulations, records and reports in connection with birth or placement. If the employee uses indicating that an employee may request use of FMLA leave, is revised to refer to FMLA unpaid leave and thus to use annual leave or sick leave FMLA leave under the entire subpart commences a new 12-month FMLA without invoking family and medical rather than refer solely to leave under period, the employee will be able to use leave, and, in that case, the agency § 630.1203(a), since a provision on leave up to 12 weeks of FMLA unpaid leave exercises its normal authority with to care for covered servicemembers has during that period. If that new FMLA respect to approving or disapproving the been added in § 630.1203(j). Also, since period begins during the 12-month timing of when the leave may be used. § 630.1206 has been revised, the period following the birth or placement, OPM is aware of misconceptions held reference to the substitution of paid it would be possible for the employee to by some that an employee must invoke leave under § 630.1206(b) is being use more than 12 weeks of FMLA FMLA for personal and family health changed to a more general reference to unpaid leave for birth or placement situations for which they could just as § 630.1206. purposes between the date of birth or easily request sick leave, thereby placement and the date that is 12 preserving their FMLA entitlement for New Subpart Q in 5 CFR Part 630 months after the date of birth or any additional needs that may arise. § 630.1701—Purpose, Applicability, and placement. In that case, only 12 weeks Sick leave, under the circumstances Agency Responsibilities of paid parental leave could be specified by statute and regulation, is an substituted, since only 12 weeks of paid employee entitlement; therefore, an Section 630.1701(a) addresses the parental leave is available in connection agency generally may not deny an purpose of the new subpart Q. with any given birth or placement (i.e., employee’s request to take sick leave Section 630.1701(b) states that only 12 weeks of paid parental leave is outside of FMLA for a sick leave subpart Q applies to employees to available for substitution for a 12-month purpose authorized at § 630.401. (In whom subpart L applies and also to period beginning on the date of birth or certain circumstances—for example, employees who are covered by agency placement because the entitlement to when the timing of a doctor’s FMLA regulations issued under FMLA unpaid leave for birth or appointment is not a medical § 630.1201(b)(3)—for example, certain placement expires at the end of that 12- necessity—an agency may disapprove Department of Defense teachers or month period). An employee would be the timing of an employee’s sick leave employees of certain nonappropriated able to substitute annual or sick leave, request and require the employee to fund instrumentalities. In the case of as appropriate, for any remaining reschedule.) An employee also has a such employees, the subpart Q unpaid FMLA leave. right to take annual leave, subject to the regulations will apply, but the agency Section 630.1206(c) addresses the right of the agency to schedule the time may issue any necessary supplemental paid leave substitution rules for FMLA at which annual leave may be taken. regulations. leave connected to a serious health Therefore, the agency has the right to Section 630.1701(c) specifies that condition or an exigency. (See deny the scheduling of an employee’s agency heads are responsible for proper paragraph (3), (4), and (5) of annual leave requested outside of an administration of subpart Q, including § 630.1203(a), which correspond to FMLA request, but if the employee’s the responsibility of informing subparagraphs (C), (D) and (E) of section scheduling of FMLA leave is approved, employees of their entitlements and 6382(a)(1), respectively.) These rules are the employee’s request to substitute obligations. consistent with existing rules on paid annual leave for FMLA leave without § 630.1702—Definitions leave substitution. Section 630.1206(d) addresses paid pay may not be denied. Section 630.1702 provides that the leave substitution for FMLA leave to Section 630.1206(f) addresses an definitions in the FMLA regulations in care for a covered servicemember. These employee’s obligation to generally give subpart L are applicable in subpart Q, to rules are consistent with statutory rules advance notice of the employee’s the extent those defined terms are used, on paid leave substitution for this election to substitute paid leave for except that, to the extent any definitions category of FMLA leave. (See section FMLA unpaid leave. In other words, the of terms have been further revised in 6382(a)(3), which provides authority to general rule is that retroactive § 630.1702(b), the provisions of that provide 26 weeks of FMLA unpaid leave substitution is not allowed. However, section shall apply for purposes of in a single 12-month period to care for paragraphs (f)(2) through (f)(4) do subpart Q. Section 630.1702 also a covered servicemember. There are address some limited exceptions. provides definitions of additional terms currently no OPM FMLA regulations Paragraph (f)(4) addresses the used in subpart Q—agency, child, birth regarding this category of leave. In the retroactive substitution of paid parental or placement, FMLA unpaid leave, and absence of regulations, statutory leave and links to § 630.1706, which paid parental leave. provisions of sections 6382–6383 that allows retroactive substitution only if an The definition of paid parental leave refer to section 6382(a)(3) are employee is physically or mentally makes clear that paid parental leave is governing.) incapacitated. Under section a type of leave that is used when an Section 630.1206(e) states various 6382(d)(2)(F)(i), as added by FEPLA, employee has a ‘‘parental’’ role. A general rules related to an employee’s there is a general requirement that an parent who does not maintain a entitlement to substitute paid leave. An employee agree (in writing), before the continuing parental role with respect to employee is entitled to elect whether or commencement of paid parental leave, a newly born or placed child would not not to substitute paid leave for FMLA to perform 12 weeks of work after the be eligible for paid parental leave once unpaid leave, subject to applicable law use of paid parental leave concludes. the parental role has ended. and regulation. Thus, an agency may not Thus, the law anticipates that paid deny an employee’s election to make a parental leave would be provided on a § 630.1703—Leave Entitlement substitution permitted under this prospective basis after an employee Section 630.1703 provides various section. Nor may an agency require an elects to use the leave and enters into a rules related to the entitlement to paid employee to substitute paid leave for work obligation agreement. parental leave.

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Section 630.1703(a) states that an employee would be limited to a total of leave or sick leave without invoking employee may elect to substitute 12 weeks of paid parental leave per FMLA unpaid leave under subpart L. As available paid parental leave for any qualifying birth or placement. However, discussed earlier in connection with FMLA unpaid leave granted based on if an employee has received paid § 630.1206(e), by requesting to use the occurrence of a birth or placement parental leave benefits in connection annual or sick leave without invoking (for adoption or foster care). with a given birth or placement under FMLA leave, an employee can preserve Section 630.1703(b) states that the a different paid parental leave authority entitlement to use FMLA unpaid leave paid parental leave that is available for applicable to Federal employees (e.g., at another time and to substitute paid substitution is 12 administrative the paid parental leave benefit for parental leave for that FMLA unpaid workweeks in connection with the birth legislative branch employees in 2 U.S.C. leave. For example, an employee who is or placement involved. In other words, 1312), and moves to a position covered a birth mother has an entitlement to use an employee can receive up to 12 by the title 5 paid parental leave sick leave for the post-birth recovery administrative workweeks of paid authority during the 12-month period period. By using sick leave to cover the parental leave for each birth or following birth or placement, there is no post-birth recovery period, the placement event. The entitlement to basis for limiting or offsetting title 5 employee would preserve the ability to paid parental leave is triggered by the paid parental leave benefits based on invoke FMLA leave and take an actual occurrence of a birth or receipt of leave benefits under another additional 12 weeks of paid parental placement, which results in the authority. leave at a later time (up to 1 year employee having a parental role. Thus, Section 630.1703(c) and (d) address following birth), thus extending the time paid parental leave must only be used how the entitlement of 12 the employee can spend with the newly after the birth or placement has administrative workweeks of paid born child. An agency has more control occurred. Paid parental leave continues parental leave is converted to hours or over the scheduling of an employee’s to be available only as long as the days, depending on the nature of an annual leave if it is requested employee has a continuing parental role employee’s scheduled tour of duty and independent of FMLA leave. However, with respect to the newly born or placed whether leave is charged on an hourly if an employee invokes FMLA leave child. Since paid parental leave is or daily basis. For example, paragraph based on the birth or placement of a substituting for FMLA unpaid leave, use (c) gives an example of a regular full- child, the employee would be entitled to of paid parental leave is constrained by time employee who has 80 hours in the use that FMLA leave for a continuous the use of FMLA unpaid leave, which is biweekly scheduled tour of duty and block of time following the birth or limited to 12 weeks in any 12-month who is charged leave on an hourly basis. placement and then would be entitled to FMLA period (as established under For such an employee, 12 substitute annual leave for that block of § 630.1203(c)). administrative workweeks translate into time. (In contrast, FMLA leave based on The regulation explains that, with 480 hours. (12 weeks = 6 biweekly the birth or placement of a child may respect to FMLA leave under periods. 6 times 80 hours = 480 hours.) not be taken intermittently unless the § 630.1203(a) (corresponding to 5 U.S.C. Paragraph (c) also addresses employees employee and the employing agency 6382(a)(1)) that is limited to a total of 12 with part-time work schedules or agree otherwise. See section 6382(b) and weeks in any 12-month period, any use uncommon tours. Paragraph (d) § 630.1205(a). We note that employees of FMLA unpaid leave for a purpose addresses employees who are charged have a right to substitute paid parental other than birth or placement may affect leave on a daily basis. For example, for leave for FMLA unpaid leave for birth/ an employee’s ability to use the full 12 an employee who has 8 workdays each placement purposes. Thus, if an agency weeks of paid parental leave during the biweekly pay period, 12 administrative agrees to intermittent use of FMLA 12-month period following a birth or workweeks translate to 48 days (12 unpaid leave for birth/placement placement. In other words, an employee weeks = 6 biweekly periods. 8 days purposes, the agency is, in effect, will be able to use the full amount of times 6 biweekly periods = 48 days.). agreeing to intermittent use of paid paid parental leave only to the extent Section 630.1703(e) addresses how to parental leave leave.) that there are 12 weeks of available recalculate an employee’s unused Section 630.1703(f)(2) provides that FMLA unpaid leave granted based on balance of paid parental leave if there is paid parental leave may not be used birth or placement. For example, if an a change in an employee’s scheduled prior to the birth or placement involved. employee uses 6 consecutive weeks of tour of duty during the 12-month period This restriction applies even if an FMLA unpaid leave based on the commencing on the date of the given employee used FMLA unpaid leave for employee’s own serious health birth or placement. For example, if a birth or placement purposes prior to the condition, the employee could only use regular full-time employee has a balance birth or placement event, as allowed 6 weeks of FMLA unpaid leave based on of 120 hours of unused paid parental under § 630.1203(d). birth or placement (for which paid leave for a 12-month period that is in Section 630.1703(f)(3) states that an parental leave could be substituted) progress and then converts to a part- employee with a seasonal work during the 12-month period that began time schedule of 20 hours per week, the schedule may not use paid parental when the employee commenced using balance would be recalculated to be 60 leave during the off-season period FMLA unpaid leave based on the hours. (The new part-time tour is 40 designated by the agency—the period employee’s serious health condition. hours biweekly, compared to 80 for a during which the employee is We note that the 12-week entitlement regular full-time tour. 40/80 times 120 scheduled to be released from work and to paid parental leave under 5 U.S.C. equals 60.) placed in nonpay status. In other words, 6382(d)(2) is applied on a per employee Section 630.1703(f)(1) provides that paid parental leave cannot be used as a basis without regard to movements an agency may not require an employee basis for extending a seasonal between different agencies during the to use annual leave or sick leave to the employee’s work season. (For 12-month period following a birth or employee’s credit before allowing the employees appointed under title 5, placement. As long as the employee is employee to use paid parental leave, seasonal employment is addressed in 5 covered by the title 5 FMLA unpaid consistent with section 6382(d)(2)(C). CFR 340.402.) leave and paid parental leave provisions Paragraph (f)(1) also states that an Section 630.1703(g) provides that, if while serving in different agencies, the employee may request to use annual an employee has any unused balance of

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paid parental leave remaining at the end leave in 5 CFR 630.405(b), the FMLA not be provided to an employee unless of the 12-month period following the leave in 5 CFR 630.1208(h) and the the employee enters into such an birth or placement involved, the disabled veteran leave in 5 CFR agreement. (An exception to this rule is entitlement to the unused leave expires 630.1307(c).) If certain documentation provided in cases where an employee is at that time. The unused leave may not desired by the agency is not readily incapacitated and unable to enter into be rolled over for use in a future period, available, an agency could require an such agreement. See § 630.1706.) nor may a payment be made to the employee to self-certify that the leave is Section 630.1705(b) provides rules for employee for unused paid parental being taken for a valid reason and to interpreting § 630.1705(a). The term ‘‘in leave that has expired. Paid parental commit to providing the documentation writing’’ in connection with an leave may not be considered annual as soon as practicable. If the employee employee agreement is defined to leave for purposes of making a lump- does not provide the documentation, the include an acceptable electronic sum payment for annual leave or for any agency could then make a request that signature. The term ‘‘work’’ means a other purpose. (See section triggers the 15-day clock. period during which the employee is in 6382(d)(2)(D)(ii) and (iii).) If agency-requested documentation or duty status (i.e., actually working), Section 630.1703(h) addresses an certification is not timely submitted, the excluding any periods (paid or unpaid) agency’s authority to require agency may invalidate the paid parental of leave, time off, or other nonduty documentation of leave entitlement and leave and convert the employee to an status. (Periods of paid time off include the submission of employee appropriate nonpay status, which would paid holidays on which an employee certifications. At an agency’s request, an result in a salary overpayment debt does not work. Periods of other nonduty employee must provide the agency with owed to the agency. An employee may status include such periods as a appropriate documentation it deems request that the debt be eliminated by furlough or an absence without leave necessary to establish that the applying annual leave or other (AWOL).) Any periods of leave, time off, employee’s use of paid parental leave is appropriate types of paid time off to the or other periods of nonduty status will directly connected to a birth or employee’s credit to the affected periods extend how long it will take the placement. Appropriate documentation of time. If the agency determines that an employee to fulfill the 12-week work could include, but is not limited to, a employee fraudulently claimed an obligation. To satisfy the work birth certificate or a document from an entitlement to paid parental leave, the obligation, the employee must complete adoption or foster care agency regarding agency may pursue an appropriate 12 weeks of work regardless of how the placement. Also, an agency may disciplinary action, up to and including much leave he or she takes before require that an employee sign a removal from the Federal service. satisfying the obligation. certification attesting that the paid The term ‘‘applicable employing parental leave is being taken in § 630.1704—Pay During Leave agency’’ means the agency employing connection with a birth or placement Section 630.1704(a) states the the employee at the time use of paid that has occurred. The employee may principle that the pay an employee parental leave concludes. The time paid also be required to attest that the paid receives when using paid parental leave parental leave concludes is the date that parental leave is being used for shall be the same pay the employee is the workday on which an employee appropriate purposes, such as the birth would receive if the employee were finishes using 12 administrative mother’s recovery from giving birth or to using annual leave. In other words, workweeks of paid parental leave care for the child. (See § 630.1203(g) and agency payroll systems will apply the during the 12-month period that began (i)). This employee certification may same rules they apply in determining on the date of birth or placement. If the contain a statement in which the what pay continues during annual employee does not use 12 employee acknowledges an leave. administrative workweeks of paid understanding of the consequences of Section 630.1704(b) provides that parental leave during the 12-month engaging in fraud by providing a false paid parental leave is a type of leave period that began on the date of birth or certification. that is counted in applying the 8-hour placement, the day that is the last The effective date of an employee’s rule in 5 U.S.C. 5545(a) and 5 CFR workday on which an employee takes election of paid parental leave may not 550.122(b) that determines whether paid parental leave is considered to be be delayed because an employee has not night pay is payable during periods of the date the paid parental leave provided requested certifications. leave. This is consistent with the concludes. However, the granting of paid parental treatment of annual leave. Section 630.1705(c) provides leave will be considered to be Section 630.1704(c) provides that the instructions on how to convert the 12- conditional or provisional in nature, pay received during paid parental leave week work obligation to hours for subject to the employee providing may not include Sunday premium pay, employees who are charged leave on an agency-required documentation or consistent with the statutory bar in hourly basis (including fractions of an certification within required time section 624 of the Treasury and General hour). The 12-week work obligation frames. The required time frame is Government Appropriations Act, 1999 must be converted to hours based on the usually 15 calendar days from the date (Pub. L. 105–277, div. A, § 101(h), number of hours in the employee’s of an agency request (if any) for October 21, 1998). scheduled tour of duty, consistent with documentation. If it is not practicable the rules in § 630.1703(c). If an for an employee to respond within the § 630.1705—Work Obligation employee’s scheduled tour of duty 15-day time frame, despite the Section 630.1705(a) provides that an changes before the employee completes employee’s diligent, good faith efforts, employee may not use paid parental the 12-week work obligation, the agency the employee must provide the leave unless the employee agrees (in must recalculate the balance of work documentation or certification within a writing), before the start of paid parental hours owed, consistent with the rules in reasonable period of time, but no later leave, to work for the applicable § 630.1703(e). than 30 calendar days after the date of employing agency for not less than 12 Section 630.1705(d) provides how to the agency’s original request. (These weeks beginning on the first scheduled convert the 12-week work obligation to time frames are consistent with the workday after such leave concludes. days for employees who are charged documentation requirements for sick This means that paid parental leave may leave on a daily basis. The days

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equivalent of 12 weeks must be derived other circumstance beyond the parental leave is responsible for based on the average number of employee’s control. In the case of a determining whether the reimbursement workdays in the employee’s established newly born or placed child, any serious requirement associated with a period of tour of duty over a biweekly pay period, health condition of the child will be agency employment should be applied. consistent with the rules in deemed to be related to the applicable The agency that employed the employee § 630.1703(d). birth or placement. at the time paid parental leave Section 630.1705(e) provides that, as We note that clauses (i) and (iii) of concludes must first make its part of the written agreement described section 6382(d)(2)(F) speak of an reimbursement determination and then in § 630.1705(a), an employee must employee being ‘‘unable to return to inform any other affected agency of its agree that, in the event the employee work’’ and section 6382(d)(2)(G)(i) determination. does not complete the 12-week work speaks of an employee who ‘‘fails to Section 630.1705(j) provides that each obligation, the employee will pay the return from paid leave.’’ Given the agency is responsible for adopting its reimbursement amount specified in express requirement in section own set of policies governing when it 630.1705(f) unless the affected 6382(d)(2)(F)(i) that an employee agree will or will not apply the employing agency determines the to work for the applicable employing reimbursement requirement described reimbursement requirement will not be agency for 12 weeks after paid parental in § 630.1705(f). A single agency-wide applied. leave concludes, we are interpreting the set of policies should be in place so that Section 630.1705(f) states the rules for language referenced in the preceding employees within an agency are treated applying the reimbursement sentence as referring to an employee consistently. requirement when an employee fails to who has not returned to work for the 12 Section 630.1705(k) states an imposed fulfill the work obligation as stated in weeks to which the employee reimbursement represents a debt owed the employee’s written agreement. committed in the agreement. to the affected agency and is subject to Under the work obligation, an employee Section 630.1705(g) provides that collection procedures under the Federal is required to return to work for 12 when making a determination to forbear Claims Collection Standards in 31 CFR weeks after paid parental leave from requiring a reimbursement, an parts 900 through 904. concludes. If the employee fails to agency may require an employee to § 630.1706—Cases of Employee return to work for 12 weeks, an agency provide certification from a health care Incapacitation may require a reimbursement equal in provider supporting the employee’s amount to the total amount of any claim that a serious health condition is Section 630.1706 provides the Government contributions paid by the causing the employee to be unable application of paid parental leave in agency on behalf of the employee to return to work for the required 12 cases where an employee is maintain the employee’s health weeks. An agency may require incapacitated at the time the use of paid insurance coverage under the Federal additional examinations and parental leave would be permissible. Employees Health Benefits Program certifications from other health care Paragraph (a) allows the employee to established under 5 U.S.C. chapter 89 providers if it deems it necessary. Any retroactively use paid parental leave. during the period(s) when paid parental such additional examinations will be at This provision allows for the retroactive leave was used. If an agency determines the agency’s expense. election to use paid parental leave that reimbursement must be made, it Section 630.1705(h) states the under FMLA if the agency determines must seek collection of the full amount. principles governing determinations that an otherwise eligible employee who There is no authority for a partial waiver that circumstances beyond the could have made an election during a of the amount owed. employee’s control prevent the past period to substitute paid parental Since the statutory language about employee from completing the 12-week leave and enter a work obligation returning to work shows an intent that work obligation. (See § 630.1705(f)(ii).) agreement was physically or mentally the employee be continuously employed These circumstances must be ones that incapable of doing so during that past by the applicable employing agency truly compel an employee to not return period. Upon this determination, the (i.e., the agency employing the to work with the employing agency. agency must allow the employee, when employee at the time use of paid Circumstances that constitute a matter no longer incapacitated, to make an parental leave concludes) while of employee preference or convenience, election to substitute paid parental leave performing the required 12 weeks of such as an employee choosing to stay for applicable FMLA unpaid leave. The work, the regulation also provides that home to care for a healthy newborn will employee must make this election a separation from that agency (excluding not suffice. within 5 workdays of returning to work. an intra-agency reassignment without a Section 630.1705(i) provides how to As part of such election, the employee break in service) before completion of apply the reimbursement requirement must also sign a work obligation the required weeks of work will described in § 630.1705(f)(1) if more agreement. constitute failure to return to work for than one agency provided Government Paragraph (b) allows an employee’s 12 weeks. contributions on behalf of an employee personal representative to elect, on The determination to impose the for that employee’s health insurance behalf of the employee, to substitute reimbursement requirement is generally coverage during periods of paid parental paid parental leave for applicable FMLA within an agency’s sole and exclusive leave. In those cases, the employing unpaid leave (i.e., approved FMLA discretion. However, an agency may not agency that employed the employee at leave based on birth or placement of a impose the reimbursement requirement the time use of paid parental leave child). If an agency determines that an if the agency determines that the concluded is responsible for informing otherwise eligible employee is employee is unable to return to work for any other affected agency of the physically or mentally incapable of the required 12 weeks because of (1) the employee’s failure to complete the making an election to substitute paid continuation, recurrence, or onset of required 12 weeks of work. If an parental leave and entering into a work serious health condition (including employee fails to complete the 12-week obligation agreement, the agency must, mental health) of the employee or the work obligation, any agency that upon the request of a personal newly born or placed child that is provided Government contributions for representative the agency finds related to birth or placement, or (2) any health insurance during a period of paid acceptable, provide conditional

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approval of substitution of paid parental timekeeping systems) and in data and the Coast Guard who are covered by leave for applicable FMLA unpaid leave reports submitted to OPM, an agency the title 5 FMLA provisions based on 5 under § 630.1703(a) on a prospective must record usage of paid parental leave U.S.C. 2105(c)(1)(E). The estimate basis. in the manner prescribed by the Office excludes employees of the Executive An employee covered by paragraph of Personnel Management. Office of the President, the Executive (b) who has been incapacitated would Residence at the White House, and the Executive Order 13563 and Executive be required—within 5 workdays after official residence of the Vice President, Order 12866 the employee returns to work—to enter as they are covered by FMLA into a written agreement to (1) meet the Executive Orders 12866 and 13563 regulations issued under 3 U.S.C. 412. work obligation described in § 630.1705 direct agencies to assess all costs and (See also 3 U.S.C. 401(a)(2)–(4).) (Note: or (2) pay the required reimbursement benefits of available regulatory Under 3 U.S.C. 412(c), the regulations (if determined to be applicable). alternatives and, if regulation is implementing the title 3 FMLA An employee who does not agree to necessary, to select regulatory provisions may be consistent with the enter into the required work obligation approaches that maximize net benefits title 5 FMLA regulations.) The estimate agreement will have any used paid (including potential economic, excludes approximately 100,000– parental leave cancelled and designated environmental, public health and safety 150,000 employees with temporary as invalid. The invalidated leave that effects, distributive impacts, and appointments or intermittent work was used based on the conditional equity). The Office of Management and schedules, as such employees are approval during the employee’s Budget has determined that this is an excluded from coverage under title 5 incapacitation must be converted to an economically significant regulatory FMLA provisions. unpaid absence(s) as ‘‘leave without action. In accordance with the The estimate includes approximately pay’’ (LWOP). An employee can request provisions of Executive Order 12866, 26,000 Judicial Branch employees who to use other types of qualifying paid this rule was reviewed by the Office of are covered by title 5 FMLA provisions. leave or other paid time off to the Management and Budget. The estimate excludes Legislative employee’s credit to cover the LWOP A. Statement of Need Branch employees, except for period. If the employee does not elect to approximately 1,600 employees of the use other qualifying periods of paid OPM is issuing the rule to implement Government Publishing Office (GPO), as time off for the LWOP period, the LWOP the Federal Employee Paid Leave Act. all other Legislative Branch employees period represents a debt owed by the Currently, Federal employees must take are not covered by title 5 FMLA employee to which debt collection unpaid parental leave unless they use provisions. procedures apply. their sick or annual leave during While approximately 2 million parental leave. This regulation will employees will be covered by this § 630.1707—Cases of Multiple Children provide paid parental leave to parents of Born or Placed in the Same Time Period interim final rule, eligibility depends on newly born or placed children in the the occurrence of a birth of an Section 630.1707 addresses the Federal workforce, serving as a model employee’s child or placement of a application of paid parental leave in for the rest of the country. child with the employee for purposes of cases in which an employee has B. Number of Federal Employees and adoption or foster care. OPM identified multiple children newly born or placed Economic Impact annual birth rate data for mothers and in the same time period. If an employee fathers (by age group) in National Vital This rule applies to Federal civilian has multiple children born or placed on Statistics Reports published by the employees and the agencies that employ the same day, that event will be treated Centers for Disease Control and them covered by FMLA provisions in as a single event triggering a single Prevention.1 title 5, United States Code. We estimate entitlement of up to 12 weeks of paid OPM then applied that data to Federal that approximately 2 million Federal parental leave during the 12-month civilian employees by gender and by age civilian employees will be covered by period following the event. If an group to derive estimates of annual birth the interim final rule based on coverage employee has one or more children born events. For the population of under title 5 FMLA provisions. or placed during the 12-month period approximately 1.9 million nonseasonal, This estimate reflects coverage of following the date of an earlier birth or full-time permanent Federal employees, most Executive Branch employees. placement, each subsequent birth or OPM estimated that there would be Employees of certain Executive Branch placement event will result in a 12- about 51,000 annual birth events agencies such as the U.S. Postal Service, month period commencing on the date (51,248/1,889,147 = 2.71 percent the Postal Regulatory Commission, the of birth or placement with its own 12- occurrence rate). We note that a birth Federal Reserve Board, the Federal week limit. Any use of paid parental may be counted as two birth events if Aviation Administration, and the leave during a given 12-month period both parents are covered by this interim Transportation Security Administration will count toward that period’s 12-week final rule. We also note that this rule (TSA) are excluded, as those agencies limit. Thus, when such 12-month may affect birth rates for Federal are not covered by the title 5 FMLA periods overlap, any use of paid employees, and that many other factors provisions (except for TSA screener parental leave during the overlap will unrelated to this rule may affect birth personnel, as discussed in this count toward each affected 12-month rates. For simplicity, we use this figure SUPPLEMENTARY INFORMATION). This period’s 12-week limit. The regulations to estimate annual transfers associated coverage estimate includes provide an example. with this rule. approximately 95,000 employees of § 630.1708—Records and Reports We note that at least two Federal nonappropriated fund instrumentalities agencies, the Securities and Exchange Section 630.1708(a) provides that an described in 5 U.S.C. 2105 (i.e., Commission (SEC) and the Federal agency must maintain an accurate exchanges and other entities that Deposit Insurance Corporation (FDIC) record of an employee’s usage of paid conduct activities for the comfort, parental leave. pleasure, contentment, and mental and 1 See https://www.cdc.gov/nchs/data/nvsr/ Section 630.1708(b) provides that in physical improvement of armed forces nvsr66/nvsr66_01.pdf and https://www.cdc.gov/ agency data systems (including personnel) in the Department of Defense nchs/data/nvsr/nvsr68/nvsr68_13-508.pdf.

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began providing 6 weeks of paid National Council for Adoption report these Federal employees will have about parental leave to their employees—in stated the annual number of adoptions 51,000 birth events annually (2.71 October 2019 for SEC and January 2020 in the United States is about 110,000.2 percent). The combined event for FDIC. These SEC and FDIC The Children’s Bureau of the percentage would be 2.89 percent (2.71 employees will be covered by the title Department of Health and Human + 0.18), which represents an increase of 5 paid parental leave provisions once Services collects data on foster care in about 6.6 percent above the 2.71 percent they take effect on October 1, 2020. As the United States. The Children’s factor that was used to generate the the employee population at these two Bureau reported that approximately direct salary cost estimate of agencies represents only about 0.5 263,000 children entered the foster care approximately $935 million. Thus, we percent of the total Federal workforce, system in fiscal year (FY) 2018.3 That can apply that same 6.6 percent estimates here are not adjusted for the statistic does not account for children adjustment factor to derive a revised fact that these employees have had a who may have multiple placements direct salary cost estimate of about $995 lesser paid parental leave benefit for a while continuously in the foster care million. period of time. The estimates in this system. The Children’s Bureau also OPM also lacks data on Federal regulatory impact analysis are reported that about 62,000 of the employees who might yield custody of necessarily rough in nature and based children who left the foster care system a child for adoption or under a on a number of simplifying (25 percent of the total) in FY 2018 were surrogacy arrangement at the time of assumptions, and this has a minor effect adopted. It also reported that, in 52% of birth, which would not generate a 12- on estimates. such adoptions (about 32,000), the child week paid parental leave benefit under OPM used average salaries by gender was placed with a foster parent. Since the interim final rule. For purposes of and by age group to estimate the dollar the interim final paid parental leave this analysis, OPM assumes these cases value of salary, not including employer- regulations do not consider such an will not have a significant effect on the paid benefits, for 12 weeks of paid adoption to be a new placement overall estimates. parental leave in connection with a triggering the right to use FMLA leave C. Transfers birth event. If each birth event resulted and paid parental leave, for the purpose in 12 weeks of paid parental leave for of our estimates, those adoptions could The payment of paid parental leave an affected employee, OPM estimated be subtracted from the 110,000 annual generates a ‘‘transfer’’—a movement or that the total value of the salary paid count of adoptions. Rather than make redistribution of monetary payments during parental leave in a year would be that adjustment, OPM will assume that from one group to another that does not approximately $900 million. This equals the number of placements of foster affect total resources. The Government about 0.54 percent of total basic payroll children already in the foster care is transferring payments from the for the 1.9 million Federal employees in system is roughly the same (32,000) so general public to Federal employees. OPM’s study population. that the effects are offsetting. For purposes of these estimates, we However, the 1.9 million employee If we assume there are annually assume that the amount of service population used to generate the $900 110,000 adoptions and 260,000 foster performed by Federal employees is not million annual estimate count was care placements, we have 370,000 total affected by this rule. That means that based on nonseasonal, full-time placements. This number can be staff will perform the work that would permanent employees in the OPM- compared to the number of persons in have been performed by employees managed Governmentwide database and the United States in the age range of 18 newly taking parental leave, and that was not adjusted based on employee to 64—an age range that roughly new staff may need to be hired to coverage under title 5 FMLA provisions. corresponds the age range for Federal complete this work. Employees may For example, it included roughly Government employees. According to also receive additional payment in cases 100,000 FAA and TSA employees but the July 2019 census data, the total U.S. where they would have otherwise taken excluded part-time and seasonal population was 328,239,523. Of that other categories of leave. This implies employees. In addition, some employees total, 16% were 65 and older and that total payments to Federal covered by title 5 FMLA provisions are another 22.4% were under 18, meaning employees will increase, while total not in the OPM database. However, the that the remaining 61.6%, or services provided by the Federal 1.9 million employee population 202,195,546, were in the 18–64 age workforce will remain constant. included in this database can reasonably range. If we divide 370,000 by 202 In the context of paid parental leave, be viewed as representative of the 2.0 million, we derive 0.18 percent, which there are a variety of types of shifts or million employee population covered represents the percentage of U.S. adults transfers, depending on what would by title 5 FMLA provisions. Based on ages 18–64 who will have an adoption have otherwise happened if the OPM data, the 2.0 million employee or foster care placement in a given year. employee had not received paid population includes approximately We will assume that the same parental leave. • If an employee would have 50,000 part-time employees. If we percentage of Federal employees will otherwise used leave without pay for assumed that 50,000 of the 100,000 have an adoption or foster care periods covered by paid parental leave, employees between 1.9 million and 2.0 placement event in a given year. million were part-time employees who there is an immediate transfer from the Applying that percentage (0.18 percent) on average had a half-time work Government to the employee receiving to the 2 million Federal employees schedule, then we would adjust the paid parental leave, but there is no need covered by the title 5 FMLA provisions, $900 million estimate to be $935 million for other staff to work additional hours we estimate that these Federal in terms of direct salary costs. to maintain the level of Government employees will have 3,600 adoption or This rule also affects an employee service. foster care placement events annually. following the occurrence placement of a • If an employee would have In contrast, we estimated above that child with the employee for purposes of otherwise used annual leave during adoption or foster care. OPM does not periods covered by paid parental leave, 2 https://indd.adobe.com/view/4ae7a823-4140- have data regarding the extent to which 4f27-961a-cd9f16a5f362. the employee will have a higher balance Federal employees have children placed 3 https://www.acf.hhs.gov/sites/default/files/cb/ of annual leave. The employee could with them for adoption or foster care. A afcarsreport26.pdf. use that annual leave at a later time. If

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so, that has the same effect as paid the value of the paid parental leave and well as for direct salary costs. These parental leave replacing work—but the is delayed until retirement—and applies include contributions towards effect is not immediate. The annual only to those with entitlement to an retirement and insurance, Thrift Savings leave used at a later time will be in immediate annuity. The Congressional Plan (TSP) contributions, Social place of work hours; thus, to maintain Budget Office estimated that higher Security and Medicare taxes, and paid the same level of service, an agency may annuity payments due to increased sick leave and holidays—which would need to hire additional staff. On the leave balances at retirement (resulting inflate the total compensation costs by other hand, the use of paid parental from availability of paid parental leave) about 50 percent above the estimated leave instead of annual leave could would increase direct spending by less direct salary costs of $995 million (i.e., cause an employee to have a higher than $500,000 over the 2020–2029 $498 million in benefit costs). annual leave balance at the time of period.4 As noted, we lack data to quantify separation from Federal service. In that • If an employee would otherwise not many important aspects of the effects of case, there is no need to hire additional have taken leave, other staff will this rule on payments to Federal staff. staff, but an agency would have to make perform the work that would have been In particular, we lack data to forecast a larger lump-sum payment of the performed by that employee, and new utilization of paid parental leave, and unused annual-leave balance upon the staff may need to be hired to complete the extent to which paid parental leave employee leaving the Government. this work. will replace utilization of sick leave. Alternatively, an employee with a While we have identified scenarios in Accordingly, at this time, we estimate higher balance of annual leave could hit which the transfers could be delayed or that the value of transfers associated the maximum amount of accrued annual even, in the sick leave scenario, not with paid parental leave, including leave (240 hours for most employees) equal to the full value of the paid salary and benefits, will be about $1.49 that an employee can carry over into the parental leave, we lack data to estimate billion ($995 million salary and $498 next year. If so, excess unused annual the effects those scenarios will have on million benefits) per year before leave hours would be lost—some of annual costs during the 5-year accounting for incomplete utilization of which might be connected to higher timeframe for this regulatory impact paid parental leave and shifts in leave balances resulting from the employee’s analysis. utilization from sick leave to paid use of paid parental leave instead of Employees who, after use of paid parental leave. We estimate that, after annual leave. In that last scenario, to the parental leave concludes, do not return accounting for these factors, the rule extent that the lost excess leave could be to duty and complete 12 weeks of work will result in transfers of between 60 viewed as resulting from paid parental are subject to a possible reimbursement and 90 percent of this value. This leave, the employee would never use obligation that is based on the cost of implies annual transfers of between the leave and, thus, there would be no agency contributions to health $890 million and $1.3 billion, with a need to hire additional staff to cover insurance premiums during the use of mean estimate of $1.1 billion. This loss productivity from the use of that paid parental leave. However, the represents under 1 percent of total basic leave. We lack data to estimate if and employing agency has considerable payroll for Federal employees covered when, and the extent to which, annual discretion in imposing the by the title 5 FMLA provisions. We leave lump-sum payments may be reimbursement requirement and is request public comment on these affected. We invite commenters to barred from imposing it in some cases. estimates. submit any available data regarding this We expect that the number of D. Costs employees who do not complete the matter. So, for those who would have This interim final rule will affect the otherwise used annual leave, the required 12 weeks of work would be a small percentage. In light of those operations of over 120 Federal transfer could be delayed to a later point agencies—ranging from cabinet-level during the employee’s Federal service or factors, we do not believe that the reimbursement requirement will have a departments to small independent to the point of separation from Federal agencies. We estimate that this rule will service, or could never occur due to the significant impact of transfer estimates. In order to estimate transfers, it is require individuals employed by these annual leave carry-over limit. agencies to spend time in order to • necessary to make assumptions about If an employee would have utilization. We lack data to assume that update agency policies and procedures otherwise used sick leave during period employees will not take full advantage for parental leave, and to devote covered by paid parental leave, the of this paid parental leave. We are aware additional time to manage staffing availability of paid parental leave will that there is some data that parental following increased utilization of cause the employee to have a higher leave is not fully utilized—especially by parental leave. For the purpose of this sick leave balance. While we lack data, males. However, the referenced cost analysis, the assumed average we believe that Federal employees, examples of which we are aware do not salary rate of Federal employees particularly birth mothers, use involve full income replacement, as performing this work will be the rate in significant amounts of sick leave in does the new paid parental leave for 2020 for GS–14, step 5, from the connection with a birth event. While it Federal employees. Until we have actual Washington, DC, locality pay table is possible that some of the extra sick experience under the Federal paid ($137,491 annual locality rate and leave might be used later by an parental leave program, we lack data to $65.88 hourly locality rate). We assume employee in lieu of leave without pay, assert that employees will use less than that the total dollar value of labor, we believe that the saved sick leave will the full amount of leave that is which includes wages, benefits, and generally be fully reflected in the available. However, we note that the overhead, is equal to 200 percent of the employee’s balance at the time of utilization rate substantially impacts wage rate, resulting in an assumed labor separation. For employees who retire transfer estimates. cost of $131.76 per hour. with entitlement to an immediate We recognize that transfers include In order to comply with the regulatory annuity, unused sick leave is creditable the cost of government-paid benefits as changes in this interim final rule, service for the purpose of computing an affected agencies will need to review the employee’s retirement annuity. So, for 4 https://www.cbo.gov/system/files/2019-12/ rule and update their policies and this type of shift, the transfer is less than s1790paygosenate.pdf. procedures. We estimate that, in the first

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year following publication of the final between the birth mother and the other limitations. The statute requires that rule, this will require an average of 160 parent. This may help change OPM ‘‘shall prescribe regulations hours of work by employees with an expectations that parents have regarding necessary for administration’’ of the title average hourly cost of $131.76. This the role each will play in raising 5 FMLA leave provisions, including the would result in estimated costs in that children. It is expected to result in paid parental leave provisions (5 U.S.C. first year of implementation of about fathers having more involvement in 6387) $21,000 per agency, and about $2.5 child care, which could provide In many cases, the OPM regulations million in total Governmentwide. In significant societal benefits, such as are explanatory in nature. OPM addition, agencies will face ongoing stronger marriage and family regulations do fill in some policy gaps, administrative costs (including the relationships. We believe that this but any regulatory decisions had a administrative costs of administering benefit may support greater income marginal impact on transfers, costs, and the program and hiring and training equality between men and women by benefits. OPM considered alternatives new staff to replace lost hours of work) reducing the length of interruptions in with respect to the documentation that as Federal employees utilize additional the woman’s career—by making it easier would be required from employees parental leave. We estimate that this to have a child and then return to work. seeking paid parental leave. One option will require an average of 520 hours of Such a policy may also address was to require documentation in all work per agency by employees with an women’s declining labor force cases and to specify the necessary types average hourly cost of $131.76 in each participation that has been dropping of documentation in regulation (e.g., year following publication of the final since 2000, which has potential to birth certificate, adoption agency letter). rule. This would result in estimated positively impact the U.S. economy. The other option was to give the annually recurring costs averaging about While it is difficult to demonstrate employing agency flexibility to $69,000 per agency and about $8.2 cause and effect when it comes to determine what, if any, documentation million in total Governmentwide. adopting one new employee benefit, would be required. Under this option, there are surveys and other indications the regulation would give the employing E. Benefits that a family-friendly paid parental agency authority to require submission As discussed previously, we estimate leave policy can help make an employer of documentation and/or an employee that this rule results in shifts in activity more attractive to job seekers, increase certification when it felt it was toward the care of young children by job satisfaction, increase employee necessary. Federal employees, and away from other morale and engagement, increase the In considering these options, we activities. We are unable to quantify the likelihood of a birth mother returning to weighed the burden on supervisors and societal value of the benefits of paid work, and reduce turnover (i.e., increase employees versus the need to ensure parental leave and the societal value of retention). While some assert that paid that appropriated monies are properly activities foregone as a result of the rule. parental leave will produce monetary used and to prevent fraud. We As a result, we are unable to quantify benefits that offset gross transfers, we do recognized that in some cases, a the net benefit of this shift in activity. not believe it is possible to attribute supervisor may have personal The benefits of increased parental reductions in spending on recruitment knowledge of an employee’s situation care of newborn and newly placed efforts, training costs, and related effects and a paperwork requirement would be children enabled by paid parental leave to a single factor. This new benefit will unnecessary. In general, we believe the are significant and can be described in likely improve the desirability of risk of fraud is low—especially in birth qualitative terms. First of all, more Federal employment, and likely cases. We determined that the Federal employees will be able to spend increase the quality of Federal regulations should not mandate significant time with newly born or employees, leading to improved services documentation in all cases, but should placed children during the first year for the general public. Reduced turnover give agencies, as a necessary tool, the after birth or placement. Various studies can have a positive effect on agency authority to require submission of have shown the positive impact of productivity and reduce the burdens on documentation and/or employee increasing bonding between parent and other employees while reducing certifications. We also determined that child. Paid parental leave is not just a recruitment costs. At the same time, the the employing agency should be benefit for Federal employees, but for use of paid parental leave may responsible for determining what American society as a whole. It is a temporarily increase the burdens on documentation is sufficient proof of significant benefit that the Federal other employees. entitlement to paid parental leave. Government is acting as a role model in providing paid parental leave to its F. Regulatory Alternatives G. List of Studies Considered employees. This could have a large For the most part, the paid parental AEI-Brookings Working Group on Paid impact on other employers, influencing leave benefit is established by statute. Family Leave, ‘‘Paid Family and them to offer similar benefits. In turn, The amount of leave is set by statute at Medical Leave: AN ISSUE WHOSE parents around the country would be 12 weeks for each eligible employee. By TIME HAS COME’’—May 2017, able to spend additional time bonding statute, it applies equally to both https://www.brookings.edu/wp- with children. parents. The statute requires that paid content/uploads/2017/06/es_ Various studies indicate that paid parental leave be provided via 20170606_paidfamilyleave.pdf parental leave may improve the health substitution for FMLA unpaid leave for AEI-Brookings Working Group on Paid of the birth mother and the child. Paid purposes of birth and placement for Family Leave, ‘‘The AEI-Brookings parental leave will allow parents to adoption or foster care. The statute Working Group Report on Paid preserve annual and sick leave balances requires a fixed 12-week work Family and Medical Leave: for future family needs. In general, in obligation after paid parental leave CHARTING A PATH FORWARD’’— our society, women have traditionally concludes but allows agencies to decide September 2018, https://www.aei.org/ borne greater responsibility for caring whether to apply a reimbursement wp-content/uploads/2018/09/The- for children and sacrificing work requirement (linked to Government AEI-Brookings-Working-Group- careers. This paid parental leave benefit contributions toward health insurance Report-on-Paid-Family-and-Medical- is gender neutral and also neutral premiums), subject to specified Leave.pdf

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American Action Forum, ‘‘Analysis of Institute for Women’s Policy Research, employer-paid-family-leave- AEI-Brookings Working Group ‘‘Paid Parental Leave in the United policies.pdf Proposal on Paid Parental Leave’’— States: What the data tell us about Pew Research Center, ‘‘Americans June 2017, https:// access, usage, and economic and Widely Support Paid Family and www.americanactionforum.org/ health benefits’’—January 23, 2014, Medical Leave, but Differ Over research/analysis-aei-brookings- https://iwpr.org/wp-content/uploads/ Specific Policies’’—March 2017, working-group-proposal-paid- wpallimport/files/iwpr-export/ https://www.pewsocialtrends.org/ parental-leave/ publications/B334-Paid%20Parental 2017/03/23/americans-widely- American Action Forum, ‘‘The Fiscal %20Leave%20in%20the%20United support-paid-family-and-medical- Implications of the FAMILY Act: How %20States.pdf leave-but-differ-over-specific-policies/ New Paid Leave Benefits Increase National Partnership for Women & Urban Institute, ‘‘Paid Family Leave in Leave-Taking and Drive Up Estimated Families, ‘‘Leading on Leave: the United States: Time for a New Program Costs’’—March 2019, https:// Companies With New or Expanded National Policy’’—May 2017, https:// www.americanactionforum.org/ Paid Leave Policies (2015–2019)’’— www.urban.org/sites/default/files/ research/the-fiscal-implications-of- August 2019, https:// publication/90201/paid_family_ the-family-act-how-new-paid-leave- www.nationalpartnership.org/our- leave_0.pdf benefits-increase-leave-taking-and- work/resources/economic-justice/ drive-up-estimated-program-costs/ paid-leave/new-and-expanded- H. Supporting Data Tables

TABLE 1a—PROJECTED BIRTH EVENTS FOR FEMALE FEDERAL EMPLOYEES BASED ON NATIONWIDE MATERNITY RATES

Number of Nationwide Projected maternity number of female Age group Federal rates Federal employees employees * (%) with birth event

18–19 ...... 246 3.23 8 20–24 ...... 11,345 6.80 771 25–29 ...... 40,412 9.53 3,851 30–34 ...... 77,780 9.97 7,755 35–39 ...... 106,474 5.26 5,601 40–44 ...... 102,229 1.18 1,206 45–49 ...... 109,753 0.09 99

Total ...... 448,239 ...... 19,291 Source of Federal employee counts: FedScope—July 2019; * nonseasonal full-time permanent employees. Source of maternity rates: National Vital Statistics Reports: Volume 68, number 13, Births: Final Data for 2018 (11–27–19)—See Tables 2 or 5 for birth rates for mothers. Those tables do not show data for higher female age ranges. https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_13- 508.pdf.

TABLE 1b—PROJECTED BIRTH EVENTS FOR MALE FEDERAL EMPLOYEES BASED ON NATIONWIDE PATERNITY RATES

Projected Number of Nationwide number Age group Federal paternity of male employees * rates Federal employees (%) with birth event

18–19 ...... 461 1.04 5 20–24 ...... 16,493 5.16 851 25–29 ...... 53,526 8.74 4,678 30–34 ...... 103,909 10.38 10,786 35–39 ...... 142,268 6.91 9,831 40–44 ...... 132,208 2.86 3,781 45–49 ...... 147,679 0.96 1,418 50–54 ...... 165,670 0.29 480 55+ ...... 317,653 0.04 127

Total ...... 1,079,867 ...... 31,957 Source of Federal employee counts: FedScope—July 2019; * nonseasonal full-time permanent employees. Source of paternity rates: National Vital Statistics Reports: Volume 66, number 1, Births: Final Data for 2015 (1–5–17)—see Table 17 for birth rates for fathers. https://www.cdc.gov/nchs/data/nvsr/nvsr66/nvsr66_01.pdf.

TABLE 2—AVERAGE SALARY FOR FEMALE AND MALE EMPLOYEES

Female Male Age group average salary average salary

18–19 ...... $32,808 $36,196 20–24 ...... 46,172 49,799 25–29 ...... 59,505 61,333 30–34 ...... 73,703 74,974 35–39 ...... 82,216 84,045 40–44 ...... 86,048 89,418

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TABLE 2—AVERAGE SALARY FOR FEMALE AND MALE EMPLOYEES—Continued

Female Male Age group average salary average salary

45–49 ...... 88,324 92,057 50–54 ...... 96,413 55+ ...... 99,732

Weighted average salary ...... 73,070 77,979

Hourly rate ...... 35.01 37.36 Source of Federal employee average salary by age group: FedScope—July 2019; nonseasonal full-time permanent employees. Weighted average salary computed separately for females and males by multiplying number of projected births in age group (from Table 1a) by respective average salary, summing those products for each age group, and dividing that sum by the number of birth events (i.e., weighted average weighted based on number of births by age group). Then derive average hourly rate by dividing weighted average salary by 2087.

TABLE 3—PROJECTED SALARY COST AND BIRTH EVENT PERCENTAGE

Females Males

Hourly rate ...... $35.01 ...... $37.36 No. hours of leave (12 weeks) ...... 480 hours ...... 480 hours Total cost by gender ...... $324,181,397 ...... $573,078,490

Total Combined Cost (direct salary costs) ...... $897,259,886

Total annual birth events ...... 51,248

Total employees (all ages) * ...... 1,889,147

Percentage of all employees * having a birth event in a year ...... 2.71% Source of number of Federal employees (all ages): FedScope—July 2019; * nonseasonal full-time permanent employees.

TABLE 4—PROJECTED SALARY COST FOR BIRTH AND PLACEMENTS

Total number of covered employees * (all ages) ...... 2,000,000 Percentage of all employees * having a birth event in a year ...... 2.71% Total annual birth events ...... 54,200 Percentage of all employees * having an adoption/foster care placement event in a year ...... 0.18% Total annual placement events ...... 3,600 Combined percentage of all employees* have a birth or placement event ...... 2.89% Total annual birth/placement events ...... 57,800 Total direct salary costs ...... $995 million Source of number of Federal employees (all ages): FedScope—July 2019 and other data sources for employees not in FedScope; * full-time and part-time permanent employees.

Executive Order 13771 contrary to the public interest to delay Federal Employee Paid Leave Act (the This interim final rule is considered a final regulation until a public notice Act) was enacted, in which Congress set an Executive Order 13771 (82 FR 9339, and comment process has been the effective date for the new paid February 3, 2017) regulatory action. We completed. For the same reasons, under parental leave rules as October 1, 2020, estimate that this rule generates $5.9 the Civil Service Reform Act’s parallel just 9 months after enactment. This was million in annualized costs, in 2016 rulemaking provision, 5 U.S.C. insufficient time for the notice and dollars, discounted at seven percent 1103(b)(3), OPM is waiving general comment rulemaking process because of over a perpetual time horizon relative to notice of proposed rulemaking because the need for OPM to conduct a detailed 2016. the interim rule is temporary in nature regulatory impact analysis accounting and necessary to be implemented for costs, benefits, and alternatives, and Regulatory Flexibility Act expeditiously as a result of an because the regulation requires I certify that this regulation will not emergency. significant changes to personnel have a significant economic impact on The conclusion of a public notice and processing and payroll systems at a substantial number of small entities comment period before the rule is Federal agencies. To properly prepare because it will apply only to Federal finalized would be impracticable for the congressionally-mandated agencies and employees. because it would impede due and effective date of the new rules on paid timely execution of OPM’s functions. parental leave, agencies need this Waiver of Proposed Rulemaking Specifically, OPM issuing an interim regulation to be promulgated with OPM is issuing this rulemaking as an final rule is required by events and sufficient lead time to create internal interim final rule and has determined circumstances beyond its control, which policies and procedures, to modify their that, under the Administrative were not foreseen in time to comply payroll systems, to retrain their human Procedure Act (APA), 5 U.S.C. with the usual notice and comment resources staff, and to provide effective 553(b)(B), it would be impracticable and procedures. On December 20, 2019, the notice to eligible employees.

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In addition to the short window for Paperwork Reduction Act (i)(A) Is defined as an ‘‘employee’’ preparing this rule, OPM has had to Requirements under 5 U.S.C. 6301(2); or unexpectedly devote its pay and leave This rule does not impose any new (B) Is an employee carrying out policy resources to coordinate Federal reporting or record-keeping screening functions who is appointed employee policies in response to the requirements subject to the Paperwork under section 111(d) of Public Law 107– COVID–19 public health emergency Reduction Act. 71 (49 U.S.C. 44935 note); and during this time period, including (ii) Has completed at least 12 months implementing the Families First List of Subjects in 5 CFR Part 630 of service (excluding any service as an Coronavirus Response Act, Public Law Government employees. employee identified in paragraph (b)(2) of this section) at any time as— 116–127 and the Coronavirus Aid, Office of Personnel Management. (A) An employee, as defined under 5 Relief, and Economic Security Act, Alexys Stanley, U.S.C. 6301(2); Public Law 116–136, and advising Regulatory Affairs Analyst. (B) An employee of the Veterans agencies on the optimal use of pay, Health Administration appointed under leave, and incentives to respond to the For the reasons stated in the preamble, OPM amends part 630 of title title 38, United States Code, in national emergency. As such, 9 months 5 of the Code of Federal Regulations as occupations listed in 38 U.S.C. 7421; was an insufficient amount of time for follows: (C) A ‘‘teacher’’ or an individual OPM to publish a notice of proposed holding a ‘‘teaching position,’’ as rulemaking seeking public comments PART 630—ABSENCE AND LEAVE defined in section 901 of title 20, United and a final rule responding to comments States Code; with enough lead time for agencies to ■ 1. Revise the authority citation for part (D) An employee identified in section prepare for the October 1, 2020 630 to read as follows: 2105(c) of title 5, United States Code, deadline. Authority: 5 U.S.C. chapter 63 as follows: who is paid from nonappropriated funds; The conclusion of a public notice and Subparts A through E issued under 5 U.S.C. (E) An employee carrying out comment period before the rule is 6133(a) (read with 5 U.S.C. 6129), 6303(e) and (f), 6304(d)(2), 6306(b), 6308(a), and screening functions who is appointed finalized would be also be contrary to 6311; subpart F issued under 5 U.S.C. 6305(a) under section 111(d) of Public Law 107– public interest, because it would result and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 71 (49 U.S.C. 44935 note); or in serious damage to important 1974 Comp., p. 163; subpart G issued under (F) An employee performing covered interests. If OPM does not have 5 U.S.C. 6305(c) and 6311; subpart H issued active duty (as defined in 5 U.S.C. regulations in place with sufficient lead under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6381(7)(B)) that interrupts civilian time for over 120 Federal agencies to 6129) and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and service due to a qualifying call or order implement their policies and 6340; subpart J issued under 5 U.S.C. 6340, for deployment to a foreign country as procedures, and payroll systems, 6363, 6365(d), 6367(e), and 6373(a); subpart a member of the National Guard or eligible employees may not be able to K issued under 5 U.S.C. 6391(g); subpart L Reserves, to the extent that such active claim their paid parental leave benefits issued under 5 U.S.C. 6383(f) and 6387; duty is not already creditable service on October 1, 2020. Likewise, ensuring subpart M issued under sec. 2(d), Pub. L. under paragraphs (A) through (E) of this that expectant parents have complete 114–75, 129 Stat. 641 (5 U.S.C. 6329 note); paragraph (b)(1)(ii). information about paid parental leave subpart P issued under 5 U.S.C. 6329c(d); and subpart Q issued under 5 U.S.C. 6387. * * * * * policies will allow them to prepare for (c) Agency responsibilities. The head taking paid parental leave. Thus, OPM Subpart L—Family and Medical Leave of an agency having employees subject has determined that the rule must be to this subpart is responsible for the implemented expeditiously as a result ■ 2. Amend § 630.1201 as follows: proper administration of this subpart, of an emergency. ■ a. Revise the section heading; including the responsibility of ■ b. Add a new sentence at the end of informing employees of their For these reasons, OPM has paragraph (a); entitlements and obligations. determined that the public notice and ■ c. Revise paragraph (b)(1); ■ participation that the law ordinarily 3. Amend § 630.1202 as follows: ■ d. Amend paragraph (b)(3)(iii) by ■ a. Revise the definition for requires would, in this case, be removing ‘‘Transportation’’ and adding ‘‘Administrative workweek’’; impracticable and contrary to the public ‘‘Homeland Security’’ in its place; ■ b. Add a definition for ‘‘Birth’’; interest and that good cause exists for ■ e. Amend paragraph (b)(4) by ■ c. Revise the definition for ‘‘Family waiving proposed rulemaking and removing ‘‘Transportation’’ and adding and medical leave’’; delaying its solicitation of comments ‘‘Homeland Security’’ in its place; and ■ d. Revise the definition for ‘‘Leave from the public until after it issues an ■ f. Revise paragraph (c). without pay’’; interim final rule. The interim final rule The revisions and addition read as ■ e. Add a definition for ‘‘Placement’’; is temporary in nature, and OPM will follows: ■ f. Revise the definitions for ‘‘Reduced promulgate a final rule as soon as leave schedule’’; § 630.1201 Purpose, applicability, and ■ g. Remove the definitions for practical after receiving public agency responsibilities. comments on the interim final rule. ‘‘Regularly scheduled,’’ and ‘‘Regularly (a) * * * This subpart also provides scheduled administrative workweek’’; Congressional Review Act (CRA) the basis for determining the periods of ■ h. Add a definition for ‘‘Scheduled unpaid leave for which paid parental tour of duty’’; and This action is subject to the CRA, 5 leave may be substituted under subpart ■ i. Remove the definition for ‘‘Tour of U.S.C. 801 et seq., and OPM will submit Q of this part, which must be read with duty’’. a rule report to each House of the this subpart to establish eligibility. The revisions and additions read as Congress and to the Comptroller General (b) Applicability. (1) Except as follows: of the United States. This action is a otherwise provided in paragraph (b)(2) ‘‘major rule’’ as defined by 5 U.S.C. of this section, this subpart applies to § 630.1202 Definitions. 804(2). any employee who— * * * * *

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Administrative workweek means the § 630.1203 Leave entitlement. (ii) For a full-time employee with an scheduled tour of duty within the (a) * * * uncommon tour of duty (as defined in workweek established by the agency for (2) The placement of a son or § 630.201 and described in § 630.210), an employee under the definition of daughter with the employee for the hours equivalent of 12 ‘‘administrative workweek’’ in 5 CFR adoption or foster care and the care of administrative workweeks is derived by 610.102. such son or daughter. multiplying 6 times the number of hours * * * * * * * * * * in the employee’s biweekly scheduled Birth means the delivery of a living (d)(1) The entitlement to leave under tour of duty (or 6 times the average child. When the term ‘‘birth’’ is used in paragraphs (a)(1) and (2) of this section hours if the biweekly tour hours vary connection with the use of leave under shall expire at the end of the 12-month over an established cycle). For example, this subpart before birth, it refers to an period beginning on the date of birth or if an employee has an uncommon tour anticipated birth. placement. Leave for a birth or consisting of six 24-hour shifts (144 * * * * * placement must be concluded within hours) per biweekly pay period, the Family and medical leave means an this 12-month period. amount would be 864 hours. employee’s entitlement to 12 (2)(i) Leave taken under paragraphs (iii) For a part-time employee, the administrative workweeks (or 26 (a)(1) and (2) of this section, may begin hours equivalent of 12 administrative administrative workweeks in the case of prior to the actual date of birth or workweeks is derived by multiplying 6 leave under § 630.1203(j)) of unpaid placement for adoption or foster care. times the number of hours in the (ii) Use of leave under paragraph leave for certain family and medical employee’s scheduled tour of duty over (a)(1) of this section before the date of needs, as prescribed under sections a biweekly pay period. For example, if birth is limited to situations in which an 6381 through 6387 of title 5, United an employee has a part-time scheduled employee is using the leave— tour of duty that consists of 40 hours in States Code. (A) Because of the employee’s serious * * * * * a biweekly pay period, the amount health condition related to the would be 240 hours. Leave without pay means an approved anticipated event of the employee giving (3) For employees who are charged absence from duty in a nonpay status birth to a son or daughter; or during an employee’s scheduled tour of (B) In order to care for the birth leave on a daily basis, the days duty. mother of the employee’s expected son equivalent of 12 administrative * * * * * or daughter in connection with the birth workweeks must be derived based on Placement means a new placement of mother’s serious health condition the average number of workdays in the a son or daughter with an employee for related to pregnancy. employee’s established tour of duty over adoption or foster care. For example, (iii) Use of leave under paragraph a biweekly pay period. For example, if this excludes the adoption of a stepchild (a)(2) before the date of placement is an employee had 8 workdays each or a foster child who has already been limited to situations in which the biweekly pay period, the days a member of the employee’s household employee must be absent to engage in equivalent of 12 administrative and has an existing parent-child activities necessary to allow an workweeks would be 48 days. relationship with an adopting parent. anticipated adoption or a foster care (f) If there is a change in an When the term ‘‘placement’’ is used in arrangement to proceed. employee’s scheduled tour of duty connection with the use of leave under (e)(1) Family and medical leave under during any 12-month period that this subpart before placement has this subpart is available to full-time and commenced due to use of family and occurred, it refers to a planned or part-time employees. The entitlement to medical leave, and the employee has not anticipated placement. a total of 12 administrative workweeks used the full allotment of family and Reduced leave schedule means a daily of leave in connection with leave medical leave during such 12-month or weekly work schedule under which granted under paragraph (a) of this period, the remaining balance of family the usual number of hours actually section must be converted to hours or and medical leave must be recalculated worked during the employee’s days, as provided in paragraphs (e)(2) based on the change in the number of scheduled tour of duty are reduced as a and (e)(3) of this section. Leave under average hours in the employee’s result of the increased use of leave. paragraph (a) allows an employee to be scheduled tour of duty. For example, if Scheduled tour of duty means the absent during the employee’s scheduled a regular full-time employee has a regular work hours in an established tour of duty established for leave balance of 120 hours of unused family full-time or part-time work schedule charging purposes. Such leave is not and medical leave for a 12-month period during which an employee is charged applied to days designated as holidays that is in progress and then converts to leave or time off when absent. A and other nonworkdays when the a part-time schedule of 20 hours per seasonal employee is not considered to employee would be excused from duty. week, the balance would be recalculated have such a tour during off-season (2) For employees who are charged to be 60 hours. (Since the old schedule periods when the employee is leave on an hourly basis (including was 80 hours biweekly or an average of scheduled to be released from work and fractions of an hour), the 12 40 hours weekly, the new part-time tour placed in full-time nonpay status. administrative workweeks referenced in is half of the former full-time tour. 40/ * * * * * paragraph (a) of this section must be 80 times 120 equals 60.) ■ 4. Amend § 630.1203 as follows: converted to hours based on the number (g) Leave taken because of the birth of ■ a. Revise paragraph (a)(2); of hours in the employee’s scheduled a son or daughter of the employee, as ■ b. Amend paragraph (b) by removing tour of duty (at the time the 12-month described in paragraph (a)(1) of this ‘‘2 workdays’’ and adding ‘‘5 workdays’’ period of leave eligibility commences) section, includes leave necessary for an in its place; subject to the following rules: employee who is the birth mother to ■ c. Revise paragraphs (d), (e), (f), and (i) For a regular full-time employee recover from giving birth, or for an (g); and with 80 hours in the scheduled tour of employee who is the other parent to ■ d. Add paragraphs (i) and (j). duty over a biweekly pay period, the care for the birth mother during her The revisions and additions read as hours equivalent of 12 administrative recovery period, even if the employee is follows: workweeks is 480 hours. not involved in caring for the son or

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daughter during portions of that employee who invokes family and (ii) Any annual or sick leave to the recovery period. medical leave to care for a covered employee’s credit for such family and * * * * * servicemember and uses 16 weeks of medical leave not covered by paid (i) Leave taken in order to care for a such leave starting on August 15, 2022. parental leave. newly born or placed son or daughter, If the same employee gave birth to a (2) The annual or sick leave to the as described in paragraphs (a)(1) and child on October 7, 2022, the employee employee’s credit under paragraph (a)(2) of this section, generally refers to would be able to use only 10 weeks of (b)(1)(ii) of this section consists of the leave covering periods when the parent- family and medical leave under following: employee is in the home with the child § 630.1203(a)(1) during the single 12- (i) Accrued or accumulated annual or or is otherwise involved in spending month period from August 15, 2022, to sick leave under subchapter I of chapter time with the child (bonding). It may August 14, 2023, since there is a 26- 63 of title 5, United States Code (or include short periods away from the week limit for that single 12-month equivalent annual or sick leave under child’s physical presence to purchase period. That would also limit the another authority), without regard to the supplies needed to care for the child employee to no more than 10 weeks of normal limitations on the use of sick (e.g., buying baby food, diapers, or other paid parental leave during that single leave; (ii) Advanced annual or sick leave supplies). Leave based on the ‘‘care’’ 12-month period. However, the approved under the same terms and language in paragraph (a)(1) of this employee would be able to use family conditions that apply to any other section would not be appropriate if an and medical leave under agency employee who requests employee is not engaged in activities § 630.1203(a)(1) after August 14, 2023, advanced annual or sick leave, except directly connected to care of the child— and before the expiration of the 12- that the normal limitations on the use of for example, if the employee is month period following the birth on sick leave are not applicable; and physically located outside the local October 6, 2023, and could substitute (to the extent possible) any remaining (iii) Annual leave donated to an geographic area where the child is employee under the Voluntary Leave located. amount of the employee’s 12 weeks of paid parental leave, or substitute annual Transfer Program or the Voluntary (j)(1) For family and medical leave Leave Bank Program, consistent with granted in connection with care of a leave or sick leave, if applicable. (4) In addressing requests to use subparts I and J of this part, or covered servicemember under 5 U.S.C. equivalent donated annual leave under 6382(a)(3) and (4), the leave entitlement intermittent leave, or leave on a reduced leave schedule, in connection with another authority. is 26 administrative workweeks in a (c) Leave connected to serious health leave under this paragraph (j), an agency single 12-month period. This leave condition or exigency. For family and is subject to the same rules that govern applies to an employee who is the medical leave taken under such requests for leave under spouse, son, daughter, parent, or next of § 630.1203(a)(3), (4), or (5) paragraphs (a)(3) and (a)(4) of this kin of a covered servicemember and (corresponding to subparagraphs (C), (D) section. (See 5 U.S.C. 6382(b) and who provides care for the covered and (E) of 5 U.S.C. 6382(a)(1), § 630.1205.) servicemember. In applying this leave, respectively), an employee may elect to (5) Employees who seek to use leave the definitions in 5 U.S.C. 6381(8) substitute the following paid leave for under this paragraph (j) are subject to through (12) must be applied. any or all of the leave without pay: (2) The entitlement of 26 the same notification and scheduling (1) Accrued or accumulated annual or administrative workweeks of leave requirements that apply to employees sick leave under subchapter I of chapter described in paragraph (j)(1) of this receiving leave under paragraph (a)(1) 63 of title 5, United States Code (or section must be converted to hours or through (4) of this section in parallel equivalent annual or sick leave under days, consistent with the methodologies circumstances. (See 5 U.S.C. 6382(e)(1) another authority), consistent with the set forth in paragraph (e) of this section. and (2) and § 630.1207.) law and regulations governing the Any recalculation of the unused leave (6) An agency may require that a granting and use of annual or sick leave entitlement due to a change in the request for leave under this paragraph (j) (including the limitations on the employee’s scheduled tour of duty must be supported by a medical certification, purposes for which sick leave may be be made in a manner consistent with the as provided by 5 U.S.C. 6383(f). used under § 630.401(a) and the hours methodology described in paragraph (f) ■ 5. Revise § 630.1206 to read as limitations in § 630.401(b) through (e)); of this section. follows: (2) Advanced annual or sick leave (3) If an employee receives leave approved under the same terms and under this paragraph (j) and leave under § 630.1206 Substitution of paid leave. conditions that apply to any other paragraph (a) of this section during the (a) Leave without pay. Except as agency employee who requests single 12-month period, the combined otherwise provided in this section, advanced annual or sick leave; and amount of leave in that period may not family and medical leave taken under (3) Annual leave donated to an exceed 26 administrative workweeks. § 630.1203(a) must be leave without employee under the Voluntary Leave With respect to the single 12-month pay. Transfer Program or the Voluntary period, an employee who uses more (b) Leave connected to birth or Leave Bank Program, consistent with than 14 weeks of leave under this placement. (1) For family and medical subparts I and J of this part, or paragraph (j) will not be able to use the leave taken under § 630.1203(a)(1) or (2) equivalent donated annual leave under full allotment of 12 administrative (corresponding to subparagraphs (A) another authority. workweeks in connection with leave and (B) of 5 U.S.C. 6382(a)(1), (d) Leave to care for a covered granted under paragraph (a) of this respectively), an employee may elect to servicemember. For family and medical section. The leave granted under this substitute— leave taken under § 630.1203(j) paragraph (j) will not count against the (i) Up to 12 administrative workweeks (corresponding to 5 U.S.C. 6382(a)(3) employee’s 12-week FMLA entitlement of paid parental leave in connection and (4)), an employee may elect to in any other 12-month period, as with the occurrence of a birth or substitute the annual and sick leave established under paragraph (a) of this placement, as provided in subpart Q of identified in paragraph (c) of this section. For example, consider an this part; and section, except that any sick leave

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credited to the employee may be including any paid leave substituted for § 630.1702(b), the provisions of that substituted without regard to any of the leave without pay under § 630.1206; section shall apply for purposes of this normally applicable limitations on the and subpart. use of sick leave. * * * * * (b) Other definitions. In this subpart— (e) Employee entitlement to substitute. Agency means an Executive agency as ■ 7. Add subpart Q to read as follows: (1) An employee is entitled to elect defined in 5 U.S.C. 105, excluding the whether or not to substitute paid leave Subpart Q—Paid Parental Leave Government Accountability Office. for leave without pay under this Sec. When the term ‘‘agency’’ is used in the subpart, as permitted in this section. 630.1701 Purpose, applicability, and agency context of an agency making (2) An agency may not deny an responsibilities. determinations or taking actions, it employee’s election to make a 630.1702 Definitions. means the agency head or management substitution permitted under this 630.1703 Leave entitlement. officials who are authorized (including section. 630.1704 Pay during leave. by delegation) to make the given (3) An agency may not require an 630.1705 Work obligation. determination or take the given action. 630.1706 Cases of employee incapacitation. employee to substitute paid leave for 630.1707 Cases of multiple children born or Birth or placement means the birth of leave without pay. placed in the same time period. a son or daughter of a covered (4) An employee may request to use 630.1708 Records and reports. employee, or a new placement of a son annual leave or sick leave without or daughter with a covered employee for invoking family and medical leave, and, Subpart Q—Paid Parental Leave adoption or foster care, that is the basis in that case, the agency exercises its for unpaid leave granted under normal authority with respect to § 630.1701 Purpose, applicability, and § 630.1203(a)(1) or (2) (which agency responsibilities. approving or disapproving the timing of correspond to 5 U.S.C. 6382(a)(1)(A) or when the leave may be used. (a) Purpose. This subpart provides (B), respectively). For the purpose of (f) Notification by employee and regulations to govern the granting of interpreting this definition, the terms retroactive substitution. (1) An paid parental leave to covered birth and placement have the meanings employee must notify the agency of the employees. Since paid parental leave given those terms in § 630.1202, except employee’s election to substitute paid may only be substituted for unpaid that paid parental leave may not be leave for leave without pay under this leave granted following a birth or granted based on an anticipated birth or section prior to the date such paid leave placement under specific provisions of placement. commences (i.e., no retroactive the Family and Medical Leave Act in Child means a son or daughter as substitution), except as provided in title 5, United States Code—specifically, defined in § 630.1202 whose birth or paragraphs (f)(2) through (f)(4) of this section 6382(a)(1)(A) and (B) in 5 U.S.C. placement is the basis for entitlement to section. chapter 63, subchapter V—this subpart paid parental leave. (2) An employee may retroactively links to subpart L (Family and Medical FMLA unpaid leave means leave substitute annual leave or sick leave for Leave) of this part. without pay granted under the Family leave without pay granted under this (b) Applicability. (1) Except as and Medical Leave Act (FMLA) subpart covering a past period of time, otherwise provided in this paragraph regulations in subpart L of this part. if the substitution is made in (b), this subpart applies to employees to Paid parental leave means paid time conjunction with the retroactive whom subpart L of this part applies, as off from an employee’s scheduled tour granting of leave without pay under provided in § 630.1201(b). of duty that is authorized under 5 U.S.C. § 630.1203(b). (2) An agency head authorized to 6382(d)(2)(B)(i) and this subpart and (3) An employee may retroactively issue regulations on family and medical that is granted to cover periods of time substitute transferred (donated) annual leave under 5 U.S.C. chapter 63, within the 12-month period leave for leave without pay granted subchapter V, as provided in commencing on the date of birth or under this subpart in the circumstances § 630.1201(b)(3), is authorized to issue placement to an employee who has a covered by §§ 630.909(d) or 630.1009(d). any necessary supplemental regulations current parental role in connection with (4) An employee may retroactively on paid parental leave, providing those the child whose birth or placement was substitute paid parental leave for supplemental regulations are consistent the basis for granting FMLA unpaid applicable leave without pay granted with the regulations in this subpart. leave under § 630.1203(a)(1) or (2). This under this subpart, as provided in (3) This subpart applies to a birth or leave is not available to an employee § 630.1706(a) and subject to the placement occurring on or after October who does not have a current parental requirements governing paid parental 1, 2020. Paid parental leave may not be role. leave in subpart Q of this part. If the provided under this subpart for any employee’s leave without pay was not period of time before October 1, 2020. § 630.1703 Leave entitlement. granted on a prospective basis under (c) Agency responsibilities. The head (a) Election. An employee may elect to this subpart, the retroactive substitution of an agency having employees covered substitute available paid parental leave of paid parental leave may not be made by this subpart is responsible for the for any FMLA unpaid leave granted unless the leave without pay period has proper administration of this subpart, under § 630.1203(a)(1) or (2) (which been retroactively designated as leave including the responsibility of correspond to 5 U.S.C. 6382(a)(1)(A) or under this subpart, as allowed under informing employees of their (B), respectively) in connection with the § 630.1203(b). entitlements and obligations. occurrence of a birth or placement. (See ■ 6. Revise § 630.1213(b)(3) to read as § 630.1206(b).) § 630.1702 Definitions. follows: (b) Available paid parental leave. (1) (a) Applicability of subpart L The paid parental leave that is available § 630.1213 Records and reports. definitions. The definitions of terms in for purposes of paragraph (a) of this * * * * * § 630.1202 are applicable in this subpart section is 12 administrative workweeks (b) * * * to the extent the terms are used, except in connection with the birth or (3) The number of hours or days of that, to the extent any definitions of placement involved. The entitlement to leave taken under this subpart, terms have been further revised in paid parental leave is triggered by the

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occurrence of a birth or placement. The a biweekly pay period, the amount paid parental leave that remains at the paid parental leave is considered to be would be 240 hours. end of the 12-month period following available only if the employee has a (d) Conversion of weeks to days. For the birth or placement involved, the continuing parental role with respect to employees who are charged leave on a entitlement to the unused leave elapses the child whose birth or placement daily basis, the days equivalent of 12 at that time. No payment may be made triggered the leave entitlement. The 12 administrative workweeks must be for unused paid parental leave that has administrative workweeks of paid derived based on the average number of expired. Paid parental leave may not be parental leave may be used only during workdays in the employee’s established considered annual leave for purposes of the 12-month period beginning on the tour of duty over a biweekly pay period. making a lump-sum payment for annual date of the birth or placement involved. For example, if an employee had 8 leave or for any other purpose. (2) Since an employee may use only workdays each biweekly pay period, the (h) Documentation of entitlement and 12 weeks of FMLA unpaid leave in any days equivalent of 12 administrative employee certification. (1) At the 12-month period under § 630.1203(a), workweeks would be 48 days. request of the employee’s agency, an use of FMLA unpaid leave not (e) Change in tour. If there is a change employee must provide the agency with associated with paid parental leave may in an employee’s scheduled tour of duty appropriate documentation that shows affect an employee’s ability to use the during the 12-month period that the employee’s use of paid parental full 12 weeks of paid parental leave. commencing on the date of a given birth leave is directly connected to a birth or Notwithstanding paragraph (b)(1) of this or placement, and the employee has not placement that has occurred. section, an employee will be able to use used the full allotment of paid parental Appropriate documentation may the full amount of paid parental leave leave during such 12-month period, the include, but is not limited to, a birth only to the extent that there are 12 remaining balance of paid parental leave certificate or a document from an weeks of available FMLA unpaid leave must be recalculated based on the adoption or foster care agency regarding granted under the birth or placement change in the number of average hours the placement. An agency is responsible provisions in § 630.1203(a)(1) or (2) in the employee’s scheduled tour of for determining what documentation is during the 12-month period duty. For example, if a regular full-time sufficient proof of entitlement. commencing on the date of birth or employee has a balance of 120 hours of (2) An agency may require that an placement. The availability of paid unused paid parental leave for a 12- employee sign a certification attesting parental leave will depend on when the month period that is in progress and that the paid parental leave is being employee uses various types of FMLA then converts to a part-time schedule of taken in connection with a birth or unpaid leave relative to any 12-month 20 hours per week, the balance would placement. This employee certification period established under § 630.1203(c). be recalculated to be 60 hours. (Since may contain a statement in which the (c) Conversion of weeks to hours. For the old schedule was 80 hours biweekly employee acknowledges an employees who are charged leave on an or an average of 40 hours weekly, the understanding of the consequences of hourly basis (including fractions of an new part-time tour is half of the former providing a false certification (e.g., the hour), the 12 administrative workweeks full-time tour. 40/80 times 120 equals possibility that the employing agency referenced in paragraph (b) of this 60.) could pursue appropriate disciplinary section must be converted to hours (f) Leave usage. (1) An agency may not action, up to and including removal based on the number of hours in the require an employee to use annual leave from Federal Service, or make a referral employee’s scheduled tour of duty (as in or sick leave to the employee’s credit as to a Federal entity that investigates effect on the date the employee begins a condition to be met before the whether conduct constitutes a criminal a period of using paid parental leave) as employee uses paid parental leave. An violation). follows: employee may request to use annual (3) An employee must provide any (1) For a regular full-time employee leave or sick leave without invoking documentation or certification required with 80 hours in the scheduled tour of FMLA unpaid leave under subpart L of by the agency no later than 15 calendar duty over a biweekly pay period, the this part, and, in that case, the agency days after the date the agency requests hours equivalent of 12 administrative exercises its normal authority with such documentation or certification. If it workweeks is 480 hours. respect to approving or disapproving the is not practicable under the particular (2) For a full-time employee with an timing of when the leave may be used. circumstances for an employee to uncommon tour of duty (as defined in (2) Paid parental leave may be used in respond within the 15-day time frame, § 630.201 and described in § 630.210), connection with the occurrence of a despite the employee’s diligent, good the hours equivalent of 12 birth or placement only during the 12- faith efforts, the employee must provide administrative workweeks is derived by month period following birth or the documentation or certification multiplying 6 times the number of hours placement. (See § 630.1703(b).) Paid within a reasonable period of time in the employee’s biweekly scheduled parental leave may not be used prior to under the circumstances involved, but tour of duty (or 6 times the average the birth or placement involved even if no later than 30 calendar days after the hours if the biweekly tour hours vary the employee was granted FMLA date of the agency’s original request. over an established cycle). For example, unpaid leave under § 630.1203(a)(1) or (4) An agency may grant paid parental if an employee has an uncommon tour (2) for periods prior to the birth or leave prior to receiving any requested consisting of six 24-hours shifts (144 placement event, as allowed under documentation or certification under hours) per biweekly pay period, the § 630.1203(d). this paragraph (h) based on an amount would be 864 hours. (3) An employee with a seasonal work employee’s communications with a (3) For a part-time employee, the schedule may not use paid parental supervisor or management. Under these hours equivalent of 12 administrative leave during the off-season period circumstances, the granting of paid workweeks is derived by multiplying 6 designated by the agency—the period parental leave is considered to be times the number of hours in the during which the employee is provisional, pending receipt of the employee’s scheduled tour of duty over scheduled to be released from work and requested documentation or a biweekly pay period. For example, if placed in nonpay status. certification. an employee has a part-time scheduled (g) Treatment of unused leave. If an (5) If the employee fails to provide the tour of duty that consists of 40 hours in employee has any unused balance of agency with the required documentation

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or certification within the specified time (4) The date paid parental leave Employees Health Benefits Program period, the agency may determine that concludes is— established under 5 U.S.C. chapter 89 the employee is not entitled to paid (i) The workday on which an during the period(s) when paid parental parental leave and may— employee finishes using 12 leave was used. An employee who (i) Allow the employee to request that administrative workweeks of paid separates from the applicable employing the absence be charged to leave without parental leave during the 12-month agency before completing the required pay, sick leave, annual leave, or other period that began on the date of birth or 12 weeks of work is considered to have forms of paid time off, as appropriate; or placement; or failed to return to duty under this (ii) If the employee acted (ii) If the employee does not use 12 paragraph. For the purpose of the fraudulently, charge the employee as administrative workweeks of paid preceding sentence, an intra-agency absent without leave (AWOL) and parental leave during the 12-month reassignment without a break in service pursue any other appropriate action. period that began on the date of birth or will not be considered a separation. placement, the day that is the last (2) The determination to impose the § 630.1704 Pay during leave. workday on which an employee used reimbursement requirement is at the (a) The pay an employee receives paid parental leave. agency’s sole and exclusive discretion, when using paid parental leave shall be (c) Conversion of weeks to hours. For except that an agency may not impose the same pay the employee would employees who are charged leave on an the requirement if, in the agency’s receive if the employee were using hourly basis (including fractions of an judgment, the employee is unable to annual leave. hour), the 12-week work obligation must return to work for the required 12 weeks (b) Paid parental leave is a type of be converted to hours based on the because of— leave that is counted in applying the 8- number of hours in the employee’s (i) The continuation, recurrence, or hour rule in 5 CFR 550.122(b) that scheduled tour of duty, consistent with onset of a serious health condition determines whether night pay is payable the rules in § 630.1703(c). If an (including mental health) of the during periods of leave. employee’s scheduled tour of duty employee or the child whose birth or (c) The pay received during paid changes before the employee completes placement was the basis for the paid parental leave may not include Sunday the 12-week obligation, the agency must parental leave, but, in the case of the premium pay. (See section 624 of the recalculate the balance of work hours employee’s serious health condition, Treasury and General Government owed, consistent with the rules in only if the condition is related to the Appropriations Act, 1999, Pub. L. 105– § 630.1703(e). An acceptable alternative applicable birth or placement; or 277, div. A, § 101(h), 112 Stat. 2681–518 approach is to express each period of (ii) Any other circumstance beyond (Oct. 21, 1998).) work as a fraction or percentage of the the employee’s control, subject to average weekly scheduled tour of duty paragraph (h) of this section. § 630.1705 Work obligation. hours in the affected biweekly pay (g) Medical certification. An agency’s (a) Advance agreement. An employee period and to sum those fractions or determination not to apply the may not use paid parental leave in percentages until the 12-week obligation reimbursement requirement may be connection with a birth or placement is completed. conditioned upon the employee’s unless the employee agrees (in writing), (d) Conversion of weeks to days. For supplying of a health care provider before the commencement of such leave, employees who are charged leave on a certification supporting the employee’s to work for the applicable employing daily basis, the days equivalent of 12 claim that a serious health condition agency for not less than 12 weeks weeks must be derived based on the described in paragraph (f)(2)(i) is beginning on the employee’s first average number of workdays in the causing the employee to be unable scheduled workday after such leave employee’s established tour of duty over return to work for the required 12 concludes. (See special rules governing a biweekly pay period, consistent with weeks. In cases where an agency’s cases of incapacitation in § 630.1706.) the rules in § 630.1703(d). determination regarding whether to (b) Interpretation. For the purpose of (e) Agreement to make reimbursement apply the reimbursement requirement applying paragraph (a) of this section— when applicable. In the written relies on a health condition that is not (1) The term ‘‘in writing’’ means an agreement described in paragraph (a) of related to the applicable birth or agreement with the employee’s this section, the employee must attest placement or that applies to a person handwritten signature or an acceptable that, in the event the employee does not not covered by paragraph (f)(2)(i) of this electronic signature, consistent with the complete the 12-week work obligation, section, the agency may also require a requirements in 5 CFR 850.106, and also he or she agrees, pursuant to paragraph medical certification. An agency may is deemed to include an agreement (f), to make reimbursement unless the require additional examinations and documented in an email or text message affected employing agency (or agencies) certification from other health care from the employee, as long as the determines (determine) that the providers if it deems it necessary, but employee, within 24 hours, supplies the reimbursement provision will not be any such additional examinations must required signature; applied. be at the agency’s expense. (2) The term ‘‘work’’ means a period (f) Application of reimbursement (h) Circumstances beyond employee’s during which the employee is in duty requirement. (1) If an employee fails to control. The circumstances beyond the status, excluding any periods (paid or return for the required 12 weeks of work employee’s control referenced in unpaid) of leave, time off (including with the applicable employing agency paragraph (f)(2)(ii) of this section must holiday time off), or other nonduty after paid parental leave concludes (as be ones that truly preclude an employee status (including furlough or AWOL described in paragraphs (a) and (b) of from returning to work with the status). Such excluded periods will not this section), an agency may require that employing agency. Examples of count toward completion of the 12-week the employee make a reimbursement situations beyond the employee’s work obligation. equal to the total amount of any control include such situations as where (3) The term ‘‘applicable employing Government contributions paid by the a parent chooses to stay home because agency’’ means the agency employing agency on behalf of the employee to a child has a serious health condition or the employee at the time use of paid maintain the employee’s health an employee moves because the parental leave concludes; and insurance coverage under the Federal employee’s spouse is unexpectedly

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transferred to a job location more than § 630.1703(a) on a retroactive basis. paid parental leave that was used based 75 miles from the employee’s worksite. Such a retroactive election shall be on the conditional approval. The time Matters of employee preference or effective on the date that such an covered by the invalidated paid parental convenience will not suffice. For election would have been effective if the leave must be converted to leave example, a situation where an employee employee had not been incapacitated at without pay unless the employee chooses not to return to work to stay the time. Consistent with requests that other paid leave or paid home with a well, newborn child would § 630.1206(f)(4), this retroactive election time off to the employee’s credit be not constitute a circumstance beyond must be made in conjunction with a applied (as appropriate) in place of the the employee’s control for purposes of retroactive election under § 630.1203(b), invalidated paid parental leave. To the this exception. if the FMLA unpaid leave was not extent the employee has invalidated (i) Multiple agencies involved. If an already approved. As part of such paid parental leave hours not replaced employee does not complete the 12- election, the employee must agree (in by other paid leave or paid time off, pay week work obligation and if more than writing, as described in received for those hours is a debt to the one agency provided Government § 630.1705(b)(1)) to meet the work employing agency and is subject to contributions on behalf of an employee obligation or pay the required collection under the Federal Claims for that employee’s health insurance reimbursement (if applicable) unless— Collection Standards in 31 CFR parts coverage during a period of paid (1) Applying the work obligation and 900 through 904. parental leave, each agency is the associated reimbursement responsible for making a determination requirement is barred under § 630.1707 Cases of multiple children born or placed in the same time period. regarding whether to apply the § 630.1705(f)(2); or reimbursement requirement described (2) The agency later concludes under (a) If an employee has multiple in paragraph (f) of this section with its policies established under children born or placed on the same respect to periods of paid parental leave § 630.1705(f)(1) that the circumstances day, the multiple-child birth/placement during employment with the agency. support a determination to not apply the event is considered to be a single event The employing agency that employed reimbursement requirement. that triggers a single entitlement of up the employee at the time use of paid (b)(1) If an agency determines that an to 12 weeks of paid parental leave under parental leave concluded is responsible otherwise eligible employee is § 630.1703(b). (b) If an employee has one or more for informing any other affected agency physically or mentally incapable of children born or placed during the 12- of the employee’s failure to complete making an election to substitute paid month period following the date of an the required 12 weeks of work and of its parental leave (as provided in earlier birth or placement of a child of determination regarding application of § 630.1703) and entering into a work the employee, the provisions of this the reimbursement requirement. Any obligation agreement (as described in subpart shall be independently other affected agency will make its own § 630.1705), the agency must, upon the administered for each birth or determination regarding application of request of a personal representative of placement event. Any paid parental the reimbursement requirement the employee whom the agency finds acceptable, provide conditional leave substituted for FMLA unpaid associated with agency employment. leave during the 12-month period (j) Agency policies on applying the approval of substitution of paid parental beginning on the date of a child’s birth reimbursement requirement. Each leave for applicable FMLA unpaid leave or placement shall count towards the agency is responsible for adopting its under § 630.1703(a) on a prospective 12-week limit on paid parental leave own set of policies governing when it basis. The conditional approval is based described in § 630.1703(b) applicable in will or will not apply the on the presumption that the employee connection with the birth or placement reimbursement requirement described would have elected to substitute paid involved. The substitution of paid in paragraph (f) of this section. A single parental leave for the applicable FMLA parental leave may count toward agency-wide set of policies should be in unpaid leave and would have entered multiple 12-week limits to the extent place so that employees within an into the work obligation agreement if that there are multiple ongoing 12- agency are treated consistently. the employee had not been (k) Collection of reimbursement. The incapacitated. Within 5 workdays after month periods beginning on the date of reimbursement requirement described returning to work, the employee must an applicable birth or placement, each in paragraph (f) of this section, if enter into a written agreement to meet of which encompasses the day on which imposed, is subject to collection as a the work obligation described in the leave is used. Therefore, whenever debt owed to the affected agency. (See § 630.1705 or pay the required paid parental leave is substituted during the Federal Claims Collection Standards reimbursement (if applicable) unless— periods of time when separate 12-month in 31 CFR parts 900 through 904.) (i) Applying the work obligation and periods (each beginning on a date of the associated reimbursement birth or placement) overlap, the paid § 630.1706 Cases of employee requirement is barred under parental leave will count toward each incapacitation. § 630.1705(f)(2); or affected period’s 12-week limit. For (a) If an agency determines that an (ii) The agency later concludes under example, if an employee has a child otherwise eligible employee who could its policies established under born on June 1 and another child placed have made an election during a past § 630.1705(f)(1) that the circumstances for adoption on October 1 of the same period to substitute paid parental leave support a determination to not apply the year, each event would generate (as provided in § 630.1703) and enter a reimbursement requirement. entitlement to substitute up to 12 weeks work obligation agreement (as described (2) If an employee covered by of paid parental leave during the in § 630.1705) was physically or paragraph (b)(1) of this section declines separate 12-month periods beginning on mentally incapable of doing so during to enter into the written agreement after the date of the birth and on the date of that past period, the employee may, being determined by the agency to no the placement, respectively. Those two within 5 workdays of the employee’s longer be incapacitated, the agency must 12-month periods would be June 1–May return to duty status, make an election cancel any portion of the 12 weeks of 31 and October 1–September 30. The to substitute paid parental leave for paid parental leave that has not been overlap period for these two 12-month applicable FMLA unpaid leave under exhausted, and designate as invalid any periods would be October 1–May 31. If

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the employee substitutes paid parental submissions from members of the public who would forfeit annual leave in leave during that overlap period, that is to make these submissions available excess of the maximum annual leave amount of paid parental leave would for public viewing at http:// allowable carryover because of their count towards both the 12-week limit www.regulations.gov as they are work to support the nation during a associated with the birth event and the received without change, including any national emergency will have their 12-week limit associated with the personal identifiers or contact excess annual leave deemed to have placement event. information. been scheduled in advance and subject to leave restoration. § 630.1708 Records and reports. FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 606– The procedures established by these (a) Record of usage of paid parental 2858 or by email at pay-leave-policy@ interim regulations are similar to those leave. An agency must maintain an opm.gov. established in previously rescinded 5 accurate record of an employee’s usage CFR 630.310 for employees whose of paid parental leave. SUPPLEMENTARY INFORMATION: On March services were deemed essential to the (b) Reporting. In agency data systems 13, 2020, President Trump declared a Year 2000 (Y2K) computer conversion (including timekeeping systems) and in ‘‘National Emergency Concerning the and in current 5 CFR 630.311, for data reports submitted to OPM, an Novel Coronavirus Disease (COVID–19) employees whose services were deemed agency must record usage of paid Outbreak’’ (85 FR 15337 at https:// essential to the emergency response in parental leave in the manner prescribed www.federalregister.gov/documents/ the aftermath of the September 11, 2001, by the Office of Personnel Management. 2020/03/18/2020-05794/declaring-a- terrorist attacks, which are being [FR Doc. 2020–14832 Filed 8–6–20; 4:15 pm] national-emergency-concerning-the- rescinded by this interim rule. These novel-coronavirus-disease-covid-19- BILLING CODE 6325–39–P interim regulations differ from the outbreak). Because of the previous regulations in that they allow unprecedented outbreak and spread of this authority to be used not only for the OFFICE OF PERSONNEL this virus and the efforts toward current national emergency related to MANAGEMENT response and recovery, many Federal the COVID–19 outbreak, but also for agencies and employees have been, and certain future national emergencies for 5 CFR Part 630 for the foreseeable future will continue which OPM issues notification to be, engaged in work vital to our RIN 3206–AO04 permitting use of this authority. These nation and to the pandemic response. regulations allow agencies to respond Scheduling of Annual Leave by Under current rules, some of these quickly to the annual leave restoration Employees Determined Necessary To employees will be unable to use needs of their employees who are Respond to Certain National sufficient annual leave to avoid responding to a national emergency. Emergencies exceeding the limit on annual leave that may be carried over into the next year. Rescinding Regulations AGENCY: Office of Personnel The Office of Personnel Management OPM is rescinding 5 CFR 630.311, Management. (OPM) is issuing interim regulations to Scheduling of annual leave by ACTION: Interim rule. assist such agencies and employees and employees determined necessary to to address any similar situations during respond to the ‘‘National Emergency by SUMMARY: The Office of Personnel future emergencies. Reason of Certain Terrorist Attacks.’’ Management is issuing interim OPM issued CPM 2020–09 on June 18, The regulations at 5 CFR 630.311 regulations to assist agencies and 2020, to remind agencies and employees provided that the national emergency employees responding to the National of the normally applicable rules for following the September 11, 2001 Emergency Concerning the Novel annual leave and various paid time off terrorist attacks was deemed to be an Coronavirus Disease (COVID–19) categories. We reminded agencies to exigency of the public business for the Outbreak and for future national work with their employees to ensure purpose of restoring annual leave to any emergencies. The regulations provide that they continue to take any annual employee who forfeited annual leave that employees who would forfeit leave or other paid time off before it under 5 U.S.C. 6304 because the agency annual leave in excess of the maximum expires. For further guidance on the determined the employee’s services annual leave allowable carryover normal applicable rules, agencies and were required in response to that because of their work to support the employees may review the guidance at national emergency. The practical nation during a national emergency will https://www.chcoc.gov/content/annual- purpose of the regulations was to have their excess annual leave deemed leave-and-other-paid-time-guidance. address the statutory and regulatory to have been scheduled in advance and For most employees, the maximum requirements for advanced scheduling subject to leave restoration. annual leave that may be carried into of annual leave for leave restoration DATES: The interim regulations are the next leave year is 30 days (240 purposes. effective on August 10, 2020. Comments hours). Currently, an agency may restore The statute requires that, in order for must be received on or before October annual leave that was forfeited due to an annual leave to be eligible for 9, 2020. exigency of the public business or restoration because of an exigency of the ADDRESSES: You may submit comments, sickness of the employee only if the public business, it must have been identified by docket number and/or annual leave was scheduled in writing scheduled in advance. (See 5 U.S.C. Regulatory Information Number (RIN) before the start of the third biweekly pay 6304(d)(1)(B).) The implementing and title, by the following method: period prior to the end of the leave year regulations at 5 CFR 630.308(a) require Federal Rulemaking Portal: http:// (typically late November or early annual leave to be scheduled in writing www.regulations.gov. Follow the December). Any annual leave scheduled before the start of the third biweekly pay instructions for submitting comments. after that date will be forfeited if not period prior to the end of the leave year All submissions received must used by the final day of the leave year. in order to meet the statutory include the agency name and docket The regulations provide that, once the requirement for being ‘‘scheduled in number or RIN for this document. The agency head or designee has made advance’’ unless 5 CFR 630.308(b) general policy for comments and other appropriate determinations, employees applies.

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These requirements were difficult to Scheduling of Annual Leave by to have been scheduled in advance. meet in the aftermath of the September Employees Determined Necessary To Those regulations were issued in 11, 2001, terrorist attacks on the World Respond to Certain National response to specific emergencies. Trade Center and the Pentagon. The Emergencies However, going forward, OPM has terrorist attacks occurred on September Section 6304 of title 5, United States determined that it would be prudent to 11, 2001, which was very late in the Code, establishes limitations on the issue a generally applicable regulation 2001 leave year and only a couple of amount of annual leave an employee to provide OPM with the flexibility to months before December 1, 2001, the may carry over from one leave year to respond quickly to a future national date by which employees were required the next. Most employees may carry emergency, rather than promulgate new to schedule their annual leave subject to over no more than 240 hours of annual rules for each emergency, resulting in forfeiture in order for it to be considered leave to the next leave year. However, potential delays in implementation. To accomplish this goal, OPM is for restoration. Many employees were 5 U.S.C. 6304(d)(1) provides that excess replacing the reserved 5 CFR 630.310 involved in the response to that national annual leave lost because of ‘‘exigencies with a new 5 CFR 630.310 entitled emergency, and it was clear that their of the public business when the annual ‘‘Scheduling of annual leave by involvement would preclude their use leave was scheduled in advance . . . employees determined necessary to of annual leave before January 12, 2002, shall be restored to the employee.’’ For respond to certain national which was the end of the 2001 leave the purpose of Federal leave emergencies.’’ Below we provide an year. Because it was known in advance administration, an exigency of the explanation of the provisions in interim that it was not going to be possible for public business occurs when the 5 CFR 630.310. Hereafter in this employing agency determines there is a such employees to be absent on leave, SUPPLEMENTARY INFORMATION, references OPM published those interim pressing need for an employee’s service, to statutory provisions in title 5, United regulations, which directly addressed and the employee cannot use his or her States Code, and to regulatory this scheduling requirement and excess annual leave because there are no provisions in title 5, Code of Federal deemed that any annual leave forfeited other practical alternatives available to Regulations, will generally be referred to as a result of an employee’s work on the accomplish the work by a given by section number without restating the national emergency would be deemed to deadline. full title 5 reference. have been scheduled in advance for the At certain times when the President purpose of satisfying the scheduling declares a national emergency, the OPM’s Authority To Initiate Restored requirements at 5 U.S.C. 6304(d)(1)(B) services of many employees in Federal Annual Leave Streamlined Process and 5 CFR 630.308. agencies will be essential to respond to In order to initiate a streamlined that national emergency. As a result, process to restore forfeited annual leave, Although the national emergency by many of these employees will be faced reason of the terrorist attacks is still in the Director of OPM has the authority to with the possible forfeiture of ‘‘use or respond to a specific national effect (see 84 FR 48545, Sept. 13, 2019), lose’’ annual leave because they must employees performing work towards emergency as declared by the President. remain on the job to work towards the OPM’s central response will allow that national emergency are now better fulfillment of the agencies’ missions agencies to restore annual leave able to schedule and take annual leave. during the critical response period. In expeditiously. Under this regulation, Because the regulation was issued to the normal course, and in the absence OPM will notify agencies that they may address the difficulty of employees of this new regulation, in order for utilize this authority to restore annual needing to be in a constant work status annual leave to be considered for leave to employees whose work is and their agencies not being able to restoration, it must have been scheduled considered essential for the particular approve any of their requests to before the start of the third biweekly pay national emergency. schedule and take annual leave, and period prior to the end of the leave year. Under the National Emergencies Act these employees have since been able to This requirement means that agencies (50 U.S.C. 1601 et seq.), the President schedule and take annual leave, and their employees would be faced may pronounce a national emergency § 630.311 is no longer needed. with the administrative burden of when he or she considers it appropriate. Therefore, going forward, the normal scheduling, canceling, and restoring Once the President has declared a requirements for restoration of annual such leave for each of these employees national emergency, the President’s leave for an exigency of the public at a time when all available attention declaration is published in the Federal business will apply to any employee and energy should be focused on the Register. still performing work on activities national emergency. Paragraph (a)(1) of the new § 630.310 related to the ‘‘National Emergency by As referenced above, OPM has provides that the Director of OPM may Reason of Certain Terrorist Attacks.’’ In previously issued regulations such as 5 deem a specific national emergency as order for an agency to consider restoring CFR 630.311, Scheduling of annual declared by the President under the annual leave to an employee performing leave by employees determined National Emergencies Act to be an such work, the employee must have necessary to respond to the ‘‘National exigency of the public business for the followed the leave scheduling Emergency by Reason of Certain purpose of restoring annual leave requirements of 5 U.S.C. 6304(d)(1)(B) Terrorist Attacks,’’ and the previously forfeited under 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.308 (i.e., the annual rescinded 5 CFR 630.310, Scheduling of and will notify agencies of this decision. leave must have been scheduled in annual leave by employees determined Since the passage of the National writing before the start of the third necessary for Year 2000 computer Emergencies Act, the President has biweekly pay period prior to the end of conversion efforts. Both of these prior declared various national emergencies. the leave year) and the agency must regulations deemed the national However, few have required a sustained have determined that there was an emergency and the Y2K circumstances response from large portions of the urgent need for the employee to perform exigencies of the public business for civilian workforce, which would work related to the national emergency purposes of restoration of annual leave. preclude many employees from being such that the employee’s annual leave The regulations also deemed annual able to use their annual leave to avoid was cancelled. leave that was forfeited for these reasons forfeiture. For example, some national

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emergencies may entail a response of designation is necessary because the national emergency and the need for the Armed Services rather than the employees whose work is considered employees’ services during the national civilian workforce. Therefore, only essential in responding to a national emergency will be restored under 5 certain national emergencies will rise to emergency will vary depending on the U.S.C. 6304(d)(1)(B) and placed in a the level of being a national emergency nature of the emergency. For example, separate restored leave account. that will also qualify as an exigency of for the ‘‘National Emergency by Reason the public business under this of Certain Terrorist Attacks,’’ the Time Limit for Use of Restored Leave regulation. services of certain intelligence analysts Paragraph (d) of the new § 630.310 As noted above, for those emergencies may have been considered essential to parallels the current § 630.306 and that qualify under such circumstances, the emergency response, whereas for the provides the rules governing the this generally applicable regulation will ‘‘National Emergency Concerning the timeframes in which an employee must provide agencies with flexibility to Novel Coronavirus Disease (COVID–19) schedule and use annual leave forfeited permit restoration of annual leave Outbreak,’’ the services of employees under these regulations. Employees who expeditiously. The OPM Director such as physicians, nurses, certain already have large restored annual leave expects to make a determination clinical laboratory scientists, and public accounts and employees remaining in pursuant to these regulations when a health specialists may be more likely to positions performing work that is certain national emergency as declared be designated as essential to the essential to respond to the national by the President will require the service emergency response. The agency head emergency for an extended period of of Federal employees on a large scale, (or designee) may make such a time may accrue large amounts of such that employees will be unable to determination for groups of employees annual leave in their accounts. Under use annual leave to prevent forfeiture of or for individual employees. Once the the current regulations, the affected the leave. Only when the Director of agency head (or designee) has made employees would have to schedule and OPM makes such a determination and such a determination, the agency head use all of the restored annual leave by provides notice to agencies of such (or designee) must inform the the end of the leave year ending 2 years determination may agencies use the designated employees or group of after the termination date of the authority. employees in writing of this exigency of the public business. As a Determinations and Communication by determination and its application to result, employing agencies would have Agency Head or Designee them. It is critical that such employees to deal with the consequence of know that their services have been Paragraph (a)(2) of the new § 630.310 employees using sizeable amounts of designated as essential during the leave within 2 to 3 years after the end requires each agency head to take emergency because the employees need proactive steps to establish procedures of the national emergency. At the same to know that the normal requirement to time, annual leave that accrues during and policies necessary to administer schedule annual leave in writing before this annual leave restoration authority that 2- to 3-year period would routinely the start of the third biweekly pay create a ‘‘use or lose’’ situation. and to update them as necessary so that period prior to the end of the leave year, To help alleviate this situation, they are available for immediate use as required by § 630.308, is not during a declared national emergency. applicable during the designated time § 630.310(d) provides that annual leave The interim regulations require all period. Employees also need to restored as a result of the exigency of agency heads to create these policies understand how the other provisions in public business caused by the national and procedures as part of their § 630.310 apply to them. emergency will have the same time emergency planning, meaning that The regulations provide that the limits for restoration as are currently agencies must establish such policies agency’s determination may not be used for Department of Defense (DoD) and procedures to be available for use made by any official whose leave would employees in installations undergoing during any national emergency for be affected by the decision. closure or realignment. (See which OPM issues a notice under § 630.306(b).) A full-time employee will paragraph (a)(1). In this way, all Annual Leave Deemed Scheduled in be required to schedule and use excess agencies will be prepared to Advance annual leave of 416 hours or less by the immediately use this authority for any Paragraph (c) of the new § 630.310 end of the leave year in progress 2 years and all future national emergencies for simplifies the procedures for restoring after the date fixed by the agency head which it may be necessary. annual leave forfeited as a result of the (or designee) as the termination date of As provided in paragraph (b), once national emergency. In many instances, the exigency of the public business. The the Director of OPM informs agencies as it is known in advance that it is not agency will extend that period by 1 that it has deemed a certain national possible for designated employees leave year for each additional 208 hours emergency an exigency of the public involved in the national emergency to of excess annual leave or any portion business for purposes of the restoration be absent on annual leave, the thereof. A part-time employee will be of annual leave, each agency head (or scheduling and canceling of such leave required to schedule and use excess designee), in his or her sole and places an unnecessary administrative annual leave in an amount equal to or exclusive discretion, must perform the burden on the employees and the less than 20 percent of the number of following actions. The agency head (or agencies involved. Paragraph (c) hours in the employee’s scheduled designee) will be required to identify simplifies the administrative process by annual tour of duty by the end of the any employees covered under this deeming annual leave forfeited in a leave year in progress 2 years after the annual leave restoration authority leave year as a result of a national date the employee is no longer subject because they are affected by the emergency for which OPM issues a to the exigency. The agency will extend exigency of the public business notification under paragraph (a) to have this period by 1 leave year for each described in the OPM notification, due been scheduled in advance for the additional number of hours of excess to their services being considered purpose of satisfying the requirements annual leave, or any portion thereof, essential to the response to the national in 5 U.S.C. 6304(d)(1)(B) and § 630.308. equal to 10 percent of the number of emergency, and they therefore cannot Therefore, annual leave forfeited at the hours in the employee’s scheduled use their annual leave. This agency end of a leave year because of the annual tour of duty.

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We are also making a concurrent Termination of the Exigency as It response to the national emergency or change to the regulations related to Affects Employees that such employees can once again uncommon tours of duty at § 630.210 by Paragraph (f) of the new § 630.310 adhere to the normal leave requesting adding a new paragraph (d) to clarify provides parameters for monitoring the procedures at § 630.308(a). For example, that in applying sections of the back pay agency response to the declared national a hospital struggling to treat patients regulations at § 550.805(g), the emergency and conditions under which affected by COVID–19 may require the regulations at § 630.306(b) for DoD the provisions of § 630.310 will no services of all hospital employees in installations undergoing closure, and longer be applicable to specific response to the need. As operations go these interim regulations to employees employees or groups of employees and back to normal, the agency head (or on such tours of duty, the referenced the normal annual leave forfeiture rules designee) could determine the specific number of hours for full-time employees will again apply to them. Employees date that operations are back to normal, (416 hours and 208 hours) are to be whose services are required in response and a group of cardiologists are able to proportionally adjusted based on the to the national emergency will all, at request leave under normal conditions percentage amount by which the some point, generally be able to again as of a date specified by the agency head number of hours in the uncommon tour schedule and take annual leave (or designee) and declare the exigency of duty exceeds the number of hours in following the normal procedures in to no longer apply to those employees. a regular full-time tour of duty. For § 630.308(a). Therefore, it is incumbent However, the agency head (or designee) example, if the uncommon tour of duty on the agency to determine, for any may determine that the services of consists of 120 hours in a biweekly pay exigency of the public business, when pulmonary specialists may still be period instead of the 80 hours for a any employee is no longer affected by regular full-time employee, the required and thus the exigency still the exigency to the extent that the percentage adjustment would be 50 applies to these employees. Because the employee cannot schedule and take percent [(120/80) ¥ 1]; accordingly, 416 continual and ongoing need for hours would be converted to 624 hours annual leave. The regulations therefore employees’ services such that they and 208 hours would be converted to lay out when the national emergency as cannot schedule annual leave according 312 hours. Section 630.310(d)(1) an exigency of the public business must to the normal procedures will references this new regulation regarding be terminated. eventually end, the regulations provide Section 630.310(f)(1) requires the employees on uncommon tours of duty that the exigency terminates on the day agency head (or designee) to continually at § 630.210(d). that is 12 months after the national monitor the agency response to the emergency has been declared, except Treatment of Current Restored Leave national emergency and determine that the agency head (or designee), in Accounts whether the services of individual his or her sole and exclusive discretion, Paragraph (e) of the new § 630.310 employees or groups of employees may extend this deadline annually by recognizes that some employees who continue to be required in response to an additional 12 months. Under no will be involved in responding to the the emergency such that annual leave circumstances may an agency grant exigency of the public business may not be scheduled according to the more than two 12-month extensions determined by the Director of OPM will normal procedures described in under this paragraph in connection with already have an ‘‘active’’ restored leave § 630.308(a). This is a necessary role any national emergency, thus this account—i.e., an account of restored that the agency head (or designee) must authority may not be applied for more annual leave that was established under perform in order to use this authority for than a total of 3 years from the initial other conditions permitting restoration its intended purpose. date of the declared emergency. The of annual leave under 5 U.S.C. 6304(d). Section 630.310(f)(2) makes the reason for this termination at the 3-year We are including paragraph (e) to agency head (or designee) responsible anniversary is that there is already prevent such employees from forfeiting for fixing a specific date as the another authority for an extended leave in their restored leave accounts. termination date of the exigency of the exigency of the public business at public business for each affected Because there is no authority to restore § 630.309 that provides authority for an employee or group of employees based previously restored annual leave, exigency that lasts more than 3 calendar on application of provisions in employees with restored annual leave years and meets other requirements. paragraphs (i) through (v). The exigency who cannot take annual leave because Finally, the regulations provide that the of the public business as it affects an their services are considered essential to exigency terminates when an employee individual employee or group of the national emergency response would whose services were determined to be employees must be terminated at the forfeit any previously restored annual essential for response to the national earliest occurrence of one of a series of leave subject to forfeiture at the end of emergency moves to a position in which possible events. The exigency may end the leave year. The interim regulation at the employee is not performing services when the President declares an end to § 630.310(e) alleviates this problem by considered essential to responding to canceling the time limitation for using the national emergency. It may also end the national emergency. active restored annual leave for the when the Director of OPM deems the entire period during which employees’ national emergency to no longer be an Section 630.310(f)(3) requires the services are determined to be essential exigency of the public business for the agency head (or designee) to inform to respond to the national emergency. purposes of this regulation. As time both the affected employees and the When coverage for an employee under passes, it can be that the services of agency payroll provider in writing of this section ends due to the termination fewer and fewer employees are required this termination date. Payroll providers date of the exigency of the public in response to the national emergency. need to know the date of the end of the business fixed by the agency, as Therefore the exigency of the public exigency in order to set the date when described in paragraph (f)(2), a new time business may also end when the agency the restored annual leave will expire. limit will be established under head (or designee), in his or her sole and The affected employees also need to § 630.310(d) for using all restored leave exclusive discretion, determines that the know this date so they can plan to use available to the employee under 5 employee’s or group of employees’ the restored annual leave before it U.S.C. 6304(d). services are no longer essential to the expires.

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Employees No Longer Involved With contrary to the public interest to delay missions during a national emergency, the National Emergency a final regulation until a public notice which will have a corresponding effect Paragraph (g) of the regulations allows and comment process has been on the public. an agency to consider restoration of completed. OPM also is waiving general Many employees are unable to take annual leave forfeited at the end of the notice of proposed rulemaking under annual leave because they are required the Civil Service Reform Act’s parallel leave year to an employee whose to support their agency’s mission- rulemaking provision, 5 U.S.C. involvement in the national emergency related response to COVID–19. Because 1103(b)(3), because the interim rule is ends during the leave year if the agency employees may not take annual leave, temporary in nature and necessary to be determines that there is a correlation they are also not contemplating implemented expeditiously as a result between the lack of advance scheduling scheduling such leave because the of an existing emergency, as well and the employee’s services in response agency needs employees to continue to possible unanticipated future to the national emergency. support vital work-related functions emergencies. related to the national emergency. In As noted earlier, § 630.308 currently The conclusion of a public notice and order to alleviate this burden on requires that before forfeited annual comment period before the rule is agencies and employees, this interim leave may be considered for restoration, finalized would be impracticable regulation provides that, upon the the leave must have been scheduled in because it would impede due and agency’s determination, an employee writing before the start of the third timely execution of the functions of would not need to meet the normal biweekly pay period prior to the end of OPM, employing agencies, and payroll the leave year. We are concerned about providers. scheduling requirements under 5 CFR the possible consequences of requiring In order for the streamlined 630.308 in order to qualify for the advance scheduling for an employee or restoration process to occur, the restoration of any forfeited annual leave. group of employees when the national regulations require agencies to establish For the 2020 leave year, the date by emergency to which affected employees internal policies and procedures before which use or lose annual leave must be have been responding terminates (as using this new authority. For larger scheduled is November 21, 2020. Any described in paragraph (f)) during the agencies, policies must be established at employee to which these regulations latter portion of a leave year. It is the headquarters level and then would apply will need to know well in possible that such employees would communicated to component levels. advance of this scheduling date that have annual leave in excess of the Significant changes to personnel they are not required to schedule their maximum limitation but would still be processing also may be required. After annual leave before that date and may unable to schedule it in time for it to be implementing policies are established, instead focus on their mission and restored. the agency head (or designee) needs to required work directly related to OPM believes such annual leave may identify all affected employees and COVID–19. be considered for restoration. Section communicate to those employees that In addition, OPM has determined that 630.310(g) requires affected employees they are subject to this new authority extending the regulation to address to make a reasonable effort to comply and the scheduling requirement does potential future emergencies, and not with the advance scheduling not apply to them. All this must be done only COVID–19, meets the above criteria requirement in § 630.308(a). However, prior to the November 21, 2020, for a waiver. The processes that the the head of an agency (or designee), in scheduling requirement. regulation outlines for potential future his or her sole and exclusive discretion, There was insufficient time from the emergencies are the same as those that may exempt an employee from the President’s declaration of a national OPM followed in the two prior cited advance scheduling requirement if the emergency in response to the COVID–19 emergencies and that OPM intends to employee can show that he or she was public health crisis on March 13, 2020, follow during COVID–19. The involved in work necessary to respond for OPM to complete a notice and regulations engage agencies in to the national emergency during the comment rulemaking process in time for contingency planning for future such leave year and was unable to comply agencies, payroll providers, and instances and describe the process that with the scheduling requirement under employees to prepare for the rule in OPM intends to follow in such § 630.308(a) because of circumstances advance of the November 21, 2020, instances. Only at the time of any future beyond his or her control. Because the scheduling requirement. In addition, national emergency do the regulations agency may determine that there was OPM’s pay and leave policy resources require a determination by the OPM sufficient time for the employee to have been engaged during the same Director that a particular emergency is schedule and use annual leave before period in implementing the pay and an exigency of the public business. The the end of the leave year, this provision leave requirements of the Families First comment period noted above will does not guarantee that excess annual Coronavirus Response Act (Pub. L. 116– enable OPM to consider any necessary leave will be restored. 127) and the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. changes for future emergencies in the Miscellaneous Technical Amendments 116–136). final rule. OPM is amending § 630.306(a) to add The conclusion of a public notice and Accordingly, in order to give practical a reference to this regulation. OPM is comment period before the rule is effect to these regulations, I find that also amending § 630.308(a) to remove finalized would also be contrary to the good cause exists to waive the general the reference to the rescinded § 630.311. public interest because it would result notice of proposed rulemaking pursuant in serious damage to important to 5 U.S.C. 553(b)(B). The interim final Waiver of Notice of Proposed Rule interests. Implementing the regulation rule is temporary in nature, and Making will be resource-intensive for agencies. expeditious timing is required because OPM is issuing this rulemaking as an Requiring agencies to wait until the of the circumstances facing agencies interim final rule and has determined conclusion of public notice and during the COVID–19 emergency. OPM that, under the Administrative comment procedures to implement the will promulgate a final rule as soon as Procedure Act (APA), 5 U.S.C. regulation under a shorter deadline practical after receiving public 553(b)(B), it would be impracticable and would be disruptive to agencies’ comments on the interim final rule.

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Waiver of Delay in Effective Date Authority: 5 U.S.C. chapter 63 as follows: (3) The date the employee is Subparts A through E issued under 5 U.S.C. determined to be recovered and able to OPM is waiving the 30-day delayed 6133(a) (read with 5 U.S.C. 6129), 6303(e) return to duty if the leave was forfeited effective date, and making this rule and (f), 6304(d)(2), 6306(b), 6308(a) and 6311; because of sickness. effective on the date of publication, subpart F issued under 5 U.S.C. 6305(a) and because under 5 U.S.C. 553(d)(1), this is 6311 and E.O. 11228, 30 FR 7739, 3 CFR, * * * * * ‘‘a substantive rule which grants or 1974 Comp., p. 163; subpart G issued under ■ 4. Amend § 630.308 by revising recognizes an exemption or relieves a 5 U.S.C. 6305(c) and 6311; subpart H issued paragraph (a) to read as follows: restriction’’ to permit the streamlined under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) and 6326(b); subpart I issued under 5 § 630.308 Scheduling of annual leave. restoration of forfeited annual leave. In U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and addition, I find, under 5 U.S.C. (a) Except as provided in paragraph 6340; subpart J issued under 5 U.S.C. 6340, (b) of this section and § 630.310, before 553(d)(3), that good cause exists for 6363, 6365(d), 6367(e), 6373(a); subpart K making this rule effective in fewer than issued under 5 U.S.C. 6391(g); subpart L annual leave forfeited under 5 U.S.C. 30 days—i.e., effective on the date of issued under 5 U.S.C. 6383(f); subpart M 6304 may be considered for restoration publication—because as described issued under sec. 2(d), Pub. L. 114–75, 129 under that section, use of the annual above, an immediate effective date is Stat. 641 (5 U.S.C. 6329 note); and subpart P leave must have been scheduled in necessary to minimize harm and issued under 5 U.S.C. 6329c(d); and subpart writing before the start of the third disruption to employees, agencies, and Q issued under 5 U.S.C. 6387. biweekly pay period prior to the end of the leave year. payroll providers, and because a Subpart B—Definitions and General * * * * * delayed effective date is not necessary Provisions for Annual and Sick Leave to give affected parties a reasonable time ■ 5. Add § 630.310 to read as follows: to adjust their behavior before the final § 630.210 [Amended] rule takes effect. An immediate effective § 630.310 Scheduling of annual leave by ■ 2. Amend § 630.210 by adding date will give affected employees the employees whose work is essential to paragraph (d) to read as follows: respond to certain national emergencies. benefit of these new provisions as quickly as possible. § 630.210 Uncommon tours of duty. (a)(1) The Director of OPM may deem a specific national emergency declared * * * * * Executive Order 13563 and Executive by the President under the National Order 12866 (d) In applying § 550.805(g) of this Emergencies Act (50 U.S.C. 1601, et chapter, and §§ 630.306(b), and This rule has been designated a seq.) to be an exigency of the public 630.310(d), the referenced number of business for the purpose of restoring ‘‘significant regulatory action’’ and has hours for full-time employees (416 been reviewed by the Office of forfeited annual leave under 5 U.S.C. hours and 208 hours) shall be 6304(d)(1)(B) and will notify agencies in Management and Budget in accordance proportionally adjusted based on the with E.O. 13563 and 12866. writing when this decision is made. percentage amount by which the (2) The head of each agency is Executive Order 13771 number of hours in the uncommon tour responsible for the proper of duty exceeds the number of hours in administration of this authority. All This rule is not subject to the a regular full-time tour of duty. For requirements of E.O. 13771 because this heads of agencies are required to example, if the uncommon tour of duty establish and periodically update (as rule results in no more than de minimis consists of 120 hours in a biweekly pay costs. necessary) procedures to administer this period instead of the 80 hours for a authority so that these policies are in Regulatory Flexibility Act regular full-time employee, the place and immediately available for use percentage adjustment would be 50 I certify that this regulation will not ¥ any time the Director of OPM notifies percent [(120/80) 1]; accordingly, 416 agencies of a determination under have a significant economic impact on hours would be converted to 624 hours a substantial number of small entities paragraph (a)(1) of this section. and 208 hours would be converted to (b)(1) Once the Director of OPM has because it will apply only to Federal 312 hours. agencies and employees. issued a notification to agencies under Subpart C—Annual Leave paragraph (a)(1), the head of each Paperwork Reduction Act agency (or designee) must, in his or her Requirements ■ 3. Amend § 630.306 by revising sole and exclusive discretion, do the This rule does not impose any new paragraph (a) to read as follows: following: reporting or record-keeping (i) Make determinations identifying § 630.306 Time limit for use of restored the specific employees or groups of requirements subject to the Paperwork annual leave. Reduction Act. employees who are performing services (a) Except as otherwise authorized that are essential in responding to the List of Subjects in 5 CFR Part 630 under paragraphs (b) and (c) of this national emergency designated as an Government employees. section, § 630.310(d), or other exigency of the public business and who regulation, annual leave restored under are thus qualified for coverage under Office of Personnel Management. 5 U.S.C. 6304(d) must be scheduled and this section; and Alexys Stanley, used not later than the end of the leave (ii) Inform covered employees in Regulatory Affairs Analyst. year ending 2 years after: writing of any such determination and Accordingly, OPM is amending part (1) The date of restoration of the its application to them. 630 of title 5 of the Code of Federal annual leave forfeited because of (2) A determination under paragraph Regulations as follows: administrative error; or (b)(1)(i) of this section may not be made (2) The date fixed by the agency head, by any official whose leave would be PART 630—ABSENCE AND LEAVE or his or her designee, as the affected by the determination. termination date of the exigency of the (c) For any employee determined ■ 1. The authority citation for part 630 public business that resulted in under paragraph (b) of this section to be continues to read as follows: forfeiture of the annual leave; or covered under this section who forfeits

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annual leave under 5 U.S.C. annual leave may not be scheduled the head of the agency (or designee) 6304(d)(1)(B) at the beginning of a leave according to the normal procedures determines that the employee was year, the forfeited annual leave is described in § 630.308(a). unable to comply with the advance deemed to have been scheduled in (2) The agency head (or designee) scheduling requirement because of advance for the purpose of 5 U.S.C. must fix a date as the termination date circumstances beyond the employee’s 6304(d)(1)(B) and § 630.308. of the exigency of the public business control. (d) With respect to annual leave for each employee or group of forfeited under paragraph (c) of this employees as provided in this § 630.311 [Removed] section, the annual leave must be paragraph. The exigency of the public ■ 6. Remove § 630.311. restored under 5 U.S.C. 6304(d)(1)(B) business as it affects an individual [FR Doc. 2020–16823 Filed 8–7–20; 8:45 am] employee or group of employees must subject to the following time limits: BILLING CODE P (1) A full-time employee must be terminated on the date one of the schedule and use excess annual leave of following events occurs, whichever is earliest: 416 hours or less by the end of the leave DEPARTMENT OF TRANSPORTATION year in progress 2 years after the date (i) When the President declares an fixed by the agency head (or designee) end to the national emergency; Federal Aviation Administration under paragraph (f)(2) of this section as (ii) When the Director of OPM deems the national emergency to no longer be the termination date of the exigency of 14 CFR Part 39 the public business. The agency must an exigency of the public business for extend this period by 1 leave year for purposes of this authority; [Docket No. FAA–2018–0180; Project (iii) When the agency head (or Identifier 2017–CE–043–AD; Amendment each additional 208 hours of excess designee), in his or her sole and 39–21146; AD 2020–13–01] annual leave or any portion thereof. exclusive discretion, determines that the RIN 2120–AA64 Note 1 to paragraph (d)(1): For an services of an employee or group of employee on an uncommon tour of duty, the employees are no longer essential to the Airworthiness Directives; Daher conversion rules in § 630.210(d) regarding response to the national emergency or Aircraft Design, LLC (Type Certificate the referenced number of hours for full-time employees (416 hours and 208 hours) must that such employees are able to follow Previously Held by Quest Aircraft be applied. the normal leave scheduling procedures Design, LLC), Airplanes in § 630.308(a); (2) A part-time employee must (iv) On the day that is 12 months after AGENCY: Federal Aviation schedule and use excess annual leave in the national emergency has been Administration (FAA), DOT. an amount equal to or less than 20 declared, an agency head (or designee), ACTION: Final rule; correction. percent of the number of hours in the in his or her sole and exclusive SUMMARY: The FAA is correcting an employee’s scheduled annual tour of discretion, may extend this deadline airworthiness directive (AD) that duty by the end of the leave year in annually by an additional 12 months; published in the Federal Register. The progress 2 years after the date fixed by under no circumstances may an agency AD applies to all Daher Aircraft Design, the agency head (or designee) under grant more than two 12-month LLC (type certificate previously held by paragraph (f)(2) of this section as the extensions under this paragraph in Quest Aircraft Design, LLC), Model termination date of the exigency of the connection with any national KODIAK 100 airplanes. As published, public business. The agency must emergency (however, § 630.309 may the type certificate (TC) holder in the extend this period by 1 leave year for apply in the case of an extended regulatory heading that identifies the each additional number of hours of exigency); or excess annual leave, or any portion (v) When an employee whose services AD is incorrect. This document corrects thereof, equal to 10 percent of the were determined to be essential during that error. In all other respects, the number of hours in the employee’s the national emergency moves to a original document remains the same; scheduled annual tour of duty. position not involving services however, for clarity, the FAA is (e) The time limits established under determined by the agency to be essential publishing the entire rule in the Federal paragraphs (d)(1) and (d)(2) of this to the response to the national Register. section for using restored annual leave emergency. DATES: This correction is effective accounts shall not apply for the entire (3) The agency head (or designee) August 17, 2020. The effective date of period during which an employee’s must inform both the affected AD 2020–13–01 remains August 17, services are determined by the agency to employees and the agency payroll 2020. be essential for the response to the provider in writing of the termination The Director of the Federal Register national emergency. When coverage date as determined in paragraph (f)(2) of approved the incorporation by reference under paragraphs (b) and (c) of this this section. of certain publications listed in this AD section ends due to the termination date (g) When the agency head (or as of August 17, 2020 (85 FR 41906, July of the exigency of the public business designee) fixes a termination date of the 13, 2020). fixed by the agency under paragraph exigency of the public business under ADDRESSES: For service information (f)(2), a new time limit will be paragraph (f) of this section, each identified in this final rule, contact established under paragraph (d) of this affected employee must make a Kodiak Aircraft Company, Inc., 1200 section for all annual leave restored to reasonable effort to comply with the Turbine Drive, Sandpoint, Idaho 83864; an employee under 5 U.S.C. 6304(d). scheduling requirement in § 630.308(a). phone: (208) 263–1111 or 1 (866) 263– (f)(1) The agency head (or designee) The head of the agency (or designee), in 1112; email: [email protected]; must continually monitor the agency his or her sole and exclusive discretion, internet: http://Kodiak.aero/support. response to the national emergency and may exempt such an employee from the You may view this referenced service determine whether the services of advance scheduling requirement in information at the FAA, Airworthiness individual employees or groups of § 630.308(a) if coverage under Products Section, Operational Safety employees continue to be essential for paragraphs (a) and (b) of this section Branch, 901 Locust, Kansas City, the response to the emergency such that terminated during the leave year and if Missouri 64106. For information on the

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availability of this material at the FAA, Related Service Information Under 1 PART 39—AIRWORTHINESS call 816–329–4148. It is also available CFR Part 51 DIRECTIVES on the internet at https:// www.regulations.gov by searching for The FAA reviewed Quest Aircraft ■ 1. The authority citation for part 39 and locating Docket No. FAA–2018– Field Service Instruction FSI–147, continues to read as follows: 0180. Revision 00, Release Date January 29, Authority: 49 U.S.C. 106(g), 40113, 44701. 2018, which provides instructions for Examining the AD Docket inspection and, if necessary, § 39.13 [Corrected] replacement of the NLG fork. The FAA ■ You may examine the AD docket on 2. The FAA amends § 39.13 by adding reviewed pages 32_110 and 32_111, the following new airworthiness the internet at https:// section 3252, Shimmy Damper, Chapter directive (AD): www.regulations.gov; or in person at the 32, Landing Gear, of Quest Aircraft Docket Management Facility between 9 2020–13–01 Daher Aircraft Design, LLC Company Kodiak 100 Maintenance a.m. and 5 p.m., Monday through (Type Certificate previously held by Manual, Revision No. 21, dated Quest Aircraft Design, LLC): Friday, except Federal holidays. The AD Amendment 39–21146; Docket No. docket contains this AD, any comments February 15, 2017, which contains procedures for inspecting the shimmy FAA–2018–0180; Project Identifier received, and other information. The 2017–CE–043–AD. damper system. The FAA also reviewed address for Docket Operations is Docket (a) Effective Date Management Facility, U.S. Department Quest Aircraft Field Service Instruction FSI–146, Revision 00, Release Date This airworthiness directive (AD) is of Transportation, Docket Operations, effective August 17, 2020. M–30, West Building Ground Floor, April 18, 2017, which provides Room W12–140, 1200 New Jersey instructions for modifying the shimmy (b) Affected ADs Avenue SE, Washington, DC 20590. damper attach bracket. This service None. information is reasonably available (c) Applicability FOR FURTHER INFORMATION CONTACT: because the interested parties have Wade Sullivan, Aerospace Engineer, access to it through their normal course This AD applies to Daher Aircraft Design, LLC (type certificate previously held by Airframe Section, FAA, Seattle ACO of business or by the means identified Branch, 2200 South 216th St., Des Quest Aircraft Design, LLC), Model KODIAK in the ADDRESSES section. 100 airplanes, all serial numbers, certificated Moines, WA 98198; phone and fax: 206– in any category. 231–3530; email: Wade.Sullivan@ Good Cause for Adoption Without Prior faa.gov. Notice (d) Subject Joint Aircraft System Component (JASC)/ SUPPLEMENTARY INFORMATION: As Section 553(b)(3)(B) of the Air Transport Association (ATA) of America published, AD 2020–13–01, Administrative Procedure Act (APA) (5 Code 32, Landing Gear. Amendment 39–21146 (85 FR 41906, U.S.C. 551 et seq.) authorizes agencies (e) Unsafe Condition to dispense with notice and comment July 13, 2020), applies to all Daher This AD was prompted by reports from the Aircraft Design, LLC (type certificate procedures for rules when the agency manufacturer of fatigue cracks on the nose previously held by Quest Aircraft for ‘‘good cause’’ finds that those landing gear (NLG) fork. The FAA is issuing Design, LLC), Model KODIAK 100 procedures are ‘‘impracticable, this AD to detect and prevent fatigue airplanes. AD 2020–13–01 requires a unnecessary, or contrary to the public cracking of the NLG fork. The unsafe interest.’’ Section 553(d)(3) of the APA condition, if not corrected, could result in one-time inspection to determine if an separation of the NLG fork with consequent affected nose landing gear (NLG) fork is requires that agencies publish a rule not reduced control on landing. If the NLG fork installed, repetitive inspections of the less than 30 days before its effective separates on an unimproved surface, the risk affected NLG fork for cracks, repetitive date, except as otherwise provided by of the NLG digging in and the airplane inspections of the shimmy damper the agency for good cause found and overturning on the ground increases. bracket for looseness and of the shimmy published with the rule. (f) Compliance damper system for damaged Since this action only corrects the TC Comply with this AD within the components if an affected NLG fork is holder in a regulatory heading, the FAA compliance times specified, unless already installed, and rework/replacement of finds that notice and public comment done. parts as necessary. under 5 U.S.C. 553(b) is unnecessary. (g) Inspection for Type of NLG Fork For the same reason, the FAA finds that Need for the Correction Within 25 hours time-in-service (TIS) after good cause exists under 5 U.S.C. 553(d) August 17, 2020 (the effective date of this As published, the TC holder in the for making this rule effective in less AD), inspect the airplane to determine if an regulatory heading that identifies the than 30 days. NLG fork part number (P/N) 100–410–7001 AD is incorrect. The heading incorrectly (type A) or an NLG fork P/N 100–410–7013 List of Subjects in 14 CFR Part 39 (type B) is installed. If you determine that an identified the TC holder as ‘‘Quest NLG fork P/N 100–410–7013 (type B) is Aircraft Design, LLC.’’ The correct TC Air transportation, Aircraft, Aviation installed during the inspection, no further holder is Daher Aircraft Design, LLC safety, Incorporation by reference, action is required by this AD. If a review of (Type Certificate previously held by Safety. the maintenance records can identify the P/ Quest Aircraft Design, LLC). N NLG fork that is installed, you may use a Adoption of the Correction maintenance records review in lieu of Although no other part of the inspecting the airplane to determine if an preamble or regulatory information has Accordingly, pursuant to the NLG fork P/N 100–410–7001 (type A) or an been corrected, for clarity, the FAA is authority delegated to me by the NLG fork P/N 100–410–7013 (type B) is publishing the entire rule in the Federal Administrator, the Federal Aviation installed. Register. Administration amends part 39 of the (h) Inspection of the NLG Fork for Cracks The effective date of this AD remains Federal Aviation Regulations (14 CFR (1) If you determine that an NLG fork P/ August 17, 2020. part 39) as follows: N 100–410–7001 (type A) is installed during

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the inspection required by paragraph (g) of (l) Alternative Methods of Compliance the availability of this material at NARA, this AD, within 25 hours TIS after August 17, (AMOCs) email [email protected], or go to https:// 2020 (the effective date of this AD) and (1) The Manager, Seattle ACO Branch, www.archives.gov/federal-register/cfr/ thereafter at intervals not to exceed 200 hours FAA, has the authority to approve AMOCs ibrlocations.html. TIS, do a fluorescent penetrant, dye for this AD, if requested using the procedures Issued on August 3, 2020. penetrant, or open-hole eddy current found in 14 CFR 39.19. In accordance with Ross Landes, inspection of the NLG fork for cracks by 14 CFR 39.19, send your request to your following section 5. Instructions in Quest principal inspector or local Flight Standards Deputy Director for Regulatory Operations, Aircraft Field Service Instruction FSI–147, District Office, as appropriate. If sending Compliance & Airworthiness Division, Revision 00, Release Date January 29, 2018. information directly to the manager of the Aircraft Certification Service. (2) If you find any cracks of the NLG fork certification office, send it to the attention of [FR Doc. 2020–17273 Filed 8–7–20; 8:45 am] during any inspection required by paragraph the person identified in paragraph (m) of this BILLING CODE 4910–13–P (h)(1) of this AD, before further flight, replace AD. Information may also be emailed to: 9- the NLG fork with an NLG fork P/N 100–410– [email protected]. (2) Before using any approved AMOC, 7013 (type B). Replacement of the NLG fork DEPARTMENT OF THE TREASURY with an NLG fork P/N 100–410–7013 (type B) notify your appropriate principal inspector, or lacking a principal inspector, the manager terminates the repetitive inspections required Financial Crimes Enforcement Network by paragraphs (h)(1) and (i)(1) of this AD. of the local flight standards district office/ certificate holding district office. (i) Inspection of the Shimmy Damper 31 CFR Part 1010 Bracket (m) Related Information (1) If you have not replaced an NLG fork For more information about this AD, Financial Crimes Enforcement P/N 100–410–7001 (type A) per the initial contact Wade Sullivan, Aerospace Engineer, Network; Withdrawal of the Notice of inspection and replacement requirements in Aerospace Engineer, Airframe Section, FAA, Finding Involving Banco Delta Asia paragraph (h) of this AD, then within 25 Seattle ACO Branch, 2200 South 216th St., SARL (BDA) hours TIS after August 17, 2020 (the effective Des Moines, WA 98198; phone and fax: 206– 231–3530; email: [email protected]. AGENCY date of this AD) and thereafter at intervals : Financial Crimes Enforcement not to exceed 200 hours TIS (until the NLG (n) Material Incorporated by Reference Network (FinCEN), Treasury. ACTION: Withdrawal of finding. fork is replaced with a P/N 100–410–7013 (1) The Director of the Federal Register (type B) fork), inspect the shimmy damper approved the incorporation by reference of bracket for looseness, and inspect the SUMMARY: This document withdraws the service information listed in this FinCEN’s finding that BDA is a financial shimmy damper system for damaged (loose, paragraph under 5 U.S.C. 552(a) and 1 CFR leaking, corroded, or worn) components, by part 51. institution of primary money laundering _ _ following pages 32 110 and 32 111, section (2) You must use this service information concern, which was issued pursuant to 3252, Shimmy Damper, found in Chapter 32, as applicable to do the actions required by Section 311 of the USA PATRIOT Act Landing Gear, of Quest Aircraft Company this AD, unless the AD specifies otherwise. (Section 311). Subsequent to the Kodiak 100 Maintenance Manual, Revision (3) The following service information was issuance of this withdrawal, FinCEN No. 21, dated February 15, 2017. approved for IBR on August 17, 2020 (85 FR will reassess whether BDA is presently (2) If a loose shimmy damper bracket is 41906, July 13, 2020). a financial institution of primary money found during any inspection required by (i) Pages 32_110 and 32_111, section 3252, paragraph (i)(1) of this AD, rework the laundering concern and additional Shimmy Damper, Chapter 32, Landing Gear, rulemaking is warranted. Elsewhere in shimmy damper bracket with interference-fit of Quest Aircraft Company Kodiak 100 bolts by following Quest Aircraft Field Maintenance Manual, Revision No. 21, dated this issue of the Federal Register, Service Instruction FSI–146, Revision 00, February 15, 2017. FinCEN is publishing a repeal of the Release Date April 18, 2017. Reworking the (ii) Quest Aircraft Field Service Instruction related rulemaking, published March shimmy damper bracket with the FSI–146, Revision 00, Release Date April 18, 19, 2007, imposing the fifth special interference-fit bolts terminates the repetitive 2017. measure against BDA. inspections required by paragraph (i)(1) of Note 1 to paragraph (n)(2)(ii) of this AD: DATES: As of August 10, 2020, the this AD. The Release Date is a pen-and-ink addition Notice of Finding, published September (3) If any other damaged components are that appears only on the Revision Notice 20, 2005, at 70 FR 55214, is withdrawn. found in the shimmy damper system during transmitted with FSI–146. any inspection required by paragraph (i)(1) of FOR FURTHER INFORMATION CONTACT: The (iii) Quest Aircraft Field Service this AD, before further flight, replace the FinCEN Resource Center at frc@ Instruction FSI–147, Revision 00, Release damaged components. Date January 29, 2018. fincen.gov. (j) Optional Terminating Action Note 2 to paragraph (n)(2)(iii) of this AD: I. Statutory Background In lieu of the NLG fork and shimmy The Release Date is a pen-and-ink addition On October 26, 2001, the President damper bracket inspections required by that appears only on the Revision Notice transmitted with FSI–147. signed into law the Uniting and paragraphs (h)(1) and (i)(1) of this AD, you Strengthening America by Providing may replace the NLG fork P/N 100–410–7001 (4) For service information identified in (type A) with an NLG fork P/N 100–410–7013 this AD, contact Kodiak Aircraft Company, Appropriate Tools Required to Intercept (type B). This replacement terminates the Inc., 1200 Turbine Drive, Sandpoint, Idaho and Obstruct Terrorism Act of 2001, inspection requirements of this AD, and no 83864; phone: (208) 263–1111 or 1 (866) 263– Public Law 107–56 (USA PATRIOT further actions are required. 1112; email: [email protected]; Act). Title III of the USA PATRIOT Act internet: http://Kodiak.aero/support. amends the anti-money laundering (k) Restriction of NLG Fork P/N 100–410– (5) You may view this service information 7001 (Type A) Installation provisions of the Bank Secrecy Act at the FAA, Airworthiness Products Section, (BSA), codified at 12 U.S.C. 1829b, 12 Once an NLG fork P/N 100–410–7013 (type Operational Safety Branch, 901 Locust, U.S.C. 1951–1959, and 31 U.S.C. 5311– B) is installed on an airplane, do not install Kansas City, Missouri 64106. For information 5314, 5316–5332, to promote the an NLG fork P/N 100–410–7001 (type A). If on the availability of this material at the an NLG fork P/N 100–410–7013 (type B) is FAA, call 816–329–4148. prevention, detection, and prosecution removed from the airplane for any reason (for (6) You may view this service information of international money laundering and example, to install floats), you must reinstall that is incorporated by reference at the the financing of terrorism. Regulations an NLG fork P/N 100–410–7013 (type B) National Archives and Records implementing the BSA appear at 31 CFR when operating with wheels. Administration (NARA). For information on chapter X. The authority of the

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Secretary of the Treasury to administer (Notice of Finding).1 Simultaneous with the public with an opportunity for the BSA and its implementing publication of the Notice of Finding, notice and comment, in contrast to regulations has been delegated to the FinCEN published a Notice of Proposed action on a petition) if it decides to take Director of FinCEN. Rulemaking proposing the imposition of further action. As part of this settlement, Section 311 of the USA PATRIOT Act the fifth special measure against BDA.2 FinCEN has agreed to reassess whether grants the Secretary the authority, upon On March 19, 2007 (72 FR 12730), BDA is presently a financial institution finding that reasonable grounds exist for FinCEN published a final rule in the of primary money laundering concern. concluding that a foreign jurisdiction, Federal Register imposing the fifth BDA will be permitted to submit foreign financial institution, class of special measure against BDA, codified comments to FinCEN regarding the transactions, or type of account is of at 31 CFR 103.193 (subsequently September 26, 2019 petition denial prior ‘‘primary money laundering concern,’’ renumbered as 31 CFR 1010.655) (Final to FinCEN’s engaging in any additional to require domestic financial Rule).3 Section 311 rulemaking involving BDA. institutions and financial agencies to Shortly after FinCEN concluded its In the event that FinCEN determines take certain ‘‘special measures’’ to rulemaking proceedings, in April 2007, that the imposition of any special address the primary money laundering BDA submitted a petition requesting the measures may be warranted, it will concern. The five special measures immediate rescission of the Final Rule. undertake a new rulemaking effort enumerated under Section 311 are The following month, Stanley Au and (including the publication of a new prophylactic safeguards that defend the Delta Asia Group (Holdings) Ltd., the notice of proposed rulemaking). Any U.S. financial system from money owners of BDA, filed a separate petition such proposed rule will allow for 30 laundering and terrorist financing. for rescission of the Final Rule. FinCEN days of comment, and as part of the FinCEN may impose one or more of denied both petitions on September 21, rulemaking proceeding, FinCEN will these special measures in order to 2007. On November 16, 2010, BDA make available for comment the protect the U.S. financial system from again petitioned FinCEN to repeal the unclassified, non-protected material these threats. To that end, special Final Rule. As part of an ongoing relied upon by FinCEN in connection measures one through four, codified at dialogue between FinCEN and BDA with any such rulemaking. If FinCEN 31 U.S.C. 5318A(b)(1)–(b)(4), impose from 2012 through 2019, BDA agreed to determines that a final rule is additional recordkeeping, information arrange for two independent reviews of appropriate, FinCEN will publish such collection, and information reporting the bank, the results of which were a final rule 60 days following the close requirements on covered U.S. financial subsequently shared with FinCEN. of the comment period. If the extent of By letter dated September 26, 2019, institutions. The fifth special measure, submitted comments requires additional FinCEN ultimately denied BDA’s codified at 31 U.S.C. 5318A(b)(5), time, or if COVID–19-related issues November 2010 petition, providing BDA allows the Secretary to prohibit or hinder the agency’s ability to satisfy the a memorandum thoroughly explaining impose conditions on the opening or proposed timeframes, FinCEN will so its decision. In its denial, FinCEN maintaining of correspondent or announce in the Federal Register. discussed the results of the independent payable-through accounts by covered reviews of BDA and identified the III. Withdrawal of the Notice of Finding U.S. financial institutions for or on limitations in these reviews. FinCEN For the reasons set forth above, behalf of a foreign banking institution. acknowledged that BDA had taken steps FinCEN hereby withdraws the Notice of Taken as a whole, Section 311 to address some of the deficiencies Finding that BDA is of primary money provides the Secretary with a range of highlighted in the Notice of Finding and laundering concern published on options that can be adapted to target Final Rule, but concluded that BDA had September 20, 2005. specific money laundering and terrorist failed to correct other significant financing concerns most effectively. Michael Mosier, deficiencies. FinCEN ultimately These options provide the authority to Deputy Director, Financial Crimes determined that BDA’s AML bring additional and necessary pressure Enforcement Network. compliance efforts remained inadequate on those jurisdictions and institutions [FR Doc. 2020–17144 Filed 8–7–20; 8:45 am] to address the risks identified in the that pose money-laundering threats and BILLING CODE 4810–02–P Notice of Finding and Final Rule. the ability to take steps to protect the In addition to petitioning FinCEN to U.S. financial system. Through the withdraw the Final Rule, BDA filed suit DEPARTMENT OF THE TREASURY imposition of various special measures, on March 14, 2013, in the United States FinCEN can: Gain more information District Court for the District of Financial Crimes Enforcement Network about the concerned jurisdictions, Columbia challenging the Notice of financial institutions, transactions, and Finding and the Final Rule. This 31 CFR Part 1010 accounts; monitor more effectively the litigation was stayed for many years so respective jurisdictions, financial that the dialogue described above could RIN 1506–AA83 institutions, transactions, and accounts; continue. Both FinCEN and BDA have Financial Crimes Enforcement and, ultimately, protect U.S. financial since agreed that there are advantages to institutions from involvement with Network; Repeal of Special Measure FinCEN’s revisiting the Final Rule and Involving Banco Delta Asia (BDA) jurisdictions, financial institutions, to settling this litigation. This course of transactions, or accounts that pose a action allows BDA to submit any AGENCY: Financial Crimes Enforcement money laundering concern. remaining additional comments and Network (FinCEN), Treasury. II. Administrative Background permits FinCEN to take stock of the ACTION: Final rule. present circumstances and, if On September 20, 2005 (70 FR 55214), appropriate, to avail itself of the SUMMARY: This rule repeals regulations FinCEN published a finding in the informal rulemaking process (providing concerning Special measures against Federal Register that reasonable Banco Delta Asia, which were issued grounds existed to conclude that BDA 1 70 FR 55214 (Sept. 20, 2005). pursuant to Section 311 of the USA was a foreign financial institution of 2 Id. at 55217. PATRIOT Act (Section 311). Subsequent primary money laundering concern 3 72 FR 12731 (Mar. 19, 2007). to the issuance of this rule, FinCEN will

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reassess whether BDA is presently a Taken as a whole, Section 311 reviews of BDA and identified the financial institution of primary money provides the Secretary with a range of limitations in these reviews. FinCEN laundering concern and additional options that can be adapted to target acknowledged that BDA had taken steps rulemaking is warranted. Elsewhere in specific money laundering and terrorist to address some of the deficiencies this issue of the Federal Register, financing concerns most effectively. highlighted in the Notice of Finding and FinCEN is publishing a withdrawal of These options provide the authority to Final Rule, but concluded that BDA had the finding regarding BDA, issued bring additional and necessary pressure failed to correct other significant September 20, 2005. on those jurisdictions and institutions deficiencies. FinCEN ultimately DATES: Effective August 10, 2020. that pose money-laundering threats and determined that BDA’s AML the ability to take steps to protect the compliance efforts remained inadequate FOR FURTHER INFORMATION CONTACT: The FinCEN Resource Center at frc@ U.S. financial system. Through the to address the risks identified in the imposition of various special measures, Notice of Finding and Final Rule. fincen.gov. FinCEN can: Gain more information In addition to petitioning FinCEN to I. Statutory Background about the concerned jurisdictions, withdraw the Final Rule, BDA filed suit On October 26, 2001, the President financial institutions, transactions, and on March 14, 2013, in the United States signed into law the Uniting and accounts; monitor more effectively the District Court for the District of Columbia challenging the Notice of Strengthening America by Providing respective jurisdictions, financial Finding and the Final Rule. This Appropriate Tools Required to Intercept institutions, transactions, and accounts; litigation was stayed for many years so and Obstruct Terrorism Act of 2001, and, ultimately, protect U.S. financial that the dialogue described above could Public Law 107–56 (USA PATRIOT institutions from involvement with continue. Both FinCEN and BDA have Act). Title III of the USA PATRIOT Act jurisdictions, financial institutions, since agreed that there are advantages to amends the anti-money laundering transactions, or accounts that pose a FinCEN’s revisiting the Final Rule and provisions of the Bank Secrecy Act money laundering concern. to settling this litigation. This course of (BSA), codified at 12 U.S.C. 1829b, 12 II. Administrative Background action allows BDA to submit any U.S.C. 1951–1959, and 31 U.S.C. 5311– On September 20, 2005, FinCEN remaining additional comments and 5314, 5316–5332, to promote the published a finding in the Federal permits FinCEN to take stock of the prevention, detection, and prosecution Register that reasonable grounds existed present circumstances and, if of international money laundering and to conclude that BDA was a foreign appropriate, to avail itself of the the financing of terrorism. Regulations financial institution of primary money informal rulemaking process (providing implementing the BSA appear at 31 CFR laundering concern (Notice of Finding).1 the public with an opportunity for chapter X. The authority of the Simultaneous with publication of the notice and comment, in contrast to Secretary of the Treasury to administer Notice of Finding, FinCEN published a action on a petition) if it decides to take the BSA and its implementing Notice of Proposed Rulemaking further action. As part of this settlement, regulations has been delegated to the proposing the imposition of the fifth FinCEN has agreed to reassess whether Director of FinCEN. special measure against BDA.2 On BDA is presently a financial institution Section 311 of the USA PATRIOT Act March 19, 2007, FinCEN published a of primary money laundering concern. grants the Secretary the authority, upon final rule in the Federal Register BDA will be permitted to submit finding that reasonable grounds exist for imposing the fifth special measure comments to FinCEN regarding the concluding that a foreign jurisdiction, against BDA, codified at 31 CFR 103.193 September 26, 2019, petition denial foreign financial institution, class of (subsequently renumbered as 31 CFR prior to FinCEN’s engaging in any transactions, or type of account is of 1010.655) (Final Rule).3 additional Section 311 rulemaking ‘‘primary money laundering concern,’’ Shortly after FinCEN concluded its involving BDA. to require domestic financial rulemaking proceedings, in April 2007, In the event that FinCEN determines institutions and financial agencies to BDA submitted a petition requesting the that the imposition of any special take certain ‘‘special measures’’ to immediate rescission of the Final Rule. measures may be warranted, it will address the primary money laundering The following month, Stanley Au and undertake a new rulemaking effort concern. The five special measures Delta Asia Group (Holdings) Ltd., the (including the publication of a new enumerated under Section 311 are owners of BDA, filed a separate petition notice of proposed rulemaking). Any prophylactic safeguards that defend the for rescission of the Final Rule. FinCEN such proposed rule will allow for 30 U.S. financial system from money denied both petitions on September 21, days of comment, and as part of the laundering and terrorist financing. 2007. On November 16, 2010, BDA rulemaking proceeding, FinCEN will FinCEN may impose one or more of again petitioned FinCEN to repeal the make available for comment the these special measures in order to Final Rule. As part of an ongoing unclassified, non-protected material protect the U.S. financial system from dialogue between FinCEN and BDA relied upon by FinCEN in connection these threats. To that end, special from 2012 through 2019, BDA agreed to with any such rulemaking. If FinCEN measures one through four, codified at arrange for two independent reviews of determines that a final rule is 31 U.S.C. 5318A(b)(1)–(b)(4), impose the bank, the results of which were appropriate, FinCEN will publish such additional recordkeeping, information subsequently shared with FinCEN. a final rule 60 days following the close collection, and information reporting By letter dated September 26, 2019, of the comment period. If the extent of requirements on covered U.S. financial FinCEN ultimately denied BDA’s submitted comments requires additional institutions. The fifth special measure, November 2010 petition, providing BDA time, or if COVID–19-related issues codified at 31 U.S.C. 5318A(b)(5), a memorandum thoroughly explaining hinder the agency’s ability to satisfy the allows the Secretary to prohibit or its decision. In its denial, FinCEN proposed timeframes, FinCEN will so impose conditions on the opening or discussed the results of the independent announce in the Federal Register. maintaining of correspondent or III. Repeal of the Final Rule payable-through accounts by covered 1 70 FR 55214 (Sept. 20, 2005). U.S. financial institutions for or on 2 Id. at 55217. For the reasons set forth above, behalf of a foreign banking institution. 3 72 FR 12731 (Mar. 19, 2007). FinCEN hereby repeals the Final Rule.

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Elsewhere in this issue of the Federal obligations for financial institutions 13, 14, and 17. Effective March 16, 2020, Register, FinCEN is publishing a under 31 CFR 1010.654. that rule removed a security zone withdrawal of the Notice of Finding. regulation when only the section D. Paperwork Reduction Act heading for that regulation needed to be IV. Regulatory Matters This regulation discontinues the amended. This document corrects that Although Section 553 of the Office of Management and Budget error. Administrative Procedure Act (5 U.S.C. Control Number 1506–0041 assigned to DATES: Effective August 10, 2020. 551 et seq.) requires notice and an the final rule and, as a result, reduces FOR FURTHER INFORMATION CONTACT: opportunity for comment before an the estimated average burden of one Dominique Christianson, Coast Guard, agency issues a final rule as well as a hour per affected financial institution, telephone 202–372–3856 or fax 202– 30-day delayed effective date, it totaling 5,000 hours. This regulation 372–8405. provides that an agency may dispense contains no new information collection with these procedures when good cause requirements subject to review and SUPPLEMENTARY INFORMATION: exists. In this final rule, FinCEN has approval by the Office of Management Correction found that public comment procedures and Budget under the Paperwork On February 13, 2020 the Coast Guard and delaying the effective date of the Reduction Act of 1995 (44 U.S.C. published a rule in the Federal Register removal of the regulation would be 3507(d) et seq.). (85 FR 8169), effective on March 16, contrary to the public interest. As List of Subjects in 31 CFR Part 1010 2020. Subsequent review of the rule discussed earlier in this document, revealed that it removed a security zone FinCEN has agreed to reassess whether Administrative practice and procedure, Banks and banking, Brokers, regulation, 33 CFR 165.809, when the BDA is presently a financial institution only change needed was to amend the Counter-money laundering, Counter- of primary money laundering concern. section heading for that regulation. Page terrorism, Foreign banking. Accordingly, FinCEN has found that 85 FR 8170 of the rule referred to a 2005 good cause exists to dispense with prior Authority and Issuance proposed rule (70 FR 9363) as support notice and comment and a delay in for removing the security zones in effective date. For the reasons set forth above, 31 CFR part 1010 is amended as follows: § 165.809, but that NPRM only proposed A. Executive Order 12866 to ‘‘remove the Port of Port Lavaca-Point It has been determined that this PART 1010—GENERAL PROVISIONS Comfort security zone.’’ And the final rule (70 FR 39176, 39178, July 7, 2005) rulemaking is not a significant ■ 1. The authority citation for 31 CFR that followed the NPRM revised regulatory action for purposes of part 1010 continues to read as follows: § 165.809(a) so that it maintained the Executive Order 12866. Accordingly, a Corpus Christi Inner Harbor security regulatory impact analysis is not Authority: 12 U.S.C. 1829b and 1951–1959; zone. That 2005 rule also used the required. 31 U.S.C. 5311–5314, 5316–5332; Title III, sec. 314, Pub. L. 107–56, 115 Stat. 307; sec. following section heading: § 165.809 B. Unfunded Mandates Reform Act of 701, Pub. L. 114–74, 129 Stat. 599. Security Zone; Port of Corpus Christi 1995 Inner Harbor, Corpus Christi, TX. § 1010.655 [Removed] Section 202 of the Unfunded All the 2020 rule should have done ■ Mandates Reform Act of 1995 2. Section 1010.655 is removed. was to remove the reference to the Port (Unfunded Mandates Act), Public Law of Port Lavaca-Point Comfort in the Michael Mosier, section heading. This document corrects 104–4 (March 22, 1995), requires that an Deputy Director, Financial Crimes agency prepare a budgetary impact the error of removing the Port of Corpus Enforcement Network. Christi Inner Harbor, Corpus Christi statement before promulgating a rule [FR Doc. 2020–17143 Filed 8–7–20; 8:45 am] Safety Zone regulation by reinstating that may result in expenditure by state, BILLING CODE P § 165.809 with the correct section local, and tribal governments, in the heading. aggregate, or by the private sector, of We find good cause under 5 U.S.C. $100 million or more in any one year. DEPARTMENT OF HOMELAND 553(d) to make this correction effective If a budgetary impact statement is SECURITY on its date of publication. Delaying its required, section 202 of the Unfunded effective date would increase risk of Mandates Act also requires an agency to Coast Guard vessel collisions as the security zone is identify and consider a reasonable needed to protect a portion of the number of regulatory alternatives before 33 CFR 165 waterway that has a high volume of promulgating a rule. FinCEN has [Docket No. USCG–2018–0533] commercial vessel traffic and military determined that it is not required to outload vessel traffic. prepare a written statement under Navigation and Navigable Waters, and List of Subjects in 33 CFR Part 165 Section 202 and has concluded that on Shipping; Technical, Organizational, balance the rule provides the most cost and Conforming Amendments for U.S. Harbors, Marine safety, Navigation effective and least burdensome Coast Guard Field Districts 5, 8, 9, 11, (water), Reporting and recordkeeping alternative to achieve the objectives of 13, 14, and 17 requirements, Security measures, the rule. Waterways. AGENCY: Coast Guard, DHS. C. Regulatory Flexibility Act Accordingly, 33 CFR part 165 is ACTION: Correcting amendments. corrected by making the following Pursuant to the Regulatory Flexibility correcting amendments: Act (RFA) (5 U.S.C. 601 et seq.), FinCEN SUMMARY: On February 13, 2020, the certifies that this final regulation likely Coast Guard published a final rule on PART 165—REGULATED NAVIGATION will not have a significant economic Navigation and Navigable Waters, and AREAS AND LIMITED ACCESS AREAS impact on a substantial number of small Shipping; Technical, Organizational, entities. The regulatory changes in this and Conforming Amendments for U.S. ■ 1. The authority citation for part 165 final rule merely remove the current Coast Guard Field Districts 5, 8, 9, 11, continues to read as follows:

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Authority: 46 U.S.C. 70034, 70051; 33 CFR City, MD. This action is necessary to stunts. In addition to these two air show 1.05–1, 6.04–1, 6.04–6, and 160.5; provide for the safety of life on these performance dates, approach and circle Department of Homeland Security Delegation navigable waters located at Ocean City, maneuvers will be conducted by the No. 0170.1. MD, during activities associated with an U.S. Navy’s Blue Angels flight ■ 2. Add § 165.809 to read as follows: air show event from August 13, 2020, demonstration squadron aircraft through August 16, 2020. This rule between 10 a.m. and 5 p.m. on August § 165.809 Security Zone; Port of Corpus prohibits persons and vessels from 13, 2020, and a full practice show Christi Inner Harbor, Corpus Christi, TX. entering the regulated area unless rehearsal will be conducted by all air (a) Location. The following area is authorized by the Captain of the Port show performers from 10 a.m. to 5 p.m. designated as a security zone: All waters Maryland-National Capital Region or the on August 14, 2020. We must establish of the Corpus Christi Inner Harbor from Coast Guard Patrol Commander. this safety zone by August 13, 2020, to the Inner Harbor Bridge (U.S. Hwy 181) DATES: This rule is effective from ensure the safety of particpants and to, and including the Viola Turning August 13, 2020, through August 16, nearby waterway users. Hazards from Basin. 2020. It will be enforced from 9 a.m. to the air show event include risks of (b) Regulations. (1) No recreational 6 p.m. each day the rule is in effect. injury or death resulting from aircraft vessels, passenger vessels, or ADDRESSES: To view documents accidents, dangerous projectiles, commercial fishing vessels may enter mentioned in this preamble as being hazardous materials spills, falling the security zone unless specifically available in the docket, go to https:// debris, and near or actual contact among authorized by the Captain of the Port www.regulations.gov, type USCG–2020– participants and spectator vessels or Corpus Christi or a designated 0361 in the ‘‘SEARCH’’ box and click waterway users if normal vessel traffic representative. ‘‘SEARCH.’’ Click on Open Docket were to interfere with the event. (2) Recreational vessels, passenger Folder on the line associated with this Additionally, such hazards include vessels and commercial fishing vessels rule. participants operating near a designated requiring entry into the security zone navigation channel, as well as operating FOR FURTHER INFORMATION CONTACT: If must contact the Captain of the Port adjacent to a popular summer beach you have questions on this rule, call or Corpus Christi or a designated area and its numerous oceanside email MST2 Shaun Landante, U.S. Coast representative. The Captain of the Port businesses. may be contacted via VHF Channel 16 Guard Sector Maryland-National Capital Under 5 U.S.C. 553(d)(3), the Coast or via telephone at (361) 888–3162 to Region; telephone 410–576–2516, email Guard finds that good cause exists for seek permission to transit the area. If [email protected]. making this rule effective less than 30 permission is granted, all persons and SUPPLEMENTARY INFORMATION: days after publication in the Federal vessels must comply with the I. Table of Abbreviations Register. Delaying the effective date of instructions of the Captain of the Port, this rule would be impracticable and CFR Code of Federal Regulations contrary to the public interest because Corpus Christi or a designated COTP Captain of the Port representative. DHS Department of Homeland Security immediate action is needed to respond (3) Designated representatives include FR Federal Register to the potential safety hazards U.S. Coast Guard commissioned, NPRM Notice of Proposed Rulemaking associated with the ‘‘Ocean City Air warrant, and petty officers. PATCOM Coast Guard Patrol Commander Show ’’ event. § Section (c) Authority. In addition to 46 U.S.C. III. Legal Authority and Need for Rule 70034, the authority for this section U.S.C. United States Code The Coast Guard is issuing this rule includes 46 U.S.C. 70116. II. Background Information and under authority in 46 U.S.C. 70041 Regulatory History Dated: June 11, 2020. (previously 33 U.S.C. 1231). The J.E. McLeod, The Coast Guard is issuing this Captain of the Port Sector Maryland- Acting Chief, Office of Regulations and temporary rule without prior notice and National Capital Region (COTP) has Administrative Law. opportunity to comment pursuant to determined that potential hazards [FR Doc. 2020–12916 Filed 8–7–20; 8:45 am] authority under section 4(a) of the associated with the air show, to be held BILLING CODE 9110–04–P Administrative Procedure Act (APA) (5 from August 13, 2020 through August U.S.C. 553(b)). This provision 16, 2020, will be a safety concern for authorizes an agency to issue a rule anyone intending to participate in this DEPARTMENT OF HOMELAND without prior notice and opportunity to event and for vessels that operate within SECURITY comment when the agency for good specified waters of the North Atlantic cause finds that those procedures are Ocean. This rule is needed to protect Coast Guard ‘‘impracticable, unnecessary, or contrary personnel, vessels, and the marine to the public interest.’’ Under 5 U.S.C. environment in the navigable waters 33 CFR Part 100 553(b)(B), the Coast Guard finds that within the safety zone for the duration [Docket Number USCG–2020–0361] good cause exists for not publishing a of this event. notice of proposed rulemaking (NPRM) RIN 1625–AA08 with respect to this rule because an IV. Discussion of the Rule Special Local Regulation; North NPRM would be impracticable and This rule establishes special local Atlantic Ocean, Ocean City, MD contrary to the public interest. On June regulations from 9 a.m. on August 13, 16, 2020, the Town of Ocean City, MD, 2020, through 6 p.m. on August 16, AGENCY: Coast Guard, DHS. notified the Coast Guard that it will be 2020. The regulated area will cover all ACTION: Temporary final rule. conducting the 2020 Ocean City Air navigable waters of the North Atlantic Show from 10 a.m. to 5 p.m. on August Ocean within an area bounded by the SUMMARY: The Coast Guard is 16, 2020. The annual air show consists following coordinates: Commencing at a establishing a temporary special local of various types of military and civilian point near the shoreline in the vicinity regulation for certain waters of the aircraft performing low-flying, high- of 33rd Street, Ocean City, MD, latitude North Atlantic Ocean adjacent to Ocean speed precision maneuvers and aerial 38°21′48.8″ N, longitude 075°04′10″ W,

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thence eastward to latitude 38°21′32″ N, operated and are not dominant in their with Indian Tribal Governments, longitude 075°03′12″ W, thence south to fields, and governmental jurisdictions because it does not have a substantial latitude 38°19′22.7″ N, longitude with populations of less than 50,000. direct effect on one or more Indian 075°04′09.5″ W, thence west to latitude The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the 38°19′38.5″ N, longitude 075°05′05.4″ 605(b) that this rule will not have a Federal Government and Indian tribes, W, thence north along the shoreline to significant economic impact on a or on the distribution of power and point of origin, located adjacent to substantial number of small entities. responsibilities between the Federal Ocean City, MD. The duration of the While some owners or operators of Government and Indian tribes. zone and size of the regulated area are vessels intending to transit the safety intended to ensure the safety of life on zone may be small entities, for the E. Unfunded Mandates Reform Act these navigable waters before, during reasons stated in section IV.A above, and after the air show and its related this proposed rule will not have a The Unfunded Mandates Reform Act activities, scheduled to take place from significant economic impact on any of 1995 (2 U.S.C. 1531–1538) requires 10 a.m. on August 13, 2020, through 5 vessel owner or operator. Federal agencies to assess the effects of p.m. on August 16, 2020. No vessel or Under section 213(a) of the Small their discretionary regulatory actions. In person will be permitted to enter the Business Regulatory Enforcement particular, the Act addresses actions regulated area without obtaining Fairness Act of 1996 (Pub. L. 104–121), that may result in the expenditure by a permission from the COTP or a we want to assist small entities in State, local, or tribal government, in the designated representative. understanding this rule. If the rule will aggregate, or by the private sector of affect your small business, organization, $100,000,000 (adjusted for inflation) or V. Regulatory Analyses or governmental jurisdiction and you more in any one year. Though this rule We developed this rule after have questions concerning its will not result in such an expenditure, considering numerous statutes and provisions or options for compliance, we do discuss the effects of this rule Executive orders related to rulemaking. please call or email the person listed in elsewhere in this preamble. Below we summarize our analyses the FOR FURTHER INFORMATION CONTACT based on a number of these statutes and section. F. Environment Executive orders, and we discuss First Small businesses may send comments We have analyzed this rule under Amendment rights of protestors. on the actions of Federal employees Department of Homeland Security who enforce, or otherwise determine A. Regulatory Planning and Review Directive 023–01, Rev. 1, associated compliance with, Federal regulations to implementing instructions, and Executive Orders 12866 and 13563 the Small Business and Agriculture direct agencies to assess the costs and Regulatory Enforcement Ombudsman Environmental Planning COMDTINST benefits of available regulatory and the Regional Small Business 5090.1 (series), which guide the Coast alternatives and, if regulation is Regulatory Fairness Boards. The Guard in complying with the National necessary, to select regulatory Ombudsman evaluates these actions Environmental Policy Act of 1969 (42 approaches that maximize net benefits. annually and rates each agency’s U.S.C. 4321–4370f), and have Executive Order 13771 directs agencies responsiveness to small business. If you determined that this action is one of a to control regulatory costs through a wish to comment on actions by category of actions that do not budgeting process. This rule has not employees of the Coast Guard, call 1– individually or cumulatively have a been designated a ‘‘significant 888–REG–FAIR (1–888–734–3247). The significant effect on the human regulatory action,’’ under Executive Coast Guard will not retaliate against environment. This rule involves Order 12866. Accordingly, this rule has small entities that question or complain implementation of regulations within 33 not been reviewed by the Office of about this rule or any policy or action CFR part 100 applicable to organized Management and Budget (OMB), and of the Coast Guard. marine events on the navigable waters pursuant to OMB guidance it is exempt of the United States that could from the requirements of Executive C. Collection of Information negatively impact the safety of Order 13771. This rule will not call for a new waterway users and shore side activities This regulatory action determination collection of information under the in the event area for 36 hours. It is is based on size, location and duration Paperwork Reduction Act of 1995 (44 categorically excluded from further of the regulated area, which will impact U.S.C. 3501–3520). review under paragraph L61 of a small designated area of the North Appendix A, Table 1 of DHS Instruction Atlantic Ocean adjacent to Ocean City, D. Federalism and Indian Tribal Governments Manual 023–01–001–01, Rev. 1. A MD for 36 total enforcement hours. The Memorandum for Record supporting Coast Guard will issue a Broadcast A rule has implications for federalism this determination is available in the Notice to Mariners via VHF–FM marine under Executive Order 13132, docket. For instructions on locating the Federalism, if it has a substantial direct channel 16 about the status of the docket, see the ADDRESSES section of effect on the States, on the relationship regulated area. Moreover, the rule will this preamble. allow vessels and persons to seek between the National Government and permission to enter the regulated area. the States, or on the distribution of G. Protest Activities power and responsibilities among the B. Impact on Small Entities various levels of government. We have The Coast Guard respects the First The Regulatory Flexibility Act of analyzed this rule under that Order and Amendment rights of protesters. 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent Protesters are asked to call or email the requires Federal agencies to consider with the fundamental federalism person listed in the FOR FURTHER the potential impact of regulations on principles and preemption requirements INFORMATION CONTACT section to small entities during rulemaking. The described in Executive Order 13132. coordinate protest activities so that your term ‘‘small entities’’ comprises small Also, this rule does not have tribal message can be received without businesses, not-for-profit organizations implications under Executive Order jeopardizing the safety or security of that are independently owned and 13175, Consultation and Coordination people, places or vessels.

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List of Subjects in 33 CFR Part 100 through, anchoring in, or remaining Island Sound area of responsibility on Marine safety, Navigation (water), within the regulated area described in the dates and times listed in the table Reporting and recordkeeping paragraph (a) of this section unless below. This action is necessary to requirements, Waterways. authorized by the COTP Maryland- provide for the safety of life on National Capital Region or PATCOM. navigable waterways during the event. For the reasons discussed in the (2) To seek permission to enter, During the enforcement period, no preamble, the Coast Guard amends 33 contact the COTP Maryland-National person or vessel may enter the safety CFR part 100 as follows: Capital Region at telephone number zone without permission of the Captain PART 100—SAFETY OF LIFE ON 410–576–2693 or on Marine Band of the Port (COTP) Sector Long Island NAVIGABLE WATERS Radio, VHF–FM channel 16 (156.8 Sound or designated representative. MHz) or the PATCOM on Marine Band DATES: The Coast Guard will enforce the ■ 1. The authority citation for part 100 Radio, VHF–FM channel 16 (156.8 regulations in 33 CFR 165.151 Table 1 continues to read as follows: MHz). Those in the regulated area must for the Lawrence Beach Club Fireworks comply with all lawful orders or Authority: 46 U.S.C. 70041; 33 CFR 1.05– on September 6, 2020, from 8:30 p.m. to 1. directions given to them by the COTP 10:30 p.m. Maryland-National Capital Region, ■ 2. Add § 100.T05–0361 to read as PATCOM, or official patrol. FOR FURTHER INFORMATION CONTACT: If follows: (3) Vessels are required to operate at you have questions on this notice, call a safe speed that minimizes wake while or email Petty Officer Chris Gibson, § 100.T05–0361 Ocean City Air Show, Waterways Management Division, U.S. North Atlantic Ocean, Ocean City, MD. within the regulated area in a manner that would not endanger event Coast Guard Sector Long Island Sound; (a) Regulated area. The regulations in participants or any other craft. telephone 203–468–4565, email this section apply to all navigable (4) The air show aerobatics area [email protected]. waters of the North Atlantic Ocean located within the regulated area SUPPLEMENTARY INFORMATION: The Coast within an area bounded by the described in paragraph (a) of this Guard will enforce the safety zones following coordinates: Commencing at a section is restricted to participants. listed in 33 CFR 165.151 Table 1 for the point near the shoreline in vicinity of (5) The COTP Maryland-National Lawrence Beach Club fireworks and the 33rd Street, Ocean City, MD, latitude ° ′ ″ ° ′ ″ Capital Region will provide notice of the Town of Babylon fireworks. 38 21 48.8 N, longitude 075 04 10 W, regulated area through advanced notice thence eastward to latitude 38°21′32″ N, Under the provisions of 33 CFR ° ′ ″ via Fifth Coast Guard District Local 165.151, these events listed are latitude 075 03 12 W, thence south to Notice to Mariners, broadcast notice to latitude 38°19′22.7″ N, longitude established as a safety zone. During the ° ′ ″ mariners, and on-scene official patrols. enforcement period, persons and vessels 075 04 09.5 W, thence west to latitude (d) Enforcement officials. The Coast ° ′ ″ ° ′ ″ are prohibited from entering into, 38 19 38.5 N, longitude 075 05 05.4 Guard may be assisted with marine W, thence north along the shoreline to transiting through, mooring, or event patrol and enforcement of the anchoring within the safety zones point of origin, located adjacent to regulated area by other Federal, State Ocean City, MD. These coordinates are unless they receive permission from the and local agencies. COTP or designated representative. based on datum NAD 1983. (e) Enforcement periods. This section The Coast Guard will enforce the (b) Definitions. As used in this will be enforced from 9 a.m. to 6 p.m. safety zones for item 7.5 in Table 1 in section— on August 13, 2020, from 9 a.m. to 6 § 165.151 for the Lawrence Beach Club Captain of the Port (COTP) Maryland- p.m. on August 14, 2020, from 9 a.m. to Fireworks on September 6, 2020, with a National Capital Region means the 6 p.m. on August 15, 2020, and, from 9 rain date of September 7. The safety Commander, U.S. Coast Guard Sector a.m. to 6 p.m. on August 16, 2020. Maryland-National Capital Region or zone is in effect from 8:30 p.m. to 10:30 Dated: August 4, 2020. any Coast Guard commissioned, warrant p.m. for the waters of the Atlantic Ocean or petty officer who has been authorized Joseph B. Loring, off Lawrence Beach Club, Atlantic by the COTP to act on his behalf. Captain, U.S. Coast Guard, Captain of the Beach, NY in approximate position, Coast Guard Patrol Commander Port Maryland-National Capital Region. 40°34′42.65″ N, 073°42′56.02″ W (NAD (PATCOM) means a commissioned, [FR Doc. 2020–17480 Filed 8–7–20; 8:45 am] 83). warrant, or petty officer of the U.S. BILLING CODE 9110–04–P On August 5, the Coast Guard will Coast Guard who has been designated enforce a safety zone for the Town of by the Commander, Coast Guard Sector Babylon Annual Fireworks from 8:30 Maryland-National Capital Region. DEPARTMENT OF HOMELAND p.m. to 10:30 p.m. The safety zone is for Official Patrol means any vessel SECURITY the waters off Cedar Beach Town Park, Babylon, NY in approximate position, assigned or approved by Commander, Coast Guard Coast Guard Sector Maryland-National 40°37′53″ N, 073°20′12″ W (NAD 83). The rain date for the event is August 6. Capital Region with a commissioned, 33 CFR Part 165 warrant, or petty officer on board and This notice is issued under authority displaying a Coast Guard ensign. [Docket No. USCG–2012–1036] of 33 CFR 165 and 5 U.S.C. 552 (a). In Participant means all persons and addition to this notice in the Federal vessels registered with the event Safety Zone Regulations; Recurring Register, the Coast Guard will provide sponsor as participating in the Ocean Marine Event in the Long Island Sound the maritime community with advance City Air Show or otherwise designated Captain of the Port Zone notification of this enforcement period by the event sponsor as having a AGENCY: Coast Guard, DHS. via the Local Notice to Mariners or function tied to the event. ACTION: Notice of enforcement of marine information broadcasts. If the (c) Regulations. (1) Except for regulation. COTP determines that either safety zone participants and vessels already at need not be enforced for the full berth, everyone other than participants SUMMARY: The Coast Guard will enforce duration stated in this notice, a are prohibited from entering, transiting two safety zones in the Sector Long Broadcast Notice to Mariners may be

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used to grant general permission to agency for good cause finds that notice I. Executive Order 13211: Actions That enter the regulated area. and public procedures are Significantly Affect Energy Supply, Distribution or Use Dated: July 24, 2020 impracticable, unnecessary or contrary to the public interest, the agency may J. National Technology Transfer and E.J. Van Camp, Advancement Act (NTTAA) issue a rule without providing notice Captain, U.S. Coast Guard, Captain of the K. Executive Order 12898: Federal Actions Port Long Island Sound. and an opportunity for public comment. To Address Environmental Justice in The EPA has determined that there is [FR Doc. 2020–16524 Filed 8–7–20; 8:45 am] Minority and Low Income Populations good cause for making this final agency L. Congressional Review Act (CRA) BILLING CODE 9110–04–P action without prior proposal and M. Judicial Review opportunity for comment because no II. Background significant EPA judgment is involved in ENVIRONMENTAL PROTECTION making findings of failure to submit In June 2010, the EPA promulgated a AGENCY SIPs, or elements of SIPs, required by new 1-hour primary SO2 NAAQS of 75 the CAA, where states have made no parts per billion (ppb), which is met 40 CFR Part 52 submission to meet the requirement. when the 3-year average of the annual [EPA–R06–OAR–2020–0363; FRL–10012– Thus, notice and public procedures are 99th percentile of daily maximum 1- 84–Region 6] unnecessary to take this action. The hour average concentrations does not EPA finds that this constitutes good exceed 75 ppb, as determined in Findings of Failure To Submit State cause under 5 U.S.C. 553(b)(3)(B). accordance with Appendix T of Title 40 Implementation Plans Required for Code of Federal Regulations (40 CFR) Attainment of the 2010 1-Hour Primary B. How can I get copies of this document part 50. See 40 CFR 50.17(a)–(b). On Sulfur Dioxide (SO2) National Ambient and other related information? June 30, 2016, the EPA signed the final Air Quality Standard (NAAQS) The EPA has established a docket for action designating 61 areas as part of the AGENCY: Environmental Protection this action under Docket ID No. EPA– second round of area designations for Agency (EPA). R06–OAR–2020–0363. Publicly the 2010 SO2 NAAQS (published at 81 available docket materials are available FR 45039, July 12, 2016).1 On November ACTION: Final rule. electronically through http:// 29, 2016, the EPA supplemented its SUMMARY: The Environmental Protection www.regulations.gov. Out of an Round 2 designations by signing a Agency (EPA) is taking final action to abundance of caution for members of supplemental final action that included find that Texas has failed to submit the public and our staff, the EPA Region nonattainment designations for the 2010 State Implementation Plans (SIPs) to 6 office will be closed to the public to 1-hour primary SO2 NAAQS for satisfy certain nonattainment area reduce the risk of transmitting COVID– portions of Rusk and Panola Counties, planning requirements of the Clean Air 19. Please call or email the contact portions of Freestone and Anderson Act (CAA) for the 2010 1-hour primary listed above if you need alternative Counties, and a portion of Titus County access to material indexed but not (‘‘Round 2 Supplement’’) (81 FR 89870, Sulfur Dioxide (SO2) National Ambient Air Quality Standard (NAAQS). The provided in the docket. December 13, 2016). These latter area designations had an effective date of purpose for the development and C. How is the preamble organized? implementation of a nonattainment area January 12, 2017. SIP is to provide for attainment of the Table of Contents Areas designated as nonattainment for NAAQS as expeditiously as practicable I. General Information the SO2 NAAQS are subject to the following the designation of an area as A. Notice and Comment Under the general nonattainment area planning nonattainment. This action establishes Administrative Procedure Act (APA) requirements of CAA section 172 and to certain CAA deadlines for the EPA to B. How can I get copies of this document the SO2-specific planning requirements impose sanctions if Texas does not and other related information? of subpart 5 of part D of Title I of the submit a complete SIP for each C. How is the preamble organized? CAA (sections 191 and 192). All II. Background components of the SO2 part D nonattainment area addressing the III. Consequences of Findings of Failure To outstanding requirements and for the nonattainment area SIP, including the Submit emissions inventory, attainment EPA to promulgate a Federal IV. Findings of Failure To Submit for State Implementation Plan (FIP) to address That Failed to Make a Nonattainment demonstration, reasonably available any outstanding SIP requirements. Area SIP Submittal control measures (RACM) including reasonably available control technology DATES: This action is effective on V. Environmental Justice Considerations (RACT), enforceable emission September 9, 2020. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory limitations and control measures, FOR FURTHER INFORMATION CONTACT: Planning and Executive Order 13563: reasonable further progress (RFP) plan, General questions concerning this Improving Regulation and Regulatory nonattainment new source review document should be addressed to Review (NNSR), and contingency measures, are Robert Imhoff, EPA Region 6, Air and B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Radiation Division, by telephone (214) 1 The EPA completed its first round of initial area Costs 665–7262 or by email at Imhoff.Robert@ designations for the 2010 1-hour primary SO2 epa.gov. C. Paperwork Reduction Act (PRA) NAAQS on August 5, 2013, with an effective date D. Regulatory Flexibility Act (RFA) of October 4, 2013. Under a court order issued on SUPPLEMENTARY INFORMATION: E. Unfunded Mandates Reform Act of 1995 March 2, 2015, the EPA is required to complete designations in three additional rounds of I. General Information (UMRA) F. Executive Order 13132: Federalism designations. The EPA must complete the final, A. Notice and Comment Under the G. Executive Order 13175: Consultation Round 4 designations for the remaining and Coordination With Indian Tribal undesignated areas of the country by no later than Administrative Procedure Act (APA) December 31, 2020. The findings in this document Governments apply only to those areas that were designated as Section 553 of the APA, Title 5 H. Executive Order 13045: Protection of part of Round 2 on December 13, 2016, and where, United States Code (U.S.C.) Section Children From Environmental Health as of signature of this action, Texas failed to submit 553(b)(3)(B), provides that, when an and Safety Risks required complete plans.

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due to the EPA within 18 months of the Title 1 of the CAA by July 13, 2018, for VI. Statutory and Executive Order effective date of designation of an area the three areas designated Reviews under CAA section 191. Thus, the nonattainment effective January 12, A. Executive Orders 12866: Regulatory nonattainment area SIPs for the Texas 2017. The EPA is, therefore, issuing Planning and Executive Order 13563: areas designated effective January 12, Texas a finding of failure to submit for 2017, were due on July 13, 2018. These Improving Regulation and Regulatory the following three nonattainment areas: Review SIPs were required to demonstrate that Portions of Anderson-Freestone their respective areas will attain the Counties, Texas; portions of Rusk- This action is not a significant NAAQS as expeditiously as practicable, Panola Counties Texas; and a portion of regulatory action and was, therefore, not but no later than 5 years from the Titus County, Texas. submitted to the Office of Management effective date of designation, or by and Budget (OMB) for review. January 12, 2022. TABLE 1—2010 1-HOUR PRIMARY B. Executive Order 13771: Reducing III. Consequences of Findings of Failure SO2 NAAQS NONATTAINMENT Regulations and Controlling Regulatory To Submit AREAS AFFECTED BY THESE FIND- Costs If the EPA finds that a state has failed INGS OF FAILURE TO SUBMIT This action is not an Executive Order to make the required SIP submittal or 13771 regulatory action because it finds that a submitted SIP is incomplete, then State Nonattainment area that Texas failed to meet the CAA section 179(a) establishes specific requirement in the CAA to submit SIPs consequences, including the imposition Texas ... Anderson-Freestone Counties(p),* Rusk-Panola Counties (p), and under section 172 and subpart 5 of part of mandatory sanctions for the affected D of Title I of the CAA (sections 191 and area, after a period of time, if within that Titus County (p). 192) for the SO2 NAAQS. period the state does not submit a * (p) indicates partial county. complete SIP for the nonattainment C. Paperwork Reduction Act (PRA) area. Additionally, such a finding also V. Environmental Justice This action does not impose an triggers an obligation under CAA Considerations information collection burden under the section 110(c) for the EPA to promulgate a FIP no later than 2 years after the The EPA believes that the human provisions of the Paperwork Reduction finding of failure to submit if the health or environmental risks addressed Act. This final rule does not establish affected state has not submitted, and by this action will not have any new information collection EPA has not approved, the required SIP disproportionately high or adverse requirement apart from what is already submittal. human health or environmental effects required by law. This rule relates to the If the EPA has not affirmatively on minority, low-income, or indigenous requirement in the CAA for states to determined that a state has made the populations because it does not affect submit SIPs under section 172 and required complete SIP submittal for an the level of protection provided to subpart 5 of part D of Title I of the CAA area within 18 months of the effective human health or the environment under (sections 191 and 192) which address the statutory requirements that apply to date of this rulemaking, then, pursuant the SO NAAQS. The purpose of this 2 areas designated as nonattainment for to CAA section 179(a) and (b) and 40 rule is to make a finding that Texas the SO NAAQS. CFR 52.31, the offset sanction identified failed to submit the required SIPs to 2 in CAA section 179(b)(2) will apply in provide for timely attainment of the 1- D. Regulatory Flexibility Act (RFA) the affected nonattainment area. If the hour primary SO2 NAAQS, which will EPA has not affirmatively determined I certify that this rule will not have a result in certain CAA-required significant economic impact on a that the state has made a complete deadlines for actions to provide for such submission within 6 months after the substantial number of small entities attainment. In finding that Texas failed offset sanction is imposed, then the under the RFA. This action will not to submit a complete SIP that satisfies highway funding sanction will apply in impose any requirements on small the nonattainment area plan the affected nonattainment area, in entities. The rule is a finding that Texas accordance with CAA section 179(b)(1) requirements under section 172 and has not made the necessary SIP and 40 CFR 52.31. The sanctions will subpart 5 of part D of Title I of the CAA submission for certain nonattainment not take effect if, within 18 months after (sections 191 and 192) for the 1-hour areas to meet the requirements of part D the date of these findings, the EPA primary SO2 NAAQS, this action does of title I of the CAA. not adversely affect the level of affirmatively determines that the E. Unfunded Mandates Reform Act of protection provided for human health or affected state has made a complete SIP 1995 (UMRA) submittal addressing the deficiency for the environment. Rather, it is intended which the finding was made. that the actions and deadlines resulting This action does not contain any Additionally, if the state makes the from this notice will in fact lead to unfunded mandate as described in required SIP submittal and the EPA greater protection for United States UMRA 2 U.S.C. 1531–1538, and does takes final action to approve the citizens, including minority, low- not significantly or uniquely affect small submittal within 2 years of the effective income, or indigenous populations, by governments. The action imposes no date of these findings, the EPA is not ensuring that states meet their statutory enforceable duty on any state, local or required to promulgate a FIP for the obligation to develop and submit SIPs to tribal governments or the private sector. affected nonattainment area. ensure that areas make progress toward F. Executive Order 13132: Federalism IV. Findings of Failure To Submit for attaining the 1-hour primary SO2 NAAQS. This action does not have federalism State That Failed To Make a implications. It will not have substantial Nonattainment Area SIP Submittal direct effects on Texas, on the As of the date of signature of this relationship between the national action, Texas failed to make complete government and Texas, or on the SIP submittals required under part D of distribution of power and

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responsibilities among the various affect the level of protection provided to DEPARTMENT OF HOMELAND levels of government. human health or the environment. SECURITY G. Executive Order 13175: Consultation L. Congressional Review Act (CRA) Federal Emergency Management and Coordination With Indian Tribal Agency Governments This action is subject to the CRA, and the EPA will submit a rule report to This action does not have tribal 44 CFR Part 328 implications as specified in Executive each House of the Congress and to the [Docket ID FEMA–2020–0018] Order 13175. This rule finds that Texas Comptroller General of the United has failed to complete the requirement States. This action is not a ‘‘major rule’’ RIN 1660–AB01 in the CAA to submit SIPs under section as defined by 5 U.S.C. 804(2). Prioritization and Allocation of Certain 172 and subpart 5 of part D of Title I of M. Judicial Review the CAA (sections 191 and 192) for the Scarce and Critical Health and Medical Resources for Domestic Use SO2 NAAQS. No tribe is subject to the This final action consists of a Finding requirement to submit an of Failure to Submit certain required SIP AGENCY: Federal Emergency implementation plan under section 172 provisions for the three identified areas Management Agency, DHS. or under subpart 5 of part D of Title I in Texas designated nonattainment for ACTION: Temporary final rule; extension of the CAA. Thus, Executive Order the 2010 SO2 NAAQS. In accordance of effective date with modifications. 13175 does not apply to this action. with the CAA Section 307(b)(1), H. Executive Order 13045: Protection of petitions for judicial review of this SUMMARY: In April, the Federal Children From Environmental Health action must be filed in the United States Emergency Management Agency and Safety Risks Court of Appeals for the 5th Circuit (FEMA) issued a temporary final rule to within 60 days from the date this final allocate certain health and medical The EPA interprets Executive Order action is published in the Federal resources for domestic use, so that these 13045 as applying only to those resources may not be exported from the regulatory actions that concern health or Register. Filing a petition for reconsideration by the Administrator of United States without explicit approval safety risks that the EPA has reason to by FEMA. The rule covered five types believe may disproportionately affect this final rule does not affect the finality of this rule for the purposes of judicial of personal protective equipment (PPE), children, per the definition of ‘‘covered outlined below. While this rule remains regulatory action’’ in section 2–202 of review nor does it extend the time within which a petition for judicial in effect, and subject to certain the Executive Order. This action is not exemptions stated below, no shipments review may be filed, and shall not subject to Executive Order 13045 of such designated materials may leave postpone the effectiveness of such rule because it is a finding that Texas has the United States without explicit failed to submit a complete SIP that or action. This action may not be approval by FEMA. Through this satisfies the nonattainment area plan challenged later in proceedings to extension, FEMA modifies the types of requirements under section 172 and enforce its requirements. (See section PPE covered and extends the duration of subpart 5 of part D of Title I of the CAA 307(b)(2).) the temporary final rule. and does not directly or DATES: disproportionately affect children. List of Subjects in 40 CFR Part 52 Effective date: This rule is effective from August 10, 2020 until I. Executive Order 13211: Actions That Environmental protection, December 31, 2020. Significantly Affect Energy Supply, Administrative practice and procedures, ADDRESSES: You may review the docket Distribution or Use Air pollution control, Approval and by searching for Docket ID FEMA–2020– This action is not subject to Executive promulgation of implementation plans, 0018, via the Federal eRulemaking Order 13211, because it is not a Incorporation by reference, Portal: http://www.regulations.gov. significant regulatory action under Intergovernmental relations, and FOR FURTHER INFORMATION CONTACT: Executive Order 12866. Reporting and recordkeeping Daniel McMasters, Office of Policy and requirements. J. National Technology Transfer and Program Analysis, 202–709–0661, Advancement Act (NTTAA) Authority: 42 U.S.C. 7401 et seq. [email protected]. SUPPLEMENTARY INFORMATION: This rulemaking does not involve Dated: July 28, 2020. technical standards. Kenley McQueen, I. Background K. Executive Order 12898: Federal Regional Administrator, Region 6. On April 10, 2020, FEMA published Actions To Address Environmental [FR Doc. 2020–16672 Filed 8–5–20; 4:15 pm] a temporary final rule in the Federal Justice in Minority and Low-Income BILLING CODE 6560–50–P Register allocating certain health and Populations medical resources for domestic use, so that these resources may not be The EPA believes the human health or exported from the United States without environmental risk addressed by this explicit approval by FEMA.1 The rule action will not have potential aids the response of the United States to disproportionately high and adverse the spread of Coronavirus Disease 2019 human health or environmental effects (COVID–19) by ensuring that certain on minority, low-income, or indigenous health and medical resources are populations. In finding that Texas has appropriately allocated for domestic failed to submit a complete SIP that use. On April 21, 2020, FEMA satisfies the nonattainment area planning requirements under section 1 85 FR 20195 (Apr. 10, 2020). See also 85 FR 172 and subpart 5 of part D of Title I of 22622 (Apr. 23, 2020) (correcting the date filed from the CAA, this action does not adversely ‘‘4–8–20’’ to’’ 4–7–20’’).

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published a notification of exemptions COVID–19 pandemic.6 FEMA orders by any person he finds to be to the rule.2 With the continued goal of subsequently issued 57 major disaster capable of their performance. The ensuring that such materials are declarations in response to COVID–19 President may also (2) allocate appropriately allocated for domestic in every State, 5 territories, the materials, services, and facilities in such use, FEMA is extending the temporary Seminole Tribe of Florida, and the manner, upon such conditions, and to final rule and modifying the list of District of Columbia.7 such extent as he shall deem necessary covered materials to reflect current Within the United States, widespread or appropriate to promote the national domestic supply needs. The temporary transmission of COVID–19 has occurred. defense. FEMA refers to these final rule will remain in effect until Widespread transmission of COVID–19 authorities as relating to ‘‘priority December 31, 2020, unless sooner has resulted and will continue to result ratings’’ and ‘‘allocation,’’ respectively. modified or terminated by the in large numbers of people needing Under subsection 101(b) of the Act, 50 Administrator. medical care at the same time. Public U.S.C. 4511(b), the President may not health and healthcare systems have use the aforementioned authorities to A. The Current COVID–19 Pandemic become overwhelmed in some areas, control the general distribution of any with elevated rates of hospitalizations material in the civilian market unless COVID–19 is a communicable disease and deaths, as well as elevated demand the President finds (1) that such caused by severe acute respiratory for PPE, including the PPE covered by material is a scarce and critical material syndrome coronavirus 2 (SARS–CoV–2), this rule. essential to the national defense, and (2) that was first identified as the cause of B. Legal Authorities that the requirements of the national an outbreak of respiratory illness that defense for such material cannot began in Wuhan, Hubei Province, FEMA is extending and modifying otherwise be met without creating a People’s Republic of China. On January this temporary final rule as part of its significant dislocation of the normal 30, 2020, the Director-General of the response to the COVID–19 pandemic. distribution of such material in the World Health Organization (WHO) The rule is issued pursuant to the civilian market to such a degree as to declared that the outbreak of COVID–19 following authorities, among others: • create appreciable hardship. is a Public Health Emergency of The Defense Production Act of Under subsection 101(d) of the Act, International Concern under the 1950, as amended (‘‘DPA’’ or ‘‘the Act’’), 50 U.S.C. 4511(d), the head of each International Health Regulations.3 The and specifically sections 101 and 704 of Federal agency to which the President following day, the Secretary of Health the Act, 50 U.S.C. 4511, 4554; • delegates authority under section 101 of and Human Services (HHS) declared Executive Order 13909, 85 FR the Act (1) shall issue, and annually COVID–19 a public health emergency 16227 (Mar. 23, 2020); review and update whenever • Executive Order 13911, 85 FR under Section 319 of the Public Health appropriate, final rules, in accordance Service (PHS) Act.4 On March 11, 2020, 18403 (Apr. 1, 2020); • Department of Homeland Security with 5 U.S.C. 553, that establish the WHO declared COVID–19 a standards and procedures by which the pandemic. On March 13, 2020, the (DHS) Delegation Number 09052 Rev. 00.1, ‘‘Delegation of Defense Production priorities and allocations authority President issued a Proclamation on Act Authority to the Administrator of under section 101 is used to promote Declaring a National Emergency the Federal Emergency Management the national defense, under both Concerning the Novel Coronavirus Agency’’ (Apr. 1, 2020); and emergency and nonemergency Disease (COVID–19) Outbreak under • The Presidential Memorandum on conditions; and (2) as appropriate and to sections 201 and 301 of the National Allocating Certain Scarce or Threatened the extent practicable, consult with the Emergencies Act, 50 U.S.C. 1601 et seq., Health and Medical Resources to heads of other Federal agencies to and consistent with section 1135 of the 8 develop a consistent and unified 5 Domestic Use (April 3, 2020). Social Security Act, 42 U.S.C. 1320b–5. Under subsection 101(a) of the Act, 50 Federal priorities and allocations On March 13, 2020, the President U.S.C. 4511(a), the President may (1) system. declared a nationwide emergency under require that performance under On March 18, 2020, the President section 501(b) of the Robert T. Stafford contracts or orders (other than contracts signed Executive Order 13909, which Disaster Relief and Emergency of employment) which he deems (among other things) contained a Assistance Act, authorizing FEMA to necessary or appropriate to promote the finding that health and medical provide assistance for emergency national defense shall take priority over resources needed to respond to the protective measures to respond to the performance under any other contract or spread of COVID–19, including personal order, and, for the purpose of assuring protective equipment and ventilators, 2 85 FR 22021 (Apr. 21, 2020). such priority, require acceptance and meet the criteria specified in section 9 3 Statement on the second meeting of the performance of such contracts or orders 101(b) of the Act (50 U.S.C. 4511(b)). International Health Regulations (2005) Emergency in preference to other contracts or Committee regarding the outbreak of novel 9 Executive Order 13909 also delegated to the coronavirus (2019–nCoV) (January 30, 2020), Secretary of HHS authority under the DPA for the available at https://www.who.int/news-room/detail/ 6 COVID–19 Emergency Declaration available at prioritization and allocation of health and medical 30-01-2020-statement-on-the-second-meeting-of- https://www.fema.gov/news-release/2020/03/13/ resources to respond to the spread of COVID–19. the-international-health-regulations-(2005)- covid-19-emergency-declaration (accessed July 28, Further, on March 23, 2020, the President signed emergency-committee-regarding-the-outbreak-of- 2020). Executive Order 13910, in which the President novel-coronavirus-(2019-ncov). 7 See https://www.fema.gov/disasters/ (accessed delegated to the Secretary of HHS the authority 4 HHS, ‘‘Determination that a Public Health July 28, 2020). under section 102 of the Act to prevent hoarding Emergency Exists,’’ available at https:// 8 See Memorandum on Allocating Certain Scarce and price gouging with respect to health and www.phe.gov/emergency/news/healthactions/phe/ or Threatened Health and Medical Resources to medical resources necessary to respond to the Pages/2019-nCoV.aspx (Jan. 31, 2020). Domestic Use for the Secretary of Health and spread of COVID–19. On March 25, 2020, the 5 ‘‘Proclamation on Declaring a National Human Services, the Secretary of Homeland Secretary of Health and Human Services designated Emergency Concerning the Novel Coronavirus Security, and the Administrator of the Federal under section 102 of the Act 15 categories of health Disease (COVID–19) Outbreak,’’ March 13, 2020, Emergency Management Agency (Apr. 3, 2020), and medical resources as scarce materials or available at https://www.whitehouse.gov/ https://www.whitehouse.gov/presidential-actions/ materials the supply of which would be threatened presidential-actions/proclamation-declaring- memorandum-allocating-certain-scarce-threatened- by accumulation in excess of the reasonable national-emergency-concerning-novel-coronavirus- health-medical-resources-domestic-use/ (last visited demands of business, personal, or home disease-covid-19-outbreak/. July 28, 2020). consumption, or for the purpose of resale at prices

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On March 27, 2020, the President use in responding to the spread of Delegation 09052 Rev. 00.1, FEMA now signed Executive Order 13911, which COVID–19, it is the policy of the United issues this temporary final rule to (among other things) delegated to the States to prevent domestic brokers, extend and modify the allocation order. Secretary of Homeland Security the distributors, and other intermediaries II. Provisions of the Temporary Final President’s authority under section 101 from diverting such PPE materials Rule of the Act with respect to health and overseas. medical resources needed to respond to In furtherance of such policy, the Following consultation with the the spread of COVID–19 within the President directed the Secretary of appropriate Federal agencies; pursuant United States. The Executive Order Homeland Security, through the FEMA to the President’s direction; and as an provides that the Secretary of Homeland Administrator, and in consultation with exercise of the Administrator’s priority Security may use the authority under the Secretary of HHS, to use any and all order, allocation, and regulatory section 101 of the Act to determine, in authority available under section 101 of authorities under the Act, the consultation with the heads of other the Act to allocate to domestic use, as Administrator has determined that the executive departments and agencies as appropriate, the five types of PPE April 10, 2020 temporary final rule appropriate, the proper nationwide identified in the Memorandum. On (‘‘covered materials’’) shall be extended priorities and allocation of health and April 10, 2020, FEMA executed this temporarily, and that the list of scarce medical resources, including by direction by issuing the allocation order and critical materials identified in such controlling the distribution of such as a temporary final rule pursuant to the temporary final rule shall be modified to materials (including applicable services) Memorandum, and with the authority reflect current domestic needs. The in the civilian market, for responding to delegated to the Secretary of Homeland materials identified in this rule will the spread of COVID–19 within the Security in E.O. 13911 and re-delegated continue to be allocated for domestic United States.10 The Secretary of to the FEMA Administrator in DHS use, and may not be exported from the Homeland Security has delegated his Delegation 09052 Rev. 00.1.11 United States without explicit approval authorities under Executive Order Finally, on May 13, 2020, FEMA by FEMA. See 44 CFR 328.102(a). 13911 to FEMA. See DHS Delegation published an interim final rule to The rule is necessary and appropriate 09052, Rev. 00.1 (Apr. 1, 2020). establish standards and procedures by to promote the national defense with Additionally, on April 3, 2020, the which the priorities and allocations respect to the covered materials because President signed a Memorandum on authority under section 101 is used to the domestic need for them exceeds the Allocating Certain Scarce or Threatened promote the national defense, under supply. Under this temporary final rule Health and Medical Resources to both emergency and nonemergency extension, before any shipments of such Domestic Use (the Memorandum). The 12 conditions. covered materials may leave the United Memorandum reaffirmed the As the COVID–19 pandemic States, U.S. Customs and Border delegations and findings contained in continues in the United States, the Protection (CBP) will continue to detain Executive Orders 13909 and 13911, FEMA Administrator, in consultation the shipment temporarily, during which including that health and medical with other agencies as appropriate, has time FEMA will determine whether to resources needed to respond to the determined that it must continue to return for domestic use, issue a rated spread of COVID–19, including personal allocate some materials contained in the order for, or allow the export of part or protective equipment (PPE), meet the April 10, 2020 temporary final rule for all of the shipment under section 101(a) criteria specified in section 101(b) of the domestic use, but that it is no longer of the Act, 50 U.S.C. 4511(a). FEMA will Act, i.e., that (1) such material is a appropriate to continue the allocation of continue to make such a determination scarce and critical material essential to certain covered materials listed in the within a reasonable time of being the national defense, and (2) that the Memorandum due to changes in notified of an intended shipment and requirements of the national defense for domestic supply and demand. In will make all decisions consistent with such material cannot otherwise be met addition, FEMA has determined, promoting the national defense. See 44 without creating a significant consistent with the Memorandum and CFR 328.102(b). FEMA will work to dislocation of the normal distribution of FEMA’s authorities under section 101 of review and make determinations such material in the civilian market to the DPA, that it is appropriate to quickly and will endeavor to minimize such a degree as to create appreciable designate an additional category of such disruptions to the supply chain. hardship. The Memorandum identified materials. In short, FEMA has certain categories of PPE materials that determined that the original temporary In determining whether it is necessary the Secretary of HHS had previously final rule must be extended, but the list or appropriate to promote the national designated as ‘‘scarce or threatened’’ for of covered materials under such rule defense to purchase covered materials, purposes of section 102 of the DPA, and must be modified. or allocate materials for domestic use, further stated that to ensure that these Consistent with the authority FEMA may continue to consult other materials remain in the United States for delegated to the Secretary of Homeland agencies and will consider the totality of Security in E.O. 13911 and re-delegated the circumstances, including the in excess of prevailing market prices (‘‘anti- to the FEMA Administrator in DHS following factors: (1) The need to ensure hoarding designation’’). See 85 FR 17592 (Mar. 30, that these items are appropriately 2020). The Secretary of HHS later modified and allocated for domestic use; (2) extended this designation. See 85 FR 45895 (July 11 See 85 FR 20195 (Apr. 10, 2020). 30, 2020). The anti-hoarding designation relates to 12 See 85 FR 28500 (May 13, 2020) (codified at 44 minimization of disruption to the domestic hoarding and price-gouging activity, and CFR part 333). In that interim final rule, FEMA supply chain, both domestically and is conceptually distinct from, and serves different noted that although FEMA effectuated the April abroad; (3) the circumstances purposes than, this rulemaking. allocation order via a temporary rule that predated surrounding the distribution of the 10 The Executive Order also delegated to the the interim final rule, FEMA retains authority to Secretary of Homeland Security the authority under administer and enforce that allocation order materials and potential hoarding or section 102 of the Act to prevent hoarding and price according to its terms, and to issue future allocation price-gouging concerns; (4) the quantity gouging with respect to such resources, and orders consistent with the procedures announced in and quality of the materials; (5) requires that before exercising the authority under the interim final rule. See 85 FR at 28505. FEMA humanitarian considerations; and (6) section 102 of the Act, the Secretary of Homeland has opted to extend the April allocation, with Security shall consult with the Secretary of Health modifications, consistent with the form of the April international relations and diplomatic and Human Services. order. considerations.

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This extension to the rule continues exemptions by notice in the Federal of domestic supply to meet current the eleven exemptions that the Register. demands. As of August 4, 2020, FEMA Administrator has determined to be FEMA will continue to implement had open requests for over 28 million necessary or appropriate to promote the this rule with the cooperation and surgical masks from SLTT jurisdictions. national defense. See 44 CFR 328.102(c). assistance of other U.S. Government • FEMA is also continuing the agencies, including CBP, and will work designation of PPE gloves or surgical Specifically, the Administrator has with manufacturers, brokers, gloves as covered materials, with determined that FEMA will not distributors, exporters, and shippers to modification. FEMA is narrowing the purchase covered materials from ensure that the applicable requirements scope of the materials covered to PPE shipments made by or on behalf of U.S. are carried out. Any covered materials nitrile gloves, specifically those defined manufacturers with continuous export intended for export may be detained by at 21 CFR 880.6250 (exam gloves) and agreements with customers in other CBP while FEMA conducts its review of 878.4460 (surgical gloves) and other countries since at least January 1, 2020, the shipment. FEMA will review the such nitrile gloves intended for the so long as at least 80 percent of such shipment and provide notification as same purposes. Domestic supply for manufacturer’s domestic production of soon as possible regarding the latex and vinyl examination and covered materials, on a per item basis, disposition of the covered materials surgical gloves has largely caught up was distributed in the United States in under this order, provided that any with demand, but there is still a the preceding 12 months. The goods that have been detained by CBP significant shortage of nitrile gloves. As Administrator decided that this and are subsequently made subject to a of August 4, 2020, FEMA had open exemption is necessary or appropriate to DPA-rated order will be consigned to requests for over 139 million nitrile promote the national defense because it FEMA pending further distribution or gloves from SLTT jurisdictions. would limit the impact of this order on agency direction. FEMA may provide • FEMA is adding designations for pre-existing commercial relationships, additional guidance regarding the Level 3 and 4 Surgical Gowns and in recognition of the importance of these application of any exemptions to this Surgical Isolation Gowns that meet all of commercial relationships to the temporary final rule, as appropriate. the requirements in ANSI/AAMI international supply chain, and for FEMA is modifying the original PB70 14 and ASTM F2407–06 15 and are humanitarian reasons, in consideration temporary final rule at section classified by Surgical Gown Barrier of the global nature of the COVID–19 328.103(a) to update the designation of Performance based on AAMI PB70 to pandemic. If FEMA determines that a covered materials under the rule. FEMA the covered materials list at this time as shipment of covered materials falls is reducing the list of covered materials domestic supply is not meeting demand. within this exemption, such materials to four types of PPE as these As of August 4, 2020, FEMA had open may be transferred out of the United modifications reflect current domestic requests for over 11 million of these States without further review by FEMA, demand, as indicated by the number of gowns from SLTT jurisdictions. provided that the Administrator may open requests for such materials from • FEMA is eliminating two items waive this exemption and fully review State, local, Tribal, and territorial from the covered materials list as there shipments of covered materials subject (SLTT) jurisdictions. Specifically— are currently no indications that supply • to this exemption for further action by FEMA is continuing the designation is not meeting domestic demand to FEMA, if the Administrator determines of N95 Filtering Facepiece Respirators require these items to continue to be that doing so is necessary or appropriate as covered materials, with one subject to this order. FEMA is removing to promote the national defense. FEMA modification. In the original temporary other filtering facepiece respirators as may develop additional guidance final rule, FEMA designated ‘‘N95 this category of respirator has seen a regarding which exports are covered by Filtering Facepiece Respirators, significant drop in the number of orders this exemption and encourages including devices that are disposable received from SLTT jurisdictions and manufacturers to contact FEMA with half-face-piece non-powered air- the current supply is sufficient to fill specific information regarding their purifying particulate respirators demand from these jurisdictions. FEMA status under this exemption. intended for use to cover the nose and is also removing elastomeric, air- mouth of the wearer to help reduce purifying respirators and appropriate On April 21, 2020, FEMA published wearer exposure to pathogenic notification of ten additional particulate filters/cartridges from the list biological airborne particulates.’’ This of covered materials as these items have exemptions to the original temporary temporary final rule modifies the final rule.13 These exemptions will seen low demand from SLTT existing language by adding the word, jurisdictions and FEMA has been able to remain in effect for the new effective ‘‘surgical’’ to clarify the types of N95 period of this rule, subject to the fill all orders that have been placed for Filtering Facepiece Respirators subject these items in the past 45 days, as of Administrator’s discretion to waive, to this order. N95 respirators for modify, or terminate such exemptions at July 16, 2020. medical use are still subject to high Note that this rule covers only those any time in the future. The demand within the United States, and PPE items described above; it does not Administrator has determined that it supply is not expected to catch up with cover other forms of PPE not described continues to be necessary and demand until January 2021. As of in the rule, such as cloth-based masks. appropriate in order to promote the August 4, 2020, FEMA had open Consistent with the DPA and the national defense to exempt these requests for over 6 million N95 original temporary final rule, FEMA categories of covered materials from the respirators from SLTT jurisdictions. may continue to conduct such requirements of 44 CFR 328.102(a) and Because this demand is specific to (b). The Administrator may establish, in surgical N95 respirators and does not 14 ANSI/AAMI PB70 is the second edition of the his discretion, additional exemptions include industrial respirators, FEMA is standard for liquid barrier performance of that he determines are necessary or clarifying that the list only covers protective apparel. appropriate to promote the national surgical N95 respirators. 15 The American Society for Testing and Material defense and will announce any such • (ASTM) F2407 is an umbrella document which FEMA is continuing the designation describes testing for surgical gowns: Tear resistance, of PPE surgical masks as covered seam strength, lint generation, evaporative 13 85 FR 22021 (Apr. 21, 2020). materials due to the continued inability resistance, and water vapor transmission.

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investigations and issue such requests falls within one of a number of changing supply of and demand for the for information as may be necessary for enumerated exceptions, or unless health and medical resources needed to the enforcement of the Act, including another statute exempts the rulemaking combat it, full public notice and this rule. See 44 CFR 328.104(a); see from the requirements of the APA, comment proceedings are impracticable. also section 705 of the Act, 50 U.S.C. FEMA must publish a notice of As explained earlier in the preamble, 4555; Executive Order 13911, 85 FR proposed rulemaking in the Federal the volume of requests for certain health 18403 (Apr. 1, 2020). FEMA may seek Register that provides interested and medical resources continues to an injunction or other order whenever, persons an opportunity to submit outpace domestic supply in some cases, in the Administrator’s judgment, a written data, views, or arguments, prior while the domestic supply of other person has engaged or is about to engage to finalization of regulatory health and medical resources is now in any acts or practices which constitute requirements. Section 553(b)(B) sufficient to meet the requests of SLTT or will constitute a violation of the Act authorizes a department or agency to jurisdictions. In addition, the number of or any rule or order issued thereunder. dispense with the prior notice and requests fluctuates widely from day-to- See 44 CFR 328.104(b); see also section opportunity for public comment day as FEMA receives the requests, 706 of the Act, 50 U.S.C. 4556. In requirement when the agency, for ‘‘good evaluates them, and satisfies them. addition to an injunction, failure to cause,’’ finds that notice and public FEMA is continuously monitoring comply fully with this rule is a crime comment thereon are impracticable, SLTT jurisdictions’ demand for these punishable by a fine of not more than unnecessary, or contrary to the public scarce and critical health and medical $10,000 or imprisonment for not more interest. resources. This immediate action is than one year, or both. See 44 CFR This rule is exempt from the APA needed to continue to ensure that such 328.104(c); see also section 103 of the under section 709(a) of the Act, 50 resources are appropriately allocated for Act, 50 U.S.C. 4513. In addition, U.S.C. 4559(a). Instead, this rule is domestic use, and to tailor the scope of pursuant to 18 U.S.C. 554, whoever issued subject to the provisions of such allocation to current needs as of fraudulently or knowingly exports or section 709(b). Pursuant to section the prior TFR’s scheduled end-date. sends from the United States, or 709(b)(2) of the Act, the Administrator In short, given the national and attempts to export or send from the has concluded, based on the facts international emergency caused by United States, any merchandise, article, related to the COVID–19 pandemic, COVID–19 and the continuously or object contrary to any U.S. law or which already have been summarized in evolving nature of the situation, FEMA regulation, or receives, conceals, buys, this document, that, with respect to this finds that urgent and compelling sells, or in any manner facilitates the temporary final rule, urgent and circumstances have made it transportation, concealment, or sale of compelling circumstances make impracticable and contrary to the public such merchandise, article, or object, compliance with the notice and health—and, by extension, the public interest—to delay these implementing prior to exportation, knowing the same comment requirements of section regulations until a full public notice- to be intended for exportation contrary 709(b)(1) of the Act, 50 U.S.C. and-comment process is completed. to any U.S. law or regulation, faces up 4559(b)(1), impracticable. If final This temporary final rule modification to 10 years’ imprisonment, a fine, or regulations become necessary, an and extension is needed to both, if convicted. opportunity for public comment will be At any point in time, and to the extent provided for not less than 30 days appropriately allocate scarce and critical consistent with United States policy, the before such regulations become final, materials for domestic use, based on FEMA Administrator may determine pursuant to section 709(b)(2)(C) of the current needs. The measures described in this rule additional materials to be subject to this Act, 50 U.S.C. 4559(b)(2)(C). Furthermore, the same facts that are being issued on a temporary basis. allocation order. Upon a determination warrant waiver under section 709(b)(2) This temporary final rule will cease to under section 101(b) of the DPA that an of the Act would constitute good cause be in effect on December 31, 2020, additional material is a scarce and for FEMA to determine, under the APA, unless sooner modified or terminated by critical material essential for national that notice and public comment thereon the Administrator. defense, and that being allocated to are impractical, unnecessary, or domestic use under this allocation order B. Executive Orders 12866 and 13563 contrary to the public interest, and that is the only way to meet national defense the temporary final rule should become Executive Orders 12866 and 13563 requirements without significant effective on August 10, 2020, the date direct agencies to assess the costs and disruption to the domestic markets, the on which the original temporary final benefits of available regulatory Administrator will include these rule would expire. The exigent need for alternatives and, if regulation is additional materials in this allocation this rule is related to the COVID–19 necessary, to select regulatory order, and will provide notification of pandemic. approaches that maximize net benefits this decision through publication in the Although the Federal Government, (including potential economic, Federal Register. along with State and local governments, environmental, and public health and III. Regulatory Procedure and Analyses have taken preventative and proactive safety effects; distributive impacts; and measures to slow the spread of COVID– equity). Executive Order 13563 A. Temporary Final Rule With 19, and to treat those affected, the emphasizes the importance of Immediate Effective Date ongoing spread of COVID–19 within the quantifying both costs and benefits, As explained in the original Nation’s communities is straining the reducing costs, harmonizing rules, and temporary final rule,16 agency Nation’s healthcare systems. It is promoting flexibility. Section 3(f) of rulemaking is generally governed by the imperative that health and medical Executive Order 12866 defines a agency rulemaking provisions of the resources needed to respond to the ‘‘significant regulatory action’’ as an Administrative Procedure Act (APA). spread of COVID–19, including the PPE action that is likely to result in a See 5 U.S.C. 553. Such provisions affected by this rule, continue to be regulation (1) having an annual effect on generally require that, unless the rule allocated for domestic use as the economy of $100 million or more in appropriate. Given the evolving nature any one year, or adversely and 16 85 FR 20195 (Apr. 10, 2020). of this pandemic and the frequently materially affecting a sector of the

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economy, productivity, competition, approximately $172 million. If a rule will not have a substantial direct jobs, the environment, public health or budgetary impact statement is required, effect on the States, on the relationship safety, or State, local, or Tribal section 205 of the Unfunded Mandates between the National Government and governments or communities (also Act also requires covered agencies to the States, or on the distribution of referred to as ‘‘economically identify and consider a reasonable power and responsibilities among the significant’’); (2) creating a serious number of regulatory alternatives before various levels of Government. inconsistency or otherwise interfering promulgating a rule. DHS has Furthermore, there are no provisions in with an action taken or planned by determined that this rule is not expected this rule that impose direct compliance another agency; (3) materially altering to result in expenditures by State, local, costs on State and local governments. the budgetary impacts of entitlement and Tribal governments, or by the Accordingly, DHS believes that the rule grants, user fees, or loan programs or the private sector, of $172 million or more does not warrant additional analysis rights and obligations of recipients in any one year. This rule imposes no under Executive Order 13132. thereof; or (4) raising novel legal or requirements on State, local, and Tribal policy issues arising out of legal governments and, therefore, cannot G. Congressional Review Act mandates, the President’s priorities, or require them to expend any funds, let Under the Congressional Review Act the principles set forth in the Executive alone $172 million. To the extent that (CRA), 5 U.S.C. 801–808, before a rule Order. this rule affects the private sector, it can take effect, the Federal agency The Office of Management and Budget only prohibits conduct, namely certain promulgating the rule must: Submit to has designated this temporary final rule exports. It does not require any private Congress and to the Government as an economically significant sector expenditures within the meaning Accountability Office (GAO) a copy of regulatory action. Given that the of the Unfunded Mandates Act. Further, the rule; a concise general statement temporary final rule is a significant the rule is excluded from the Unfunded relating to the rule, including whether it regulatory action, FEMA proceeds under Mandates Act under 2 U.S.C. 1503(4) is a major rule; the proposed effective the emergency provision of Executive and (5). date of the rule; a copy of any cost- Order 12866, section 6(a)(3)(D) based on benefit analysis; descriptions of the the need for immediate action, as E. National Environmental Policy Act (NEPA) agency’s actions under the Regulatory described above, based on the need for Flexibility Act and the Unfunded immediate action to ensure these health Under the National Environmental Mandates Reform Act; and any other and medical resources are appropriately Policy Act of 1969 (NEPA), as amended, information or statements required by allocated for domestic use. 42 U.S.C. 4321 et seq., an agency must relevant executive orders. prepare an environmental assessment or C. Regulatory Flexibility Act FEMA has sent this rule to the environmental impact statement for any Congress and to GAO pursuant to the The Regulatory Flexibility Act (RFA) rulemaking that significantly affects the CRA. The Office of Information and generally requires that when an agency quality of the human environment. Regulatory affairs has determined that issues a proposed rule, or a final rule FEMA has determined that this this rule is a ‘‘major rule’’ within the that the agency issues under 5 U.S.C. rulemaking does not significantly affect meaning of the CRA. As this rule 553 after being required by that section the quality of the human environment contains FEMA’s finding for good cause or any other law to publish a general and consequently has not prepared an that notice and public procedure are notice of proposed rulemaking, the environmental assessment or impracticable, unnecessary, or contrary agency must prepare a regulatory environmental impact statement. to the public interest, there is not a flexibility analysis that meets the Rulemaking is a major Federal action required delay in the effective date. See requirements of the RFA and publish subject to NEPA. Categorical exclusion 5 U.S.C. 808. such analysis in the Federal Register. 5 A3 included in the list of exclusion U.S.C. 603, 604. categories at Department of Homeland List of Subjects in 44 CFR Part 328 This is neither a proposed rule, nor a Security Instruction Manual 023–01– Administrative practice and final rule that the agency has issued 001–01, Revision 01, Implementation of procedure, Business and industry, under 5 U.S.C. 553 of this title after the National Environmental Policy Act, Government contracts, Health or being required by that section or any Appendix A, issued November 6, 2014, medical resource, Hoarding, other law to publish a general notice of covers the promulgation of rules, Investigations, Materials, National proposed rulemaking. This is a issuance of rulings or interpretations, defense, Scarce materials, Strategic and temporary final rule issued without a and the development and publication of critical materials, Threatened materials. prior proposed rule, under the separate policies, orders, directives, notices, authority of the Defense Production Act procedures, manuals, and advisory ■ Accordingly, for the reasons set forth of 1950. Accordingly, a regulatory circulars if they meet certain criteria in the preamble, and effective from flexibility analysis is not required. provided in A3(a–f). This temporary August 10, 2020 until December 31, final rule meets Categorical Exclusion 2020, chapter I of title 44 of the Code D. Unfunded Mandates Reform Act A3(a), ‘‘Those of a strictly of Federal Regulations is amended by Section 202 of the Unfunded administrative or procedural nature’’. revising part 328 to read as follows: Mandates Reform Act of 1995 (Unfunded Mandates Act), 2 U.S.C. F. Executive Order 13132: Federalism PART 328—COVID–19 ALLOCATION 1532, requires that covered agencies This rule has been reviewed under ORDERS AND PRIORITY ORDER prepare a budgetary impact statement Executive Order 13132, Federalism, 64 REVIEW UNDER THE DEFENSE before promulgating a rule that includes FR 43255 (August 4, 1999). That PRODUCTION ACT any Federal mandate that may result in Executive Order imposes certain Sec. the expenditure by State, local, and requirements on agencies formulating 328.101 Basis and purpose. Tribal governments, in the aggregate, or and implementing policies or 328.102 Requirements. by the private sector, of $100 million in regulations that preempt State law or 328.103 Designation of covered materials. 1995 dollars, updated annually for that have federalism implications. DHS 328.104 Investigations and injunctions; inflation. Currently, that threshold is has determined that this temporary final penalties.

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Authority: Sections 101 et seq. of the potential hoarding or price-gouging (4) Level 3 and 4 Surgical Gowns and Defense Production Act of 1950, 50 U.S.C. concerns; Surgical Isolation Gowns that meet all of 4511, et seq.; Executive Order 13909, 85 FR (4) The quantity and quality of the the requirements in ANSI/AAMI PB70 16227 (Mar. 23, 2020); Executive Order materials; 13911, 85 FR 18403 (Apr. 1, 2020); DHS and ASTM F2407–06 and are classified (5) Humanitarian considerations; and by Surgical Gown Barrier Performance Delegation 09052, Rev. 00.1 (Apr. 1, 2020); (6) International relations and Presidential Memorandum on Allocating based on AAMI PB70. Certain Scarce or Threatened Health and diplomatic considerations. (d) Exemption. (1) The Administrator (b) Upon determination that Medical Resources to Domestic Use (April 3, additional items are scarce and 2020). has determined in the interest of promoting the national defense to necessary for national defense, and that § 328.101 Basis and purpose. generally allow the export of covered consideration under this allocation (a) Basis. These rules are issued materials from shipments made by or on order is the only way to meet national pursuant to section 101 of the Defense behalf of U.S. manufacturers with defense requirements without Production Act of 1950, as amended, 50 continuous export agreements with significant disruption to the domestic U.S.C. 4511, and complementary customers in other countries since at markets, the Administrator may authorities, including such authorities least January 1, 2020, so long as at least designate additional materials as as are contained in subchapter III of 80 percent of such manufacturer’s ‘‘covered materials’’ in the list provided chapter 55 of title 50, United States domestic production of such covered above. The Administrator will publish Code (50 U.S.C. 4554, 4555, 4556, and materials, on a per item basis, was notice of these additional ‘‘covered 4559), which have been delegated to distributed in the United States in the materials’’ in the Federal Register. FEMA. preceding 12 months. If FEMA (b) Purpose. The purpose of these determines that a shipment of covered § 328.104 Investigations and injunctions; rules is to aid the response of the United materials falls within this exemption, penalties. States to the spread of COVID–19 by such materials may be exported without (a) To administer or enforce this ensuring that scarce or threatened further review by FEMA, provided that subpart, the Administrator may exercise health and medical resources are the Administrator may waive this the authorities available under section exemption and fully review shipments appropriately allocated for domestic 705 of the Defense Production Act of of covered materials under paragraph (b) use. 1950, as amended, 50 U.S.C. 4555, of this section, if the Administrator including the conduct of investigations, § 328.102 Requirements. determines that doing so is necessary or requests for information or testimony, (a) Allocation Order and Requirement appropriate to promote the national for the Administrator’s Approval. All defense. FEMA will communicate to and inspections of records or premises. shipments of covered materials, as CBP regarding the application of this Before such authorities are utilized, the designated in § 328.103, shall be exemption to shipments identified by Administrator will determine the scope allocated for domestic use, and may not CBP. and purpose of the investigation, be exported from the United States (2) The Administrator may establish, inspection, or inquiry, and be assured without explicit approval by FEMA. in his discretion, additional exemptions that no adequate and authoritative data (b) Procedures. U.S. Customs and that he determines necessary or are available from any Federal or other Border Protection (CBP), in coordination appropriate to promote the national responsible agency. with such other officials as may be defense and will announce any such (b) Whenever, in the judgment of the appropriate, will notify FEMA of an exemptions by notice in the Federal Administrator, any person has engaged intended export of covered materials. Register. or is about to engage in any acts or (e) Exportations prohibited. The CBP must temporarily detain any practices that constitute or will exportation of covered materials other shipment of such covered materials, constitute a violation of any provision of than in accordance with this section is pending the Administrator’s this subpart, or order issued thereunder, prohibited. determination whether to return for the Administrator may exercise the domestic use or issue a rated order for § 328.103 Designation of covered authorities available under section 706 part or all of the shipment, pursuant to materials. of the Defense Production Act of 1950, the Administrator’s delegated (a) The Administrator has designated as amended, 50 U.S.C. 4556, including authorities. The Administrator will the following materials as ‘‘covered applying for a preliminary, permanent, make such a determination within a materials’’ under this part: or temporary injunction, restraining reasonable timeframe after notification (1) Surgical N95 Filtering Facepiece of an intended export. order, or other order to enforce Respirators, including devices that are compliance with this subpart. (c) Administrator’s Determination. In disposable half-face-piece non-powered making the determination described in air-purifying particulate respirators (c) Any person who willfully engages paragraph (b) of this section, the intended for use to cover the nose and in violations of this part is subject to Administrator may consult other mouth of the wearer to help reduce penalties available under section 103 of agencies and will consider the totality of wearer exposure to pathogenic the Defense Production Act of 1950, as the circumstances, including the biological airborne particulates; amended, 50 U.S.C. 4513, or other following factors: (2) PPE surgical masks, including available authority. (1) The need to ensure that scarce or masks that cover the user’s nose and Pete Gaynor, threatened items are appropriately mouth and provide a physical barrier to allocated for domestic use; fluids and particulate materials; Administrator, Federal Emergency (2) Minimization of disruption to the (3) PPE nitrile gloves, including those Management Agency. supply chain, both domestically and defined at 21 CFR 880.6250 (exam [FR Doc. 2020–17467 Filed 8–6–20; 11:15 am] abroad; gloves) and 878.4460 (surgical gloves) BILLING CODE 9111–19–P (3) The circumstances surrounding and such nitrile gloves intended for the the distribution of the materials and same purposes; and

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FEDERAL COMMUNICATIONS Authority: 47 U.S.C. 154, 155, 301, 303, TABLE 1 TO PARAGRAPH (b)— COMMISSION 307, 309, 310, 334, 336, 339. Continued ■ 2. In § 73.202 in paragraph (b) amend 47 CFR Part 73 Channel No. Table 1 by: [FRS 16933; DA 20–719] ■ a. Under California adding, in ***** alphabetical order, ‘‘Avenal, Channel Radio Broadcasting Services; Various 269A,’’, Coalinga, Channel 261B’’, ‘‘Dos Texas Locations Palos, Channel 240A’’, ‘‘Firebaugh, Channel 234A’’, ‘‘Ford City, Channel AGENCY: Federal Communications * **** Commission. 271A’’, ‘‘King City, Channel 275A’’, and Hereford ...... 278C2 ‘‘Lindsay, Channel 277B1’’; ACTION: Final rule. ■ b. Under Colorado adding, in ***** Palacios ...... 259C1 SUMMARY: This document amends the alphabetical order, ‘‘Calhan, Channel FM Table of Allotments, of the 284C3’’, and ‘‘Idalia, Channel 231A’’; ***** Commission’s rules, by reinstating ■ c. Under Iowa revising the entry for certain vacant FM allotments. These FM ‘‘Asbury’’; Virgin Islands allotments are considered vacant ■ because of the cancellation of the e. Under Texas adding, in alphabetical Charlotte Amalie ...... *275A order, ‘‘Hereford, Channel 278C2’’, and associated authorizations and licenses, ***** or the dismissal of long-form auction ‘‘Palacios, Channel 259C1’’; ■ applications. Theses vacant FM f. Under Virgin Islands adding, in [FR Doc. 2020–16152 Filed 8–7–20; 8:45 am] allotments have previously undergone alphabetical order, ‘‘Charlotte Amalie, BILLING CODE 6712–01–P notice and comment rule making. Channel *275A’’. Reinstatement of the vacant allotments § 73.202 Table of Allotments. is merely a ministerial action to DEPARTMENT OF COMMERCE effectuate licensing procedures. * * * * * Therefore, we find for good cause that (b) * * * National Oceanic and Atmospheric further notice and comment are Administration unnecessary. TABLE 1 TO PARAGRAPH (b) DATES: Effective August 10, 2020. 50 CFR Part 635 Channel No. FOR FURTHER INFORMATION CONTACT: [Docket No. 180117042–8884–02; RTID Rolanda F. Smith, Media Bureau, (202) California 0648–XA316] 418–2700. Atlantic Highly Migratory Species; SUPPLEMENTARY INFORMATION: This is a Atlantic Bluefin Tuna Fisheries synopsis of the Commission’s Order, ***** Avenal ...... 269A adopted July 10, 2020 and released July AGENCY: National Marine Fisheries 10, 2020. The full text of this ***** Service (NMFS), National Oceanic and Commission decision is available online Coalinga ...... 261B Atmospheric Administration (NOAA), at http://apps.fcc.gov/ecfs/. This Dos Palos ...... 240A Commerce. document does not contain information ACTION: Temporary rule; closure. collection requirements subject to the ***** Paperwork Reduction Act of 1995, Firebaugh ...... 234A SUMMARY: NMFS closes the Harpoon Public Law 104–13. The Commission Ford City ...... 271A category fishery for large medium and will not send a copy of the Order in a giant (i.e., measuring 73 inches (185 cm) report to be sent to Congress and the ***** curved fork length or greater) Atlantic King City ...... 275A Government Accountability Office bluefin tuna (BFT) through the end of pursuant to the Congressional Review the 2020 Harpoon category fishing ***** season. Current regulations provide that Act, see 5 U.S.C. 801(a)(1)(A) because Lindsay ...... 277B1 the Order is a ministerial action. the 2021 Harpoon category season ***** begins June 1, 2021. The intent of this List of Subjects in 47 CFR Part 73 closure is to prevent further overharvest Radio, Radio broadcasting. Colorado of the available Harpoon category BFT quota of 76 metric tons (mt). Federal Communications Commission. DATES: Nazifa Sawez, Effective 11:30 p.m., local time, ***** August 5, 2020, through November 15, Assistant Chief, Audio Division, Media Calhan ...... 284C3 Bureau. 2020. FOR FURTHER INFORMATION CONTACT: For the reasons discussed in the ***** Idalia ...... 231A Sarah McLaughlin, 978–281–9260, preamble, the Federal Communications Nicholas Velseboer, 978–675–2168, or Commission amends 47 CFR part 73 as ***** Larry Redd, 301–420–8503. follows: SUPPLEMENTARY INFORMATION: Iowa PART 73—RADIO BROADCAST Regulations implemented under the SERVICES authority of the Atlantic Tunas ***** Convention Act (ATCA; 16 U.S.C. 971 et ■ 1. The authority citation for part 73 Asbury ...... *254A seq.) and the Magnuson-Stevens Fishery continues to read as follows: Conservation and Management Act

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(Magnuson-Stevens Act; 16 U.S.C. 1801 the Harpoon category fishery should be adjustments will be published in the et seq.) governing the harvest of BFT by closed. Therefore, retaining, possessing, Federal Register. In addition, fishermen persons and vessels subject to U.S. or landing large medium or giant BFT may call the Atlantic Tunas Information jurisdiction are found at 50 CFR part by persons aboard vessels permitted in Line at (978) 281–9260, or access 635. Section 635.27 subdivides the U.S. the Atlantic tunas Harpoon category hmspermits.noaa.gov, for updates on BFT quota recommended by the must cease at 11:30 p.m. local time on quota monitoring and inseason International Commission for the August 5, 2020. The Harpoon category adjustments. Conservation of Atlantic Tunas (ICCAT) will reopen automatically on June 1, Classification among the various domestic fishing 2021, for the 2021 fishing season. This categories, per the allocations action applies to Atlantic tunas Harpoon NMFS issues this action pursuant to established in the 2006 Consolidated category (commercial) permitted and is section 305(d) of the Magnuson-Stevens Highly Migratory Species Fishery taken consistent with the regulations at Act. This action is required by 50 CFR Management Plan (2006 Consolidated § 635.28(a)(1). The intent of this closure part 635, which was issued pursuant to HMS FMP) (71 FR 58058, October 2, is to prevent further overharvest of the section 304(c), and is exempt from 2006) and amendments, and in available Harpoon category quota. review under Executive Order 12866. accordance with implementing regulations. Monitoring and Reporting The Assistant Administrator for Under § 635.28(a)(1), NMFS files a NMFS (AA) finds that pursuant to 5 NMFS will continue to monitor the U.S.C. 553(b)(B), there is good cause to closure notice with the Office of the BFT fisheries closely. Dealers are Federal Register for publication when a waive prior notice of, and an required to submit landing reports opportunity for public comment on, for BFT quota is reached or is projected to within 24 hours of a dealer receiving be reached. Retaining, possessing, or the following reasons: The regulations BFT. Late reporting by dealers implementing the 2006 Consolidated landing BFT under a quota category is compromises NMFS’ ability to timely prohibited on or after the effective date HMS FMP and amendments provide for implement actions such as quota and inseason retention limit adjustments to and time of a closure notice for that retention limit adjustment, as well as category until the opening of the respond to the unpredictable nature of closures, and may result in enforcement BFT availability on the fishing grounds, relevant subsequent quota period or actions. Additionally, and separate from until such date as specified. the migratory nature of this species, and the dealer reporting requirement, the regional variations in the BFT Harpoon Category Closure Harpoon category vessel owners are fishery. This fishery is currently The base quota for the Harpoon required to report the catch of all BFT underway and delaying this action category is 46 mt. See § 635.27(a). retained or discarded dead within 24 would be contrary to the public interest Effective July 13, 2020, NMFS hours of the landing(s) or end of each as it could result in BFT landings transferred 30 mt from the Reserve trip, by accessing hmspermits.noaa.gov, exceeding the Harpoon category quota. category to the Harpoon category, using the HMS Catch Reporting app, or For all of the above reasons, there is resulting in an adjusted subquota of 76 calling (888) 872–8862 (Monday good cause under 5 U.S.C. 553(d) to mt for the Harpoon category and 113 mt through Friday from 8 a.m. until 4:30 waive the 30-day delay in effectiveness. p.m.). for the Reserve category (85 FR 43148, Authority: 16 U.S.C. 971 et seq. and 1801 July 16, 2020). Depending on the level of fishing et seq. Based on the best available landings effort and catch rates of BFT, NMFS information for the Harpoon category may determine that additional Dated: August 5, 2020. BFT fishery, NMFS has determined that adjustments are necessary to ensure Jennifer M. Wallace, the adjusted Harpoon category quota of available subquotas are not exceeded or Acting Director, Office of Sustainable 76 mt has been reached and exceeded to enhance scientific data collection Fisheries, National Marine Fisheries Service. (i.e., as of August 4, reported landings from, and fishing opportunities in, all [FR Doc. 2020–17390 Filed 8–5–20; 4:15 pm] total approximately 77.4 mt) and that geographic areas. If needed, subsequent BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 85, No. 154

Monday, August 10, 2020

This section of the FEDERAL REGISTER ADDRESSES: You may send comments, arguments about this proposal. Send contains notices to the public of the proposed using the procedures found in 14 CFR your comments to an address listed issuance of rules and regulations. The 11.43 and 11.45, by any of the following under the ADDRESSES section. Include purpose of these notices is to give interested methods: ‘‘Docket No. FAA–2020–0680; Product persons an opportunity to participate in the • Federal eRulemaking Portal: Go to Identifier 2020–NM–079–AD’’ at the rule making prior to the adoption of the final rules. https://www.regulations.gov. Follow the beginning of your comments. The most instructions for submitting comments. helpful comments reference a specific • Fax: 202–493–2251. portion of the proposal, explain the • DEPARTMENT OF TRANSPORTATION Mail: U.S. Department of reason for any recommended change, Transportation, Docket Operations, M– and include supporting data. The FAA Federal Aviation Administration 30, West Building Ground Floor, Room will consider all comments received by W12–140, 1200 New Jersey Avenue SE, the closing date and may amend this 14 CFR Part 39 Washington, DC 20590. NPRM because of those comments. • Hand Delivery: Deliver to Mail Except for Confidential Business [Docket No. FAA–2020–0680; Product Information (CBI) as described in the Identifier 2020–NM–079–AD] address above between 9 a.m. and 5 p.m., Monday through Friday, except following paragraph, and other RIN 2120–AA64 Federal holidays. information as described in 14 CFR For service information identified in 11.35, the FAA will post all comments Airworthiness Directives; The Boeing this NPRM, contact Boeing Commercial received, without change, to https:// Company Airplanes Airplanes, Attention: Contractual & Data www.regulations.gov, including any AGENCY: Federal Aviation Services (C&DS), 2600 Westminster personal information you provide. The Administration (FAA), DOT. Blvd., MC 110–SK57, Seal Beach, CA FAA will also post a report summarizing each substantive verbal ACTION: Notice of proposed rulemaking 90740–5600; telephone 562–797–1717; contact received about this proposed (NPRM). internet https:// www.myboeingfleet.com. You may view AD. SUMMARY: The FAA proposes to this service information at the FAA, Confidential Business Information supersede Airworthiness Directive (AD) Airworthiness Products Section, 2016–25–29, which applies to certain Operational Safety Branch, 2200 South CBI is commercial or financial The Boeing Company Model 767–200 216th St., Des Moines, WA. For information that is both customarily and and –300 series airplanes. AD 2016–25– information on the availability of this actually treated as private by its owner. 29 requires replacing the cargo material at the FAA, call 206–231–3195. Under the Freedom of Information Act compartment insulation blankets on the It is also available on the internet at (FOIA) (5 U.S.C. 552), CBI is exempt left and right sides with new insulation https://www.regulations.gov by from public disclosure. If your blankets that incorporate fire stops. searching for and locating Docket No. comments responsive to this NPRM contain commercial or financial Since the FAA issued AD 2016–25–29, FAA–2020–0680. information that is customarily treated it was determined that an incorrect part Examining the AD Docket as private, that you actually treat as number was specified for certain private, and that is relevant or insulation blankets, and the FAA has You may examine the AD docket on responsive to this NPRM, it is important determined that additional insulation the internet at https:// that you clearly designate the submitted blankets need to be replaced and that www.regulations.gov by searching for comments as CBI. Please mark each additional airplanes are subject to the and locating Docket No. FAA–2020– page of your submission containing CBI unsafe condition. This proposed AD 0680; or in person at Docket Operations as ‘‘PROPIN.’’ The FAA will treat such would continue to require the actions in between 9 a.m. and 5 p.m., Monday marked submissions as confidential AD 2016–25–29 for certain airplanes. through Friday, except Federal holidays. under the FOIA, and they will not be This proposed AD would also add The AD docket contains this NPRM, any comments received, and other placed in the public docket of this airplanes to the applicability and would NPRM. Submissions containing CBI information. The street address for require a general visual inspection of should be sent to the person identified the replacement insulation blankets to Docket Operations is listed above. in the FOR FURTHER INFORMATION Comments will be available in the AD determine if the blankets are in CONTACT section. Any commentary that docket shortly after receipt. serviceable condition and correctly the FAA receives which is not installed, and applicable on-condition FOR FURTHER INFORMATION CONTACT: Julie specifically designated as CBI will be actions. For certain airplanes, this AD Linn, Aerospace Engineer, Cabin Safety placed in the public docket for this would also require an inspection to and Environmental Systems Section, rulemaking. determine the insulation blanket part FAA, Seattle ACO Branch, 2200 South number installed; replacement of 216th St., Des Moines, WA 98198; Discussion additional insulation blankets; and phone and fax: 206–231–3584; email: The FAA issued AD 2016–25–29, applicable on-condition actions. The [email protected]. Amendment 39–18755 (81 FR 94956, FAA is proposing this AD to address the SUPPLEMENTARY INFORMATION: December 27, 2016) (‘‘AD 2016–25– unsafe condition on these products. 29’’), for certain The Boeing Company DATES: The FAA must receive comments Comments Invited Model 767–200 and –300 series on this proposed AD by September 24, The FAA invites you to send any airplanes. AD 2016–25–29 requires 2020. written relevant data, views, or replacing the cargo compartment

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insulation blankets on the left and right Related Service Information Under 1 previously is likely to exist or develop sides with new insulation blankets that CFR Part 51 in other products of the same type incorporate fire stops. AD 2016–25–29 The FAA reviewed Boeing Special design. resulted from a report of a fire in the Attention Service Bulletin 767–25– Proposed AD Requirements bilge area of the cargo compartment that 0550, Revision 1, dated December 4, burned through the insulation blankets 2019. The service information describes Although this proposed AD does not that were intended to prevent smoke procedures for replacing cargo explicitly restate the requirements of AD from migrating behind the cargo compartment insulation blankets 2016–25–29, this proposed AD would compartment sidewall liners and between stringers 29 and 33, on the left retain certain of the requirements of AD 2016–25–29. Those requirements are upward into the main cabin. The FAA and right sides, with new insulation referenced in the service information issued AD 2016–25–29 to address a fire blankets that incorporate fire stops; an identified previously, which, in turn, is in the bilge area of the cargo inspection to determine the insulation blanket part number installed between referenced in paragraph (g) of this compartment burning through the proposed AD. This proposed AD would insulation blankets and consequently stringers 29 and 33, on the left and right sides; a general visual inspection of the add airplanes to the applicability. This allowing smoke to migrate behind the proposed AD would also require cargo compartment sidewall liners and replacement insulation blankets between stringers 29 and 33, on the left accomplishment of the actions upward into the main cabin. and right sides to determine if the identified as ‘‘RC’’ (required for Actions Since AD 2016–25–29 Was blankets are in serviceable condition compliance) in the Accomplishment Issued and correctly installed; and applicable Instructions of Boeing Special Attention on-condition actions. On-condition Service Bulletin 767–25–0550, Revision Since the FAA issued AD 2016–25– actions include repair, replacement, and 1, dated December 4, 2019, described 29, it was determined that an incorrect correction of insulation blanket previously. part number was specified for certain installations. For information on the procedures insulation blankets. Based on those This service information is reasonably and compliance times, see this service findings, the FAA determined that available because the interested parties information at https:// certain insulation blankets that were have access to it through their normal www.regulations.gov by searching for replaced, as required by AD 2016–25– course of business or by the means and locating Docket No. FAA–2020– 29, must be replaced with those having identified in the ADDRESSES section. 0680. the improved design. In addition, the FAA’s Determination Costs of Compliance FAA determined that additional The FAA is proposing this AD The FAA estimates that this proposed insulation blankets need to be replaced because the agency evaluated all the AD affects 329 airplanes of U.S. registry. and that additional airplanes are subject relevant information and determined The FAA estimates the following costs to the unsafe condition. the unsafe condition described to comply with this proposed AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

Action Labor cost Parts cost Cost per product Cost on U.S. operators

Replacement (retained ac- Up to 54 work-hours × $85 * ...... Up to $4,590 ...... Up to $1,510,110. tions from AD 2016–25– per hour = Up to $4,590. 29). Inspections and replace- Up to 62 work-hour × $85 Up to $35,900 ...... Up to $41,170 ...... Up to $13,944,530. ments (new proposed per hour = Up to $5,270. action). * The FAA has received no definitive data that would enable providing parts cost estimates for the retained actions specified in this proposed AD.

The FAA has received no definitive the FAA Administrator. Subtitle VII, Regulatory Findings data that would enable us to provide Aviation Programs, describes in more The FAA has determined that this cost estimates for the on-condition detail the scope of the Agency’s proposed AD would not have federalism actions specified in this proposed AD. authority. implications under Executive Order According to the manufacturer, some The FAA is issuing this rulemaking 13132. This proposed AD would not of the costs of this proposed AD may be under the authority described in have a substantial direct effect on the covered under warranty, thereby Subtitle VII, Part A, Subpart III, Section States, on the relationship between the reducing the cost impact on affected 44701, General requirements. Under national Government and the States, or individuals. The FAA does not control that section, Congress charges the FAA on the distribution of power and warranty coverage for affected with promoting safe flight of civil responsibilities among the various individuals. As a result, the FAA has aircraft in air commerce by prescribing levels of government. included all available costs in our cost regulations for practices, methods, and For the reasons discussed above, I estimate. procedures the Administrator finds certify that the proposed regulation: Authority for This Rulemaking necessary for safety in air commerce. (1) Is not a ‘‘significant regulatory This regulation is within the scope of action’’ under Executive Order 12866, Title 49 of the United States Code that authority because it addresses an (2) Will not affect intrastate aviation specifies the FAA’s authority to issue unsafe condition that is likely to exist or in Alaska, and rules on aviation safety. Subtitle I, develop on products identified in this (3) Will not have a significant Section 106, describes the authority of rulemaking action. economic impact, positive or negative,

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on a substantial number of small entities paragraph 1.E., ‘‘Compliance,’’ of Boeing (j) Related Information under the criteria of the Regulatory Special Attention Service Bulletin 767–25– (1) For more information about this AD, Flexibility Act. 0550, Revision 1, dated December 4, 2019, do contact Julie Linn, Aerospace Engineer, all applicable actions identified as ‘‘RC’’ Cabin Safety and Environmental Systems List of Subjects in 14 CFR Part 39 (required for compliance) in, and in Section, FAA, Seattle ACO Branch, 2200 accordance with, the Accomplishment Air transportation, Aircraft, Aviation South 216th St., Des Moines, WA 98198; Instructions of Boeing Special Attention phone and fax: 206–231–3584; email: safety, Incorporation by reference, Service Bulletin 767–25–0550, Revision 1, Safety. [email protected]. dated December 4, 2019. (2) For service information identified in The Proposed Amendment (h) Exception to Service Information this AD, contact Boeing Commercial Specifications Airplanes, Attention: Contractual & Data Accordingly, under the authority Services (C&DS), 2600 Westminster Blvd., Where Boeing Special Attention Service delegated to me by the Administrator, MC 110–SK57, Seal Beach, CA 90740–5600; Bulletin 767–25–0550, Revision 1, dated the FAA proposes to amend 14 CFR part telephone 562–797–1717; internet https:// December 4, 2019, uses the phrase ‘‘the www.myboeingfleet.com. You may view this 39 as follows: Revision 1 date of this service bulletin,’’ this referenced service information at the FAA, PART 39—AIRWORTHINESS AD requires using ‘‘the effective date of this AD.’’ Airworthiness Products Section, Operational DIRECTIVES Safety Branch, 2200 South 216th St., Des (i) Alternative Methods of Compliance Moines, WA. For information on the ■ 1. The authority citation for part 39 (AMOCs) availability of this material at the FAA, call continues to read as follows: (1) The Manager, Seattle ACO Branch, 206–231–3195. Authority: 49 U.S.C. 106(g), 40113, 44701. FAA, has the authority to approve AMOCs Issued on July 29, 2020. for this AD, if requested using the procedures Gaetano A. Sciortino, § 39.13 [Amended] found in 14 CFR 39.19. In accordance with Deputy Director for Strategic Initiatives, ■ 14 CFR 39.19, send your request to your 2. The FAA amends § 39.13 by Compliance & Airworthiness Division, removing Airworthiness Directive (AD) principal inspector or local Flight Standards District Office, as appropriate. If sending Aircraft Certification Service. 2016–25–29, Amendment 39–18755 (81 information directly to the manager of the [FR Doc. 2020–17362 Filed 8–7–20; 8:45 am] FR 94956, December 27, 2016), and certification office, send it to the attention of BILLING CODE 4910–13–P adding the following new AD: the person identified in paragraph (j)(1) of The Boeing Company: Docket No. FAA– this AD. Information may be emailed to: 9- [email protected]. 2020–0680; Product Identifier 2020– DEPARTMENT OF HEALTH AND NM–079–AD. (2) Before using any approved AMOC, notify your appropriate principal inspector, HUMAN SERVICES (a) Comments Due Date or lacking a principal inspector, the manager The FAA must receive comments on this of the local flight standards district office/ Food and Drug Administration AD action by September 24, 2020. certificate holding district office. (3) An AMOC that provides an acceptable 21 CFR Part 112 (b) Affected ADs level of safety may be used for any repair, [Docket No. FDA–2020–N–1119] This AD replaces AD 2016–25–29, modification, or alteration required by this AD if it is approved by The Boeing Company Amendment 39–18755 (81 FR 94956, Request for Information and December 27, 2016) (‘‘AD 2016–25–29’’). Organization Designation Authorization (ODA) that has been authorized by the Comments on Consumption of Certain (c) Applicability Manager, Seattle ACO Branch, FAA, to make Uncommon Produce Commodities in This AD applies to The Boeing Company those findings. To be approved, the repair the United States; Establishment of a Model 767–200, –300, –300F, and –400ER method, modification deviation, or alteration Public Docket series airplanes, certificated in any category, deviation must meet the certification basis of as identified in Boeing Special Attention the airplane, and the approval must AGENCY: Food and Drug Administration, Service Bulletin 767–25–0550, Revision 1, specifically refer to this AD. HHS. dated December 4, 2019. (4) AMOCs approved previously for AD ACTION: Notification; establishment of 2016–25–29 are approved as AMOCs for the docket; request for comments. (d) Subject corresponding provisions of Boeing Special Air Transport Association (ATA) of Attention Service Bulletin 767–25–0550, SUMMARY: The Food and Drug America Code 25, Equipment/furnishings. Revision 1, dated December 4, 2019, that are Administration (FDA, the Agency, or required by paragraph (g) of this AD. we) is opening a docket to receive (e) Unsafe Condition (5) For service information that contains This AD was prompted by a report of a fire steps that are labeled as Required for information and comments related to in the bilge area of the cargo compartment Compliance (RC), the provisions of certain produce commodities with no or that burned through the insulation blankets paragraphs (i)(5)(i) and (ii) of this AD apply. low reported consumption in the that were intended to prevent smoke from (i) The steps labeled as RC, including database relied on to create the list of migrating behind the cargo compartment substeps under an RC step and any figures rarely consumed raw commodities that sidewall liners and upward into the main identified in an RC step, must be done to are exempt from the Standards for the cabin. The FAA is issuing this AD to address comply with the AD. If a step or substep is Growing, Harvesting, Packing, and a fire in the bilge area of the cargo labeled ‘‘RC Exempt,’’ then the RC Holding of Produce for Human requirement is removed from that step or compartment, which if not contained could Consumption regulation. FDA intends lead to a possible smoke and fire event in the substep. An AMOC is required for any passenger compartment. deviations to RC steps, including substeps to use the information to consider and identified figures. whether any of these commodities (f) Compliance (ii) Steps not labeled as RC may be should be added to the rarely consumed Comply with this AD within the deviated from using accepted methods in raw list. compliance times specified, unless already accordance with the operator’s maintenance DATES: Submit either electronic or done. or inspection program without obtaining written comments by November 9, 2020. approval of an AMOC, provided the RC steps, (g) Required Actions including substeps and identified figures, can ADDRESSES: You may submit comments Except as specified by paragraph (h) of this still be done as specified, and the airplane as follows. Please note that late, AD: At the applicable times specified in can be put back in an airworthy condition. untimely filed comments will not be

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considered. Electronic comments must for those submitted as ‘‘Confidential fruits and vegetables grown for human be submitted on or before November 9, Submissions,’’ publicly viewable at consumption (produce safety 2020. The https://www.regulations.gov https://www.regulations.gov or at the regulation). The produce safety electronic filing system will accept Dockets Management Staff between 9 regulation is one of the seven comments until 11:59 p.m. Eastern Time a.m. and 4 p.m., Monday through foundational regulations that we issued at the end of November 9, 2020. Friday, 240–402–7500. as part of our implementation of the Comments received by mail/hand • Confidential Submissions—To FDA Food Safety Modernization Act delivery/courier (for written/paper submit a comment with confidential (Pub. L. 111–353), which directs FDA to submissions) will be considered timely information that you do not wish to be better protect public health by, among if they are postmarked or the delivery made publicly available, submit your other things, adopting a modern, service acceptance receipt is on or comments only as a written/paper preventive, and risk-based approach to before that date. submission. You should submit two food safety. copies total. One copy will include the Produce is subject to the produce Electronic Submissions information you claim to be confidential safety regulation (i.e., is ‘‘covered Submit electronic comments in the with a heading or cover note that states produce’’) unless it is ‘‘not covered’’ following way: ‘‘THIS DOCUMENT CONTAINS because it is: (1) Rarely consumed raw • Federal eRulemaking Portal: CONFIDENTIAL INFORMATION.’’ The (RCR) (§ 112.2(a)(1) (21 CFR 112.2(a)(1))) https://www.regulations.gov. Follow the Agency will review this copy, including (the RCR exemption); (2) produced for instructions for submitting comments. the claimed confidential information, in personal or on-farm consumption Comments submitted electronically, its consideration of comments. The (§ 112.2(a)(2)); or (3) not a raw including attachments, to https:// second copy, which will have the agricultural commodity (§ 112.2(a)(3)). www.regulations.gov will be posted to claimed confidential information This request for information pertains to the docket unchanged. Because your redacted/blacked out, will be available certain commodities that were not comment will be made public, you are for public viewing and posted on categorized as RCR. solely responsible for ensuring that your https://www.regulations.gov. Submit The RCR list is a list of produce comment does not include any both copies to the Dockets Management commodities that we determined are confidential information that you or a Staff. If you do not wish your name and almost always consumed in the United third party may not wish to be posted, contact information to be made publicly States only after being cooked. Cooking such as medical information, your or available, you can provide this is a kill step that can be expected to anyone else’s Social Security number, or information on the cover sheet and not adequately reduce the presence of confidential business information, such in the body of your comments and you microorganisms of public health as a manufacturing process. Please note must identify this information as significance in most cases. FDA that if you include your name, contact ‘‘confidential.’’ Any information marked concluded that it is not reasonably information, or other information that as ‘‘confidential’’ will not be disclosed necessary to subject RCR commodities to the produce safety regulation. identifies you in the body of your except in accordance with 21 CFR 10.20 FDA’s classification of produce as comments, that information will be and other applicable disclosure law. For RCR was based on food consumption posted on https://www.regulations.gov. more information about FDA’s posting • If you want to submit a comment patterns reported in a robust dataset: of comments to public dockets, see 80 The National Health and Nutritional with confidential information that you FR 56469, September 18, 2015, or access do not wish to be made available to the Examination Survey/What We Eat in the information at: https:// America (NHANES/WWEIA) dataset public, submit the comment as a www.govinfo.gov/content/pkg/FR-2015- written/paper submission and in the (Ref. 1), which is the most 09-18/pdf/2015-23389.pdf. comprehensive, robust, and nationally manner detailed (see ‘‘Written/Paper Docket: For access to the docket to Submissions’’ and ‘‘Instructions’’). representative dataset currently read background documents or the available on dietary intake in the United Written/Paper Submissions electronic and written/paper comments States. We also used the U.S. received, go to https:// Submit written/paper submissions as Environmental Protection Agency’s www.regulations.gov and insert the follows: Food Commodity Intake Database (Ref. • Mail/Hand delivery/Courier (for docket number, found in brackets in the 2), which is a recipe database that written/paper submissions): Dockets heading of this document, into the identifies proportions of commodity Management Staff (HFA–305), Food and ‘‘Search’’ box and follow the prompts ingredients in NHANES/WWEIA codes, Drug Administration, 5630 Fishers and/or go to the Dockets Management and also identifies the cooking status Lane, Rm. 1061, Rockville, MD 20852. Staff, 5630 Fishers Lane, Rm. 1061, (uncooked or cooked) and the food • For written/paper comments Rockville, MD 20852, 240–402–7500. forms (e.g., fresh, frozen, canned) submitted to the Dockets Management FOR FURTHER INFORMATION CONTACT: associated with each commodity Staff, FDA will post your comment, as Samir Assar, Center for Food Safety and ingredient. We provided background well as any attachments, except for Applied Nutrition (HFS–317), Food and information and data analyses informing information submitted, marked and Drug Administration, 5001 Campus Dr., the inclusion of produce commodities identified, as confidential, if submitted College Park, MD 20740, 240–402–1636. in the RCR list in a memorandum (the as detailed in ‘‘Instructions.’’ SUPPLEMENTARY INFORMATION: Produce RCR memorandum) that we Instructions: All submissions received made available in the administrative I. Background must include the Docket No. FDA– record of the produce safety rulemaking 2020–N–1119 for ‘‘Request for In the Federal Register of November (Ref. 3). Information and Comments on 27, 2015, we issued the final rule, Note that the identification of a Consumption of Certain Uncommon ‘‘Standards for the Growing, Harvesting, commodity on the RCR list does not Produce Commodities in the United Packing, and Holding of Produce for mean the produce is never eaten raw or States.’’ Received comments, those filed Human Consumption’’ (80 FR 74354), that it is not eaten raw, typically or in a timely manner (see ADDRESSES), which established at 21 CFR part 112 occasionally, in specific regions of the will be placed in the docket and, except science-based minimum standards for United States (or among specific ethnic

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communities in the United States). The produce commodities with low reported the commodity in the uncooked form RCR list also does not reflect the form consumption according to the and/or how often the commodity is in which these commodities are methodology used in developing the consumed uncooked compared to the consumed by populations in other RCR list: Artichoke, globe-type; cooked form. Results of a well-designed countries. artichoke, Jerusalem; arugula; balsam consumer survey would be one possible Consumption patterns for a pear; boysenberry; Brazil nut; breadfruit; type of data that may be submitted. commodity had to meet three criteria broccoli, Chinese; brussels sprouts; Market data that closely parallels that were used to determine if a burdock; cabbage, Chinese, bok choy; consumer consumption data may also commodity qualified as rarely cabbage, Chinese, mustard; cabbage, be helpful. Another type of data that consumed raw. First, the commodity Chinese, Napa; cactus; celeriac; chayote could be useful is data indicating that a had to be consumed uncooked by less fruit; chestnut; Chinese waxgourd; commodity cannot safely be consumed than 0.1 percent of the United States chrysanthemum garland; citron; cress, uncooked, e.g., because in its uncooked population. Second, the commodity had garden; currant; dandelion leaves; state it contains toxic properties. We to be consumed uncooked on less than dasheen (taro) (leaves and corm); fennel, also request information on any kill 0.1 percent of eating occasions. Third, at Florence; genip; gooseberry; grape, steps other than cooking (e.g., least 1 percent of the weighted number leaves; guava; huckleberry; jicama; kale; fermentation that adequately reduces of survey respondents must have kohlrabi; kumquat; leek; lime; lotus microorganisms of public health reported consuming the commodity in root; lychee; macadamia nut; mulberry; significance) that are always or almost any form for the data to provide a mustard greens; palm heart, leaves; always applied to produce commodities reasonable representation of how that parsnip; passion fruit; persimmon; pine with no or low reported consumption commodity is consumed by U.S. nut; plantain; pomegranate; quince; and data on the extent to which this kill consumers. The purpose of the third radish, oriental, roots; rhubarb; step is applied consistently across the criteria was to ensure that we had rutabaga; shallot; soursop; soybean, industry. sufficient data to provide a reasonable sprouts; starfruit; swamp cabbage; For this Request for Information, FDA representation of how the commodity is sweetsop; Swiss chard; turnip (roots and is requesting data, information, and consumed in the United States for the greens); and yam. comments from all interested parties, purpose of exempting commodities from Some produce commodities did not including, but not limited to, academic the coverage of the produce safety appear in the NHANES/WWEIA at all; and government researchers, industry, regulation (80 FR 74354 at 74388). For a commodity is added to NHANES/ and any other source. When submitting commodities not reported as consumed WWEIA partly based on the number of information, please include details by at least 1 percent of the weighted times the new food is reported and about how the data were collected, number of respondents, we consider the partly based on whether a new reported including information on the study overall reported rate to be too low to food has nutrient contents that are very design and sample population, year(s) of justify relying on these data as a different from the nutrient contents of a data collection, a detailed summary of reasonable representation of food that already exists in the database. the methods and measures used (e.g., consumption among all U.S. consumers. In the remainder of this document we any surveys utilized) and if available, Commodities that failed to satisfy all refer to these commodities as ‘‘produce the survey results (i.e., raw data). three NHANES/WWEIA food commodities with no reported consumption criteria were not included consumption.’’ Arrowroot and II. References in the RCR list. Several produce fiddleheads are examples of produce The following references are on commodities satisfied the first two commodities with no reported display in the Dockets Management NHANES/WWEIA food consumption consumption. Staff (see ADDRESSES) and are available criteria for demonstrating that the As we stated when we issued the for viewing by interested persons commodities are almost always eaten produce safety final rule, we will between 9 a.m. and 4 p.m., Monday only after being cooked, but are covered consider updating the list of RCR through Friday; they are also available by the produce safety regulation because commodities if new data become electronically at https:// the 2003–2010 NHANES/WWEIA available (80 FR 74354 at 74390). We www.regulations.gov. FDA has verified dataset did not demonstrate therefore invite interested persons to the website address, as of the date this consumption of the commodities in any submit data, information, and/or document publishes in the Federal form by at least 1 percent of survey comment to support whether particular Register, but websites are subject to respondents. (See Response to commodities with either no or low change over time. Comments 68 and 69, 80 FR 74354 at reported consumption in NHANES/ 1. Center for Disease Control and Prevention, 74392 to 74394.) In the remainder of WWEIA should be categorized as RCR. National Center for Health Statistics. this document, we refer to these We seek commodity-specific data that ‘‘National Health and Nutrition commodities as ‘‘produce commodities would indicate whether that particular Examination Survey/What We Eat in with low reported consumption.’’ The fruit or vegetable is consumed cooked America (NHANES/WWEIA).’’ Available following is an exhaustive list 1 of these by almost all consumers across the at https://www.cdc.gov/nchs/nhanes/ United States at this time. To be most wweia.htm. Last accessed July 23, 2020. 1 The original analysis included amaranth, which useful, newly submitted data should be 2. Environmental Protection Agency Office of we have not included here because it is a grain, and quantitative data of U.S. consumption Pesticide Programs and University of grains are not ‘‘produce’’ as that term is defined by Maryland Joint Institute for Food Safety the produce safety regulation. See 21 CFR 112.3(c). patterns that are sufficiently robust such and Applied Nutrition. ‘‘What We Eat in We have also omitted from this list several pulse that we could draw from them America—Food Commodity Intake commodities (e.g., dry pea) because that group of scientifically valid conclusions. The Database, 2005–2010 (WWEIA–FCID commodities is under separate consideration. See data should clearly indicate what 2005–10).’’ Available at https:// the discussion related to pulses in our guidance fcid.foodrisk.org/. Last accessed July 23, entitled ‘‘Guidance for Industry: Enforcement proportion of the population consumes Policy for Entities Growing, Harvesting, Packing, or 2020. Holding Hops, Wine Grapes, Pulse Crops, and documents/guidance-industry-enforcement-policy- 3. Tijerina, M. J., J. Johanson, J. Spungen, and Almonds;’’ available at https://www.fda.gov/ entities-growing-harvesting-packing-or-holding- S. Briguglio, ‘‘Memorandum to the File— regulatory-information/search-fda-guidance- hops-wine-grapes. Produce Rarely Consumed Raw,’’

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October 2015. Available in Docket No. nonattainment area (NAA) under the making effective comments, please visit FDA–2011–N–0921 at https:// jurisdiction of the SDAPCD. We are https://www.epa.gov/dockets/ www.regulations.gov. taking comments on this proposal and commenting-epa-dockets. Dated: July 28, 2020. plan to follow with a final action. FOR FURTHER INFORMATION CONTACT: Lauren K. Roth, DATES: Comments must be received on Nancy Levin, EPA Region IX, 75 Associate Commissioner for Policy. or before September 9, 2020. Hawthorne St., San Francisco, CA [FR Doc. 2020–16800 Filed 8–5–20; 4:15 pm] ADDRESSES: Submit your comments, 94105. By phone: (415) 972–3848 or by BILLING CODE 4164–01–P identified by Docket ID No. EPA–R09– email at [email protected]. OAR–2020–0136 at https:// www.regulations.gov. For comments SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ ENVIRONMENTAL PROTECTION submitted at Regulations.gov, follow the and ‘‘our’’ refer to the EPA. AGENCY online instructions for submitting comments. Once submitted, comments Table of Contents 40 CFR Part 52 cannot be edited or removed from Regulations.gov. The EPA may publish I. The State’s Submittal [EPA–R09–OAR–2020–0136; FRL–10012– any comment received to its public A. What document did the State submit? 22–Region 9] docket. Do not submit electronically any B. Are there other versions of this document? Air Plan Partial Approval and Partial information you consider to be C. What is the purpose of the submitted Disapproval; California; San Diego Confidential Business Information (CBI) document? or other information whose disclosure is II. The EPA’s Evaluation and Action AGENCY: Environmental Protection restricted by statute. Multimedia A. How is the EPA evaluating the Agency (EPA). submissions (audio, video, etc.) must be submitted document? ACTION: Proposed rule. accompanied by a written comment. B. Does the document meet the evaluation The written comment is considered the criteria? SUMMARY: The Environmental Protection official comment and should include C. What are the deficiencies? Agency (EPA) is proposing to partially discussion of all points you wish to D. EPA Recommendations to Further approve and partially disapprove make. The EPA will generally not Improve the RACT SIP E. Public Comment And Proposed Action revisions to the San Diego Air Pollution consider comments or comment III. Statutory and Executive Order Reviews Control District (SDAPCD) portion of contents located outside of the primary the California State Implementation submission (i.e. on the web, cloud, or I. The State’s Submittal Plan (SIP). These revisions concern the other file sharing system). For A. What document did the State submit? District’s demonstration regarding additional submission methods, please reasonably available control technology contact the person identified in the FOR Table 1 lists the document addressed (RACT) requirements and negative FURTHER INFORMATION CONTACT section. by this proposal with the date that it declarations for the 2008 ozone national For the full EPA public comment policy, was adopted by the local air agency and ambient air quality standards (NAAQS information about CBI or multimedia submitted by the California Air or ‘‘standards’’) in the San Diego ozone submissions, and general guidance on Resources Board (CARB).

TABLE 1—SUBMITTED DOCUMENT

Local agency Document Adopted Submitted

SDAPCD ...... 2008 Eight-Hour Ozone Reasonably Available Control Technology Demonstration for San 12/14/16 4/12/2017 Diego County (‘‘2016 RACT SIP’’).

On October 12, 2017, the submittal for requires states to submit regulations that must, at a minimum, adopt RACT-level the SDAPCD 2016 RACT SIP was control VOC and NOX emissions. controls for all sources covered by a deemed by operation of law to meet the Sections 182(b)(2) and (f) require that CTG document and for all major non- completeness criteria in 40 CFR part 51 SIPs for ozone NAAs classified as CTG sources of VOC or NOX emissions Appendix V, which must be met before Moderate or above implement RACT for within the ozone NAA that it regulates. formal EPA review. any source covered by a Control Any stationary source that emits or has the potential to emit at least 100 tons B. Are there other versions of this Techniques Guidelines (CTG) document per year (tpy) of VOCs or NO is a major document? and for any major source of VOCs or X stationary source in a Moderate ozone NOX. The SDAPCD is subject to this There are no previous versions of the NAA (CAA section 182(b)(2), (f) and RACT SIP and negative declarations in requirement as it regulates the San Diego ozone NAA that was designated 302(j)). the SDAPCD portion of the California Section III.D of the preamble to the and classified as a Moderate NAA for SIP for the 2008 ozone NAAQS. EPA’s final rule to implement the 2008 the 2008 ozone NAAQS at the time of ozone NAAQS discusses RACT C. What is the purpose of the submitted 1 submittal. Therefore, the SDAPCD 2 document? requirements. It states, in part, that RACT SIPs must contain adopted RACT Emissions of volatile organic 1 The EPA has since reclassified the San Diego regulations, certifications where compounds (VOCs) and oxides of ozone nonattainment area to ‘‘Serious’’ because the EPA determined that the area had not attained the appropriate that existing provisions are nitrogen (NOX) contribute to the RACT, and/or negative declarations that production of ground-level ozone, smog 2008 ozone standard by the ‘‘Moderate’’ applicable attainment date (July 20, 2018) and did not qualify and particulate matter (PM), which for a 1-year extension of the Moderate area updated RACT submittal based on this new harm human health and the attainment date. 84 FR 44238 (August 23, 2019). classification. environment. Section 110(a) of the CAA SDAPCD will be required to make a separate, 2 80 FR 12264, (March 6, 2015).

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no sources in the NAA are covered by 1. ‘‘State Implementation Plans; General VOC RACT Requirements for Certain a specific CTG.3 It also provides that Preamble for the Implementation of Title Coatings Categories.’’ states must submit appropriate I of the Clean Air Act Amendments of B. Does the document meet the supporting information for their RACT 1990,’’ 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992). evaluation criteria? submissions as described in the EPA’s 2. EPA Office of Air Quality Planning and implementation rule for the 1997 ozone Standards, ‘‘Issues Relating to VOC SDAPCD’s 2016 RACT SIP provides NAAQS.4 The submitted 2016 RACT Regulation Cutpoints, Deficiencies, and the District’s demonstration that the SIP and negative declarations provide Deviations,’’ May 25, 1988 (‘‘the applicable SIP for the SDAPCD satisfies SDAPCD’s analyses of its compliance Bluebook,’’ revised January 11, 1990). CAA section 182 RACT requirements for with the CAA section 182 RACT 3. EPA Region IX, ‘‘Guidance Document for the 2008 ozone NAAQS. This Correcting Common VOC & Other Rule requirements for the 2008 ozone conclusion is based on the District’s NAAQS. Deficiencies,’’ August 21, 2001 (‘‘the Little Bluebook’’). analysis of SIP-approved requirements The EPA’s technical support that apply to the following: (1) Source document (TSD) has more information 4. ‘‘State Implementation Plans; Nitrogen Oxides Supplement to the General categories for which a CTG has been about the District’s RACT SIP, negative Preamble; Clean Air Act Amendments of issued, and (2) major non-CTG declarations, and the EPA’s evaluations 1990 Implementation of Title I; Proposed stationary sources of VOC or NO thereof. Our TSD is included in the X Rule,’’ (the NOX Supplement), 57 FR emissions. docket materials. 55620, (November 25, 1992). 5. Memorandum dated May 18, 2006, from With respect to CTG source II. The EPA’s Evaluation and Action William T. Harnett, Director, Air Quality categories, SDAPCD analyzed in A. How is the EPA evaluating the Policy Division, to Regional Air Division Attachment A of the 2016 RACT SIP submitted document? Directors, Subject: ‘‘RACT Qs & As— those source categories that had sources Reasonably Available Control within the District subject to the SIP rules must require RACT for each Technology (RACT): Questions and category of sources covered by a CTG Answers.’’ recommendations in the various CTGs, document and for each major source of 6. ‘‘Final Rule to Implement the 8-hour and the District rules regulating these sources. Based on our analysis, the EPA VOCs or NOX in ozone NAAs classified Ozone National Ambient Air Quality as Moderate or above (CAA section Standard—Phase 2,’’ 70 FR 71612 concludes that, with the exception of 182(b)(2), (f)). At the time of submittal, (November 29, 2005). the deficiencies identified in section II.C 7. ‘‘Implementation of the 2008 National below and described in more detail in the SDAPCD regulated a Moderate Ambient Air Quality Standards for ozone NAA (40 CFR 81.305) for the the TSD, SDAPCD’s analysis has Ozone: State Implementation Plan demonstrated that the required RACT 2008 ozone standard, so the District’s Requirements,’’ 80 FR 12264 (March 6, rules must implement RACT for that 2015). rules are in place. Where there are no standard. existing sources covered by a particular States should also submit for SIP Rules that are submitted for inclusion CTG document, or no major non-CTG into the SIP must be enforceable (CAA approval negative declarations for those stationary sources of VOCs or NOX, source categories for which they have section 110(a)(2)), must not interfere states may, in lieu of adopting RACT not adopted CTG-based regulations with applicable requirements requirements for those sources, adopt (because they have no sources above the concerning attainment and reasonable negative declarations certifying that CTG-recommended applicability further progress or other CAA there are no such sources in the relevant threshold), regardless of whether such requirements (CAA section 110(l)), and NAA. In Attachment B of the 2016 negative declarations were made for an must not modify certain SIP control RACT SIP, the District lists the CTGs for earlier SIP.5 To do so, the submittal requirements in NAAs without ensuring which it is certifying a negative should provide reasonable assurance equivalent or greater emissions declaration for the 2008 ozone NAAQS. that no sources subject to the CTG reductions (CAA section 193). These negative declarations are re-listed requirements currently exist in the In addition to the documents listed in Table 2 below. The District concludes portion of the ozone NAA that is above, guidance and policy documents that it has no sources subject to the regulated by the SDAPCD. that we use to evaluate enforceability, specified CTGs based on a review of its The District’s analysis must stringency, and revision/relaxation permit files and emissions inventory, demonstrate that each major source of requirements include the following: various print and online business VOCs or NOX in the ozone NAA is 1. Control Techniques Guidelines and listings, and through consultation with covered by a RACT-level rule. In Alternative Control Techniques District inspectors and permit engineers. addition, for each CTG source category, Documents for Reducing Ozone-Causing Emissions. https://www.epa.gov/ground- We reviewed SDAPCD’s list of the District must either demonstrate that negative declarations in the 2016 RACT a RACT-level rule is in place, or submit level-ozone-pollution/control- techniques-guidelines-and-alternative- SIP Attachment B and the CARB facility a negative declaration. Guidance and control-techniques. database for 2016 to verify the District’s policy documents that we use to 2. ‘‘Model Volatile Organic Compound Rules conclusion that it has no stationary evaluate CAA section 182 RACT for Reasonably Available Control sources subject to the CTG source requirements include the following: Technology,’’ June 1992. categories for which it has adopted a 3. Memorandum dated March 17, 2011, from negative declaration. We agree with the 3 Scott Mathias, Interim Director, Air Id. at 12278. District’s negative declarations in the 4 Id. and 70 FR 71612, 71652 (November 29, Quality Policy Division, U.S. EPA to 2005). Regional Air Division Directors, Subject: 2016 RACT SIP Attachment B, and 5 57 FR 13498, 13512 (April 16, 1992). ‘‘Approving SIP Revisions Addressing propose to approve them into the SIP.

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TABLE 2—NEGATIVE DECLARATIONS

CTG document CTG document title

EPA–450/2–77–008 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks (Automobiles, and light-duty truck coatings only).a EPA–450/2–77–025 ...... Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds. EPA–450/2–77–032 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture. EPA–450/2–77–033 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. EPA–450/2–77–034 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Ap- pliances. EPA–450/2–78–030 ...... Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. EPA–450/2–78–032 ...... Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling. EPA–450/2–78–036 ...... Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. EPA–450/3–82–009 ...... Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners.b EPA–450/3–83–006 ...... Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. EPA–450/3–83–007 ...... Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. EPA–450/3–83–008 ...... Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA–450/3–84–015 ...... Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manufacturing Industry. EPA–450/4–91–031 ...... Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Organic Chemical Manufacturing Industry. EPA–453/R–97–004; 59 FR Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Re- 29216 (6/06/94). work Operations; Aerospace MACT b. EPA–453/R–06–004 ...... Control Techniques Guidelines for Flat Wood Paneling Coatings. EPA 453/R–07–004 ...... Control Techniques Guidelines for Large Appliance Coatings. EPA 453/R–07–005 ...... Control Techniques Guidelines for Metal Furniture Coatings. EPA 453/R–08–006 ...... Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings. a SDAPCD claims a negative declaration only for the portions of this CTG related to Automobiles and Light-Duty Trucks. b Negative declarations for CTG categories where the District states it has facilities, but emissions are below the CTG’s applicability threshold.

The 2016 RACT SIP Attachment D— regulated primarily by Rule 67.18. It is These deficiencies are described in Major Sources in San Diego Country therefore evaluated as a CTG source. section II.C below and explained in Subject to District Rules lists major Accordingly, we conclude that the greater detail in the TSD. These sources of VOC emissions and the rules District does not have any major non- approvability issues preclude full that the District evaluated as applying to CTG sources of VOCs in the NAA, and approval of the 2016 RACT SIP. Our those facilities. The two facilities that must adopt a negative declaration for TSD has more information on our exceed the major source threshold for major non-CTG sources of VOCs. evaluation of the 2016 RACT SIP. VOCs are the San Diego City of Miramar The District does not list any major Landfill, and National Steel & sources of NOX. However, we have C. What are the deficiencies? Shipbuilding. The District has determined that one facility, Solar The following provisions do not documented that the 168.5 tpy Turbines, Inc., is a major source of NOX. emissions from the Miramar Landfill are As explained in the TSD, we have satisfy the requirements of section 110 fugitive. The Miramar Landfill therefore concluded that this source is currently and part D of title I of the Act and does not constitute a major stationary implementing RACT-level controls. prevent full approval of the 2016 RACT source under the Act, and the District is Accordingly, we propose to find that the SIP. not required to demonstrate that this District has met its RACT obligation for 1. Missing negative declaration (or source is implementing RACT-level major sources of NOX. rule) for the following CTG and Major controls.6 Our review found that certain CTG Source categories. National Steel & Shipbuilding is a categories were not addressed by either major source of VOC emissions, and is a negative declaration or a RACT rule.

TABLE 3—MISSING NEGATIVE DECLARATION OR RACT RULE

EPA document No. CTG title.

EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, Table 3. Plastic Parts and Products. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, Table 4. Automotive/Transportation and Business Machine Plas- tic Parts. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, Table 6. Motor Vehicle Materials. Not applicable ...... Non-CTG Major Sources of VOC emissions.

6 42 U.S.C. 7511a(b)(2), 42 U.S.C. 7602(j).

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2. Existing rule does not represent RACT for the 2008 ozone standard.

TABLE 4—CTG SOURCE RULES THAT DO NOT REPRESENT RACT

EPA document No. CTG title Remedy

EPA–450/R–75–102 ...... Design Criteria for Stage I Vapor Control Systems— Re-notice Rule 61.3.1. Gasoline Service Stations. EPA–450/2–77–026 ...... Tank Truck Gasoline Loading Terminals ...... Revise Rule 61.2. EPA–450/2–78–029 ...... Manufacture of Synthesized Pharmaceutical Products .. Revise Rule 67.15 or submit negative declaration for this CTG source category. EPA–453/R–06–001 ...... Industrial Cleaning Solvents ...... Revise Rule 67.6.1. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, Table Revise Rule 67.18 or submit negative declaration for 5. Pleasure Craft Surface Coating. this CTG source category. EPA–453/R–08–004 ...... Fiberglass Boat Manufacturing Materials ...... Revise Rule 67.12.1 or submit negative declaration for this CTG source category.

Our TSD has detailed information on E. Public Comment and Proposed all, CTG sources and major sources. In these deficiencies. Action addition, the RACT SIP does not Under CAA section 110(k)(3), we include a rule or negative declaration D. EPA Recommendations To Further for several CTGs, or a negative Improve the RACT SIP propose to partially approve and partially disapprove CARB’s submittal declaration for major non-CTG sources Our TSD includes recommendations of the SDAPCD 2016 RACT SIP, as of VOCs. For these reasons and the for future rule improvements and reflected in Tables 5 and 6. As reasons discussed above, we are suggested revisions related to the discussed, the RACT SIP must proposing to partially approve and required RACT SIP submittal for the document current RACT for sources partially disapprove the District’s 2015 ozone standard. covered by CTGs and for major non-CTG certification that it has met the RACT sources of VOC and NOX emissions. We requirement for the 2008 8-hour ozone have determined that the 2016 RACT NAAQS as demonstrated in its 2016 SIP documents RACT for many, but not RACT SIP.

TABLE 5—RACT EVALUATION FOR CTG SOURCES IN SDAPCD FOR THE 2008 OZONE STANDARD MODERATE NONATTAINMENT AREA

Covered by SIP EPA document No. CTG title Rule as current Neg dec Proposed action RACT submitted

EPA–450/R–75–102 ...... Design Criteria for Stage I Vapor Control Systems— ...... Disapproval.a Gasoline Service Stations. EPA–450/2–77–008 ...... Surface Coating of Cans ...... 67.4 ...... Approval. EPA–450/2–77–008 ...... Surface Coating of Coils ...... 67.4 ...... Approval. EPA–450/2–77–008 ...... Surface Coating of Paper ...... 67.5 ...... Approval. EPA–450/2–77–008 ...... Surface Coating of Fabrics ...... 67.5 ...... Approval. EPA–450/2–77–008 ...... Surface Coating of Automobiles and Light-Duty ...... 4/12/2017 Approval. Trucks. EPA–450/2–77–022 ...... Solvent Metal Cleaning ...... 67.6.2 ...... Approval. EPA–450/2–77–025 ...... Refinery Vacuum Producing Systems, Wastewater ...... 4/12/2017 Approval. Separators, and Process Unit Turnarounds. EPA–450/2–77–026 ...... Tank Truck Gasoline Loading Terminals ...... Disapproval.b EPA–450/2–77–032 ...... Surface Coating of Metal Furniture ...... 4/12/2017 Approval. EPA–450/2–77–033 ...... Surface Coating of Insulation of Magnet Wire ...... 4/12/2017 Approval. EPA–450/2–77–034 ...... Surface Coating of Large Appliances ...... 4/12/2017 Approval. EPA–450/2–77–035 ...... Bulk Gasoline Plants ...... 61.2 ...... Approval. EPA–450/2–77–036 ...... Storage of Petroleum Liquids in Fixed-Roof Tanks ..... 61.1 ...... Approval. EPA–450/2–77–037 ...... Cutback Asphalt ...... 67.7 ...... Approval. EPA–450/2–78–015 ...... Surface Coating of Miscellaneous Metal Parts and 67.3 ...... Approval. Products. EPA–450/2–78–029 ...... Manufacture of Synthesized Pharmaceutical Products ...... Disapproval.c EPA–450/2–78–030 ...... Manufacture of Pneumatic Rubber Tires ...... 4/12/2017 Approval. EPA–450/2–78–032 ...... Factory Surface Coating of Flat Wood Paneling ...... 4/12/2017 Approval. EPA–450/2–78–033 ...... Graphic Arts-Rotogravure and Flexography ...... 67.16 ...... Approval. EPA–450/2–78–036 ...... Leaks from Petroleum Refinery Equipment ...... 4/12/2017 Approval. EPA–450/2–78–047 ...... Petroleum Liquid Storage in External Floating Roof 61.1 ...... Approval. Tanks. EPA–450/2–78–051 ...... Leaks from Gasoline Tank Trucks and Vapor Collec- 61.2 ...... Approval. tion Systems. EPA–450/3–82–009 ...... Large Petroleum Dry Cleaners ...... 4/12/2017 Approval. EPA–450/3–83–006 ...... Leaks from Synthetic Organic Chemical Polymer and ...... 4/12/2017 Approval. Resin Manufacturing Equipment.

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TABLE 5—RACT EVALUATION FOR CTG SOURCES IN SDAPCD FOR THE 2008 OZONE STANDARD MODERATE NONATTAINMENT AREA—Continued

Covered by SIP EPA document No. CTG title Rule as current Neg dec Proposed action RACT submitted

EPA–450/3–83–007 ...... Equipment Leaks from Natural Gas/Gasoline Proc- ...... 4/12/2017 Approval. essing Plants. EPA–450/3–83–008 ...... Manufacture of High-Density Polyethylene, Poly- ...... 4/12/2017 Approval. propylene, and Polystyrene Resins. EPA–450/3–84–015 ...... Air Oxidation Processes in Synthetic Organic Chem- ...... 4/12/2017 Approval. ical Manufacturing Industry. EPA–450/4–91–031 ...... Reactor Processes and Distillation Operations in Syn- ...... 4/12/2017 Approval. thetic Organic Chemical Manufacturing Industry. EPA–453/R–96–007 ...... Wood Furniture Manufacturing Operations ...... 67.11 ...... Approval. EPA–453/R–94–032, 61 ATC—Surface Coating Operations at Shipbuilding 67.18 ...... Approval. FR 44050; 8/27/96. and Ship Repair Facilities. Shipbuilding and Ship Repair Operations (Surface Coating). EPA–453/R–97–004, 59 Aerospace MACT and Aerospace (CTG & MACT) ...... 4/12/2017 Approval. FR 29216; 6/06/94. EPA–453/R–06–001 ...... Industrial Cleaning Solvents ...... Disapproval.d EPA–453/R–06–002 ...... Offset Lithographic Printing and Letterpress Printing .. 67.16 ...... Approval. EPA–453/R–06–003 ...... Flexible Package Printing ...... 67.16 ...... Approval. EPA–453/R–06–004 ...... Flat Wood Paneling Coatings ...... 4/12/2017 Approval. EPA–453/R–07–003 ...... Paper, Film, and Foil Coatings ...... 67.5 ...... Approval. EPA–453/R–07–004 ...... Large Appliance Coatings ...... 4/12/2017 Approval. EPA–453/R–07–005 ...... Metal Furniture Coatings ...... 4/12/2017 Approval. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, 67.3 ...... Approval. Table 2. Metal Parts and Products. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, ...... Disapproval.e Table 3. Plastic Parts and Products. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, ...... Disapproval.f Table 4. Automotive/Transportation and Business Machine Plastic Parts. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, ...... Disapproval.g Table 5. Pleasure Craft Surface Coating. EPA–453/R–08–003 ...... Miscellaneous Metal and Plastic Parts Coatings, ...... Disapproval.h Table 6. Motor Vehicle Materials. EPA–453/R–08–004 ...... Fiberglass Boat Manufacturing Materials ...... Disapproval.i EPA–453/R–08–005 ...... Miscellaneous Industrial Adhesives ...... 67.21 ...... Approval. EPA–453/R–08–006 ...... Automobile and Light-Duty Truck Assembly Coatings ...... 4/12/2017 Approval a As explained in greater detail in the TSD, Rule 61.3.1, which regulates sources in this category, was not properly noticed, and is thus not ap- provable. The District intends to re-notice Rule 61.3.1, which together with 61.3 would establish current RACT for this category. b The applicable rule is Rule 61.2, which does not establish RACT because of several deficiencies described in detail in the TSD. c As described in greater detail in the TSD, Rule 67.15 has deficiencies that prevent it from establishing RACT level controls. The District has determined that there are no sources that meet the CTG applicability threshold and plans to submit a negative declaration for both the 2008 and 2015 ozone standards. d As explained in greater detail in the TSD, the applicable rule for this category is Rule 67.6.1, but this rule does not establish RACT because of an inappropriate NESHAP exemption. e No adopted applicable RACT rule or adopted negative declaration for 2008 ozone standard. f No adopted applicable RACT rule or adopted negative declaration for 2008 ozone standard. g As explained in greater detail in the TSD, the applicable rule for this category is Rule 67.18, but this rule does not establish RACT based on the recommended controls for pleasure craft coatings in the CTG for Miscellaneous Metal and Plastic Parts Coatings (2008). h No adopted applicable RACT rule or adopted negative declaration for 2008 ozone standard. i As explained in greater detail in the TSD, the applicable rule is Rule 67.12.1, but this rule does not establish RACT based on the Fiberglass Boat CTG (2008) recommended controls for fiberglass boat coatings.

TABLE 6—RACT EVALUATION FOR MAJOR NON–CTG VOC/NOX SOURCES IN SDAPCD FOR THE 2008 OZONE STANDARD MODERATE NONATTAINMENT AREA 7

Covered by SIP rule as current Category Major sources in District? RACT Neg Dec Proposed action

Major (100+ tpy) non-CTG VOC None listed a ...... N/A ...... Disapproval. sources. Major (100+ tpy) NOx sources ...... Yes ...... N/A ...... Approval. a The only major VOC source listed by the District is National Steel & Shipbuilding, which is a CTG source. Therefore, there appears to be no non-CTG major sources of VOC in the District and the District should adopt a negative declaration for major non-CTG VOC sources.

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The EPA is committed to working under the RFA. This action will not J. National Technology Transfer and with CARB and SDAPCD to resolve the impose any requirements on small Advancement Act (NTTAA) identified RACT deficiencies. However, entities beyond those imposed by state Section 12(d) of the NTTAA directs should we finalize the proposed partial law. the EPA to use voluntary consensus disapproval of the elements identified E. Unfunded Mandates Reform Act standards in its regulatory activities in Tables 5 and 6 for of the 2016 RACT (UMRA) unless to do so would be inconsistent SIP, the action would trigger a 2-year with applicable law or otherwise clock for the federal implementation This action does not contain any impractical. The EPA believes that this plan (FIP) requirement under section unfunded mandate as described in action is not subject to the requirements 110(c). In addition, final disapproval UMRA, 2 U.S.C. 1531–1538, and does of section 12(d) of the NTTAA because would trigger the offset section in CAA not significantly or uniquely affect small application of those requirements would section 179(b)(2) 18 months after the governments. This action does not be inconsistent with the CAA. effective date of a final disapproval, and impose additional requirements beyond the highway funding sanctions in CAA those imposed by state law. K. Executive Order 12898: Federal section 179(b)(1) would apply in the Accordingly, no additional costs to Actions To Address Environmental area six months after the offset sanction state, local, or tribal governments, or to Justice in Minority Populations and is imposed. Neither sanction will be the private sector, will result from this Low-Income Population imposed under the CAA if the State action. The EPA lacks the discretionary submits and we approve, prior to the F. Executive Order 13132: Federalism authority to address environmental implementation of the sanctions, a SIP justice in this rulemaking. revision that corrects the deficiencies This action does not have federalism that we identify in our final action. We implications. It will not have substantial List of Subjects in 40 CFR Part 52 will accept comments from the public direct effects on the states, on the Environmental protection, Air on the proposed partial approval and relationship between the national pollution control, Incorporation by partial disapproval for the 2016 RACT government and the states, or on the reference, Intergovernmental relations, SIP for the next 30 days. If finalized, distribution of power and Ozone, Reporting and recordkeeping this action would add to the California responsibilities among the various requirements, Volatile organic SIP as additional materials those levels of government. compounds. portions of the 2016 RACT SIP and Authority: 42 U.S.C. 7401 et seq. negative declarations associated with G. Executive Order 13175: Coordination approvals in Tables 5 and 6. With Indian Tribal Governments Dated: July 22, 2020. This action does not have tribal John Busterud, III. Statutory and Executive Order Regional Administrator, Region IX. Reviews implications, as specified in Executive Order 13175, because the SIP is not [FR Doc. 2020–16279 Filed 8–7–20; 8:45 am] Additional information about these approved to apply on any Indian BILLING CODE 6560–50–P statutes and Executive Orders can be reservation land or in any other area found at http://www2.epa.gov/laws- where the EPA or an Indian tribe has regulations/laws-and-executive-orders. demonstrated that a tribe has ENVIRONMENTAL PROTECTION AGENCY A. Executive Order 12866: Regulatory jurisdiction, and will not impose substantial direct costs on tribal Planning and Review and Executive 40 CFR Part 300 Order 13563: Improving Regulation and governments or preempt tribal law. Regulatory Review Thus, Executive Order 13175 does not [EPA–HQ–SFUND–1983–0002; FRL–10012– apply to this action. 98–Region 8] This action is not a significant regulatory action and was therefore not H. Executive Order 13045: Protection of National Oil and Hazardous submitted to the Office of Management Children From Environmental Health Substances Pollution Contingency and Budget (OMB) for review. Risks and Safety Risks Plan; National Priorities List: Partial B. Executive Order 13771: Reducing The EPA interprets Executive Order Deletion the Anaconda Co. Smelter Regulations and Controlling Regulatory 13045 as applying only to those Superfund Site Costs regulatory actions that concern AGENCY: Environmental Protection This action is not expected to be an environmental health or safety risks that Agency (EPA). Executive Order 13771 regulatory action the EPA has reason to believe may ACTION: Proposed rule; notice of intent. because this action is not significant disproportionately affect children, per under Executive Order 12866. the definition of ‘‘covered regulatory SUMMARY: The Environmental Protection action’’ in section 2–202 of the Agency (EPA) Region 8 is issuing a C. Paperwork Reduction Act (PRA) Executive Order. This action is not Notice of Intent to Delete the Beryllium This action does not impose an subject to Executive Order 13045 Operable Unit 9 (OU9), the Flue Dust information collection burden under the because it does not impose additional OU11 and the Arbiter OU12 of the PRA because this action does not requirements beyond those imposed by Anaconda Co. Smelter Superfund Site impose additional requirements beyond state law. (Site) located in Anaconda, MT, from the National Priorities List (NPL) and those imposed by state law. I. Executive Order 13211: Actions That requests public comments on this Significantly Affect Energy Supply, D. Regulatory Flexibility Act (RFA) proposed action. The NPL, promulgated Distribution, or Use I certify that this action will not have pursuant to section 105 of the a significant economic impact on a This action is not subject to Executive Comprehensive Environmental substantial number of small entities Order 13211, because it is not a Response, Compensation, and Liability significant regulatory action under Act (CERCLA) of 1980, as amended, is 7 See section 3.1 of the TSD. Executive Order 12866. an appendix of the National Oil and

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Hazardous Substances Pollution received will be included in the public FOR FURTHER INFORMATION CONTACT: Contingency Plan (NCP). The EPA and docket without change and may be Charles Coleman, Remedial Project the State of Montana, through the made available online at https:// Manager, U.S. Environmental Protection Department of Environmental Quality www.regulations.gov, including any Agency, Region 8, 10 West 15th Street, (MDEQ), have determined that all personal information provided, unless Suite 3200, Helena, Montana 59626, appropriate response actions at these the comment includes information (406) 457–5038, email: identified parcels under CERCLA, other claimed to be Confidential Business [email protected]. than operation and maintenance, Information (CBI) or other information SUPPLEMENTARY INFORMATION: monitoring and five-year reviews, have whose disclosure is restricted by statute. been completed. However, this deletion Do not submit information that you Table of Contents does not preclude future actions under consider to be CBI or otherwise I. Introduction Superfund. protected through https:// II. NPL Deletion Criteria This partial deletion pertains to three www.regulations.gov or email. The III. Deletion Procedures Operable Units; the Beryllium (OU9), https://www.regulations.gov website is IV. Basis for Partial Site Deletion the Flue Dust (OU11) and the Arbiter an ‘‘anonymous access’’ system, which I. Introduction (OU12). The other areas of the Site will means EPA will not know your identity remain on the NPL and are not being or contact information unless you EPA Region 8 announces its intent to considered for deletion as part of this provide it in the body of your comment. delete three Operable Units of the action. If you send an email comment directly Anaconda Co. Smelter Superfund Site to EPA without going through https:// DATES: Comments must be received by (Site); the Beryllium (OU9), the Flue www.regulations.gov, your email September 9, 2020. Dust (OU11) and the Arbiter (OU12), address will be automatically captured from the National Priorities List (NPL) ADDRESSES: Submit your comments, and included as part of the comment and request public comment on this identified by Docket ID no. EPA–HQ– that is placed in the public docket and proposed action. The NPL constitutes SFUND–1983–0002, by one of the made available on the internet. If you appendix B of 40 CFR part 300 which following methods: submit an electronic comment, EPA • https://www.regulations.gov. is the National Oil and Hazardous recommends that you include your Substances Pollution Contingency Plan Follow on-line instructions for name and other contact information in submitting comments. Once submitted, (NCP), which EPA promulgated the body of your comment and with any pursuant to section 105 of the comments cannot be edited or removed disk or CD–ROM you submit. If EPA from Regulations.gov. The EPA may Comprehensive Environmental cannot read your comment due to Response, Compensation and Liability publish any comment received to its technical difficulties and cannot contact public docket. Do not submit Act (CERCLA) of 1980, as amended. you for clarification, EPA may not be EPA maintains the NPL as those sites electronically any information you able to consider your comment. consider to be Confidential Business that appear to present a significant risk Electronic files should avoid the use of to public health, welfare, or the Information (CBI) or other information special characters, any form of whose disclosure is restricted by statute. environment. Sites on the NPL may be encryption, and be free of any defects or the subject of remedial actions financed Multimedia submissions (audio, video, viruses. etc.) must be accompanied by a written by the Hazardous Substance Superfund Docket: All documents in the docket (Fund). This partial deletion of the three comment. The written comment is are listed in the https:// considered the official comment and Operable Units of the Anaconda Co. www.regulations.gov index. Although Smelter Superfund Site (Site); the should include discussion of all points listed in the index, some information is you wish to make. The EPA will Beryllium (OU9), the Flue Dust (OU11) not publicly available, e.g., CBI or other and the Arbiter (OU12), is proposed in generally not consider comments or information whose disclosure is accordance with 40 CFR 300.425(e) and comment contents located outside of the restricted by statute. Certain other is consistent with the Notice of Policy primary submission (i.e., on the web, material, such as copyrighted material, Change: Partial Deletion of Sites Listed cloud, or other file sharing system). For will be publicly available only in the on the National Priorities List. 60 FR additional submission methods, the full hard copy. Publicly available docket 55466 (November 1, 1995). As described EPA public comment policy, materials are available electronically in in 300.425(e)(3) of the NCP, a portion of information about CBI or multimedia https://www.regulations.gov. submissions, and general guidance on The EPA is temporarily suspending a site deleted from the NPL remains making effective comments, please visit its Docket Center and Regional Records eligible for Fund-financed remedial https://www2.epa.gov/dockets/ Centers for public visitors to reduce the action if future conditions warrant such commenting-epa-dockets. risk of transmitting COVID–19. In actions. • Email: Charles Coleman at addition, many site information EPA will accept comments on the [email protected]. repositories are closed and information proposal to partially delete this site for • Phone: Public comment by phone in these repositories, including the thirty (30) days after publication of this may be made by calling (406) 457–5038 deletion docket, has not been updated document in the Federal Register. and following the directions provided with hardcopy or electronic media. For Section II of this preamble explains for public comment. further information and updates on EPA the criteria for deleting sites from the • Written comments submitted by Docket Center services, please visit us NPL. Section III of this preamble mail are temporarily suspended and no online at https://www.epa.gov/dockets. discusses procedures that EPA is using hand deliveries will be accepted. We The EPA continues to carefully and for this action. Section IV of this encourage the public to submit continuously monitor information from preamble discusses where to access and comments via https:// the Centers for Disease Control and review information that demonstrates www.regulations.gov. Prevention (CDC), local area health how the deletion criteria have been met Instructions: Direct your comments to departments, and our Federal partners for the Beryllium (OU9), the Flue Dust Docket ID no. EPA–HQ–SFUND–1983– so that we can respond rapidly as (OU11) and the Arbiter (OU12) of the 0002. EPA’s policy is that all comments conditions change regarding COVID. Anaconda Co. Smelter Superfund Site

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II. NPL Deletion Criteria Anaconda Leader and Montana requirements, Superfund, Water The NCP establishes the criteria that Standard. The newspaper announces pollution control, Water supply. EPA uses to delete sites from the NPL. the 30-day public comment period Authority: 33 U.S.C. 1251 et seq. In accordance with 40 CFR 300.425(e), concerning the Notice of Intent for Partial Deletion of the Site from the Dated: July 29, 2020. sites may be deleted from the NPL Gregory Sopkin, where no further response is NPL. (6) The EPA placed copies of Regional Administrator, Region 8. appropriate. In making such a documents supporting the proposed [FR Doc. 2020–16860 Filed 8–7–20; 8:45 am] determination pursuant to 40 CFR partial deletion in the deletion docket, BILLING CODE 6560–50–P 300.425(e), EPA will consider, in made these items available for public consultation with the State, whether any inspection, and copying at the Site of the following criteria have been met: information repositories identified FEDERAL COMMUNICATIONS i. Responsible parties or other persons above. COMMISSION have implemented all appropriate If comments are received within the response actions required; 30-day comment period on this action, 47 CFR Parts 1 and 54 ii. All appropriate Fund-financed EPA will evaluate and respond response under CERCLA has been [WC Docket No. 18–89; FCC 20–99; FRS accordingly to the comments before 16964] implemented, and no further response making a final decision to delete the action by responsible parties is Beryllium (OU9), the Flue Dust (OU11) Protecting Against National Security appropriate; or and the Arbiter (OU12). If necessary, Threats to the Communications Supply iii. The remedial investigation has EPA will prepare a Responsiveness Chain Through FCC Programs shown that the release poses no Summary to address any significant significant threat to public health or the public comments received. After the AGENCY: Federal Communications environment and, therefore, the taking public comment period, if EPA Commission. of remedial measures is not appropriate. determines it is still appropriate to ACTION: Proposed rule. Pursuant to CERCLA section 121(c) delete the Beryllium (OU9), the Flue and the NCP, EPA conducts five-year SUMMARY: In this document, the Federal Dust (OU11) and the Arbiter (OU12) of Communications Commission reviews to ensure the continued the Anaconda Co. Smelter Superfund protectiveness of remedial actions (Commission) takes further steps to Site, the Regional Administrator will protect the nation’s communications where hazardous substances, pollutants, publish a final Notice of Partial Deletion or contaminants remain at a site above networks from potential security threats in the Federal Register. Public notices, as the Commission integrates provisions levels that allow for unlimited use and public submissions and copies of the unrestricted exposure. EPA conducts of the recently enacted Secure and Responsiveness Summary, if prepared, Trusted Communications Networks Act such five-year reviews even if a site is will be made available to interested deleted from the NPL. EPA may initiate of 2019 (Secure Networks Act) into its parties and included in the site existing supply chain rulemaking further action to ensure continued information repositories listed above. protectiveness at a deleted site if new proceeding. The Commission seeks Deletion of a portion of a site from the comment on proposals to implement information becomes available that NPL does not itself create, alter, or indicates it is appropriate. Whenever further Congressional direction in the revoke any individual’s rights or Secure Networks Act. there is a significant release from a site obligations. Deletion of a portion of a DATES: Comments are due on or before deleted from the NPL, the deleted site site from the NPL does not in any way August 31, 2020, and reply comments may be restored to the NPL without alter EPA’s right to take enforcement are due on or before September 14, application of the hazard ranking actions, as appropriate. The NPL is 2020. system. designed primarily for informational III. Deletion Procedures purposes and to assist EPA ADDRESSES: Pursuant to §§ 1.415 and management. Section 300.425(e)(3) of 1.419 of the Commission’s rules, 47 CFR The following procedures apply to the NCP states that the deletion of a site 1.415, 1.419, interested parties may file deletion of the Beryllium (OU9), the from the NPL does not preclude comments and reply comments on or Flue Dust (OU11) and the Arbiter eligibility for future response actions, before the dates indicated on the first (OU12) of the Site: should future conditions warrant such page of this document. Comments and (1) The EPA consulted with the State actions. reply comments may be filed using the before developing this Notice of Intent Commission’s Electronic Comment for Partial Deletion. IV. Basis for Partial Site Deletion Filing System (ECFS). See Electronic (2) The EPA has provided the state 30 The EPA placed copies of documents Filing of Documents in Rulemaking working days for review of this action supporting the proposed partial deletion Proceedings, 63 FR 24121 (1998). prior to publication of it today. in the deletion docket. The material • Electronic Filers: Comments may be (3) In accordance with the criteria provides explanation of EPA’s rationale filed electronically using the internet by discussed above, EPA has determined for the partial deletion and accessing the ECFS: https:// that no further response is appropriate. demonstrates how it meets the deletion www.fcc.gov/ecfs/. (4) The State of Montana, through the criteria. This information is made • Paper Filers: Parties who choose to MDEQ, has concurred with the deletion available for public inspection in the file by paper must file an original and of the the Beryllium (OU9), the Flue docket identified above. one copy of each filing. If more than one Dust (OU11) and the Arbiter (OU12) of docket or rulemaking number appears in the Anaconda Co. Smelter Superfund List of Subjects in 40 CFR Part 300 the caption of this proceeding, filers Site from the NPL. Environmental protection, Air must submit two additional copies for (5) Concurrently, with the publication pollution control, Chemicals, Hazardous each additional docket or rulemaking of this Notice of Intent for Partial substances, Hazardous waste, number. Deletion in the Federal Register, a Intergovernmental relations, Penalties, Filings can be sent by hand or notice is being published in the Reporting and recordkeeping messenger delivery, by commercial

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overnight courier, or by first-class or Competition Bureau, at Commission seeks comment on overnight U.S. Postal Service mail. All [email protected] or (202) 418– proposals to implement further filings must be addressed to the 7400. Congressional direction in the Secure Commission’s Secretary, Office of the SUPPLEMENTARY INFORMATION: This is a Networks Act. Secretary, Federal Communications summary of the Commission’s Second II. Second Further Notice of Proposed Commission. Further Notice of Proposed Rulemaking Rulemaking D Commercial overnight mail (other (Further Notice) in WC Docket No. 18– than U.S. Postal Service Express Mail 89, adopted July 16, 2020 and released 4. The concurrently adopted and Priority Mail) must be sent to 9050 July 17, 2020. Due to the COVID–19 Declaratory Ruling finds that the 2019 Junction Drive, Annapolis Junction, MD pandemic, the Commission’s Supply Chain Order, 85 FR 230, January 20701. headquarters will be closed to the 3, 2020, satisfies the Secure Networks D U.S. Postal Service first-class, general public until further notice. The Act’s requirement that the Commission Express, and Priority mail must be full text of this document is available at prohibit the use of funds for covered addressed to 445 12th Street SW, the following internet address: https:// equipment and services. The Washington, DC 20554. www.fcc.gov/document/implementing- Commission now seeks comment on D Effective March 19, 2020, and until secure-networks-act-0. The Declaratory sections 2, 3, 5, and 7 of the Secure further notice, the Commission no Ruling that was adopted concurrently Networks Act, including on how these longer accepts any hand or messenger with this Further Notice will be provisions interact with our ongoing delivered filings. This is a temporary published elsewhere in the Federal efforts to secure the communications measure taken to help protect the health Register. supply chain. As required by section 2, the Commission proposes several and safety of individuals, and to I. Introduction mitigate the transmission of COVID–19. processes by which to publish a list of See FCC Announces Closure of FCC 1. America’s communications covered communications equipment Headquarters Open Window and networks have become the and services. Consistent with sections 3, Change in Hand-Delivery Policy, Public indispensable infrastructure of our 5, and 7 of the Secure Networks Act, the Notice, DA 20–304 (March 19, 2020). economy and our everyday lives. The Commission proposes to (1) ban the use https://www.fcc.gov/document/fcc- COVID–19 pandemic has demonstrated of federal subsidies for any equipment closes-headquarters-open-window-and- as never before the importance of these or services on the new list of covered changes-hand-delivery-policy. networks for employment and economic communications equipment and services; (2) require that all providers of D During the time the Commission’s opportunity, education, health care, advanced communications service building is closed to the general public social and civic engagement, and report whether they use any covered and until further notice, if more than staying connected with family and communications equipment and one docket or rulemaking number friends. It is therefore imperative that services; and (3) establish regulations to appears in the caption of a proceeding, the Commission safeguards this critical prevent waste, fraud, and abuse in the paper filers need not submit two infrastructure from potential security proposed reimbursement program to additional copies for each additional threats. 2. The Commission has taken a remove, replace, and dispose of insecure docket or rulemaking number; an number of targeted steps in this regard. equipment. original and one copy are sufficient. For example, in November 2019, the 5. After the Commission has adopted Comments and reply comments must Commission prohibited the use of rules to further implement the Secure include a short and concise summary of public funds from the Commission’s Networks Act, the Commission may the substantive arguments raised in the Universal Service Fund (USF) to prohibit the use of federal funds for pleading. Comments and reply purchase or obtain any equipment or potentially insecure communications comments must also comply with § 1.49 services produced or provided by equipment and services through two and all other applicable sections of the companies posing a national security separate methods. First, pursuant to the Commission’s rules. The Commission threat to the integrity of 2019 Supply Chain Order and section directs all interested parties to include communications networks or the 254 of the Communications Act, no USF the name of the filing party and the date communications supply chain. The funds may be used to purchase or of the filing on each page of their Commission also initially designated maintain any equipment or services comments and reply comments. All Huawei Technologies Company produced or provided by a covered parties are encouraged to use a table of (Huawei) and ZTE Corporation (ZTE) as company. Second, pursuant to the contents, regardless of the length of covered companies for purposes of this Secure Networks Act, providers of their submission. The Commission also rule, and it established a process for advanced communications service will strongly encourages parties to track the designating additional covered be prohibited from using federal organization set forth in the Further companies in the future. Additionally, subsidies, including the USF, to Notice in order to facilitate its internal last month, the Commission’s Public purchase or maintain communications review process. Safety and Homeland Security Bureau equipment and services listed pursuant People with Disabilities: To request issued final designations of Huawei and to section 2. The Commission seeks materials in accessible formats for ZTE as covered companies, thereby comment on this view. people with disabilities (braille, large prohibiting the use of USF funds on 6. As an initial matter, the print, electronic files, audio format), equipment or services produced or Commission seeks comment on the send an email to [email protected] or call provided by these two suppliers. definition of two terms used throughout the Consumer & Governmental Affairs 3. The Commission takes further steps the Secure Networks Act. Specifically, Bureau at 202–418–0530 (voice), 202– to protect the nation’s communications the Act’s requirements apply to 418–0432 (tty). networks from potential security threats ‘‘communications equipment or FOR FURTHER INFORMATION CONTACT: For as it integrates provisions of the recently service’’ and to providers of ‘‘advanced further information, please contact enacted Secure Networks Act into the communications service.’’ The Act Brian Cruikshank, Telecommunications Commission’s existing supply chain defines ‘‘communications equipment or Access Policy Division, Wireline rulemaking proceeding. The service’’ as ‘‘any equipment or service

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that is essential to the provision of advertised speed of 5/1 Mbps.’’ determinations from other sources not advanced communications service.’’ However, importing a narrower listed in the Secure Networks Act The Act defines ‘‘advanced definition of advanced communications because the Commission must rely communications service’’ in turn as the service could leave insecure equipment ‘‘solely’’ on one or more of the ‘‘advanced telecommunications in our nation’s interconnected determinations listed in section 2(c) for capability’’ described in section 706 of broadband networks even though it has the purposes of taking the steps required the Telecommunications Act of 1996, been determined to pose a threat to under section 2(b)(1) to compile the which encompasses ‘‘high-speed, national security. The Commission Covered List. The Commission seeks switched, broadband seeks comment on this interpretation comment on this interpretation. telecommunications capability that and any alternatives. 12. The external determinations as to enables users to originate and receive 10. Section 2(a) of the Secure whether communications equipment or high-quality voice, data, graphics, and Networks Act directs the Commission to services pose ‘‘an unacceptable risk to video telecommunications using any publish, no later than one year after the national security of the United technology.’’ enactment, a list of covered States and the security and safety of 7. The Commission proposes to communications equipment and United States persons’’ come from the include within this definition of services (Covered List). The remainder following agencies or legislation, ‘‘communications equipment or of section 2 lays out how the pursuant to section 2(c): service[s]’’ all equipment or services Commission is to construct this list. used in fixed and mobile broadband First, the Commission ‘‘shall place on (1) ‘‘A specific determination made by any executive branch interagency body with networks, provided they include or use the list any communications equipment appropriate national security expertise, electronic components. The or service that poses an unacceptable including the Federal Acquisition Security Commission believes that all equipment risk to the national security of the Council’’; or services that include or use electronic United States or the security and safety (2) ‘‘A specific determination made by the components can be reasonably of United States persons based solely Department of Commerce pursuant to considered essential to broadband on’’ a ‘‘determination’’ by other federal Executive Order No. 13873 . . . relating to networks. Moreover, the presence of agencies or Congress, as outlined in securing the information and electronic components provides a section 2(c). Second, the Commission communications technology and services bright-line rule that will ease regulatory ‘‘shall place’’ on the Covered List ‘‘any supply chain’’; compliance and administrability. The communications equipment or service’’ (3) ‘‘The communications equipment or service being covered telecommunications Commission seeks comment on this ‘‘if, based exclusively on the equipment or services, as defined in section interpretation. determinations’’ under section 2(c), 889(f)(3)’’ of the 2019 NDAA; or 8. The Commission also proposes to ‘‘such equipment or service poses an (4) ‘‘A specific determination made by an include within the definition of unacceptable risk to the national appropriate national security agency.’’ ‘‘advanced communications service’’ security of the United States and the any connection at least 200 kbps in security and safety of United States 13. The Secure Networks Act defines either direction. Such a reading is persons’’ and is ‘‘capable’’ of ‘‘(A) ‘‘executive branch interagency body’’ as consistent with the Commission’s routing or redirecting user data traffic or ‘‘an interagency body established in the historic interpretation of section 706 of permitting visibility into any user data Executive Branch.’’ One of these bodies the Telecommunications Act and the or packets that such equipment or is the Federal Acquisition Security requirements that the Commission has service transmits or otherwise handles; Council, established by 41 U.S.C. imposed on providers of advanced (B) causing the network of a provider of 1322(a). The Federal Acquisition telecommunications capability for advanced communications service to be Security Council is tasked with purposes of reporting their broadband disrupted remotely; or (C) otherwise developing criteria and processes for deployments. The Commission thus posing an unacceptable risk to the assessing threats and vulnerabilities to believes its consistent with national security of the United States or the supply chain posed by the congressional intent to capture the same the security and safety of United States acquisition of information technology. pool of facilities-based providers who persons.’’ Third, section 2(d) requires The Commission believes other are currently required to report that the Commission ‘‘shall periodically executive agency bodies that could broadband deployment to comply with update the list published under make determinations relevant to section the requirements of the Secure subsection (a) to address changes in the 2(c) include the National Security Networks Act. determinations’’ under section 2(c). The Council, Homeland Security Council, 9. The Commission recognizes the Commission seeks comment on each Interagency Policy Committees, and greater than 200 kbps reporting part in turn. other committees created for or threshold reflects historical 11. Section 2(c) of the Secure chartered with a national security considerations as to speeds needed to Networks Act states that ‘‘in taking purpose. The Commission seeks provide advanced telecommunications action under subsection (b)(1), the comment on this view and asks if there capability. The Commission has since Commission shall place’’ on the are additional executive branch determined, with advancements in Covered List ‘‘any communications interagency bodies with appropriate technology, that fixed services with equipment or service that poses an national security expertise that can download speeds of at least 25 Megabits unacceptable risk to the national make the external determinations under per second (Mbps) and upload speeds of security of the United States or the section 2(c)(1). What role do the at least 3 Mbps ‘‘meet the statutory security and safety of United States Committee on Foreign Investment in the definition of advanced persons based solely on one or more of United States (CFIUS) and Team telecommunications capability.’’ For the following determinations,’’ and then Telecom have in this process? The mobile services, the Commission lists four separate sources for such Commission also seeks comment on the evaluates deployment using ‘‘multiple determinations. The Commission process and procedures it should use to metrics instead of relying on a single believes that the Secure Networks Act’s incorporate executive branch benchmark,’’ starting first ‘‘where use of the term ‘‘shall’’ provides the interagency body determinations into service providers claim a minimum Commission no discretion to accept the Covered List.

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14. Section 2(c) also requires the reasonably believes to be an entity Security Agency. The Commission Commission to rely on determinations owned or controlled by, or otherwise interprets the term ‘‘appropriate made by the Department of Commerce. connected to, the government of [the national security agency’’ to include any Executive Order No. 13873 grants the People’s Republic of China].’’ determination by a sub-agency of the Secretary of Commerce the authority to 16. The Commission seeks comment Department of Homeland Security, the prohibit any transaction of any on how it must use section 889(f)(3) of Department of Defense, the Office of the information and communications the 2019 NDAA to add communications Director of National Intelligence, the technology or service where the equipment and services to the Covered National Security Agency, and the Secretary, in consultation with other List. The plain language of section 2(c) Federal Bureau of Investigation, and relevant agency heads, determines that provides that because seek comment on this interpretation. the transaction: (i) Involves property in telecommunications equipment from The Commission also seeks comment on which a foreign country or national has Huawei and ZTE are covered in section the process and procedures it should an interest; (ii) includes information and 889(f)(3)(A) of the 2019 NDAA, such use to incorporate their determinations communications technology or services equipment poses an unacceptable threat into the Covered List. designed, developed, manufactured, or to U.S. national security or the safety 18. The Commission seeks comment supplied by persons owned by, and security of U.S. persons. The on what constitutes a specific controlled by, or subject to the Commission reads section 2(c) as determination that triggers its jurisdiction or direction of a foreign providing that video surveillance and obligations under section 2(b)(1). Do the adversary; and (iii) poses certain undue telecommunications equipment from entities listed in section 2(c) have risks to the critical infrastructure or the Hytera, Hikvision, and Dahua, to the different processes to identify the digital economy in the United States or extent it is used for public safety or equipment and services that the certain unacceptable risks to U.S. security, poses an unacceptable threat to Commission should publish as covered national security or U.S. persons. In U.S. national security or the safety and equipment? For example, the Federal November 2019, the Department of security of U.S. persons. And the Acquisition Security Council makes a Commerce commenced a rulemaking to Commission reads section 2(c) as saying confidential recommendation to the implement Executive Order No. 13873. that ‘‘telecommunications or video Secretary of Homeland Security, the The Commission seeks comment on the surveillance services provided by’’ Secretary of Defense, and the Director of process and procedures it should use to Huawei, ZTE, Hytera, Hikvision, or National Intelligence, who then review incorporate Department of Commerce Dahua—those entities listed earlier in the recommendation and decide external determinations into the the paragraph—as well as any whether or not to issue exclusion or Covered List. ‘‘telecommunications or video removal orders. Should the Commission surveillance services’’ that use the interpret the term ‘‘specific 15. The Commission is also required equipment specified under determination’’ broadly to ensure that to incorporate into the Covered List subparagraphs (A) and (B) all pose an any guidance or order from the entities equipment or services identified in unacceptable threat to U.S. national listed in section 2(c) can be section 889(f)(3) of the 2019 NDAA. The security or the safety and security of incorporated into our list? How specific Commission seeks comment on section U.S. persons. The Commission seeks must these determinations be? Must 889(f)(3) generally and each of its comment on each of these external determinations list specific subparts. Section 889(f)(3) of the 2019 interpretations. Does video surveillance information, such as model numbers of NDAA defines ‘‘covered equipment produced by Hytera, equipment, or detailed descriptions of telecommunications equipment or Hikvision, or Dahua or video prohibited services that the external services’’ to include ‘‘(A) surveillance service offered by Huawei, source determines poses an telecommunications equipment ZTE, Hytera, Hikvision, or Dahua unacceptable national security risk, or produced by Huawei or ZTE; (B) for the qualify as ‘‘communications equipment will the external source identify classes purpose of public safety, security of or service’’ for the purposes of the or categories of equipment at a less government facilities, physical security Secure Networks Act? How should the granular level? If an external source surveillance of critical infrastructure, Commission interpret section declines to specify equipment or and other national security purposes, 889(f)(3)(D) and any subsequent services, or classes or categories thereof video surveillance and designations made by the Department of but instead simply provides the name of telecommunications equipment Defense? What other considerations are an entity, would that qualify as a produced by Hytera Communications relevant to its interpretation of section ‘‘determination’’ under section 2(c)? Corporation (Hytera), Hangzhou 889(f)(3)? Must a determination use the precise Hikvision Digital Technology Company 17. The final potential source of an words of the statute (that certain (Hikvision), or Dahua Technology external determination in section 2(c) of ‘‘communications equipment or service Company (Dahua); [and] (C) the Secure Networks Act is an . . . poses an unacceptable risk to the telecommunications or video appropriate national security agency. national security of the United States or surveillance services provided by such Section 9(2) of the Secure Networks Act the security and safety of United States entities or using such equipment.’’ defines ‘‘appropriate national security persons’’) or should the Commission Additionally, section 889(f)(3)(D) agency’’ as the Department of Homeland consider determinations that convey the provides that covered Security, the Department of Defense, the same concept even if using different telecommunications equipment or Office of the Director of National wording? Given the Commission’s services includes Intelligence, the National Security limited control over the format of a ‘‘[t]elecommunications or video Agency, and the Federal Bureau of determination from an external source, surveillance equipment or services Investigation. Some of these agencies, what should the Commission do if it is produced or provided by an entity that such as the Department of Homeland unclear whether a particular decision by the Department of Defense, in Security, include sub-agencies that may a section 2(c) source qualifies as a consultation with the Director of be involved in national security determination? National Intelligence or the Director of determinations, such as the 19. Relatedly, the Commission seeks the Federal Bureau of Investigation, Cybersecurity and Infrastructure comment generally on the mechanics of

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using these determinations to publish ‘‘poses an unacceptable risk’’ at a very posing an unacceptable risk to the the Covered List. The Commission granular level. In making such a national security of the United States or expects that any determinations covered determination, the Commission would the security and safety of United States under sections 2(c) will be publicly expect the section 2(c) source to persons.’’ As such, the Covered List released by the original decisionmaker. consider whether the particular model would include ‘‘Telecommunications If such a determination is public, the of equipment (or particular service) is equipment produced by Huawei or ZTE Commission does not believe it must ‘‘capable’’ of ‘‘(A) routing or redirecting that is capable of (A) routing or issue any notice regarding their receipt user data traffic or permitting visibility redirecting user data traffic or of this determination. The Commission into any user data or packets that such permitting visibility into any user data seeks comment on this understanding. equipment or service transmits or or packets that such equipment or Section 2(a) provides that the first otherwise handles; (B) causing the service transmits or otherwise handles, Covered List must be published on the network of a provider of advanced (B) causing the networks of a provider Commission’s website no later than communications service to be disrupted or advanced communications service to March 12, 2021. In order to meet this remotely; or (C) otherwise posing an be disrupted remotely, or (C) otherwise deadline, by what date does the unacceptable risk to the national posing an unacceptable risk to the Commission need to receive the external security of the United States or the national security of the United States or determinations? Should the security and safety of United States the security and safety of United States Commission affirmatively solicit these persons’’ precisely because those are the persons.’’ The Commission seeks determinations from other agencies and, types of consideration necessary to comment on this proposal. In turn, the if so, how? Are there any other determine whether that particular Commission seeks comment on how it procedures the Commission should equipment or service actually ‘‘poses an should define ‘‘capable’’ for purposes of consider to comply with section 2(c) of unacceptable risk’’ under the law. And section 2(b)(2) of the Secure Networks the Secure Networks Act? so, in such a case, the Commission Act. The Commission believes 20. Section 2(b) of the Secure believes that the specific equipment or ‘‘capable’’ should be read broadly, and Networks Act states that the service must be placed on the Covered equipment or services may be ‘‘capable’’ Commission ‘‘shall place’’ on the List because another agency has already of fulfilling section 2(b)(2)(A) or (B) Covered List ‘‘any communications concluded that the particular equipment even if they are not ordinarily used to equipment or service’’ that (1) ‘‘is or service poses an unacceptable perform the functions in 2(b)(2)(A) or produced or provided by any entity’’ ‘‘if, national security risk (and thus it must (B), so long as they can possibly perform based exclusively on the be ‘‘capable’’ of posing such a risk under those functions. The Commission seeks determinations’’ under section 2(c), section 2(b)(2)(C) regardless of whether comment on this view. How will ‘‘such equipment or service poses an it also meets the section 2(b)(2)(A) or (B) interested parties determine whether unacceptable risk to the national criteria). Thus, the Commission’s specific equipment or services are security of the United States and the placement of the equipment or service capable of posing an unacceptable security and safety of United States on the Covered List in such a case is a national security risk, pursuant to persons’’ and (2) is ‘‘capable’’ of ‘‘(A) non-discretionary, ministerial act. The section 2(b)(2)(C)? routing or redirecting user data traffic or Commission seeks comment on this 24. The Commission seeks comment permitting visibility into any user data view. or packets that such equipment or on alternatives to its lead proposal. For service transmits or otherwise handles; 23. In contrast, a section 2(c) source example, once the Commission receives (B) causing the network of a provider of may determine that a broader class of an external determination that advanced communications service to be equipment or services ‘‘poses an communications equipment or services disrupted remotely; or (C) otherwise unacceptable risk’’—as section pose an unacceptable security risk, posing an unacceptable risk to the 889(f)(3)(A) of the 2019 NDAA does should the Commission conduct an national security of the United States or when it lists all ‘‘telecommunications independent analysis of the capabilities the security and safety of United States equipment produced by Huawei or ZTE of each specific piece of persons.’’ (or any subsidiary or affiliate of such communications equipment or services 21. The Commission starts with an entities).’’ When an external source before including it on the Covered List? observation: Specifically, if certain identifies classes or categories of If so, could the Commission permissibly equipment or services have been found equipment or services as part of its find that equipment is not ‘‘capable’’ of under section 2(c) to ‘‘pose[] an external determination, the Commission posing an unacceptable risk even if it unacceptable risk to the national believes that the best reading of the must ‘‘exclusively’’ rely on a section security of the United States and the Secure Networks Act is to apply the 2(c) source to determine that it does security and safety of United States external determination to particular actually pose such a risk? Must the persons’’ (and thus fulfills the section models of equipment or services in light Commission identify the specific 2(b)(1) criterion), isn’t such equipment of the section 2(b)(2) criteria. So in capability from section 2(b)(2)(A)–(C) or service necessarily ‘‘capable’’ of applying the general determination that that warrants inclusion on the Covered ‘‘posing an unacceptable risk to the telecommunications equipment from List for every piece of communications national security of the United States or ZTE or Huawei poses an unacceptable equipment and service? Is such an the security and safety of United States risk to a particular piece of equipment, analysis of each and every piece of persons’’ (and thus fulfilling the section the Commission would look to whether equipment included in a section 2(c) 2(b)(2) criterion)? that equipment is ‘‘capable’’ of ‘‘(A) determination even possible in light of 22. The Commission resolves this routing or redirecting user data traffic or the one-year deadline for creating such potential for surplusage by recognizing permitting visibility into any user data a list? Even if such an analysis could be that external determinations may be or packets that such equipment or done, would a particularized Covered done at different levels of generality. For service transmits or otherwise handles; List be easily evaded given how example, a section 2(c) source may (B) causing the network of a provider of frequently communications equipment determine a particular model of advanced communications service to be is updated? Are there best practices for equipment (or a particular service) disrupted remotely; or (C) otherwise producing a detailed list that is

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informative and easy to consult and proposes to publish the Covered List 30. As discussed in the concurrently understand? What would be the without first seeking public comment on adopted Declaratory Ruling, the administrative burden of an equipment- the contents. The Commission notes Commission reads the prohibition in by-equipment determination under that section 2(d) uses mandatory section 3 as intending to apply to all section 2(b)(2), and do any benefits of language and thus does not appear to universal service programs but not other such an approach outweigh the burdens give the Commission discretion not to Federal subsidy programs to the extent of the slower process of identifying update the Covered List based on those programs may at times covered equipment and services? The changes in determinations, and hence it tangentially or indirectly involve Commission seeks comment on other would be unclear what purpose a notice expenditures related to the provision of potential methods of interpreting and period would serve. The Commission advanced communications services. The complying with section 2 of the Secure seeks comment on this proposal. Commission seeks comment on this Networks Act and their costs and 28. In the concurrently adopted proposal. The Commission believes that benefits. Declaratory Ruling, the Commission applying this prohibition to USF 25. Finally, regardless of how the found that the prohibition adopted in programs furthers its responsibility to Commission interprets the interplay of § 54.9 of the Commission’s rules ensure that public funds are not spent section 2(b)’s various provisions, it substantially implements the on equipment or services from seeks comment on the process for prohibition contained in section 3 of the companies that present a risk to the allowing interested parties to clarify Secure Networks Act. That is, the supply chain, whether that whether a specific piece of Commission’s current § 54.9 prohibition responsibility arises from its own communications equipment or a on spending USF funds, adopted statutory imperatives or from the Secure specific service is on the Covered List. pursuant to the Communications Act, Networks Act. The prohibition would What is the best method for allowing the broadly applies to all equipment and also apply to any other programs interested party to seek clarity? For services produced or provided by administered by the Commission that example, the Commission’s rules entities designated as ‘‘posing a national primarily support the provision of provide for declaratory rulings to security threat.’’ Section 3 of the Secure advanced communications services, as remove uncertainty. How can the Networks Act, in comparison, applies to well as any future USF programs Commission provide interested parties Federal programs subsidizing capital implemented by the Commission. The adequate opportunities to demonstrate expenditures necessary for the provision Commission seeks comment on this that specific equipment or services are of advanced communications service approach. or are not included on the Covered List 31. The Commission seeks comment and more narrowly to covered while meeting its obligations under the on how the proposed rule would affect communications equipment and Secure Networks Act? multiyear contracts or contracts with services identified in the Covered List. 26. Section 2(d) of the Secure voluntary extensions between fund Networks Act sets out certain 29. The Commission proposes and recipients and companies producing or requirements for the Commission to seeks comment on the designation of providing communications equipment maintain the Covered List. Section covered communications equipment or services posing a supply chain 2(d)(1) requires the Commission to and services on the Covered List. If the security risk, if any such contracts exist. update the Covered List ‘‘periodically’’ Commission’s proposal here is adopted, The Commission specifically seeks to address changes in the it would have two different designation comment on whether the Secure determinations made by other processes, one for the designation of an Networks Act, which states that the governmental agencies. The entity, as currently provided by the prohibition shall apply 60 days after the Commission must monitor the Covered Commission’s rules and another, more date on which it places a service or List to add additional communications targeted process, for the designation of piece of equipment on the Covered List, equipment or services or remove specific communications equipment permits the Commission to grandfather equipment or services if the basis for its and services per section 2 of the Secure any such arrangements. If the inclusion no longer exists. For each 12- Networks Act. To accommodate this Commission does grandfather contracts, month period during which the Covered outcome, the Commission proposes a should it only grandfather unexpired List is not updated, the Commission new rule, independent of the § 54.9 annual or multiyear contracts, or also must notify the public that no updates prohibition, that would prohibit, going grandfather one-year contracts with were necessary to protect national forward, the use of federal subsidies voluntary extensions? The Commission security or to address changes in made available through a program notes that in the 2019 Supply Chain existing determinations. The administered by the Commission to Order, it declined to grandfather Commission reads the language of purchase, rent, lease, otherwise obtain, existing contracts, finding that section 2(d) to be mandatory— or maintain any covered ‘‘[e]xempting existing multiyear precluding it from altering the list communications equipment and contracts would negate the purpose beyond the specific updates (all tied to services identified and published on the behind its rule and allow federal funds changes in section 2(c) determinations) Covered List. The Commission proposes to be used to perpetuate existing required by its terms. The Commission that the new prohibition on the use of security risks to communications seeks comment on this interpretation. USF funds pursuant to the Secure networks and the communications The Commission also seeks comment on Networks Act would be effective 60 supply chain.’’ To what extent would the process to update and publish the days after communications equipment the Commission’s adoption of the Covered List and solicit ideas and best or services are placed on the Covered proposed rule trigger any change-of-law practices for ways to maintain the List. The Commission seeks comment provisions? Covered List and keep it current and on this proposal, which tracks the text 32. Are there other practical issues readily available. of section 3 of the Secure Networks Act raised by the Commission’s proposals 27. Consistent with the Secure and would more closely align the that it should address in implementing Networks Act, which establishes no Commission’s rules with the Secure this proposed rule? Would section 3, notice period before the publication of Networks Act than currently provided any other section of the Secure the Covered List, the Commission for under § 54.9. Networks Act, or the Secure Networks

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Act as a whole provide us independent with the new reporting requirement Commission’s rules. Additional authority to require ETCs or other contained in section 5 of the Secure regulations to implement this particular providers to remove and replace Networks Act. The information provision appear unnecessary as there equipment on the Covered List? contained in the report would generally are already regulations governing 33. Section 5 of the Secure Networks encompass the requirements in section Commission processes regarding Act requires each ‘‘provider of advanced 5. Consistent with section 5, the forfeiture proceedings. The Commission communications service’’ to report Commission proposes to require that seeks comment on the assumptions that annually, ‘‘in a form to be determined filers report the type, location, date it needs not propose any new by the Commission,’’ if it has obtained, and any removal and procedural enforcement requirements ‘‘purchased, rented, leased, or otherwise replacement plans of covered associated with section 7(a) of the obtained any covered communications equipment and services in their Secure Networks Act. equipment or service.’’ All covered network. Filers will also have to provide 39. Separately, section 7(b) requires communications equipment or services a ‘‘detailed justification’’ explaining the repayment of funds disbursed per on the initial Covered List published why they obtained covered equipment the reimbursement program prescribed under section 2(a) of the Secure or services. The Commission seeks in section 4 of the Secure Networks Act Networks Act that was purchased, comment on what the detailed by recipients if they are found to have leased, or otherwise obtained by a justification should include and on violated section 4, the Commission’s provider on or after August 14, 2018 these other proposals. Is there regulations promulgated pursuant to must be reported, and any additional additional information the Commission section 4, or the ‘‘commitments made by covered equipment or services must be should require, to be consistent with the the recipient in the application for the reported within 60 days after the list is Secure Networks Act’s purpose and reimbursement.’’ Section 4 establishes updated. obligations, that would prove helpful in the reimbursement program providers 34. The Secure Networks Act also monitoring and assessing the presence may use to help pay for the removal, requires providers to include ‘‘a detailed and replacement of covered equipment replacement, and disposal of covered justification’’ for procuring such and services? For example, would it be communications equipment and communications equipment or services, helpful to know the amount paid for the services. The statute further calls for the information about whether the covered equipment and services or the referral of such violations to ‘‘all equipment or service has subsequently supplier from whom the equipment was appropriate law enforcement agencies or been removed and replaced, and purchased? The Commission also seeks officials for further action under information about any plans for the comment on how it could use the applicable criminal and civil laws.’’ The continued purchase, rent, lease, information it has already collected to statute bars violators from further installation, or use of such covered reduce potentially duplicative reporting participation in the section 4 communications equipment or services. requirements for carriers. reimbursement program, and violators If a provider does not have any covered 37. To what extent should the may be barred from participating in communications equipment or services Commission make reported information other Commission programs, ‘‘including in its network, then subsequent annual publicly available or treat it as the Federal universal service support reports beyond an initial certification presumptively confidential and not programs.’’ Before requiring repayment are not required unless subsequent subject to routine public inspection? and triggering the additional penalty purchases or other actions make the Consistent with the 2019 Supply Chain actions, the Commission must first give initial certification inaccurate. Order, the Commission does not alleged violators notice and a 180-day 35. While the Commission recently propose to treat as confidential whether opportunity to cure the violation. The conducted an information collection to a particular provider has covered Commission proposes to adopt better understand the extent of Huawei equipment or services in its network. regulations tracking the language and ZTE equipment in our Moreover, because information on the contained in section 7 and seek communications networks, it recognizes magnitude of covered equipment and comment on this proposal. the annual reporting requirement services among individual service 40. The Commission is also required contained in section 5 goes beyond the providers would be of public interest, by section 7(c) to ‘‘immediately take scope and frequency of that collection. the Commission proposes to make such action to recover all reimbursement The Commission limited the earlier information publicly available. funds awarded’’ when a recipient is collection requirement to ETCs, their Provider-specific information on the required to repay reimbursement under subsidiaries, and their affiliates, but location of covered equipment and section 7(b)(1)(A) due to a violation. The allowed service providers with pending services could raise security and Commission proposes to initiate such ETC designations and others to confidentiality concerns. Accordingly, action by sending a request for participate on a voluntary basis. The the Commission proposes to treat that repayment to the recipient immediately type of information reported in the specific information as presumptively following the expiration of the earlier collection did not track the confidential. The Commission seeks opportunity to cure where the recipient requirements of section 5. For example, comment on these proposals and any does not respond to the notice of the earlier collection did not require any alternative proposals. violation required by section 7(b)(2). If justification as to purchasing decisions. 38. Section 7(a) requires the the alleged violator does respond to the Accordingly, the collection would not Commission to treat violations of the notice but is ultimately determined by satisfy section 5 of the Secure Networks Secure Networks Act and violations of the Commission to have not cured the Act absent significant modification. the regulations pursuant to that statute violation, the Commission will then 36. The Commission therefore as violations of the Communications request repayment following that proposes and seeks comment on a new Act. Accordingly, the Commission determination. What additional information collection requirement to would have authority to subject those clarifications and/or rules are needed to implement section 5. Specifically, the found in violation of the Secure implement these enforcement Commission proposes to require that all Networks Act to forfeitures as provisions? ‘‘providers of advanced authorized under section 503(b) of the 41. The proposals in the Further communications services’’ must comply Communications Act and § 1.80 of the Notice generally reflect mandates from

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the Secure Networks Act, and the presentation within two business days ensuring communications supply chain Commission has no discretion to ignore after the presentation (unless a different integrity, the Further Notice proposes such congressional direction. To the deadline applicable to the Sunshine and seeks comment on rules to extent that the Commission seeks period applies). Persons making oral ex implement sections 2, 3, 5, and 7 of the comment on multiple possible options parte presentations are reminded that Secure Networks Act and their to implement any given mandate, it memoranda summarizing the applicability to the Commission’s urges commenters, where possible, to presentation must (1) list all persons ongoing efforts to secure the include an assessment of relative costs attending or otherwise participating in communications supply chain. and benefits for competing options. The the meeting at which the ex parte 46. Specifically, the Commission proposals in the Further Notice are presentation was made, and (2) proposes to establish the rules for the intended to, consistent with the Secure summarize all data presented and creation and maintenance of the Networks Act, identify and provide arguments made during the Covered List, which will list guidance on which communications presentation. If the presentation communications equipment and equipment and services the Secure consisted in whole or in part of the services that providers of advanced Networks Act prohibit the use of presentation of data or arguments communications services will be Federal subsidies to purchase or already reflected in the presenter’s prohibited from using any Federal maintain. The Commission further seeks written comments, memoranda, or other subsidy to purchase or maintain. The detailed comments on the costs of the filings in the proceeding, the presenter Commission also proposes to require proposals in the Further Notice. What may provide citations to such data or advanced communications service are the upfront and recurring costs arguments in his or her prior comments, providers to report their use of associated with each? How will these memoranda, or other filings (specifying communications equipment and costs vary according to the size of the the relevant page and/or paragraph services published on the Covered List, provider of advanced communications numbers where such data or arguments and to adopt enforcement mechanisms service? The Commission already can be found) in lieu of summarizing the Commission may implement to as completed an information collection to them in the memorandum. Documents part of the reimbursement program determine the costs to ETCs to remove shown or given to Commission staff established by section 4 of the Secure and replace Huawei and ZTE equipment during ex parte meetings are deemed to Networks Act. and services. How can the Commission be written ex parte presentations and 47. The RFA directs agencies to best incorporate this information into its must be filed consistent with rule provide a description of and, where cost-benefit analysis? What are the 1.1206(b). In proceedings governed by feasible, an estimate of the number of expected costs and benefits associated rule 1.49(f) or for which the small entities that may be affected by the proposed rules, if adopted. The RFA with each of these proposals to Commission has made available a generally defines the term ‘‘small providers, end users, and any other method of electronic filing, written ex entity’’ as having the same meaning as relevant parties? The Commission seeks parte presentations and memoranda the terms ‘‘small business,’’ ‘‘small comment, generally, on the impact the summarizing oral ex parte organization,’’ and ‘‘small governmental proposed rules will have on small presentations, and all attachments jurisdiction.’’ In addition, the term businesses and steps it can take to thereto, must be filed through the ‘‘small business’’ has the same meaning mitigate the impact, if any, of these electronic comment filing system as the term ‘‘small business concern’’ rules on those small businesses. available for that proceeding, and must be filed in their native format (e.g., .doc, under the Small Business Act. A small III. Procedural Matters .xml, .ppt, searchable .pdf). Participants business concern is one that: (1) Is independently owned and operated; (2) A. Paperwork Reduction Act Analysis in this proceeding should familiarize themselves with the Commission’s ex is not dominant in its field of operation; 42. This document contains proposed parte rules. and (3) satisfies any additional criteria new information collection 44. As required by the Regulatory established by the Small SBA. requirements. The Commission, as part Flexibility Act of 1980, as amended 48. Small Businesses, Small of its continuing effort to reduce (RFA), the Commission has prepared Organizations, Small Governmental paperwork burdens, will invite the this Initial Regulatory Flexibility Jurisdictions. The Commission’s actions, general public and the Office of Analysis (IRFA) of the possible over time, may affect small entities that Management and Budget (OMB) to significant economic impact on a are not easily categorized at present. comment on the information collection substantial number of small entities by The Commission therefore describes in requirements contained in this the policies and rules proposed in the this document, at the outset, three broad document, as required by the Paperwork Further Notice. Written comments are groups of small entities that could be Reduction Act of 1995, Public Law 104– requested on this IRFA. Comments must directly affected herein. First, while 13. In addition, pursuant to the Small be identified as responses to the IRFA there are industry specific size Business Paperwork Relief Act of 2002, and must be filed by the deadlines for standards for small businesses that are Public Law 107–198, see 44 U.S.C. comments on the Further Notice used in the regulatory flexibility 3506(c)(4), the Commission seeks provided on the first page of the item. analysis, according to data from the specific comment on how it might The Commission will send a copy of the SBA’s Office of Advocacy, in general a further reduce the information Further Notice, including this IRFA, to small business is an independent collection burden for small business the Chief Counsel for Advocacy of the business having fewer than 500 concerns with fewer than 25 employees. Small Business Administration (SBA). employees. These types of small 43. Ex Parte Presentations. This In addition, the Further Notice and businesses represent 99.9% of all proceeding is a ‘‘permit-but-disclose’’ IRFA (or summaries thereof) will be businesses in the United States which proceeding in accordance with the published in the Federal Register. translates to 28.8 million businesses. Commission’s ex parte rules. Persons 45. Consistent with the Commission’s 49. Next, the type of small entity making ex parte presentations must file obligation to be responsible stewards of described as a ‘‘small organization’’ is a copy of any written presentation or a the public funds used in the USF generally ‘‘any not-for-profit enterprise memorandum summarizing any oral programs and increasing concern about which is independently owned and

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operated and is not dominant in its account the resources available to small 47 CFR Part 54 field.’’ Nationwide, as of Aug 2016, entities; (2) the clarification, Communications common carriers, there were approximately 356,494 small consolidation, or simplification of Health facilities, Infants and children, organizations based on registration and compliance and reporting requirements internet, Libraries, Puerto Rico, tax data filed by nonprofits with the under the rule for such small entities; Reporting and recordkeeping Internal Revenue Service (IRS). (3) the use of performance rather than requirements, Schools, 50. Finally, the small entity described design standards; and (4) an exemption Telecommunications, Telephone, Virgin as a ‘‘small governmental jurisdiction’’ from coverage of the rule, or any part Islands. is defined generally as ‘‘governments of thereof, for such small entities.’’ cities, counties, towns, townships, 54. In compliance with the Secure Federal Communications Commission. villages, school districts, or special Networks Act, the Further Notice Cecilia Sigmund, districts, with a population of less than specifically proposes to establish the Federal Register Liaison Officer. fifty thousand.’’ U.S. Census Bureau Covered List, reporting requirements for Proposed Rules data from the 2017 Census of advanced communications providers, Governments indicate that there were and enforcement mechanisms for For the reasons discussed in the 90,075 local governmental jurisdictions violations of the prohibition on the use preamble, the Federal Communications consisting of general purpose of federal subsidies to purchase or Commission proposes to amend 47 CFR governments and special purpose maintain communications equipment parts 1 as follows: governments in the United States. Of and services on the Covered List. PART 1—PRACTICE AND this number there were 36,931 general 55. The Commission expects to take PROCEDURE purpose governments (county, into account the economic impact on municipal and town or township) with small entities, as identified in comments ■ 1. The authority citation for part 1 populations of less than 50,000 and filed in response to the Further Notice continues to read as follows: 12,040 special purpose governments— and this IRFA, in reaching our final independent school districts with conclusions and promulgating rules in Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted. enrollment populations of less than this proceeding. The Further Notice 50,000. Accordingly, based on the 2017 generally seeks comment on how to ■ 2. Add § 1.7004 to subpart V to read U.S. Census of Governments data, the adopt enacted legislation that mandates as follows: Commission estimates that at least action by the Commission and seeks 48,971 entities fall into the category of § 1.7004 Reports on covered specific comment on how to mitigate communications equipment or services. ‘‘small governmental jurisdictions.’’ the impact on small entities. 51. Small entities potentially affected (a) Scope. Each facilities-based by the proposals herein include eligible IV. Ordering Clauses provider of broadband connections to schools and libraries, eligible rural non- 56. Accordingly, it is ordered that, end users, as defined herein, shall profit and public health care providers, pursuant to the authority contained in submit an annual report to the and the eligible service providers sections 4(i), 201(b), 214, 254, 303(r), Commission indicating whether the offering them services, including 403, and 503 of the Communications provider has purchased, rented, leased telecommunications service providers, Act of 1934, as amended, 47 U.S.C. or otherwise obtained any covered internet Service Providers (ISPs), and 154(i), 201(b), 214, 254, 303(r), 403 and communications equipment or service vendors of the services and equipment 503, sections 2, 3, 5, and 7 of the Secure identified in the list published pursuant used for telecommunications and Networks Act, 47 U.S.C. 1601, 1602, to § 1.40002(b) of this chapter. broadband networks. 1604, and 1606, and §§ 1.1 and 1.412 of (b) Definitions—(1) Broadband 52. The Further Notice proposes rules the Commission’s rules, 47 CFR 1.1 and connection. A wired line, wireless that establish a Covered List of 1.412, the Further Notice is adopted. channel, or satellite service that communications equipment and 57. It is further ordered that the terminates at an end user location or services that advanced communications Further Notice will be effective upon mobile device and enables the end user providers are prohibited from using publication in the Federal Register, to receive information from and/or send federal subsidies administered by the with comment dates indicated therein. information to the internet at Commission to purchase or maintain. information transfer rates exceeding 200 The Further Notice also proposes rules List of Subjects kilobits per second (kbps) in at least one to create a reporting requirement for 47 CFR Part 1 direction. advanced communications providers to (2) Facilities-based provider. An identify whether they use or maintain Administrative practice and entity is a facilities-based provider of a any equipment or services on the procedure, Civil rights, Claims, service if it supplies such service using Covered List in their networks. The Communications, Communications facilities that satisfy any of the Commission seeks comment on this common carriers, Communications following criteria: proposal, and its likely costs and equipment, Cuba, Drug abuse, (i) Physical facilities that the entity benefits, as well as on alternative Environmental impact statements, Equal owns and that terminate at the end-user approaches and any other steps it access to justice, Equal employment premises; should consider taking. opportunity, Federal buildings and (ii) Facilities that the entity has 53. The RFA requires an agency to facilities, Government employees, obtained the right to use from other describe any significant, specifically Historic preservation, Income taxes, entities, such as dark fiber or satellite small business, alternatives that it has Indemnity payments, Individuals with transponder capacity, as part of its own considered in reaching its proposed disabilities, internet, Investigations, network, or has obtained; approach, which may include the Lawyers, Metric system, Penalties, (iii) Unbundled network element following four alternatives (among Radio, Reporting and recordkeeping (UNE) loops, special access lines, or others): ‘‘(1) the establishment of requirements, Security measures, other leased facilities that the entity differing compliance or reporting Satellites, Telecommunications, uses to complete terminations to the requirements or timetables that take into Telephone, Television, Wages. end-user premises;

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(iv) Wireless spectrum for which the (e) Reporting exception. If a facilities- (c) Communications equipment or entity holds a license or that the entity based provider of broadband service service. The term ‘‘communications manages or has obtained the right to use certifies to the Commission that such equipment or service’’ means any via a spectrum leasing arrangement or provider does not have any covered equipment or service that includes or comparable arrangement pursuant to communications equipment or service uses electronic components that is subpart X of this part (§§ 1.9001– in the network of such provider, such essential to the provision of fixed or 1.9080); or provider is not required to submit a mobile advanced communications (v) Unlicensed spectrum. report under this section after making service with connection speeds of at (3) End user. A residential, business, such certification, unless such provider least 200 kbps in either direction. institutional, or government entity that later purchases, rents, leases or (d) Covered communications subscribes to a service, uses that service otherwise obtains any covered equipment or service. The term for its own purposes, and does not resell communications equipment or service. ‘‘covered communications equipment or that service to other entities. (f) Authority to update. The Office of service’’ means any communications (c) Contents of report. Each facilities- Economics and Analytics, in equipment or service that is on the based provider of broadband service consultation with the Wireline Covered List found in § 1.40002. must: Competition Bureau, the Wireless (e) External determinations. The term (1) Identify any covered Telecommunications Bureau, the Public ‘‘external determination’’ means any communications equipment or service Safety and Homeland Security Bureau, determination from sources identified in that is purchased, rented, leased or and the International Bureau, may, § 1.40002(b)(1)(i) through (iv) that otherwise obtained on or after: consistent with these rules, implement certain communications equipment or (i) August 14, 2018, in the case of any any technical improvements, changes to service poses an unacceptable risk to the covered communications equipment or the format and type of data submitted, national security of the United States or service on the initial list published or other clarifications to the report and the security and safety of United States pursuant to § 1.40002(b) of this chapter; its instructions. persons. ■ 3. Add subpart CC to read as follows: or (f) Covered List. The Covered List is (ii) Within 60 days after the date on Subpart CC—Secure and Trusted a regularly updated list of covered which the Commission places such Communications Networks communications equipment and equipment or service on the list Sec. services. required by § 1.40002(b) of this chapter; 1.40000 Purpose. § 1.40002 Covered List. 1.40001 Definitions. (2) Provide details on the covered (a) Publication of the Covered List. communications equipment or services 1.40002 Covered List. 1.40003 Updates to the Covered List. The Wireline Competition Bureau and in its network, including the type, the Public Safety and Homeland location, date purchased, rented, leased Subpart CC—Secure and Trusted Security Bureaus shall publish the or otherwise obtained, and any removal Communications Networks Covered List on the Commission’s and replacement plans; website. The Bureaus shall maintain the (3) Provide a detailed justification as Authority: 47 U.S.C. chs. 5, 15. Covered List in accordance with to why the facilities-based provider of § 1.40000 Purpose. § 1.40003. broadband service purchased, rented, (b) Inclusion on the Covered List. The leased or otherwise obtained the The purpose of this subpart is to set Commission shall place on the Covered covered communications equipment or out the terms by which the Commission List any and all communications service; will publish and maintain the Covered equipment and services that: (4) Provide information about whether List in accordance with the Secure and (1) Is produced or provided by any any such covered communications Trusted Communications Networks Act entity if, based exclusively on the equipment or service has subsequently of 2019, Public Law 116–124, 133 Stat. following determinations, such been removed and replaced pursuant to 158. equipment or service produced or Commission’s reimbursement program § 1.40001 Definitions. provided by such an entity poses an contained in 47 CFR part 54, subpart P; unacceptable risk to the national (5) Provide information about whether For purposes of this subpart: (a) Advanced communications security of the United States or the such provider plans to continue to service. The term ‘‘advanced security and safety of United States purchase, rent, lease, or otherwise communications service’’ means high- persons. The sources for these obtain, or install or use, such covered speed, switched, broadband determinations are: communications equipment or service telecommunications capability that (i) A specific determination made by and, if so, why; and enables users to originate and receive any executive branch interagency body (6) Include a certification as to the high-quality voice, data, graphics, and with appropriate national security accuracy of the information reported by video telecommunications using any expertise, including the Federal an appropriate official of the filer, along technology with connection speeds of at Acquisition Security Council with the title of the certifying official. least 200 kbps in either direction. established under section 1222(a) of title (d) Reporting deadline. Entities (b) Appropriate national security 41, United States Code; subject to this reporting requirement agency. The term ‘‘appropriate national (ii) A specific determination made by shall file initial reports within six security agency’’ means: the Department of Commerce pursuant months after the Office of Economics (1) The Department of Homeland to Executive Order No. 13873 (relating and Analytics issues a public notice Security; to securing the information and announcing the availability of the new (2) The Department of Defense; communications technology and supply chain reporting platform. (3) The Office of the Director of services supply chain); Thereafter, filers must submit reports National Intelligence; (iii) Equipment or service being once per year on or before June 30th, (4) The National Security Agency; and covered telecommunications equipment reporting information as of December (5) The Federal Bureau of or services, as defined in section 31st of the previous year. Investigation. 889(f)(3) of the John S. McCain National

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Defense Authorization Act for Fiscal previously purchased, rented, leased, or (4) May be barred by the Commission Year 2019 (Pub. L. 115–232; 132 Stat. otherwise obtained. from participation in other programs of 1918); or (b) The term ‘‘covered the Commission, including the Federal (iv) A specific determination made by communications equipment or service’’ universal service support programs an appropriate national security agency. is defined in § 1.40001(c) of this established under section 254 of the (2) And is capable of: chapter. Communications Act of 1934, as (i) Routing or redirecting user data (c) The prohibition in paragraph (a) of amended. traffic or permitting visibility into any this section applies with respect to any (b) Notice and opportunity to cure. user data or packets that such covered communications equipment or The penalties described in paragraph (a) equipment or service transmits or service beginning on the date that is 60 of this section shall not apply to a otherwise handles; days after the date on which such recipient unless: (ii) Causing the networks of a provider equipment or service is placed on a (1) The Commission, the Wireline of advanced communications services to published list pursuant to § 1.40002(b) Competition Bureau, or the Enforcement be disrupted remotely; or of this chapter. In the case of any Bureau provides the recipient with (iii) Otherwise posing an covered communications equipment or notice of the violation; and unacceptable risk to the national service that is on the initial list (2) The recipient fails to cure the security of the United States or the published pursuant to § 1.40002(b), violation within 180 days after the security and safety of United States such equipment or service shall be Commission or Bureau provides such persons. treated as being placed on the list on the notice. date which such list is published. (c) Recovery of funds. The § 1.40003 Updates to the Covered List. ■ 6. Add subpart P to read as follows: Commission will immediately take (a) Consultation with External Subpart P—Secure and Trusted action to recover all reimbursement Sources. The Public Safety and Communications Networks Reimbursement funds awarded to a recipient under the Homeland Security Bureau shall Program Program in any case in which such monitor the status of external Sec. recipient is required to repay determinations in order to place 54.1600 Purpose. reimbursement funds under paragraph additional communications equipment 54.1601 [Reserved] (a) of this section. or services on the Covered List or to 54.1602 Enforcement. [FR Doc. 2020–17223 Filed 8–7–20; 8:45 am] remove communications equipment and BILLING CODE 6712–01–P services from the Covered List. Subpart P—Secure and Trusted (b) External Determination Reversal. If Communications Networks Reimbursement Program an external determination regarding DEPARTMENT OF COMMERCE communications equipment or service § 54.1600 Purpose. on the Covered List is reversed, the The purpose of this subpart is to set National Oceanic and Atmospheric Commission shall remove such out the terms by which providers of Administration equipment or service from the Covered advanced communications service can List, except the Commission may not seek and obtain reimbursements to 50 CFR Parts 223 and 224 remove such equipment or service if any replace covered communications [Docket No. 200715–0191; RTID 0648– other of the sources identified in equipment or services in accordance XR113] § 1.40002(b)(1)(i) through (iv) maintains with the Secure and Trusted an external determination supporting Communications Networks Act of 2019, Endangered and Threatened Wildlife; inclusion on the Covered List of such Public Law 116–124, 133 Stat. 158. 90-Day Finding on a Petition To List equipment or service. the Black Teatfish as Threatened or § 54.1601 [Reserved] Endangered Under the Endangered PART 54—UNIVERSAL SERVICE § 54.1602 Enforcement. Species Act ■ 4. The authority citation for part 54 is (a) General enforcement. In addition AGENCY: National Marine Fisheries revised to read as follows: to the penalties provided under the Service (NMFS), National Oceanic and Authority: 47 U.S.C. 151, 154(i), 155, 201, Communications Act of 1934, as Atmospheric Administration (NOAA), 205, 214, 219, 220, 229, 254, 303(r), 403, amended, and § 1.80 of this chapter, if Commerce. 1004, 1302, and 1601–1609, unless otherwise a recipient in the Secure and Trusted ACTION: 90-Day petition finding, request noted. Communications Networks for information, and initiation of status ■ 5. Add § 54.10 to subpart A to read as Reimbursement Program (Program) review. follows: violates the Secure and Trusted Communications Networks Act of 2019, SUMMARY: We, NMFS, announce a 90- § 54.10 Prohibition on use of certain Public Law 116–124, 133 Stat. 158, the day finding on a petition to list the Federal subsidies. Commission’s rules implementing that black teatfish (Holothuria nobilis) as (a) A Federal subsidy made available statute, or the commitments made by threatened or endangered under the through a program administered by the the recipient in the application for Endangered Species Act (ESA). We find Commission that provides funds to be reimbursement, the recipient: that the petition presents substantial used for the capital expenditures (1) Shall repay to the Commission all scientific or commercial information necessary for the provision of advanced reimbursement funds provided to the indicating that the petitioned action communications service may not be recipient under the Program; may be warranted. Therefore, we are used to: (2) Shall be barred from further initiating a status review of the species (1) Purchase, rent, lease, or otherwise participation in the Program; to determine whether listing under the obtain any covered communications (3) Shall be referred to all appropriate ESA is warranted. To ensure this status equipment or service; or law enforcement agencies or officials for review is comprehensive, we are (2) Maintain any covered further action under applicable criminal soliciting scientific and commercial communications equipment or service and civil law; and information regarding this species.

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DATES: Scientific and commercial receipt of a petition to list a species as species’ existence (16 U.S.C. 1533(a)(1), information pertinent to the petitioned threatened or endangered, the Secretary 50 CFR 424.11(c)). action must be received by October 9, of Commerce make a finding on whether ESA-implementing regulations issued 2020. that petition presents substantial jointly by NMFS and USFWS (50 CFR ADDRESSES: You may submit comments scientific or commercial information 424.14(h)(1)(i)) define ‘‘substantial on this document, identified by NOAA– indicating that the petitioned action scientific or commercial information’’ in NMFS–2020–0093 by the following may be warranted, and to promptly the context of reviewing a petition to method: publish such finding in the Federal list, delist, or reclassify a species as • Electronic Submissions: Submit all Register (16 U.S.C. 1533(b)(3)(A)). When credible scientific or commercial electronic public comments via the it is found that substantial scientific or information in support of the petition’s Federal eRulemaking Portal. Go to commercial information in a petition claims such that a reasonable person www.regulations.gov/ indicates the petitioned action may be conducting an impartial scientific #!docketDetail;D=NOAA-NMFS-2020- warranted (a ‘‘positive 90-day finding’’), review would conclude that the action 0093. Click the ‘‘Comment Now’’ icon, we are required to promptly commence proposed in the petition may be complete the required fields, and enter a review of the status of the species warranted. Conclusions drawn in the or attach your comments. concerned during which we will petition without the support of credible Instructions: Comments sent by any conduct a comprehensive review of the scientific or commercial information other method, to any other address or best available scientific and commercial will not be considered ‘‘substantial individual, or received after the end of information. In such cases, we conclude information.’’ In reaching the initial (90- the comment period, may not be the review with a finding as to whether, day) finding on the petition, we will considered by NMFS. All comments in fact, the petitioned action is consider the information described in received are a part of the public record warranted within 12 months of receipt sections 50 CFR 424.14(c), (d), and (g) and will generally be posted for public of the petition. Because the finding at (if applicable). viewing on www.regulations.gov the 12-month stage is based on a more Our determination as to whether the without change. All personal identifying thorough review of the available petition provides substantial scientific information (e.g., name, address, etc.), information, as compared to the narrow or commercial information indicating confidential business information, or scope of review at the 90-day stage, a that the petitioned action may be otherwise sensitive information ‘‘may be warranted’’ finding does not warranted will depend in part on the submitted voluntarily by the sender will prejudge the outcome of the status degree to which the petition includes be publicly accessible. NMFS will review. the following types of information: (1) accept anonymous comments (enter ‘‘N/ Information on current population A’’ in the required fields if you wish to Under the ESA, a listing status and trends and estimates of remain anonymous). determination may address a species, current population sizes and Interested persons may obtain a copy which is defined to also include distributions, both in captivity and the of the petition online at the NMFS subspecies and, for any vertebrate wild, if available; (2) identification of website: https://www.fisheries.noaa.gov/ species, any distinct population the factors under section 4(a)(1) of the national/endangered-species- segment (DPS) that interbreeds when ESA that may affect the species and conservation/petitions-awaiting-90-day- mature (16 U.S.C. 1532(16)). A joint where these factors are acting upon the findings. NMFS–U.S. Fish and Wildlife Service species; (3) whether and to what extent (USFWS) (jointly, ‘‘the Services’’) policy FOR FURTHER INFORMATION CONTACT: any or all of the factors alone or in clarifies the agencies’ interpretation of Adrienne Lohe, NMFS Office of combination identified in section 4(a)(1) the phrase ‘‘distinct population Protected Resources, (301) 427–8442, of the ESA may cause the species to be segment’’ for the purposes of listing, [email protected]. an endangered species or threatened delisting, and reclassifying a species SUPPLEMENTARY INFORMATION: species (i.e., the species is currently in under the ESA (61 FR 4722; February 7, danger of extinction or is likely to Background 1996). A species, subspecies, or DPS is become so within the foreseeable On May 14, 2020, we received a ‘‘endangered’’ if it is in danger of future), and, if so, how high in petition from the Center for Biological extinction throughout all or a significant magnitude and how imminent the Diversity to list the black teatfish portion of its range, and ‘‘threatened’’ if threats to the species and its habitat are; (Holothuria nobilis) as a threatened or it is likely to become endangered within (4) information on adequacy of endangered species under the ESA. The the foreseeable future throughout all or regulatory protections and effectiveness petition asserts that H. nobilis is a significant portion of its range (ESA of conservation activities by States as threatened by four of the five ESA sections 3(6) and 3(20), respectively, 16 well as other parties, that have been section 4(a)(1) factors: (1) Present and U.S.C. 1532(6) and (20)). Pursuant to the initiated or that are ongoing, that may threatened modification of its habitat; ESA and our implementing regulations, protect the species or its habitat; and (5) (2) overutilization for commercial we determine whether species are a complete, balanced representation of purposes; (3) inadequacy of existing threatened or endangered based on any the relevant facts, including information regulatory mechanisms; and (4) other one or a combination of the following that may contradict claims in the natural or manmade factors. The five section 4(a)(1) factors: (1) The petition. See 50 CFR 424.14(d). petition is available online (see present or threatened destruction, If the petitioner provides ADDRESSES). modification, or curtailment of habitat supplemental information before the or range; (2) overutilization for initial finding is made and states that it ESA Statutory, Regulatory, and Policy commercial, recreational, scientific, or is part of the petition, the new Provisions and Evaluation Framework educational purposes; (3) disease or information, along with the previously Section 4(b)(3)(A) of the ESA of 1973, predation; (4) inadequacy of existing submitted information, is treated as a as amended (16 U.S.C. 1531 et seq.), regulatory mechanisms to address new petition that supersedes the requires, to the maximum extent identified threats; (5) or any other original petition, and the statutory practicable, that within 90 days of natural or manmade factors affecting the timeframes will begin when such

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supplemental information is received. will not conclude that a lack of specific Conservation of Nature (IUCN), the See 50 CFR 424.14(g). information alone necessitates a American Fisheries Society, or We may also consider information negative 90-day finding if a reasonable NatureServe, as evidence of extinction readily available at the time the person conducting an impartial risk for a species. Risk classifications by determination is made. We are not scientific review would conclude that other organizations or made under other required to consider any supporting the unknown information itself suggests Federal or state statutes may be materials cited by the petitioner if the the species may be at risk of extinction informative, but such classification petitioner does not provide electronic or presently or within the foreseeable alone may not provide the rationale for hard copies, to the extent permitted by future. a positive 90-day finding under the U.S. copyright law, or appropriate To make a 90-day finding on a ESA. For example, as explained by excerpts or quotations from those petition to list a species, we first NatureServe, their assessments of a materials (e.g., publications, maps, evaluate whether the information species’ conservation status do ‘‘not reports, letters from authorities). See 50 presented in the petition, in light of the constitute a recommendation by CFR 424.14(c)(6). information readily available in our NatureServe for listing under the U.S. The ‘‘substantial scientific or files, indicates that the petitioned entity Endangered Species Act’’ because commercial information’’ standard must constitutes a ‘‘species’’ eligible for NatureServe assessments ‘‘have be applied in light of any prior reviews listing under the ESA. Next, if we different criteria, evidence or findings we have made on the listing conclude the petition presents requirements, purposes and taxonomic status of the species that is the subject substantial scientific or commercial coverage than government lists of of the petition. Where we have already information suggesting that the endangered and threatened species, and conducted a finding on, or review of, petitioned entity may constitute a therefore these two types of lists should the listing status of that species ‘‘species,’’ we evaluate whether the not be expected to coincide’’ (https:// (whether in response to a petition or on information indicates that the species explorer.natureserve.org/ our own initiative), we will evaluate any may face an extinction risk such that AboutTheData/DataTypes/Conservation petition received thereafter seeking to listing, delisting, or reclassification may StatusCategories). Additionally, species list, delist, or reclassify that species to be warranted; this may be indicated in classifications under IUCN and the ESA determine whether a reasonable person information expressly discussing the are not equivalent; data standards, conducting an impartial scientific species’ status and trends, or in criteria used to evaluate species, and review would conclude that the action information describing impacts and treatment of uncertainty are also not proposed in the petition may be threats to the species. We evaluate necessarily the same. Thus, when a warranted despite the previous review whether the petition presents any petition cites such classifications, we or finding. Where the prior review information on specific demographic will evaluate the source of information resulted in a final agency action—such factors pertinent to evaluating that the classification is based upon in as a final listing determination, 90-day extinction risk for the species (e.g., light of the standards on extinction risk not-substantial finding, or 12-month population abundance and trends, and impacts or threats discussed above. not-warranted finding—a petition will productivity, spatial structure, age generally not be considered to present structure, sex ratio, diversity, current Taxonomy substantial scientific and commercial and historical range, habitat integrity or Morphological characteristics were information indicating that the fragmentation), and the potential historically used to distinguish between petitioned action may be warranted contribution of identified demographic teatfish species, though morphological unless the petition provides new risks to extinction risk for the species. features alone were determined to be information or analysis not previously We then evaluate whether the petition unreliable markers of identification due considered. See 50 CFR 424.14(h)(1)(iii). presents information suggesting to high interspecies variability (Uthicke At the 90-day finding stage, we do not potential links between these et al. 2004). The more recent use of conduct additional research, and we do demographic risks and the causative molecular analyses resolved taxonomic not solicit information from parties impacts and threats identified in section confusion between teatfish in the outside the agency to help us in 4(a)(1) of the ESA. western Indian Ocean and southwestern evaluating the petition. We will accept Information presented on impacts or Pacific Oceans, distinguishing between the petitioners’ sources and threats should be specific to the species three species: (1) Holothuria whitmaei: characterizations of the information and should reasonably suggest that one Black/dark brown specimens found in presented if they appear to be based on or more of these factors may be waters of Australia and the southwest accepted scientific principles, unless we operative threats that act or have acted Pacific; (2) H. fuscogilva: White/beige have specific information in our files on the species to the point that it may specimens with dark markings broadly that indicates the petition’s information warrant protection under the ESA. distributed throughout the tropical is incorrect, unreliable, obsolete, or Broad statements about generalized Indo-Pacific; and (3) H. nobilis: Black otherwise irrelevant to the requested threats to the species, or identification specimens with white ventro-lateral action. Information that is susceptible to of factors that could negatively impact patches found in the western Indian more than one interpretation or that is a species, do not constitute substantial Ocean (Uthicke et al. 2004). The two contradicted by other available information indicating that listing may black teatfish (H. whitmaei, with information will not be dismissed at the be warranted. We look for information distribution in the Pacific Ocean, and H. 90-day finding stage, so long as it is indicating that not only is the particular nobilis, with distribution in the Indian reliable and a reasonable person species exposed to a factor, but that the Ocean) appear to be allopatric with a conducting an impartial scientific species may be responding in a negative genetic distance of 9.2 percent, implying review would conclude it supports the fashion; then we assess the potential a divergence during the Pliocene of petitioners’ assertions. In other words, significance of that negative response. approximately 1.8–4.6 million years conclusive information indicating the Many petitions identify risk (Uthicke et al. 2004). Further molecular species may meet the ESA’s classifications made by analyses support the distinction requirements for listing is not required nongovernmental organizations, such as between H. nobilis and H. fuscogilva, to make a positive 90-day finding. We the International Union on the once considered synonyms, as different

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species (Ahmed et al. 2016). We once dominated the catch, the species Conand et al. 2013; Muthiga & Conand conclude that the petitioned entity, H. now makes up a very small percentage 2013) and is sold dried and processed nobilis, constitutes a species eligible for of sea cucumber species harvested as ‘‘beche-de-mer’’ primarily to luxury listing under the ESA. (CITES 20129; Conand et al. 2013). The food markets in Hong Kong, Singapore, species has also been depleted in Taiwan, China, Korea and Malaysia Distribution, Habitat, and Life History Mozambique, India, Sri Lanka, the Red (CITES 2019; Purcell et al. 2012). Black The black teatfish occurs in coral reef Sea, Maldives, and likely in Tanzania teatfish is sold for $20 to $80/kg dry habitats between 0 and 40 meters depth, and Kenya, due to overfishing (Conand weight, depending on size and and is most commonly found in reef et al. 2013; Purcell et al. 2012). In condition; prices in Hong Kong retail flats and outer reef slopes with a Seychelles, harvest of H. nobilis was markets range from $106 to $139/kg preference for hard substrates (CITES stable from 2003–2006 and harvest dried (Purcell et al. 2012). Since the 2019; Conand et al. 20013; Eriksson et peaked at 10,371 individuals, and then 1980s, the global sea cucumber fishery al. 2012; Idreesbabu and Sureshkumar fell in 2007 and 2008 to 5,687 has dramatically increased in terms of 2017; Lawrence et al. 2004). The species individuals; this fishery is likely not number of producing countries, number may also be found in shallow seagrass depleted (Conand et al. 2013). Though of exploited species, increased fishing beds (CITES 2019; Conand et al. 2013). teatfish harvest in small-scale, artisanal effort, and expanded fishing areas, H. nobilis is distributed in the Indian fisheries has generally not been leading to overexploitation and Ocean, including along the east coast of monitored long-term, H. nobilis depletion of teatfish in most range Africa, the Red Sea, and coastal waters abundance is considered low compared countries (CITES 2019). of Madagascar, La Reunion, Yemen, to recognized baselines, and Several of the black teatfish’s life Oman, the west coast of India, Sri populations are declining throughout history traits make it vulnerable to Lanka, Seychelles, Comoros, and the their range (FAO 2019). overexploitation, including its low Maldives (Conand et al. 2013; Uthicke mobility, slow growth, late maturity, et al. 2004). Analysis of ESA Section 4(a)(1) Factors density-dependent reproduction, and Sea cucumbers of the order The petition asserts that H. nobilis is low recruitment rates (CITES 2019; FAO Aspidochirotida, including H. nobilis, threatened by four of the five ESA 2019). These traits, combined with its are deposit and detritus feeders that section 4(a)(1) factors: Present and occurrence in shallow, easily accessible digest organic matter such as bacteria in threatened modification of coral reef waters, and high value in international the top few millimeters of sediment (as and seagrass bed habitat, overutilization markets, have led to local extirpations reviewed by Purcell et al. 2016). for commercial trade, inadequacy of and depletion of stocks throughout most Teatfish are non-migratory and existing regulatory mechanisms to of its range (CITES 2019; FAO 2019). relatively sedentary, with slow growth control the threats of trade, fisheries and The species is estimated to have rates and longevity estimated at several climate change, and other natural or declined between 60–70 percent over at decades (FAO 2019). Teatfish generally manmade factors including a lack of least 80 percent of its range, as mature at 3–7 years (FAO 2019), and H. basic biological and ecological evidenced by vastly reduced catch per nobilis is reported to mature at 4 years information, risks of rarity, and bycatch. unit effort, reduced sizes of harvested (Conand et al. 2013). Teatfish reproduce The primary threat facing the species is individuals, and extremely low sexually through broadcast spawning, overharvest for commercial observed population densities (Conand therefore successful fertilization international trade (CITES 2019; FAO et al. 2013). For example, transect data depends upon density and proximity of 2019), and we find that listing the black reveal population densities of 0.66 and male and female teatfish to one another teatfish as a threatened or endangered 1.0 individuals per hectare in nearshore (CITES 2019; FAO 2019; Purcell et al. species under the ESA may be waters off Egypt and Eritrea, 2010; Purcell et al. 2011). As teatfish warranted based on this threat alone. As respectively, and range-wide density is generally exhibit low natural mortality such, we focus our discussion below on estimated between 0.12 and 10 rates, low to moderate population the evidence of overutilization for individuals per hectare (Conand et al. growth, and suspected high larval commercial purposes. However, we note 2013). Even with fishery closures, sea mortality, their overall productivity is that in the status review for this species, cucumber stocks may recover slowly, low (CITES 2019; FAO 2019). we will evaluate all ESA section 4(a)(1) potentially taking decades for factors to determine whether any one or Abundance and Population Trends populations to be restored (Anderson et a combination of these factors are al. 2011). Due to high demand that is Although data on abundance and causing declines in the species or likely not being met by current beche-de-mer population trends for H. nobilis are to substantially negatively affect the production, fisheries pressure on the sparse, available data indicate that the species within the foreseeable future to species is expected to continue (Conand species has declined by 60–70 percent such a point that the black teatfish is at et al. 2013; FAO 2019; Muthiga & across at least 80 percent of its range risk of extinction or likely to become so Conand 2013). The information since the 1960s, and continues to in the foreseeable future. presented in the petition and briefly decrease (CITES 2019; Conand et al. summarized here regarding the threat of Overutilization for Commercial, 2013). Intense pressure from harvest for overutilization for commercial purposes Recreational, Scientific, or Educational international trade has resulted in indicates that H. nobilis may be in Purposes extremely low densities or no black danger of extinction or likely to become teatfish observed at surveyed sites An estimated 10,000 tons of dried and so in the foreseeable future throughout throughout its range with few processed sea cucumber are traded all or a significant portion of its range. exceptions, and these observations are internationally each year, corresponding matched by decreased exports (FAO to about 200 million individuals Petition Finding 2019). In Madagascar and Egypt, very harvested from marine ecosystems After reviewing the petition, the few individuals of the species have been annually (Purcell et al. 2016). H. nobilis literature cited in the petition, and other observed and stocks are considered is one of the most highly valued sea information readily available in our depleted due to overexploitation (CITES cucumber species in the Indo-Pacific files, we find that listing H. nobilis as a 2019). In Tanzania, where H. nobilis region (Bruckner 2006; Conand 2018; threatened or endangered species may

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be warranted. Therefore, in accordance interested parties on the status of the supporting documentation such as with section 4(b)(3)(A) of the ESA and black teatfish. Specifically, we are maps, bibliographic references, or NMFS’ implementing regulations (50 soliciting information in the following reprints of pertinent publications. CFR 424.14(h)(2)), we will commence a areas: Please send any comments to one of the status review of this species. During the (1) Historical and current abundance, ADDRESSES listed above. We will base status review, we will determine density, and distribution of H. nobilis; our findings on a review of the best whether H. nobilis is in danger of (2) Historical and current condition of available scientific and commercial extinction (endangered) or likely to habitat for H. nobilis; information available, including all become so (threatened) throughout all or (3) The effects of harvest for information received during the public a significant portion of its range. As commercial international trade on the comment period. required by section 4(b)(3)(B) of the distribution and abundance of H. nobilis ESA, within 12 months of the receipt of over the short- and long-term; References Cited the petition (May 14, 2020), we will (4) The effects of other known or A complete list of all references cited make a finding as to whether listing the potential threats, including coral reef herein is available upon request (See black teatfish as an endangered or and seagrass bed degradation, climate FOR FURTHER INFORMATION CONTACT). threatened species is warranted. If change, disease and predation, and the inadequacy of existing regulatory Authority: The authority for this action is listing is warranted, we will publish a the Endangered Species Act of 1973, as proposed rule and solicit public mechanisms, on the distribution and amended (16 U.S.C. 1531 et seq.). comments before developing and abundance of H. nobilis over the short- publishing a final rule. and long-term; and Dated: July 15, 2020. (5) Management or conservation Samuel D. Rauch III, Information Solicited programs for H. nobilis, including Deputy Assistant Administrator for To ensure that the status review is mitigation measures related to any of Regulatory Programs, National Marine based on the best available scientific the threats listed above. Fisheries Service. and commercial data, we are soliciting We request that all data and [FR Doc. 2020–15721 Filed 8–7–20; 8:45 am] comments and information from information be accompanied by BILLING CODE 3510–22–P

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Notices Federal Register Vol. 85, No. 154

Monday, August 10, 2020

This section of the FEDERAL REGISTER better understand the impacts of the DEPARTMENT OF AGRICULTURE contains documents other than rules or pandemic and learning how to respond. proposed rules that are applicable to the The meeting will be organized to Farm Service Agency public. Notices of hearings and investigations, achieve three objectives: committee meetings, agency decisions and Commodity Credit Corporation rulings, delegations of authority, filing of 1. To provide an update on what petitions and applications and agency emerging research and data can tell us statements of organization and functions are about the current and expected impacts [Docket ID CCC–2016–0004] examples of documents appearing in this of COVID–19 containment and control section. measures on nutrition, and how we Notice of Funds Availability (NOFA) for should use this emerging evidence to the Organic Certification Cost Share guide our response. Program U.S. AGENCY FOR INTERNATIONAL 2. To learn from our implementing DEVELOPMENT partners and USAID Missions across AGENCY: Commodity Credit Corporation sectors that have pivoted their and Farm Service Agency, USDA. Board for International Food and implementation to respond to COVID– ACTION: Notice. Agricultural Development 19 and protect nutrition outcomes. To understand the realities on the ground, SUMMARY: The Farm Service Agency Notice of Meeting and to include the innovations and (FSA), on behalf of the Commodity Pursuant to the Federal Advisory expertise of those on the frontlines in Credit Corporation (CCC), is announcing Committee Act, notice is hereby given of the discourse. changes to the availability of funding a public meeting of the Board for 3. To discuss and prioritize actions for and payment calculation for certified International Food and Agricultural the near, medium, and long term to organic operations, which are required Development (BIFAD), COVID–19 and safeguard and accelerate nutrition based on expected participation levels Nutrition: Impacts, Field Innovations, progress. and limited funding, under the Organic and the Way Forward. The meeting will The meeting is intended to help Certification Cost Share Program be held on September 14, 2020 from support decision making by USAID and (OCCSP). FSA is also announcing the 10:00 a.m. to 12:30 p.m. EDT at http:// its partners and stakeholders working to opportunity for State Agencies to apply www.aplu.org/projects-and-initiatives/ advance food security and nutrition at for grant agreements to administer the international-programs/bifad/bifad- global, regional and national levels. On OCCSP program in fiscal year (FY) 2020. meetings.html. A public comment the basis of testimony, including public DATES: Applications for State Agency period is scheduled from 11:50 a.m. to comments, shared at the meeting, Agreements: FSA will accept 12:15 p.m. EDT. BIFAD will provide formal findings, applications from State Agencies for conclusions, and recommendations to This convening follows the June 4, funds for FY 2020 cost share assistance the Agency on best-bet operational and 2020 181st BIFAD meeting, Food between the period of August 10, 2020, programmatic investments. Security and Nutrition in the Context of and September 9, 2020. BIFAD is a seven-member, COVID–19, to provide an update on the Producer and Handler Applications: presidentially appointed advisory board impacts of the pandemic on nutrition FSA county offices will accept to USAID established in 1975 under outcomes and to discuss USAID’s applications for OCCSP payments from Title XII of the Foreign Assistance Act, response. The COVID–19 crisis risks producers and handlers for FY 2020 as amended. The provisions of Title XII backsliding on nutrition gains with until October 31, 2020. For FY 2021 concern bringing the assets of U.S. irrevocable impacts on mortality and through 2023, FSA will accept universities to bear on development lost potential. Initial projections show applications from October 1 of the challenges in agriculture and food likely significant increases in wasting applicable FY through October 31 of the security, and BIFAD’s role is to help and forthcoming analyses will quantify following FY. carry out this function. the potential impacts on small for Participants may register at http:// FOR FURTHER INFORMATION CONTACT: gestational age, micronutrient www.aplu.org/projects-and-initiatives/ Tona Huggins, Program Policy Branch deficiencies, stunting and declines in international-programs/bifad/bifad- Chief, (202) 720–6825, Tona.Huggins@ breastfeeding. Field reporting indicates meetings.html. For questions about wdc.usda.gov. significant reduction in coverage of key registration, please contact Jordan nutrition interventions. These will all SUPPLEMENTARY INFORMATION: Merker at 202–478–6087 or jmerker@ translate in loss of life and development aplu.org. For questions about BIFAD, Background gains if not countered with adequate please contact Clara Cohen, Designated action on nutrition as global decision Federal Officer for BIFAD in the Bureau OCCSP provides cost share assistance makers focus on response and recovery. for Resilience and Food Security, to producers and handlers of The meeting provides dedicated time USAID at [email protected] or (202) agricultural products for the costs of to discuss how the global community 712–0119. obtaining or maintaining organic can work together to protect and certification under the National Organic advance nutrition outcomes across Clara Cohen, Program (NOP). Funding for OCCSP is sectors during COVID–19 response and Designated Federal Officer, BIFAD. provided through two authorizations: recovery. In real time, researchers and [FR Doc. 2020–17387 Filed 8–7–20; 8:45 am] (1) National Organic Certification Cost implementers are gathering evidence to BILLING CODE 6116–02–P Share Program (National OCCSP)

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funds 1 and (2) Agricultural funding is authorized at a later time, (OMB) under the Paperwork Reduction Management Assistance (AMA) funds.2 FSA may provide additional assistance Act. The OMB control number for the Section 10105 of the Agricultural to certified operations that have applied approval is 0560–0289. Improvement Act of 2018 (2018 Farm for OCCSP, not to exceed 75 percent of Catalog of Federal Domestic Assistance Bill, Pub. L. 115–334) amended section their eligible costs, up to $750 per 10606(d) of the Farm Security and Rural scope. The title and number of the Federal Investment Act of 2002 (7 U.S.C. The changes to the payment assistance program in the Catalog of 6523(d)), authorizing $2 million from calculation and maximum payment Federal Domestic Assistance to which CCC to be used for National OCCSP for amount are applicable to all certified this NOFA applies is 10.171, Organic each of FYs 2019 and 2020, $4 million organic operations, regardless of Certification Cost Share Program for FY 2021, and $8 million for each of whether they apply through an FSA (OCCSP). FYs 2022 and 2023, to remain available county office or a participating State until expended. In addition, Agency. Due to the changes, State Environmental Review approximately $4 million in National Agencies that are interested in The environmental impacts of this funding remains available from previous overseeing reimbursements to producers NOFA have been considered in a FYs and will be used to fund OCCSP in and handlers in their States must manner consistent with the provisions 2020. An additional $1 million in AMA establish new agreements with FSA for of the National Environmental Policy funding is authorized in 7 U.S.C. 1524 FY 2020. FY 2020 agreements will Act (NEPA, 42 U.S.C. 4321–4347), the for each FY. include provisions that allow FSA to regulations of the Council on The purpose of this NOFA is to extend the agreements to provide Environmental Quality (40 CFR parts announce changes to the funding additional funds and allow State 1500–1508), and the FSA regulations for availability and payment calculation Agencies to continue to administer compliance with NEPA (7 CFR part provisions for FY 2020 through 2023 OCCSP for future years. FSA has not yet 799). The purpose of OCCSP is to and to notify State Agencies of the determined whether an additional provide cost share assistance to opportunity to apply to administer application period will be announced producers and handlers of agricultural OCCSP in their State for FY 2020. On for later years for State Agencies that products in obtaining organic April 29, 2019, FSA published a NOFA choose not to participate in FY 2020; certification. This NOFA merely in the Federal Register announcing State Agencies that would like to announces funding availability and general eligibility and administrative administer OCCSP for future years are changes to general eligibility and provisions for OCCSP for FY 2019 encouraged to establish an agreement administrative provisions for FY 2020 through 2023 (84 FR 17997). The 2019 for FY 2020 to ensure that they will be through 2023. FSA is not making able to continue to participate. If NOFA provided that eligible certified substantive changes to OCCSP. As such, additional funds are authorized for organic operations could receive the Categorical Exclusions found at 7 OCCSP for FY 2020, FSA and State reimbursement of 75 percent of their CFR part 799.31 apply, specifically 7 Agencies may amend the grant eligible costs to obtain or maintain their CFR 799.31(b)(6)(iii) (that is, financial agreements to provide additional funds organic certification, up to a maximum assistance to supplement income). No and increase the payment amount that payment of $750 per scope, which is the Extraordinary Circumstances (7 CFR a certified organic operation may maximum payment allowed by law. In 799.33) exist. As such, FSA has receive. FY 2019 and prior years, funds were determined that this NOFA does not available to cover all applications; To provide cost share assistance for FY 2020, State Agencies must complete constitute a major Federal action that however, the amount of funding would significantly affect the quality of available will not cover expected an Application for Federal Assistance (Standard Form 424 and 424B) and the human environment, individually or participation levels in FY 2020. cumulatively. Therefore, FSA will not For FY 2020 through 2023, FSA is enter into a grant agreement with FSA. State Agencies must submit the prepare an environmental assessment or revising the reimbursement amount to environmental impact statement for this 50 percent of the certified organic Application for Federal Assistance (Standard Form 424 and 424B) administrative action and this NOFA operation’s eligible expenses, up to a serves as documentation of the maximum of $500 per scope. This electronically via Grants.gov, the Federal grants website, at http:// programmatic environmental change is due to the limited amount of compliance decision. funding available and will allow a larger www.grants.gov. For information on number of certified organic operations how to use Grants.Gov, please consult Steven Peterson, to receive assistance. If additional http://www.grants.gov/GetRegistered. Acting Administrator, Farm Service Agency. State Agencies intending to utilize Robert Stephenson, 1 subgrantees must refer to the FY 2020 National OCCSP funds provide assistance for Executive Vice President, Commodity Credit organic producers and handlers in in the 50 United Full Notice of Funding Opportunity States, the District of Columbia, the Commonwealth Announcement on Grants.Gov for Corporation. of Puerto Rico, Guam, American Samoa, the U.S. additional application requirements. [FR Doc. 2020–17385 Filed 8–7–20; 8:45 am] Virgin Islands, and the Commonwealth of the BILLING CODE 3410–05–P Northern Mariana Islands. The funds can be used FSA will accept applications from State for cost share payments for the four categories, or Agencies for funds for FY 2020 cost ‘‘scopes,’’ recognized under the USDA organic share assistance between the period of regulations (crops, livestock, wild crops, and August 10, 2020, and September 9, DEPARTMENT OF AGRICULTURE handling), and for the additional scope of State organic program fees. 2020. Forest Service 2 AMA funds provide assistance for producers in Paperwork Reduction Act the following States: Connecticut, Delaware, Requirements Missoula Resource Advisory Hawaii, Maryland, Massachusetts, Maine, Nevada, Committee; Meeting New Hampshire, New Jersey, New York, There are no changes to the Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming. The funds can be used for information collection request for AGENCY: Forest Service, USDA. OCCSP that has been approved by the cost share payments for the three scopes of crops, ACTION: Notice of meeting. wild crops, and livestock. Office of Management and Budget

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SUMMARY: The Missoula Resource to make oral statements of three minutes free conference call number: 1–800– Advisory Committee (RAC) will hold a or less. Individuals wishing to make an 367–2403 and conference call ID: virtual meeting. The committee is oral statement should request in writing 4195799. Please be advised that before authorized under the Secure Rural by September 3, 2020, to be scheduled placing them into the conference call, Schools and Community Self- on the agenda. Anyone who would like the conference call operator may ask Determination Act (the Act) and to bring related matters to the attention callers to provide their names, their operates in compliance with the Federal of the committee may file written organizational affiliations (if any), and Advisory Committee Act. The purpose statements with the committee staff email addresses (so that callers may be of the committee is to improve before or after the meeting. Written notified of future meetings). Callers can collaborative relationships and to comments and requests for time to make expect to incur charges for calls they provide advice and recommendations to oral comments must be sent to Kate initiate over wireless lines, and the the Forest Service concerning projects Jerman, RAC Coordinator, Lolo National Commission will not refund any and funding consistent with the Act. Forest Supervisor’s Office, 24 Fort incurred charges. Callers will incur no RAC information can be found at the Missoula Road, Missoula, Montana charge for calls they initiate over land- following website: https:// 59804; or by email to katelyn.jerman@ line connections to the toll-free www.fs.usda.gov/detail/lolo/ usda.gov. telephone number herein. workingtogether/advisorycommittees/ Meeting Accommodations: If you are Persons with hearing impairments ?cid=fsm9_021467. a person requiring reasonable may also follow the discussion by first DATES: The meeting will be held on accommodation, please make requests calling the Federal Relay Service at 1– September 8, 2020, starting at 3 p.m. in advance for sign language 800–877–8339 and providing the (MST). interpreting, assistive listening devices, operator with the toll-free conference All RAC meetings are subject to or other reasonable accommodation. For call number:1–800–822–2024 and cancellation. For status of meeting prior access to the facility or proceedings, conference call ID: 4195799. to attendance, please contact the person please contact the person listed in the Members of the public are invited listed under FOR FURTHER INFORMATION section titled FOR FURTHER INFORMATION make statements during the Public CONTACT. CONTACT. All reasonable Comment section of the meeting or to ADDRESSES: The meeting will be held accommodation requests are managed submit written comments; the written with virtual attendance only. For virtual on a case-by-case basis. comments must be received in the meeting information, please contact the Dated: August 4, 2020. regional office approximately 30 days person listed under FOR FURTHER Cikena Reid, after each scheduled meeting. Written INFORMATION CONTACT. USDA Committee Management Officer. comments may be mailed to the Eastern Written comments may be submitted [FR Doc. 2020–17361 Filed 8–7–20; 8:45 am] Regional Office, U.S. Commission on as described under SUPPLEMENTARY BILLING CODE 3411–15–P Civil Rights, 1331 Pennsylvania INFORMATION. All comments, including Avenue, Suite 1150, Washington, DC names and addresses when provided, 20425 or emailed to Evelyn Bohor at are placed in the record and are COMMISSION ON CIVIL RIGHTS [email protected]. Persons who desire available for public inspection and additional information may contact the copying. The public may inspect Agenda and Notice of Public Meeting Eastern Regional Office at (202) 376– comments received at Lolo National of the Delaware Advisory Committee 7533. Forest Supervisor’s Office. Please call Records and documents discussed ahead to facilitate entry into the AGENCY: Commission on Civil Rights. during the meeting will be available for building. ACTION: Announcement of meeting. public viewing, as they become FOR FURTHER INFORMATION CONTACT: available at this FACA link, click the SUMMARY: Notice is hereby given, Quinn Carver, Designated Federal ‘‘Meeting Details’’ and ‘‘Documents’’ pursuant to the provisions of the rules Officer (DFO), by phone at 406–677– links. Records generated from this and regulations of the U.S. Commission 3905 or email at [email protected]; meeting may also be inspected and on Civil Rights (Commission), and the or Kate Jerman at 406–552–7944 or reproduced at the Eastern Regional Federal Advisory Committee Act email at [email protected]. Office, as they become available, both (FACA), that a planning meeting of the Individuals who use before and after the meetings. Persons Delaware Advisory Committee to the telecommunication devices for the deaf interested in the work of this advisory Commission will convene by conference (TDD) may call the Federal Information committee are advised to go to the call, on Wednesday, September 2, 2020 Relay Service (FIRS) at 1–800–877–8339 Commission’s website, www.usccr.gov, at 1:00 p.m. (EDT). The purpose of the between 8:00 a.m. and 8:00 p.m., or to contact the Eastern Regional Office meeting is for project planning and Eastern Standard Time, Monday at the above phone number, email or selection of additional Committee through Friday. street address. officers. SUPPLEMENTARY INFORMATION: The Agenda purpose of the meeting is to: DATES: Wednesday, September 2, 2020 1. Hear proposal presentations; at 1:00 p.m. (EDT). Wednesday, September 2, 2020 at 1:00 2. Approve meeting minutes; ADDRESSES: Conference call number: 1– p.m. (EDT) 3. Discuss, recommend, and approve 800–367–2403 and conference call ID: I. Welcome and Roll Call new Title II projects; and 4195799. 4. Discuss and make II. Project Planning FOR FURTHER INFORMATION CONTACT: Ivy recommendations on recreation fee III. Other Business L. Davis, at [email protected] or by phone proposals for sites located within IV. Next Planning Meeting Missoula County on the Lolo National at 202–376–7533. Forest. SUPPLEMENTARY INFORMATION: Interested V. Public Comments The meeting is open to the public. members of the public may listen to the VI. Next Meeting The agenda will include time for people discussion by calling the following toll- VII. Adjourn

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Dated: August 5, 2020. On June 8, 2020, in accordance with The instant review will continue with David Mussatt, section 751(a) of the Tariff Act of 1930, respect to the following companies: Supervisory Chief, Regional Programs Unit. as amended (the Act), Commerce Guangdong G-Top Import and Export [FR Doc. 2020–17391 Filed 8–7–20; 8:45 am] published in the Federal Register a Co., Ltd.; Jiangmen New Star Hi-Tech BILLING CODE P notice of initiation of an administrative Enterprise Ltd.; Jiangmen Pioneer review of the AD order.3 The Import & Export Co., Ltd.; KaiPing Dawn administrative review was initiated with Plumbing Products, Inc.; Zhongshan respect to 29 companies, and covers the Superte Kitchenware Co., Ltd.; and DEPARTMENT OF COMMERCE period April 1, 2019 through March 31, Zhuhai Kohler Kitchen & Bathroom International Trade Administration 2020. Subsequent to the initiation of the Products Co., Ltd. administrative review, the petitioner in [A–570–983] this proceeding, Elkay Manufacturing Assessment Company, timely withdrew its review Commerce will instruct U.S. Customs Drawn Stainless Steel Sinks From the requests for 23 of these companies, as and Border Protection (CBP) to assess People’s Republic of China: Partial discussed below. antidumping duties on all appropriate Rescission of Antidumping Duty Partial Rescission of Review entries. For the companies for which Administrative Review; 2019–2020 this review is rescinded, antidumping Pursuant to 19 CFR 351.213(d)(1), AGENCY: Enforcement and Compliance, duties shall be assessed at rates equal to Commerce will rescind an the cash deposit of estimated International Trade Administration, administrative review, in whole or in Department of Commerce. antidumping duties required at the time part, if a party that requested a review of entry, or withdrawal from warehouse, SUMMARY: The Department of Commerce withdraws its request within 90 days of (Commerce) is partially rescinding its for consumption, in accordance with 19 the date of publication of notice of CFR 351.212(c)(1)(i). Commerce intends administrative review of the initiation of the requested review. The antidumping duty (AD) order on drawn to issue appropriate assessment petitioner withdrew its request for an instructions directly to CBP 15 days stainless steel sinks (drawn sinks) from administrative review of the following the People’s Republic of China (China) after the date of publication of this companies within 90 days of the date of notice in the Federal Register. for the period of review (POR) April 1, publication of the Initiation Notice: 4 2019 through March 31, 2020. B&R Industries Limited; Feidong Import Notification to Importers DATES: August 10, 2020. and Export Co., Ltd.; Foshan Shunde This notice serves as the only FOR FURTHER INFORMATION CONTACT: MingHao Kitchen Utensils Co., Ltd.; reminder to importers whose entries Foshan Zhaoshun Trade Co., Ltd.; Adam Simons, Enforcement and will be liquidated as a result of this Franke Asia Sourcing Ltd.; Grand Hill Compliance, International Trade rescission notice, of their responsibility Work Company; Guandong Dongyuan Administration, U.S. Department of under 19 CFR 351.402(f)(2) to file a Kitchenware Industrial Co., Ltd.; Commerce, 1401 Constitution Avenue certificate regarding the reimbursement Guangdong New Shichu Import & NW, Washington, DC 20230; telephone: of antidumping duties and/or Export Company Limited; Guandong (202) 482–2972. countervailing duties prior to Yingao Kitchen Utensils Co., Ltd.; SUPPLEMENTARY INFORMATION: liquidation of the relevant entries Hangzhou Heng’s Industries Co., Ltd.; during this review period. Failure to Background Hubei Foshan Success Imp & Exp Co. comply with this requirement may Ltd.; J&C Industries Enterprise Limited; On April 1, 2019, Commerce result in the presumption that Jiangmen Hongmao Trading Co., Ltd.; published in the Federal Register a reimbursement of antidumping duties Jiangxi Zoje Kitchen & Bath Industry notice of ‘‘Opportunity to Request and/or countervailing duties occurred Co., Ltd.; Ningbo Afa Kitchen and Bath Administrative Review’’ of the AD order and the subsequent assessment of Co., Ltd./Yuyao Afa Kitchenware Co., on drawn sinks from China for the double antidumping duties. POR.1 Ltd.; Ningbo Oulin Kitchen Utensils Co., In April 2020, Commerce received Ltd.; Primy Cooperation Limited; Notification Regarding Administrative timely requests from Elkay Shenzhen Kehuaxing Industrial Ltd.; Protective Order Manufacturing Company, KaiPing Dawn Shunde Foodstuffs Import & Export Company Limited of Guangdong; This notice serves as the only Plumbing Products, Inc. (KaiPing reminder to parties subject to Dawn), and Zuhai Kohler Kitchen & Shunde Native Produce Import and Export Co., Ltd. of Guangdong; Xinhe administrative protective order (APO) of Bathroom Products, Ltd. (Zuhai Kohler) their responsibility concerning the to conduct an administrative review of Stainless Steel Products Co., Ltd.; Zhongshan Newecan Enterprise disposition of proprietary information the AD order on drawn sinks from disclosed under APO in accordance China.2 Development Corporation; and Zhongshan Silk Imp. & Exp. Group Co., with 19 CFR 351.305(a)(3). Timely written notification of return/ 1 Ltd. of Guangdong. Accordingly, See Antidumping or Countervailing Duty Order, destruction of APO materials or Finding, or Suspended Investigation; Opportunity Commerce is rescinding this review, in to Request Administrative Review, 85 FR 18191 part, with respect to these companies, in conversion to judicial protective order is (April 1, 2020). accordance with 19 CFR 353.213(d)(1).5 hereby requested. Failure to comply 2 See Letter from Elkay, ‘‘Re: Drawn Stainless with the regulations and the terms of an Steel Sinks from the People’s Republic of China: 3 APO is a sanctionable violation. Request for Administrative Review,’’ dated April See Initiation of Antidumping and 30, 2020. See also Letter from KaiPing Dawn, ‘‘RE: Countervailing Duty Administrative Reviews, 85 FR Drawn Stainless Steel Sinks from the People’s 35068 (June 8, 2020) (Initiation Notice). to administrative reviews. See Antidumping Republic of China: Request for Antidumping 4 See Letter from the Petitioner, ‘‘Re: Drawn Proceedings; Announcement of Change in Administrative Review,’’ dated April 23, 2020; and Stainless Steel Sinks from the People’s Republic of Department Practice for Respondent Selection in Letter from Zuhai Kohler, ‘‘RE: Antidumping Duty China: Notice of Partial Withdrawal of Request for Antidumping Duty Proceedings and Conditional Review of Drawn Stainless Steel Sinks from the Administrative Review,’’ dated July 23, 2020. Review of the Nonmarket Economy Entity in NME People’s Republic of China: Request for 5 Commerce no longer considers the non-market Antidumping Duty Proceedings, 78 FR 65963 Administrative Review,’’ dated April 30, 2020. economy entity as an exporter conditionally subject (November 3, 2013).

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This notice is published in request, the incidental, but not multi-year construction of the Interstate accordance with section 751 of the Act intentional, taking of small numbers of (I)–64 HRBT Expansion project. The and 19 CFR 351.213(d)(4). marine mammals by U.S. citizens who overall project will widen I–64 for Dated: August 3, 2020. engage in a specified activity (other than approximately 15.93 kilometer (km) (9.9 miles) along I–64 from Settlers Landing James Maeder, commercial fishing) within a specified geographical region if certain findings Road in Hampton, Virginia to the I–64/ Deputy Assistant Secretary for Antidumping I–564 interchange in Norfolk, Virginia. and Countervailing Duty Operations. are made and either regulations are issued or, if the taking is limited to The project will create an eight-lane [FR Doc. 2020–17331 Filed 8–7–20; 8:45 am] harassment, a notice of a proposed facility with six consistent use lanes. BILLING CODE 3510–DS–P incidental take authorization may be The project will include full provided to the public for review. Under replacement of the North and South DEPARTMENT OF COMMERCE the MMPA, ‘‘take’’ is defined as Trestle Bridges, two new parallel meaning to harass, hunt, capture, or kill, tunnels constructed using a Tunnel National Oceanic and Atmospheric or attempt to harass, hunt, capture, or Boring Machine (TBM), expansion of Administration kill any marine mammal. the existing portal islands, and Authorization for incidental takings widening of the Willoughby Bay Trestle [RTID 0648–XA122] shall be granted if NMFS finds that the Bridges, Bay Avenue Trestle Bridges, taking will have a negligible impact on and Oastes Creek Trestle Bridges. Also, Take of Marine Mammals Incidental to the species or stock(s) and will not have upland portions of I–64 will be widened Specified Activities; Taking Marine an unmitigable adverse impact on the to accommodate the additional lanes, Mammals Incidental to the Hampton availability of the species or stock(s) for the Mallory Street Bridge will be Roads Bridge-Tunnel Expansion taking for subsistence uses (where replaced, and the I–64 overpass bridges Project, Hampton-Norfolk, Virginia relevant). Further, NMFS must prescribe will be improved. The planned AGENCY: National Marine Fisheries the permissible methods of taking and activities below are part of the overall Service (NMFS), National Oceanic and other ‘‘means of effecting the least project (see the application for Atmospheric Administration (NOAA), practicable adverse impact’’ on the additional details on the overall Commerce. affected species or stocks and their project). Only the activities relevant to ACTION: Notice; issuance of an incidental habitat, paying particular attention to the IHA requested by HRCP are harassment authorization. rookeries, mating grounds, and areas of discussed below. This includes the similar significance, and on the following components: SUMMARY: In accordance with the availability of such species or stocks for D TBM Platform at the South Island; regulations implementing the Marine taking for certain subsistence uses D Conveyor Trestle at the South Mammal Protection Act (MMPA) as (referred to in shorthand as Island; amended, notification is hereby given ‘‘mitigation’’); and requirements D Temporary trestles for jet grouting that NMFS has issued an incidental pertaining to the mitigation, monitoring at the South Island; harassment authorization (IHA) to the and reporting of such takings are set D Temporary trestle for bridge Hampton Roads Connector Partners forth. The definitions of all applicable construction at the North Shore; D (HRCP) to incidentally harass, by Level MMPA statutory terms cited above are Mooring piles at the South Trestle A and Level B harassment, marine included in the relevant sections below. (located at the South Island), North mammals during pile driving and Island, and Willoughby Bay; and removal activities associated with the Summary of Request D Installation and removal of piles for Hampton Roads Bridge-Tunnel (HRBT) On September 18, 2019, NMFS test pile program. Expansion Project, Hampton-Norfolk, received a request from the HRCP for an Pile installation methods will include Virginia. IHA to take marine mammals incidental impact and vibratory driving, jetting, and drilling with a down-the-hole DATES: This Authorization is effective to impact and vibratory pile driving activities associated with the HRBT, in (DTH) hammer. Pile removal techniques for one year from July 10, 2020 to July for temporary piles will include 9, 2021. Hampton and Norfolk, Virginia for one year from the date of issuance. The vibratory pile removal or cutting below FOR FURTHER INFORMATION CONTACT: the mud line. Installation of steel pipe Stephanie Egger, Office of Protected application was deemed adequate and complete on February 4, 2020. The piles could be 24-, 36-, or 42-inches (in) Resources, NMFS, (301) 427–8401. in diameter to support temporary work Electronic copies of the application and HRCP request is for take of a small number of five species of marine trestles, platforms, and moorings. Test supporting documents, as well as a list piles would consist of 30-in square of the references cited in this document, mammals by Level A and B harassment. Neither the HRCP nor NMFS expects concrete or 54-in concrete cylinder may be obtained online at: https:// piles. Only load test piles will be www.fisheries.noaa.gov/permit/ injury, serious injury or mortality to result from this activity and, therefore, removed under this IHA. In-water pile incidental-take-authorizations-under- installation using impact and vibratory marine-mammal-protection-act. In case an IHA is appropriate. The planned activities are part of a larger project and driving, and drilling with a DTH of problems accessing these documents, hammer, and pile removal using a please call the contact listed above. the applicant has requested rulemaking and a letter of authorization for the vibratory hammer, have the potential to SUPPLEMENTARY INFORMATION: other components of this project. harass marine mammals acoustically and could result in incidental takes of Background Description of Specified Activity individual marine mammals. Jetting is The MMPA prohibits the ‘‘take’’ of not likely to result in take. marine mammals, with certain Overview exceptions. Sections 101(a)(5)(A) and The HRCP is working with the Dates and Duration (D) of the MMPA (16 U.S.C. 1361 et Virginia Department of Transportation Work could occur at any point during seq.) direct the Secretary of Commerce (VDOT) and Federal and state agencies the year, and will occur during the day. (as delegated to NMFS) to allow, upon to advance the design, approvals, and Pile installation may extend into

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evening or nighttime hours as needed to inefficiencies and delays, the HRCP Nansemond River, Willoughby Bay, and accommodate pile installation have estimated an average installation the Chesapeake Bay (Figure 1). Hampton requirements (e.g., once pile driving rate of six piles per day for most Roads is a wide marine channel that begins—a pile will be driven to design components. provides access to the Port of Virginia tip elevation). The overall number of and several other deep water anchorages Specific Geographic Region anticipated days of pile installation is upstream of the project area (VDOT and 312, based on a 6-day work week for one The HRBT is located in the waterway Federal Highway Administration year. Pile installation can occur at of Hampton Roads adjacent to the (FHWA) 2016). Navigational channels variable rates, from a few minutes to existing bridge and island structures of are maintained by the U. S. Army Corps several hours per pile. The HRCP the HRBT in Virginia. Hampton Roads of Engineers within Hampton Roads to anticipate that 1 to 10 piles could be is located at the confluence of the James provide transit to the many ports in the installed per day. In order to account for River, the Elizabeth River, the region.

Pile installation will occur in waters Detailed Description of the Specific similar) and impact hammers (S35 or ranging in depth from less than 1 meter Activity similar). Overall, steel pipe piles at the (m) (3.3 feet (ft)) near the shore to Three methods of pile installation are North Shore Work Trestle, Jet Grouting approximately 8 m (28 ft), depending on anticipated and expected to result in Trestle, and TBM Platform would be the structure and location. The majority take of marine mammals. These include installed using the vibratory hammer of the piles will be in water depths of use of vibratory, impact, and DTH approximately 80 percent of the time 3.6–4.6 m (12–15 ft). hammers. More than one installation and impact hammer approximately 20 method will be used within a day. Most percent of the time, while all mooring piles will be installed using a piles and steel pipe piles at Conveyor combination of vibratory (ICE 416L or Trestle would be installed using the

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vibratory hammer approximately 90 and 50 percent of the TBM Platform inspection station for the westbound percent and the impact hammer piles may require use of a down-the- tunnels. This segment covers approximately 10 percent of the time. hole hammer (Table 1). approximately 1 km (0.6 mi) along I–64; Depending on the location, the pile will Detailed descriptions of the project • Segment 3c (Willoughby Bay be advanced using vibratory methods components for this IHA request are Trestle-Bridges) includes the entire and then impact driven to final tip explained below. structures over Willoughby Bay, from elevation. Where bearing layer Project Segments the north end of the north approach sediments are deep, driving will be slabs on Willoughby Spit to the south conducted using an impact hammer so The project design is divided into five end of south approach slabs near the 4th that the structural capacity of the pile segments (see also Figure 2) as follows: • View Street interchange. This segment embedment can be verified. The pile Segment 1a (Hampton) begins at the covers approximately 1.6 km (1.0 mi) installation methods used will depend northern terminus of the Project in along I–64; Hampton and ends at the north end of on sediment depth and conditions at • Segment 3d (4th View Street the north approach slabs for the north each pile location. Table 1 provides Interchange) continues from the additional information on the pile tunnel approach trestles. This segment Willoughby Trestle-Bridges south, driving operation including estimated has two interchanges and also includes leading to the north end of the north pile driving times. The sum of the days improvements along Mallory Street to approach slabs of I–64 bridges over of pile installation is greater than the accommodate the bridge replacement Mason Creek Road along mainline I–64. anticipated number of days because over I–64. This segment covers This segment covers approximately 1.6 more than one pile installation method approximately 1.2 miles along I–64; • Segment 1b (North Trestle-Bridges) km (1.0 mi) along I–64; will be used within a day. • Prior to installing steel pipe piles near includes the new and replacement north Segment 4a (Norfolk-Navy) goes shorelines protected with rock armor tunnel approach trestles, including any from the I–64 north end of the north and/or rip rap (e.g., South Island approach slabs. This segment covers approach slabs at Mason Creek Road to shorelines; North Shore shoreline), it approximately 1 km (0.6 mi) along I–64; the north end of the north approach will be necessary to temporarily shift • Segment 2a (Tunnel) includes the slabs at New Gate/Patrol Road. There the rock armoring that protects the new bored tunnels, the tunnel approach are three interchange ramps in this shoreline to an adjacent area to allow for structures, buildings, the North Island segment: Westbound I–64 exit ramp to the installation of the piles. The rock improvements for tunnel facilities, and Bay Avenue, eastbound I–64 entrance armor should only be encountered at the South Island improvements. This ramp from Ocean Avenue, and shoreline and at relatively shallow segment covers approximately 2.9 km westbound I–64 entrance ramp from depths below the mudline. The rock (1.8 mi) along I–64; Granby Street. The ramps in this armor and/or rip rap will be moved and • Segment 3a (South Trestle-Bridge) segment are all on structure. This reinstalled near its original location includes the new South Trestle-Bridge segment covers approximately 2.4 km following the completion of pile and any bridge elements that interface (1.5 mi) along I–64; and installation. Alternatively, the piles may with the South Island to the south end • Segment 5a (I–564 Interchange) be installed without moving the rock, by of the south abutments at Willoughby starts from the north end of the north first drilling through the rock with a Spit. This segment covers approach slab of the New Gate/Patrol DTH hammer (e.g., Berminghammer BH approximately 1.93 km (1.2 mi) along I– Road Bridge to the southern Project 80 drill or equivalent) to allow for the 64; Limit. This segment runs along the Navy installation of the piles. It is estimated • Segment 3b (Willoughby Spit) property and includes an entrance ramp that a down-the-hole hammer will be continues from the south end of the from Patrol Road, access ramps to and used for approximately 1 to 2 hours per south approach slabs for the south from the existing I–64 Express Lanes, pile, when necessary. It is anticipated trestle and ends at the north end of the ramps to and from I–564, and an that approximately 5 percent of the north approach slabs for the Willoughby eastbound I–64 entrance ramp from North Shore Work Trestle piles, 10 Bay trestles. This segment includes a Little Creek Road. This segment covers percent of the Jet Grouting Trestle piles, modified interchange connection to approximately 1.93 km (1.2 mi) along I– 10 percent of the Conveyor Trestle piles, Bayville Street, and has a truck 64.

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However, the only planned in-water Approximately, 1070 piles (of all Project Components That Are Likely To marine construction activities that have sizes) would be installed (only some Result in Take of Marine Mammals potential to affect marine mammals and removed) under this IHA (Table 1). For result in take would occur at the 36-in steel piles, 698 piles would be Tunnel Boring Machine (TBM) following locations in the following installed. For 42-in steel piles, 257 piles Platform at the South Island (Segment segments: would be installed. For 24-in piles, 66 2a)—The HRCP is constructing the D North Trestle-Bridges (Segment 1b); piles would be installed. For 54-in temporary TBM Platform or ‘‘quay’’ at D Tunnel—North Island and South concrete cylinder piles, 33 piles would the South Island to allow for the Island (Segment 2a); be installed. For 24-in or 30-in concrete delivery, unloading, and assembly of the D South Trestle-Bridge (Segment 3a); square piles, 16 piles would be TBM components from barges to the and installed. Removal would only occur for Island. The large TBM components will D Willoughby Bay Trestle-Bridges piles as part of the test pile program be delivered by barge and then (Segment 3c). (Table 1). transferred to the platform using a Self-

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Propelled Modular Transport, crawler m (100 ft). Table 1 provides additional and consolidate the sediments along the crane, sheerleg crane and/or other information on the pile driving planned tunnel alignment and tunnel suitable equipment. The TBM Platform operation including estimated pile depth. will also allow barge delivery and driving times and number of strikes Two temporary work trestles will be storage of concrete tunnel segments as necessary to drive a pile to completion. constructed along either side of the the boring operation progresses. The Additionally, mooring dolphins will planned tunnel alignment to support jet concrete tunnel segments will be be installed along the outside edge of grouting activity. Each trestle will be offloaded and moved using a the Conveyor Trestle. Each dolphin will approximately 12.2 m (40 ft) wide and combination of crawler cranes and a consist of 36-in steel piles and will be extend approximately 305 m (1,000 ft) gantry crane installed on the TBM installed with a combination of west of the South Island shoreline, for Platform. The tunnel segments will be vibratory and impact hammers. a total overall approximate area of 0.007 stored on the platform prior to delivery Temporary Trestle for Bridge km2 (1.84 acres). Two temporary Jet to the tunnel shaft for installation. Construction at the North Shore Work Grouting Trestles will be constructed, The TBM Platform is a steel structure Trestle (Segment 1b)—The temporary each will be founded on (102) 36-in founded on (216) 36-in diameter steel North Shore Work Trestle will support diameter steel piles (a total of 204 steel piles, with an overall area of construction of the permanent piles) with 7.6 m (25 ft) +/¥ spans sized approximately 0.40 acres eastbound North Trestle Bridge in the to accommodate a 35-ton drill rig and (approximately 50.6 m x 2.7 m). The shallow water (<1.2–1.8 m (4–6 ft) support equipment. piles will be installed using a MLW) closer to the North Shore, Moorings at the South Trestle combination of vibratory and impact avoiding the need to dredge or deepen (Segment 3a)—Temporary moorings hammers except along the perimeter this area (which otherwise would have will be installed in the area of the South where down-the-hole hammering may been required for barge access) and Trestle to support the construction of be needed to install piles through the minimizing potential impacts to the temporary work trestles and permanent rock armor stone. The piles are 47 m adjacent submerged aquatic vegetation trestle bridges. Six mooring dolphins (154 ft) long and will have an average (SAV). The temporary North Shore will be installed and each will consist embedded length of approximately 42.7 Work Trestle is a steel structure founded of (3) 24-in steel piles for a total of (18) m (140 ft). Table 1 provides additional on 194 36-in diameter steel piles with 24-in piles. An additional (41) 42-in information on the pile driving 9–12 m (30–40 ft) spans sized to steel pipe piles will be installed along operation including estimated pile accommodate a 300-ton crane. The main what will become the outer edge of the installation times and number of strikes portion of the work trestle will be work trestle to provide additional single necessary to drive a pile to completion. approximately 345 m long x 14 m wide mooring points for barges and vessels The superstructure of the platform is (1,130 ft long by 45 ft wide), with three delivering material and accessing the set on top of the piles and consists of approximately 24.4 m x 9 m (80 ft x 30 trestle. The mooring dolphin piles and transverse and longitudinal beams ft) fingers and an additional landing the single mooring point piles will be below a 13/16-in-thick plate set on top area approximately 45.7 m x 14 m (150 installed using a vibratory hammer. of the beams. Rail beams will be ft x 45 ft), for a total overall approximate Mooring at Willoughby Bay (Segment installed on top of the plate and will area of 0.006 km2 (1.49 acres). 3c)—Temporary moorings will be support the gantry crane. A concrete Dolphins will be installed at the installed in Willoughby Bay to support slab may be placed on top of the steel southern end and along the outside edge the construction of temporary work plates or timber trusses. of the work trestle. Each dolphin will trestles and permanent trestle bridges. Dolphins will be installed along the consist of 24-in steel piles. In addition, Six mooring dolphins will be shoreline of the South Island in the 42-in steel pipe piles will be installed installed—each consisting of (3) 24-in areas adjacent to the TBM Platform. along the outer edge of the work trestle steel piles. An additional (50) 42-in steel Each dolphin will consist of 36-in steel to provide additional single mooring pipe piles will be installed along what piles and will be installed with a points for barges and vessels delivering will become the outer edge of the work combination of vibratory and impact material and accessing the trestle. The trestle to provide additional single hammers. mooring dolphin piles and the single mooring points for barges and vessels Conveyor Trestle at the South Island mooring point piles will be installed delivering material and accessing the (Segment 2a)—Tunnel boring spoils and using a vibratory hammer. trestle. The mooring dolphin piles and other related materials will be moved Moorings at the North Island the single mooring point piles will be between the South Island and barges via Expansion (Segment 2a)—Temporary installed using a vibratory hammer. A a conveyor belt and other equipment moorings will be installed along the total of 68 steel pipe piles will be throughout tunnel boring. The Conveyor perimeter of the North Island Expansion driven, (50) 42-in piles and (18) 24-in Trestle will also be used for area to support the construction of the piles. maintenance and mooring of barges and Island expansion. Eighty 42-in steel An additional (50) 42-in steel pipe vessels carrying TBM materials and pipe piles will be installed to provide piles will be installed in Willoughby other project related materials. mooring points for barges and vessels. Bay to create moorings for additional The Conveyor Trestle is a steel The mooring point piles will be staging of barges and safe haven for structure founded on (84) 36-in installed using a vibratory hammer. vessels in the event of severe weather. diameter steel piles, with an overall area Temporary Trestles for Jet Grouting at The moorings will be configured as (2) of approximately 0.42 acres the South Island (Segment 2a)— 2,000-ft long lines with a 42-in mooring (approximately 205 m x 8 m). The piles Unconsolidated soil conditions at the pile every 24.4 m (80 ft). The piles will will be installed using a combination of western edge of the South Island—along be installed using a vibratory hammer. vibratory (International Construction the centerline and depth of the planned Equipment (ICE) 416L or similar) and tunnel alignment—require ground Installation and Removal of Piles for impact hammers (S35 or similar). The improvements to allow tunnel boring to Test Pile Program (Segments 1b, 2a, 3a, piles are approximately 42.7 m (140 ft) proceed safely and efficiently. Ground and 3c) long and will have an average improvements will be achieved using The HRCP will perform limited pile embedded length of approximately 30.5 deep injection or jet grouting to stabilize load testing to confirm permanent

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concrete pile design at the start of the Test piles will be set using temporary installed using a vibratory hammer and project. Test piles will be installed at steel templates designed to support and proofed using an impact hammer to the North Trestle (1 load test pile, 10 position the test pile while being driven. confirm sufficient load capacity. Test production test piles), South Trestle (2 Concrete test piles will be driven using piles will be cut below the mudline and load test piles, 20 production test piles) an impact hammer. Test pile templates removed. The temporary test pile and at Willoughby Bay (1 load test pile, will be positioned and held in place templates and load test frame and 15 production test piles)—test piles will using spuds (one at each corner of the supports will be removed using a be 30-in square concrete or 54-in template). The test pile templates and vibratory hammer. concrete cylinder piles (see Table 1). pile load test frame and supports will be TABLE 1—PILE DRIVING AND REMOVAL ASSOCIATED WITH THE HRBT PROJECT THAT ARE LIKELY TO RESULT IN THE TAKE OF MARINE MAMMALS

Average down-the- Number of Average Approximate Number of Estimated Pile size)/ Total Embedment Number of hole piles vibratory number of piles per total Number of Project component type and number length piles down- duration per vibrated/ duration impact day per number of days of material of piles (feet) the-hole pile hammered per pile strikes hammer hours of installation (minutes) (minutes) per pile installation

North Trestle (Segment 1b)

North Shore Work 36-in Steel Pipe ...... 194 100 10 120 184 50 40 3 162 65 Trestle. Moorings ...... 42-in Steel Pipe ...... 36 60 ...... 36 30 ...... 6 18 6 Moorings ...... 24-in Steel Pipe ...... 30 60 ...... 30 30 ...... 6 15 5 Test Pile Program 54-in Concrete Cyl- 1 140 ...... 1 ...... 2,100 1 2 1 (Load Test Piles). inder Pipe. Test Pile Program 54-in Concrete Cyl- 10 140 ...... 10 ...... 2,100 1 20 10 (Production Piles). inder Pipe.

North Island (Segment 2a)

Moorings ...... 42-in Steel Pipe ...... 80 60 ...... 80 30 ...... 6 40 13

Willoughby Bay (Segment 3c)

Moorings ...... 42-in Steel Pipe ...... 50 60 ...... 50 30 ...... 6 25 9 Moorings ...... 24-in Steel Pipe ...... 18 60 ...... 18 30 ...... 6 9 3 Moorings (Safe 42-in Steel Pipe ...... 50 60 ...... 50 30 ...... 6 25 9 Haven). Test Pile Program 24-in or 30-in Con- 1 140 ...... 1 ...... 2,100 1 2 1 (Load Test Piles). crete Square Pipe. Test Pile Program 24-in or 30-in Con- 15 140 ...... 15 ...... 2,100 1 30 15 (Production Piles). crete Square Pipe.

South Trestle (Segment 3a)

Moorings ...... 42-in Steel Pipe ...... 41 60 ...... 41 30 ...... 6 21 7 Moorings ...... 24-in Steel Pipe ...... 18 60 ...... 18 30 ...... 6 9 3 Test Pile Program 54-in Concrete Cyl- 2 140 ...... 2 ...... 2,100 1 4 2 (Load Test Piles). inder Pipe. Test Pile Program 54-in Concrete Cyl- 20 140 ...... 20 ...... 2,100 1 40 20 (Production Piles). inder Pipe.

South Island (Segment 2a)

TBM Platform ...... 36-in Steel Pipe ...... 216 140 108 120 108 60 60 2 216 108 Jet Grouting Trestle 36-in Steel Pipe ...... 204 100 20 120 184 50 40 3 170 68 Conveyor Trestle ..... 36-in Steel Pipe ...... 84 100 8 120 76 50 40 3 70 28

Total ...... 1,070 ......

Planned in-water marine construction time, no changes have been made to the at: https://www.fisheries.noaa.gov/ activities that have potential to affect planned construction activities. national/marine-mammal-protection/ marine mammals will occur at the Therefore, a detailed description is not incidental-take-authorizations- following locations in Construction provided here. Please refer to that construction-activities. Please see the Areas 2 and 3 (Figure 2): Federal Register notice for the letter for full details of the D North Trestle-Bridges (Segment 1b); description of the specific activity. recommendations and associated D Tunnel—North Island and South rationale. Comments and Responses Island (Segment 2a); Comment: The Commission D South Trestle-Bridge (Segment 3a); A notice of NMFS’s proposal to issue commented that NMFS used incorrect and an IHA to HRCP was published in the proxy source levels for impact D Willoughby Bay Trestle-Bridges Federal Register on March 20, 2020 (85 installation of 30- and 54-in concrete (Segment 3c). FR 16194). That notice described, in piles based on MacGillivray et al. (2007) Mitigation, monitoring, and reporting detail, the project activity, the marine and therefore underestimated the measures are described in detail later in mammal species that may be affected by various Level A and B harassment zones this document (please see Mitigation the activity, and the anticipated effects noted in Tables 11 and 12 of the Federal and Monitoring and Reporting section). on marine mammals. During the 30-day Register notice of proposed IHA and A detailed description of the planned public comment period, NMFS received Tables 2 and 3 in the draft project is provided in the Federal comments from the Marine Mammal authorization. The Commission said Register notice for the proposed IHA (85 Commission (Commission). The that NMFS omitted the fact that source FR 16194; March 20, 2020). Since that Commission’s letter is available online levels for impact installation of 36-in

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concrete piles were used as a proxy for levels would be for four hammers as the Response: NMFS did use the source the 30- and 54-in concrete piles in the applicant indicated three would be the level data from Denes et al. (2019) and Federal Register notice (85 FR 16194; maximum used. Therefore, no changes its Level A harassment thresholds for March 20, 2020). were made in Table 13 for the impulsive sources, and the relevant Response: NMFS revised the source calculated distances for Level B expected operating parameters to levels for 30- and 54-in concrete piles to harassment in this notice or Table 3 of estimate the extents of the Level A 193 dB SPLpeak (peak sound pressure the final IHA. harassment zones for DTH drilling in level), 187 dB SPLrms (sound pressure Comment: The Commission the proposed IHA (85 FR 16194; March level, root mean square), and 177 recommended using 162 rather than 161 20, 2020). For the calculation of the decibels (dB) SEL (sound exposure dB re 1 mPa rms (1 micro Pascal, root Level B harassment zone, NMFS level) and therefore revised the Level A mean square) at 10 m for vibratory concurs with the recommendation for and Level B harassment zones installation of 24-in piles and to re- this IHA and made the change using the accordingly. However, the source level estimate the Level A and B harassment threshold of 120-dB re 1 mPa rms for of 36-in concrete piles were not used as zones accordingly. continuous sources to estimate the a proxy for the 30- and 54-in concrete Response: NMFS believes that 161 dB extents of the Level B harassment zones piles. re 1 mPa rms remains appropriate for use using source level data from Denes et al. Comment: The Commission stated in this circumstance and does not adopt (2016). However, NMFS does not agree that NMFS incorrectly noted that the the recommendation to re-estimate the that using Denes et al., 2019 as a source source levels for unattenuated and Level A and B harassment zones. The level is necessarily appropriate for ‘‘all attenuated impact installation of 36-in source level is within ±2 dB of the authorizations’’ and will evaluate the piles originated from Chesapeake Commission’s recommended source best source level to use based on the Tunnel Joint Venture (CTJV; 2018) and level. operational details of future projects and Department of the Navy (2015) rather Comment: The Commission the source level data available at that than California Department of recommends that NMFS (1) have its time. Transportation (Caltrans; 2015) in Table experts in underwater acoustics and Comment: The Commission 5 of the Federal Register notice (85 FR bioacoustics review and finalize in the commented on the assumptions used by 16194; March 20, 2020). NMFS regarding the efficacy of bubble next month its recommended proxy Response: NMFS recognizes this error curtains and NMFS adoption of a source levels for impact pile driving of and has made the correction in this standard 7 dB source level reduction the various pile types and sizes, (2) notice. when bubble curtains are use. The compile and analyze the source level Comment: The Commission Commission recommends that NMFS (1) data for vibratory pile driving of the commented that NMFS indicated that consult with acousticians, including various pile types and sizes in the near three or more hammers could be used those at University of Washington, term, and (3) ensure action proponents simultaneously in the proposed IHA (85 Applied Physics Lab, regarding the use consistent and appropriate proxy FR 16194; March 20, 2020), but did not appropriate source level reduction source levels in all future rulemakings specify what the resulting source levels factor to use to minimize near-field would be if up to four vibratory and proposed IHA. If a subset of source (<100 m) and far-field (>100 m) effects hammers were used, what the Level B level data is currently available (i.e., on marine mammals or (2) use the data harassment zone would be for the vibratory pile driving of 24-in steel NMFS has compiled regarding source combined source level when four piles), those data should be reviewed level reductions at 10 m for near-field hammers are used, whether multiple immediately. effects and assume no source level hammers of the same type would be Response: NMFS concurs with this reduction for far-field effects for all used at a given site, or what the worst- recommendation and has prioritized relevant incidental take authorizations. case scenario would be. The this effort. NMFS will conclude the The Commission has made this Commission stated that extents of the process as soon as possible. recommendation, with supporting Level B harassment zones, similar to Comment: The Commission justification and responses to NMFS’s Table 3 in the draft authorization, must recommends that, for all authorizations previous responses, since mid- be specified to ensure the appropriate involving DTH drilling including December 2019—NMFS has yet to zones are used to extrapolate the HRCP’s final IHA and proposed address it. NMFS has directed the number of Level B harassment takes rulemaking, NMFS use (1) source level Commission to NMFS’s response from during simultaneous use of vibratory data from Denes et al. (2019), the Level before the Commission made this hammers, particularly since the A harassment thresholds for impulsive specific recommendation and to a monitoring zones are much smaller than sources, and the relevant expected Federal Register notice that does not the Level B harassment zones. operating parameters to estimate the even pertain to NMFS. The Commission Response: NMFS did provide the extents of the Level A harassment zones explicitly requests a detailed response worst-case scenarios for when multiple and (2) source level data from Denes et to both parts of this recommendation if vibratory hammers (3) are used for 42- al. (2016) and its Level B harassment NMFS does not follow or adopt it, as in steel piles. This was described in threshold of 120-dB re 1 mPa rms for required under section 202(d) of the Table 7 and 11. Table 11 assumes the continuous sources to estimate the MMPA. max number of 42-in steel piles that extents of the Level B harassment zones. Response: NMFS disagrees with the could be driven in a given day by If NMFS does not revise the Level B Commission regarding this issue, and multiple impact hammers for two harassment zones based on a more does not adopt the recommendation. scenarios, three piles or two piles driven appropriate proxy source level and the The Commission has raised this concern simultaneously. It is not anticipated that Level B harassment thresholds for before and NMFS refers readers to our four hammers would be used continuous sources, the Commission full response, which may be found in a simultaneously so the wording ‘‘or recommends that NMFS justify its previous notice of issuance of an IHA more’’ was an error and has been decision not consider a DTH hammer to (84 FR 64833, November 25, 2019). omitted from the final notice. NMFS did be an impulsive, continuous sound NMFS will additionally provide a not provide what the resulting source source. detailed explanation of its decision

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within 120 days, as required by section own insistence that no reduction should opposition to this new estimate. That 202(d) of the MMPA. be applied in any circumstances. said, NMFS has determined that it will Comment: The Commission Finally, the suggestion that the size of use the average 5-year daily count of recommends that NMFS require HRCP the Level B harassment zones has ‘‘yet 13.6 seals (Jones et al., 2020) in its take to (1) conduct hydroacoustic monitoring to be substantiated’’ is nonsensical, as estimate to be more conservative than (a) during impact installation of 54-in the project has yet to begin, and is the proposed IHA as fully described in concrete piles, (b) when multiple inconsistent with typical practice. The the Estimated Take section. vibratory hammers are used vast majority of projects proceed with Comment: The Commission simultaneously and multiple DTH assumptions regarding zone size, and recommends that NMFS use the hammers are used simultaneously, (c) the Commission does not adequately Chesapeake Bay density of 1.38 when only one DTH hammer is used, explain why the cost and logistical dolphins/square kilometer (km2) from and (d) when 36-in steel piles are considerations associated with Engelhaupt et al. (2016) and (1) the installed both with and without the hydroacoustic monitoring are warranted Level B harassment ensonified area of bubble curtain, (2) ensure that signal in this case to ‘‘substantiate’’ the zone 131.4 km2 west of the HRBT and 312 processing is conducted appropriately sizes. days of activities, (2) the Level B 28 for DTH drilling, and (3) adjust the The Commission points out that the harassment ensonified area of 221.46 Level A and B harassment zones HRCP plans to conduct more than 5 km2 for vibratory installation of 42-in accordingly. years of activities. This IHA only steel piles at the South Trestle and 7 Response: The Commission states that pertains to one year of those activities. days of activities, (3) the Level B it is ‘‘apparent’’ that HRCP ‘‘should be’’ The applicant has requested a harassment ensonified area associated of conducting hydroacoustic monitoring, rulemaking/Letter of Authorization for 27.65 km2 for vibratory installation of but fails to justify the necessity of this another 5 years of work to complete the 24-in steel piles at the South Trestle and recommended requirement, and does overall project. NMFS will consider the 3 days of activities, and (4) the Level B not address the practicability of such a potential need for hydroacoustic harassment ensonified area associated of requirement. The Commission’s monitoring with the applicant as part of 0.87 km2 for impact installation of 54- recommendation is based on the fact the rulemaking/Letter of Authorization in concrete piles at the South Trestle that source levels for 36-in piles are process. and 22 days of activities to increase the used as a proxy for 54-in piles, as well Comment: The Commission noted its numbers of Level B harassment takes of as the following assertions: (1) Source understanding that NMFS has formed bottlenose dolphins from 6,343 to levels for DTH drilling have yet to be an internal committee to address 58,856. analyzed appropriately and (2) the perceived issues with estimating Level Response: NMFS has accepted the presumed 7-dB source level reduction A harassment zone sizes and is Commission’s recommendation and will associated with use of a bubble curtain consulting with external acousticians use the dolphin density of 1.38 has yet to be proven. In addition, the and modelers as well. In the absence of dolphins/km2 from Engelhaupt et al. Commission states that the extents of relevant recovery time data for marine (2016) to estimate take of bottlenose the Level B harassment zones ‘‘have not mammals, the Commission continues to dolphins as described in the Estimated been substantiated.’’ NMFS disagrees believe that animat modeling that Take section. However, NMFS notes the with these points and does not adopt considers various operational and Commission’s statement that the use of the recommendation. It is common animal scenarios should be used to bottlenose dolphin data in the notice of practice to use the best available proxy inform the appropriate accumulation proposed IHA ‘‘appears to be an attempt data when data are not available for a time and could be incorporated into to reduce the number of takes rather particular pile type or size and, while NMFS’s user spreadsheet that currently than an effort to use the best available additional data may be useful, the use estimates the Level A harassment zones. data.’’ The Commission’s statement is of a proxy does not alone justify a The Commission recommends that both inappropriate and incorrect, and requirement to conduct hydroacoustic NMFS continue to make this issue a NMFS strongly objects to the monitoring. Moreover, the priority to resolve in the near future and Commission’s attempt to interpret Commission’s assumption that source consider incorporating animat modeling intent. levels are underestimated does not into its user spreadsheet. Comment: The Commission ultimately lead to a conclusion that the Response: NMFS concurs with this recommends that NMFS ensure HRCP evaluation of potential effects is recommendation and has prioritized the keeps a running tally of the total takes, similarly underestimated, given the issue. based on observed and extrapolated simple and conservative assumptions Comment: The Commission takes, for Level A and B harassment. made in relation to expected recommends that NMFS increase the Response: We agree that HRCP must transmission loss. The source levels for number of takes from 261 to at least ensure they do not exceed authorized DTH drilling are provided through a 3,588 takes of harbor seals, equating to takes, but do not concur with the hydroacoustic monitoring study for a at least 753 Level A harassment and recommendation. NMFS is not similar project at a nearby location. The 2,835 Level B harassment takes of responsible for ensuring that HRCP does Commission does not further explain its harbor seals. not operate in violation of an issued reasoning on this point. The assumed 7- Response: NMFS disagrees with the IHA. dB source level reduction attributed to Commission’s recommendation and Comment: The Commission use of the bubble curtain was developed does not adopt it. In the proposed IHA, recommends that NMFS require HRCP as a generic standard through review of NMFS proposed 55 takes by Level A to use at least (1) one protected species a large amount of data relating to use of harassment and 206 takes by Level B observer (PSO) to monitor the shut- bubble curtains and, therefore, the harassment. During the comment down zones for each hammer that is in Commission’s suggestion that this period, NMFS informally discussed use at each site, (2) one PSO to monitor reduction ‘‘has yet to be proven’’ is with the Commission increasing harbor the Level B harassment zones during incorrect. Further, the suggestion to seals takes using 8 seals/day multiplied vibratory installation of piles at conduct this type of testing is by 156 days for a total of 1,248 takes. Willoughby Bay and to be located near inconsistent with the Commission’s The Commission did not indicate any the entrance of the Bay to observe

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animals entering and exiting the Level The work is anticipated to be conducted Commission claims are ‘‘omissions, B harassment zone, (3) one PSO to during daylight hours. However, if work errors, and inconsistencies’’ are, for the monitor the Level A and B harassment needs to extend into the night, work most part, differences of opinion on zones during impact installation of 30- may only be conducted under how available data should be applied to and 54-in piles at North and South conditions where there is full visibility our analysis and, in each case, we have Trestle, (4) three PSOs to monitor the of the shutdown zone or where stopping presented reasons why we disagree with Level B harassment zones during ongoing work would otherwise create an specific recommendations. If we did vibratory pile driving of 24-in piles at unsafe work condition. In addition, the agree that there actually was an error or South Trestle, one PSO on the Hampton IHA requires that work must be that the Commission’s logic is more side and one on the Norfolk side of conducted during conditions of good appropriate to implement, we have Chesapeake Bay to the east of HRBT and visibility. If poor environmental made the recommended changes. We one PSO on the Hampton side to the conditions restrict full visibility of the note many of the recommendations by west of HRBT, (5) four PSOs to monitor shutdown zone, pile installation must the Commission are detail-oriented and, the Level B harassment zones during be delayed. Poor visibility implies a in NMFS’ view, do not provide vibratory pile driving of 42-in piles at condition that would occur under fog or additional conservation value or South Trestle, one on the Hampton side heavy rain. meaningfully influence any of the and one on the Norfolk side of Comment: The Commission analyses underlying the necessary Chesapeake Bay to the east of HRBT and recommends that NMFS include in all findings. NMFS strongly disagrees with one on the Hampton side and one on the draft and final IHA the explicit the Commission’s suggestion that Norfolk side to the west of HRBT, and requirements to cease activities if a NMFS’ negligible impact and least (6) four PSOs to monitor the Level B marine mammal is injured or killed practicable adverse impact harassment zones during vibratory pile during the specified activities until determinations may be invalid, and we driving and/or DTH drilling of 36- and NMFS reviews the circumstances note that the Commission does not 42-in piles and during simultaneous use involving any injury or death that is provide any information supporting this of multiple hammers at North Trestle, likely attributable to the activities and comment, whether NMFS retained the North Island, and South Island, two on determines what additional measures take numbers and mitigation the Hampton side and two on the are necessary to minimize additional requirements from the proposed IHA or Norfolk side to the west of HRBT. injuries or deaths. adopted those recommended by the Response: NMFS appreciates the Response: NMFS concurs with the Commission. Overall, there are no Commission’s recommendations for Commission’s recommendation as it substantial changes or new information PSO locations. As previously described relates to this IHA and has added the that would lead us to reach any other in the proposed IHA, monitoring referenced language to the Monitoring conclusions regarding the impact to locations will provide an unobstructed and Reporting section of this notice and marine mammals. For these reasons, view of all water within the shutdown the Reporting section of the issued IHA. NMFS is not republishing a notice of zone and as much of the Level B We will continue to evaluate inclusion proposed IHA. harassment zone as possible for pile of this language in future IHAs. driving activities. However, after further Comment: The Commission reiterates Changes From the Proposed IHA to the discussion with the applicant, HRCP programmatic recommendations Final IHA will station between one and four PSOs regarding NMFS’ potential use of the Changes were made to the source at locations offering the best available renewal mechanism for one-year IHAs. level for 30- and 54-in concrete piles views of the Level A and Level B Response: NMFS does not agree with during impact pile driving. Therefore, monitoring zones during in-water pile the Commission and, therefore, does not Level A and Level B harassment zones driving at the North Trestle, North adopt the Commission’s were recalculated and corrected in Island, South Trestle, and South Island. recommendation. NMFS will provide a Tables 11 and 12 and in the final When and where able, as determined by detailed explanation of its decision authorization. The Level B harassment the PSO or Lead PSO when multiple within 120 days, as required by section zone was also recalculated for DTH observers are required, Level A and 202(d) of the MMPA. drilling for 36-in piles, reflecting use of Level B harassment zones may be Comment: The Commission the continuous noise, 120-dB threshold. monitored for multiple pile driving recommends that NMFS (1) publish a Appropriate corrections were made to locations by the same individual PSO. revised proposed authorization for Table 12 and in the final authorization. HRCP will be required to station public comment, (2) consult with HRCP Changes to the estimated take numbers between one and two PSOs at locations regarding the numerous issues raised in for harbor seals and bottlenose dolphins offering the best available views of the this letter and direct the applicant to were made, as recommended by the Level A and Level B monitoring zones revise its letter of authorization Commission. For mitigation and during in-water pile driving at application accordingly, and (3) refrain monitoring, clarification of the timing of Willoughby Bay. from publishing for public comment the work as well as PSO locations were Comment: The Commission proposed IHAs and proposed rules also made. recommends that NMFS include in (1) based on underlying applications that section 3 of the final authorization the contain omissions, errors, and Description of Marine Mammals in the requirement that HRCP conduct pile- inconsistencies and instead return such Area of Specified Activities driving activities during daylight hours applications to action proponents as Sections 3 and 4 of the application only and (2) section 4 of the final incomplete. summarize available information authorization the requirement that, if Response: NMFS does not agree with regarding status and trends, distribution the entire shut-down zone(s) is not the Commission and does not adopt the and habitat preferences, and behavior visible due to fog or heavy rain, HRCP recommendation. NMFS disagrees that and life history, of the potentially delay or cease pile-driving and -removal the information presented in association affected species. Additional information activities until the zone(s) is visible. with the proposed IHA was insufficient regarding population trends and threats Response: NMFS does not concur and to facilitate public review and comment, may be found in NMFS’s Stock does not adopt the recommendation. as the Commission states. What the Assessment Reports (SARs; https://

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www.fisheries.noaa.gov/national/ animals, not including natural abundance estimates for most species marine-mammal-protection/marine- mortalities, that may be removed from a represent the total estimate of mammal-stock-assessments) and more marine mammal stock while allowing individuals within the geographic area, general information about these species that stock to reach or maintain its if known, that comprises that stock. For (e.g., physical and behavioral optimum sustainable population (as some species, this geographic area may descriptions) may be found on NMFS’s described in NMFS’s SARs). While no extend beyond U.S. waters. All managed website (https:// mortality is anticipated or authorized stocks in this region are assessed in www.fisheries.noaa.gov/find-species). here, PBR and annual serious injury and NMFS’s United States Atlantic and Gulf Table 2 lists all species or stocks for mortality from anthropogenic sources of Mexico Marine Mammal SARs. All which take is expected and authorized are included here as gross indicators of values presented in Table 2 are the most for this action, and summarizes the status of the species and other recent available at the time of information related to the population or threats. stock, including regulatory status under Marine mammal abundance estimates publication and are available in the the MMPA and ESA and potential presented in this document represent draft 2019 SARs (https:// biological removal (PBR), where known. the total number of individuals that www.fisheries.noaa.gov/national/ For taxonomy, we follow Committee on make up a given stock or the total marine-mammal-protection/draft- Taxonomy (2019). PBR is defined by the number estimated within a particular marine-mammal-stock-assessment- MMPA as the maximum number of study or survey area. NMFS’s stock reports). TABLE 2—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA

ESA/ MMPA Stock abundance Common name Scientific name Stock status; (CV, N , most recent PBR Annual min M/SI 3 strategic abundance survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenopteridae (rorquals): Humpback whale 4 ...... Megaptera novaeangliae ...... Gulf of Maine ...... -,-; N 896 (.42; 896; 2012) ...... 14.6 9.7

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Bottlenose dolphin ...... Tursiops spp...... Western North Atlantic (WNA) -,-; Y 6,639 (0.41; 4,759; 2011) ...... 48 6.1–13.2 Coastal, Northern Migratory. WNA Coastal, Southern Mi- -,-; Y 3,751 (0.06; 2,353; 2011) ...... 23 0–14.3 gratory. Northern North Carolina Estu- -,-; Y 823 (0.06; 782; 2013) ...... 7.8 0.8–18.2 arine System (NNCES). Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena ...... Gulf of Maine/Bay of Fundy .. -, -; N 79,833 (0.32; 61,415; 2011) .. 706 256

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... WNA ...... -; N 75,834 (0.1; 66,884, 2012) .... 2,006 345 Gray seal ...... Halichoerus grypus ...... WNA ...... -; N 27,131 (0.19, 23,158, 2016) .. 1,359 5,688 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment- reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fish- eries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 2018 U.S. Atlantic SAR for the Gulf of Maine feeding population lists a current abundance estimate of 896 individuals. However, we note that the estimate is de- fined on the basis of feeding location alone (i.e., Gulf of Maine) and is therefore likely an underestimate.

As indicated above, all five species documented in the area, the temporal underwater, and exposure to (with seven managed stocks) in Table 2, and/or spatial occurrence of these anthropogenic sound can have temporally and spatially co-occur with whales is such that take is not expected deleterious effects. To appropriately the activity to the degree that take is to occur, and they are not discussed assess the potential effects of exposure reasonably likely to occur, and therefore further. Detailed descriptions of marine to sound, it is necessary to understand authorized. All species that could mammals in the project area were the frequency ranges marine mammals potentially occur in the planned project provided in the Federal Register notice are able to hear. Current data indicate area are included in Table 3–1 of the for the proposed IHA (85 FR 16194; that not all marine mammal species application. While North Atlantic right March 20, 2020). have equal hearing capabilities (e.g., whales (Eubalaena glacialis), minke Richardson et al., 1995; Wartzok and Marine Mammal Hearing whales (Balaenoptera acutorostrata Ketten, 1999; Au and Hastings, 2008). acutorostrata), and fin whales Hearing is the most important sensory To reflect this, Southall et al. (2007) (Balaenoptera physalus) have been modality for marine mammals recommended that marine mammals be

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divided into functional hearing groups mysticetes (i.e., low-frequency frequency cetaceans where the lower based on directly measured or estimated cetaceans). Subsequently, NMFS (2018) bound was deemed to be biologically hearing ranges on the basis of available described generalized hearing ranges for implausible and the lower bound from behavioral response data, audiograms these marine mammal hearing groups. Southall et al. (2007) retained. Marine derived using auditory evoked potential Generalized hearing ranges were chosen mammal hearing groups and their techniques, anatomical modeling, and based on the approximately 65 dB associated hearing ranges are provided other data. Note that no direct threshold from the normalized in Table 3. measurements of hearing ability have composite audiograms, with the been successfully completed for exception for lower limits for low-

TABLE 3—MARINE MAMMAL HEARING GROUPS [NMFS, 2018]

Hearing group Generalized hearing range *

Low-frequency (LF) cetaceans (baleen whales) ...... 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) .. 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, 275 Hz to 160 kHz. Lagenorhynchus cruciger & L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ...... 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ...... 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing Estimated Take hearing impairment; (2) the area or group was modified from Southall et al. This section provides an estimate of volume of water that will be ensonified (2007) on the basis of data indicating the number of incidental takes above these levels in a day; (3) the that phocid species have consistently authorized through this IHA, which will density or occurrence of marine demonstrated an extended frequency inform both NMFS’ consideration of mammals within these ensonified areas; range of hearing compared to otariids, ‘‘small numbers’’ and the negligible and, (4) and the number of days of especially in the higher frequency range impact determinations. activities. We note that while these (Hemila¨ et al., 2006; Kastelein et al., Harassment is the only type of take basic factors can contribute to a basic 2009; Reichmuth and Holt, 2013). expected to result from these activities. calculation to provide an initial prediction of takes, additional For more detail concerning these Except with respect to certain activities information that can qualitatively groups and associated frequency ranges, not pertinent here, section 3(18) of the inform take estimates is also sometimes please see NMFS (2018) for a review of MMPA defines ‘‘harassment’’ as any act available (e.g., previous monitoring available information. Five marine of pursuit, torment, or annoyance, which (i) has the potential to injure a results or average group size). Below, we mammal species (three cetacean and describe the factors considered here in two phocid pinniped) have the marine mammal or marine mammal stock in the wild (Level A harassment); more detail and present the authorized reasonable potential to co-occur with take estimates for the IHA. the planned survey activities. Please or (ii) has the potential to disturb a refer to Table 2. Of the cetacean species marine mammal or marine mammal Acoustic Thresholds that may be present, one is classified as stock in the wild by causing disruption of behavioral patterns, including, but Using the best available science, low-frequency (humpback whale), one NMFS has developed acoustic is classified as mid-frequency not limited to, migration, breathing, nursing, breeding, feeding, or sheltering thresholds that identify the received (bottlenose dolphin) and one is level of underwater sound above which classified as high-frequency (harbor (Level B harassment). Take of marine mammals incidental exposed marine mammals would be porpoise). to HRCP’s pile driving and removal reasonably expected to be behaviorally Potential Effects of Specified Activities activities could occur by Level A and harassed (equated to Level B on Marine Mammals and Their Habitat Level B harassment, as pile driving has harassment) or to incur permanent the potential to result in disruption of threshold shift (PTS) of some degree The effects from underwater noise behavioral patterns for individual (equated to Level A harassment). from the planned pile driving and marine mammals. The planned Level B Harassment—Though removal activities have the potential to mitigation and monitoring measures are significantly driven by received level, result in Level A and Level B expected to minimize the severity of the onset of behavioral disturbance from harassment of marine mammals in the such taking to the extent practicable. As anthropogenic noise exposure is also vicinity of the project area. The Federal described previously, no mortality is informed to varying degrees by other Register notice for the proposed IHA (85 anticipated or authorized for this factors related to the source (e.g., FR 16194; March 20, 2020) included a activity. Below we describe how the frequency, predictability, duty cycle), discussion of the effects of take is estimated. the environment (e.g., bathymetry), and anthropogenic noise on marine Generally speaking, we estimate take the receiving animals (hearing, mammals and their habitat, therefore by considering: (1) Acoustic thresholds motivation, experience, demography, that information is not repeated here; above which NMFS believes the best behavioral context) and can be difficult please refer to that Federal Register available science indicates marine to predict (Southall et al., 2007, Ellison notice (85 FR 16194; March 20, 2020) mammals will be behaviorally harassed et al., 2012). Based on what the for that information. or incur some degree of permanent available science indicates and the

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practical need to use a threshold based Level A Harassment—NMFS’ (SEL) (also accounts for duration of on a factor that is both predictable and Technical Guidance for Assessing the exposure); and measurable for most activities, NMFS Effects of Anthropogenic Sound on D Dividing marine mammals into uses a generalized acoustic threshold Marine Mammal Hearing (Version 2.0) hearing groups and developing auditory based on received level to estimate the (Technical Guidance, 2018) identifies weighting functions based on the onset of behavioral harassment. NMFS dual criteria to assess auditory injury science supporting that not all marine predicts that marine mammals are likely (Level A harassment) to five different mammals hear and use sound in the to be behaviorally harassed in a manner marine mammal groups (based on same manner. hearing sensitivity) as a result of we consider Level B harassment when These thresholds were developed by exposed to underwater anthropogenic exposure to noise. The technical guidance identifies the received levels, compiling and synthesizing the best noise above received levels of 120 dB re available science, and are provided in 1 mPa (rms) for continuous (e.g., or thresholds, above which individual marine mammals are predicted to Table 4 below. The references, analysis, vibratory pile-driving, drilling) and experience changes in their hearing and methodology used in the above 160 dB re 1 mPa (rms) for non- sensitivity for all underwater development of the thresholds are explosive impulsive (e.g., impact pile anthropogenic sound sources, and described in NMFS 2018 Technical driving seismic airguns) or intermittent reflects the best available science on the Guidance, which may be accessed at (e.g., scientific sonar) sources. The potential for noise to affect auditory https://www.fisheries.noaa.gov/ planned activities include the use of sensitivity by: national/marine-mammal-protection/ continuous, non-impulsive (vibratory D Dividing sound sources into two marine-mammal-acoustic- pile driving) and impulsive (impact pile groups (i.e., impulsive and non- technicalguidance. The planned activity driving) sources and therefore, the 120 impulsive) based on their potential to includes the use of impulsive (impact and 160 dB re 1 mPa (rms) are affect hearing sensitivity; pile driving) and non-impulsive applicable. The DTH hammer is D Choosing metrics that best address (vibratory pile driving) sources. The considered a continuous noise source the impacts of noise on hearing DTH hammer is considered an for purposes of evaluating potential sensitivity, i.e., sound pressure level impulsive noise source for purposes of behavioral impacts. (peak SPL) and sound exposure level evaluating potential auditory impacts.

TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impul- sive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area The general formula for underwater TL conditions including in-water structures is: and sediments. Spherical spreading Here, we describe operational and occurs in a perfectly unobstructed (free- TL = B * log10(R1/R2), environmental parameters of the activity field) environment not limited by depth that will feed into identifying the area Where: or water surface, resulting in a 6 dB ensonified above the acoustic B = transmission loss coefficient (assumed to reduction in sound level for each thresholds, which include source levels be 15) doubling of distance from the source and transmission loss coefficient. R1 = the distance of the modeled SPL from (20*log(range)). Cylindrical spreading the driven pile, and occurs in an environment in which Sound Propagation R2 = the distance from the driven pile of the initial measurement. sound propagation is bounded by the Transmission loss (TL) is the decrease water surface and sea bottom, resulting in acoustic intensity as an acoustic This formula neglects loss due to in a reduction of 3 dB in sound level for pressure wave propagates out from a scattering and absorption, which is each doubling of distance from the source. TL parameters vary with assumed to be zero here. The degree to source (10*log(range)). As is common which underwater sound propagates practice in coastal waters, here we frequency, temperature, sea conditions, away from a sound source is dependent assume practical spreading loss (4.5 dB current, source and receiver depth, on a variety of factors, most notably the reduction in sound level for each water depth, water chemistry, and water bathymetry and presence or doubling of distance). Practical bottom composition and topography. absence of reflective or absorptive spreading is a compromise that is often

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used under conditions where water type of piles, hammers, and the physical the HRCP’s pile driving and removal depth increases as the receiver moves environment in which the activity takes activities (Table 5). Bubble curtains will away from the shoreline, resulting in an place. There are source level be used during impact pile driving of expected propagation environment that measurements available for certain pile 36-in steel piles at the Jet Grouting would lie between spherical and types and sizes from the similar Trestle in water depths greater than 6 m cylindrical spreading loss conditions. environments recorded from underwater (20 ft). Therefore, a 7dB reduction of the Sound Source Levels pile driving projects (e.g., Caltrans 2015) sound source level will be implemented that were used to determine reasonable (Table 5). The intensity of pile driving sounds is sound source levels likely result from greatly influenced by factors such as the

TABLE 5—PREDICTED SOUND SOURCE LEVELS FOR ALL PILE TYPES

Method and pile type Sound source level at 10 meters Source Vibratory hammer dB rms

42-in steel pile ...... a 168 City and Borough of Sitka Department of Public Works 2017. 36-in steel pile ...... b 167 DoN 2015. 24-in steel pile ...... c161 DoN 2015. Down-the-hole hammer dB rms dB SEL dB peak

All pile sizes ...... 180 164 190 Denes et al., 2019. Impact hammer dB rms dB SEL dB peak

36-in steel pile ...... 193 183 210 Caltrans, 2015. 36-in steel pile, attenuated * ...... 186 176 203 Caltrans, 2015. 54-in concrete cylinder pile ...... 187 177 193 MacGillivray et al., 2007. 30-in concrete square pile ...... 187 177 193 MacGillivray et al., 2007. 24-in concrete square pile ...... 176 166 188 Caltrans, 2015. SEL = sound exposure level; dB peak = peak sound level; rms = root mean square; DoN = Department of the Navy. * Sound source levels (SSLs) are a 7 dB reduction for the usage of a bubble curtain. a The SPL rms value of 168 dB is within 2 dB of Caltrans (2015) at 170 dB rms for 42-in piles. b The SPL rms value of 167 is within 3 dB of Caltrans (2015) at 170 dB rms; however, the DoN (2015) incorporates a larger dataset and is bet- ter suited to this project. c There is no Caltrans (2015) data available for this pile size. Caltrans is 155 dB rms for 12-in pipe pile or 170 dB rms for 36-in steel piles. The value of 161 dB rms has been also used in previous IHAs (e.g., 82 FR 31400, July 6, 2017; 83 FR 12152, March 20, 2018; 84 FR 22453, May 17, 2019; and 84 FR 34134, July 17, 2019).

During pile driving installation infrequent and would be for short of another source, the sources are activities, there may be times when durations on that day. In-water pile considered additive and combined multiple construction sites are active installation is an intermittent activity, using the following rules (see Table 6): and hammers are used simultaneously. and it is common for installation to start For addition of two simultaneous For impact hammering, it is unlikely and stop multiple times as each pile is vibratory hammers, the difference that the two hammers would strike at adjusted and its progress is measured. between the two SSLs is calculated, and the same exact instant, and therefore, When two continuous noise sources, if that difference is between 0 and 1 dB, the sound source levels will not be such as vibratory hammers, have 3 dB are added to the higher SSL; if adjusted regardless of the distance overlapping sound fields, there is difference is between 2 or 3 dB, 2 dB are between the hammers. For this reason, potential for higher sound levels than added to the highest SSL; if the multiple impact hammering is not for non-overlapping sources. When two difference is between 4 to 9 dB, 1 dB is discussed further. For simultaneous or more vibratory hammers are used added to the highest SSL; and with vibratory hammering, the likelihood of simultaneously, and the sound field of differences of 10 or more decibels, there such an occurrence is anticipated to be one source encompasses the sound field is no addition.

TABLE 6—RULES FOR COMBINING SOUND LEVELS GENERATED DURING PILE INSTALLATION

Hammer types Difference in SSL Level A zones Level B zones

Vibratory, Impact ...... Any ...... Use impact zones ...... Use vibratory zone. Impact, Impact ...... Any ...... Use zones for each pile size and number of Use zone for each pile size. strikes. Vibratory, Vibratory ...... 0 or 1 dB ...... Add 3 dB to the higher source level ...... Add 3 dB to the higher source level. 2 or 3 dB ...... Add 2 dB to the higher source level ...... Add 2 dB to the higher source level. 4 to 9 dB ...... Add 1 dB to the higher source level ...... Add 1 dB to the higher source level. 10 dB or more ...... Add 0 dB to the higher source level ...... Add 0 dB to the higher source level. Source: Modified from USDOT 1995, WSDOT 2018, and NMFS 2018b. Note: dB = decibels; SSL = sound source level.

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For simultaneous usage of three or 42-in diameter steel pipe piles with highest value, or 171 dB in total for the more continuous sound sources, such as SSLs of 161, 167, and 168 dB rms combination of 24-, 36-, and 42-in steel vibratory hammers, the three respectively, the 24- and 36-inwould be pipe piles (NMFS 2018b; WSDOT 2018). overlapping sources with the highest added together; given that 167¥161 = 6 As described in Table 6, decibel SSLs are identified. Of the three highest dB, then 1 dB is added to the highest of addition calculations were carried out SSLs, the lower two are combined using the two SSLs (167 dB), for a combined for all possible combinations of the above rules, then the combination of noise level of 168 dB. Next, the newly vibratory installation of 24-, 36- and 42- the lower two is combined with the calculated 168 dB is added to the 42-in in steel pipe piles throughout the highest of the three. For example, with steel pile with SSL of 168 dB. Since project area (Table 7). overlapping isopleths from 24-, 36-, and 168¥168 = 0 dB, 3 dB is added to the

Level A Harassment overestimate of Level A harassment In the chance that multiple vibratory take. However, these tools offer the best hammers would be operated When the NMFS Technical Guidance way to predict appropriate isopleths simultaneously, to simplify (2016) was published, in recognition of when more sophisticated 3D modeling implementation of Level A harassment the fact that ensonified area/volume methods are not available, and NMFS zones, the worst-case theoretical could be more technically challenging continues to develop ways to scenarios were calculated for the longest to predict because of the duration quantitatively refine these tools, and anticipated duration of the largest pile component in the new thresholds, we will qualitatively address the output size (42-in steel pile) that could be developed a User Spreadsheet that where appropriate. For stationary installed within a day (see Table 8). includes tools to help predict a simple sources (such as from vibratory pile However, it would be unlikely that six isopleth that can be used in conjunction driving), NMFS User Spreadsheet sets of three piles could be installed in with marine mammal density or predicts the closest distance at which, if synchrony, but more likely that occurrence to help predict takes. We installations of piles would overlap by a marine mammal remained at that note that because of some of the a few minutes at the beginning or end, distance the whole duration of the assumptions included in the methods throughout the day, so that during a 12- used for these tools, we anticipate that activity, it would incur PTS. Inputs hour construction shift, there would be isopleths produced are typically going used in the User Spreadsheet (Tables 8 periods of time when zero, one, two, to be overestimates of some degree, through 10), and the resulting isopleths three, or more hammers would be which may result in some degree of are reported below (Table 11). working.

TABLE 8—NMFS TECHNICAL GUIDANCE (2018) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR VIBRATORY PILE DRIVING FOR ALL LOCATIONS [User spreadsheet input—vibratory pile driving spreadsheet tab A.1 vibratory pile driving used]

36-in steel 42-in steel piles 42-in steel piles 24-in steel 36-in steel piles 42-in steel (multiple hammer (multiple hammer piles piles (at TBM piles event—3 hammers event—2 hammers platform) simultaneously) simultaneously)

Source Level (RMS 161 167 167 168 173...... 171. SPL). Weighting Factor Ad- 2.5 2.5 2.5 2.5 2.5...... 2.5. justment (kHz). Number of piles within 6 3 2 6 6...... 9. 24-hr period. (3 piles installed simul- (2 piles installed simul- taneously, 6 piling taneously, 9 piling events). events). Duration to drive a 30 50 60 30 30...... 30. single pile (min). Propagation (xLogR) .. 15 15 15 15 15 ...... 15.

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TABLE 8—NMFS TECHNICAL GUIDANCE (2018) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR VIBRATORY PILE DRIVING FOR ALL LOCATIONS—Continued [User spreadsheet input—vibratory pile driving spreadsheet tab A.1 vibratory pile driving used]

36-in steel 42-in steel piles 42-in steel piles 24-in steel 36-in steel piles 42-in steel (multiple hammer (multiple hammer piles piles (at TBM piles event—3 hammers event—2 hammers platform) simultaneously) simultaneously)

Distance of source 10 10 10 10 10...... 10. level measurement (meters).

TABLE 9—NMFS TECHNICAL GUIDANCE (2018) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR IMPACT PILE DRIVING FOR THE JET GROUTING TRESTLE WITH AND WITHOUT A BUBBLE CURTAIN [User spreadsheet input—impact pile driving spreadsheet tab E.1–2 impact pile driving used for jet grouting trestle]

36-in steel 36-in steel piles piles (attenuated)

Source Level (SEL) ...... 183 * 176 Weighting Factor Adjustment (kHz) ...... 2 2 Number of piles within 24-hr period ...... 3 3 Number of strikes per pile ...... 40 40 Propagation (xLogR) ...... 15 15 Distance of source level measurement (meters)∂ ...... 10 10 * The attenuated piles account for a 7dB reduction from the use of a bubble curtain.

TABLE 10—NMFS TECHNICAL GUIDANCE (2018) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR IMPACT PILE DRIVING AND DTH DRILLING [User spreadsheet input—impact pile driving spreadsheet tab E.1–2 impact pile driving]

North trestle North trestle, willoughby bay, and south South island DTH trestle test pile program TBM Conveyor TBM North shore Jet grouting Conveyor 36-in steel 24-in 30-in 54-in platform trestle platform work trestle trestle trestle piles concrete concrete concrete 36-in steel 36-in steel 36-in steel 36-in steel 36-in steel 36-in steel square square cylinder piles piles piles piles piles piles

Source Level (SEL)...... 183 166 177 177 183 183 164 164 164 164 Weighting Factor Adjustment (kHz) ...... 2 2 2 2 2 2 2 2 2 2 Number of piles within 24-hr period ...... 3 1 1 1 2 3 2 3 3 3 Number of strikes per pile ...... 40 2,100 2,100 2,100 60 40 50,400 50,400 50,400 50,400 Propagation (xLogR) ...... 15 15 15 15 15 15 15 15 15 15 Distance of source level measurement (me- ters)∂ ...... 10 10 10 10 10 10 10 10 10 10

TABLE 11—LEVEL A HARASSMENT ISOPLETHS FOR BOTH VIBRATORY AND IMPACT PILE DRIVING

User spreadsheet output PTS isopleths PTS isopleths (meters) (km2) Level A harassment Level A harassment Sound source Pile type/activity level at 10 m Low- Mid- High- Low- Mid- High- frequency frequency frequency Phocid frequency frequency frequency Phocid cetaceans cetaceans cetaceans cetaceans cetaceans cetaceans

Vibratory Pile Driving

24-in steel pile installation (All 161 dB SPL ... 15 2 21 9 <0.01 Locations).

36-in steel pile installation (All 167 dB SPL ... 32 3 47 20 <0.01 Locations).

36-in steel pile installation 167 dB SPL ... 28 3 41 17 <0.01 (TMB Platform).

42-in steel pile installation (All 168 dB SPL ... 42 4 62 26 <0.10 Locations).

Impact Pile for the Jet Grouting Trestle

36-in steel pile installation ..... 183 dB SEL/ 243 9 290 130 0.11 <0.01 0.16 <0.10 193 SPL. 36-in steel pile installation 176 dB SEL/ 83 3 99 45 0.014 <0.001 0.20 <0.01 (attenuated). 186 SPL.

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TABLE 11—LEVEL A HARASSMENT ISOPLETHS FOR BOTH VIBRATORY AND IMPACT PILE DRIVING—Continued

User spreadsheet output PTS isopleths PTS isopleths (meters) (km2) Level A harassment Level A harassment Sound source Pile type/activity level at 10 m Low- Mid- High- Low- Mid- High- frequency frequency frequency Phocid frequency frequency frequency Phocid cetaceans cetaceans cetaceans cetaceans cetaceans cetaceans

Impact Pile Driving North Trestle

36-in steel pile installation 183 dB SEL/ 243 9 290 130 0.19 <0.001 0.26 0.05 (North Shore Work Trestle). 193 SPL.

Impact Pile Driving for North Trestle, Willoughby Bay, and South Trestle Test Pile Program

24-in concrete square pile in- 166 dB SEL/ 121 5 144 65 0.05 <0.001 0.07 0.01 stallation/removal. 190 SPL. 30-in concrete square pile in- 177 dB SEL/ 652 23.2 776.6 348.9 1.335 0.002 1.8947 0.3824 stallation/removal. 187 SPL. 54-in concrete square pile in- 177 dB SEL/ 652 23.2 776.6 348.9 1.335 0.002 1.8947 0.3824 stallation/removal. 187 SPL.

Impact Pile Driving for South Island

36-in steel pile installation 183 dB SEL/ 243 9 290 130 0.11 <0.001 0.16 <0.10 (TBM Platform). 193 SPL. 36-in steel pile installation 183 dB SEL/ 243 9 290 130 0.11 <0.001 0.16 <0.10 (Conveyor Trestle). 193 SPL.

DTH Drilling

36-in steel pile installation 164 SEL/180 1,171 42 1,395 627 2.437 <0.01 3.446 0.704 (TBM Platform). dB SPL. 36-in steel pile installation 164 SEL/180 1,534 55 1,827 821 3.615 <0.01 4.790 1.548 (North Shore Work Trestle). dB SPL. 36-in steel pile installation 164 SEL/180 1,534 55 1,827 821 3.615 <0.01 5.908 1.548 (Jet Grouting Trestle). dB SPL. 36-in steel pile installation 164 SEL/180 1,534 55 1,827 821 3.615 <0.01 5.908 1.548 (Conveyor Trestle). dB SPL.

Multiple Hammers—Vibratory Pile Driving (if occurs) *

42-in steel pile installation 173 dB SPL ... 89.6 7.9 132.5 54.5 0.025 0.0001 0.055 0.009 (assumes 3 piles installed simultaneously, 6 piling events * 30 minutes each event in a 24-hr period). 42-in steel pile installation 171 dB SPL ... 86.4 7.7 127.8 52.5 0.023 0.0001 0.051 0.009 (assumes 2 piles installed simultaneously, 9 piling events * 30 minutes each event in a 24-hr period). * SPLs were calculated by decibel addition as presented in Table 6 using the largest pile size (42-in steel piles) and possible combinations of two and three multiple hammer events. Please note: smaller piles may also have multiple hammer events; however, their SPLs would be smaller than the 42-in steel pipe pile scenarios so they are not presented here. The HRCP will be using the largest Level A isopleths calculated regardless of pile size during multiple hammering events.

For multiple hammering of 42-in steel locations for the duration required to Level B Harassment pipe piles with a vibratory hammer on meet these Level A harassment a single day, the calculated Level A thresholds. Additionally, other Utilizing the practical spreading loss harassment isopleth for the functional combinations of pile sizes under model, underwater noise will fall below hearing groups would remain smaller multiple hammering with a vibratory the behavioral effects threshold of 120 than 100 m except for high-frequency hammer would result in Level A and 160 dB rms for marine mammals at cetaceans (i.e., harbor porpoise). The harassment thresholds smaller than 100 the distances shown in Table 12 for Level A harassment isopleth for harbor m. To be precautionary, a shutdown vibratory and impact pile driving, porpoises would be 132.5 m and 127.8 zone of 100 m would be implemented respectively. Table 12 below provides m for the two scenarios (Table 11). It is for all species for each vibratory all Level B harassment radial distances unlikely that a harbor porpoise could hammer on days when it is anticipated (m) and their corresponding areas (km2) accumulate enough sound from the that multiple vibratory hammers will be during HRCP’s planned activities. installation of multiple piles in multiple used regardless of pile size.

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TABLE 12—RADIAL DISTANCES (meters) TO RELEVANT BEHAVIORAL ISOPLETHS AND ASSOCIATED ENSONIFIED AREAS (km2) USING THE PRACTICAL SPREADING MODEL

Distance to level B Level B Location and component Method and pile type harassment harassment zone zone 2) (m) (km

Vibratory Hammer (Level B Isopleth = 120 dB) North Trestle

Moorings ...... 42-in steel piles ...... 15,849 96.781 North Shore Work Trestle ...... 36-in steel piles ...... 13,594 85.525 Moorings ...... 24-in steel piles ...... 5,412 25.335

North Island

Moorings ...... 42-in steel piles ...... 15,849 100.937

South Island

TBM Platform ...... 36-in steel piles ...... 13,594 81.799 Conveyor Trestle ...... 36-in steel piles ...... 13,594 81.799 Jet Grouting Trestle ...... 36-in steel piles ...... 13,594 81.799

South Trestle

Moorings ...... 42-in steel piles ...... 15,849 305.343 Moorings ...... 24-in steel piles ...... 5,412 55.874

Willoughby Bay

Moorings ...... 42-in steel piles ...... 15,849 5.517 Moorings ...... 24-in steel piles ...... 5,412 5.517

Down-the-Hole Hammer (Level B Isopleth = 120 dB)

North Shore Work Trestle ...... 36-in steel piles ...... 11,659 427.044 TBM Platform ...... 36-in steel piles ...... 11,659 427.044 Jet Grouting Trestle ...... 36-in steel piles ...... 11,659 427.044 Conveyor Trestle ...... 36-in steel piles ...... 11,659 427.044

Impact Hammer (Level B Isopleth = 160 dB) North Trestle

North Shore Work Trestle ...... 36-in steel piles ...... 1,585 3.806

South Island

TBM Platform ...... 36-in steel piles ...... 1,585 0.087 Conveyor Trestle ...... 36-in steel piles ...... 1,585 0.087 Jet Grouting Trestle with Bubble Curtain ...... 36-in steel piles ...... * 541 * 0.012

North Trestle, South Trestle, Willoughby Bay

Test Pile Program ...... 54-in concrete cylinder piles ...... 631 1.2509 Test Pile Program ...... 30-in concrete square piles ...... 631 1.2509 Test Pile Program ...... 24-in concrete square piles ...... 117 0.04 dB = decibels; km2 = square kilometers; TBM = Tunnel Boring Machine. * Values smaller than other 36-in steel piles due to usage of a bubble curtain, resulting in a 7 dB reduction in dB rms, dB peak, and dB SEL.

For the test pile program, in some a certain period of time that would Level B harassment zone for decibel cases, the calculated Level A likely lead to PTS. levels resulting from the simultaneous harassment isopleths are larger than the When multiple vibratory hammers are installation of piles with multiple Level B harassment zones. This has used simultaneously, the calculated vibratory hammers using the data occurred due to the conservative Level B harassment zones (Table 13) provided in Table 7. However, the assumptions going into calculation of would be larger than the Level B actual monitoring zones applied during the Level A harassment isopleths. harassment zones reported in above in multiple vibratory hammer use are Animals will most likely respond Table 12 depending on the combination discussed in the Monitoring and behaviorally before they are injured, of sound sources due to decibel addition Reporting section. especially at greater distances and of multiple vibratory hammers as unlikely to accumulate noise levels over discussed earlier (see Table 7). Table 13 shows the calculated distances to the

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TABLE 13—CALCULATED DISTANCES Humpback Whales whales and because large whales are TO LEVEL B HARASSMENT ZONES easier to sight from a distance, we do Humpback whales are more rare in FOR MULTIPLE HAMMER ADDITIONS not anticipate or propose take of the project area and density data for this humpback whales by Level A species within the project vicinity are Distance to harassment. level B not available. Humpback whale sighting Combined SSL data collected by the U.S. Navy near Bottlenose Dolphin (dB) harassment zone Naval Station Norfolk and Virginia The expected number of bottlenose (m) Beach from 2012 to 2015 (Engelhaupt et dolphins in the project area was al. 2014, 2015, 2016) and in the mid- 163 ...... 7,356 estimated using inshore seasonal 164 ...... 8,577 Atlantic (including the Chesapeake Bay) densities provided in Engelhaupt et al. 165 ...... 10,000 from 2015 to 2018 (Aschettino et al. (2016) from vessel line-transect surveys 166 ...... 11,659 2015, 2016, 2017a, 2018) did not near Naval Station Norfolk and adjacent 167 ...... 13,594 produce large enough sample sizes to areas near Virginia Beach, Virginia, from 168 ...... 15,849 calculate densities, or survey data were August 2012 through August 2015 169 ...... 18,478 not collected during systematic line- (Engelhaupt et al., 2016). NMFS used 170 ...... 21,544 transect surveys. Humpback whale the density of 1.38 dolphins/km2 and (1) 171 ...... 25,119 densities have been calculated for the Level B harassment ensonified area 172 ...... 29,286 populations off the coast of New Jersey, of 131.4 km2 west of the HRBT 173 ...... 34,145 resulting in a density estimate of multiplied by 312 days of activities, 0.000130 animals per square kilometer plus (2) the Level B harassment Note: dB = decibels; SSL = sound source or one humpback whale within the area ensonified area of 221.46 km2 for level. on any given day of the year (Whitt et vibratory installation of 42-in steel piles Marine Mammal Occurrence and Take al., 2015), which may be similar to the at the South Trestle multiplied by 7 Calculation and Estimation density of whales in the project area. days of activities, plus (3) the Level B Aschettino et al. (2018) observed and harassment ensonified area associated of In this section, we provide the tracked two individual humpback 27.65 km2 for vibratory installation of information about the presence, density, whales in the Hampton Roads area of 24-in steel piles at the South Trestle or group dynamics of marine mammals the project area (Movebank, 2019). The multiplied by 3 days of activities, and that will inform the take calculations. HRCP is estimating up to two whales plus (4) the Level B harassment Potential exposures to impact and may be exposed to project-related noise ensonified area associated of 0.87 km2 vibratory pile driving and removal for every two months. Pile installation/ for impact installation of 54-in concrete each acoustic threshold were estimated removal is expected to occur over a 12- piles at the South Trestle multiplied 22 using local observational data. month period; therefore, a total of 12 days of activities to increase the Authorized take by Level A and B instances of take by Level B harassment numbers of Level B harassment takes of harassment is also described. of humpback whales is authorized. Due bottlenose dolphins from 6,343 to to the low occurrence of humpback 58,856. (Table 14). TABLE 14—AUTHORIZED BOTTLENOSE DOLPHIN TAKE

Level B 24-in piles: 54-in piles: 42-in piles: harassment Dolphin level B Dolphin level B Dolphin level B Dolphin Total project days west of the density Days 24-in harassment density Days 54-in harassment density Days 42-in harassment density HRBT (animals/ pile driving at South (animals/ pile driving at South (animals/ pile driving at South (animals/ km2) Trestle km2) Trestle km2) Trestle km2) (km2) (km2) (km2) (km2)

312 ...... 131.4 1.38 3 27.65 1.38 22 0.87 1.38 7 221.46 1.38

56,575.584 114.471 26.4132 2,139.3036

Total Authorized Takes of Bottlenose Dolphin 58,855.77 (rounded to 58,856). Source: Engelhaupt et al., 2016.

Because the Level A harassment zones Harbor Seals rock armor and portal islands from 2014 are relatively small (a 55-m isopleth is through 2019 (Jones et al., 2020). The the largest during DTH drilling of 36-in The expected number of harbor seals average daily seal count from the 2014 piles) and we believe the PSO will be in the project area was estimated using through 2019 field seasons ranged from able to effectively monitor the Level A systematic, land- and vessel-based 8 to 23 for an average of 13.6 harbor harassment zones, we do not anticipate survey data for in-water and hauled-out seals across all the field seasons (Table take by Level A harassment of seals collected by the U.S. Navy at the 15). bottlenose dolphins. Chesapeake Bay Bridge Tunnel (CBBT)

TABLE 15—HARBOR SEAL COUNTS AT CHESAPEAKE BAY BRIDGE TUNNEL

Average Field season ‘‘In season’’ Total seal daily seal Max daily survey days count count seal count

2014–2015 ...... 11 113 10 33 2015–2016 ...... 14 187 13 39 2016–2017 ...... 22 308 14 40 2017–2018 ...... 15 340 23 45

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TABLE 15—HARBOR SEAL COUNTS AT CHESAPEAKE BAY BRIDGE TUNNEL—Continued

Average Field season ‘‘In season’’ Total seal daily seal Max daily survey days count count seal count

2018–2019 ...... 10 82 8 17

Average ...... 13.6 34.8 Source: Jones et al., 2020.

NMFS estimated take using the DTH drilling when the Level A seals collected by the U.S. Navy at the average daily seal count over five field harassment zone is fairly large (821 m) CBBT rock armor and portal islands seasons (2014–2019) (Jones et al., 2020). for a total of 459 takes. Therefore, 1,725 from 2014 through 2018 (Rees et al., This average count is 13.6 seals takes by Level B harassment and 459 2016; Jones et al., 2018). Seasonal (rounded up to 14 seals). Fourteen seals/ takes by Level A harassment are being numbers of gray seals in the Chesapeake day multiplied by 156 days (number of authorized for this IHA. Bay waters in the vicinity of the project days of activities when the seals are Gray Seals area in previous years have been low present, December to May) equals 2,184 (Table 16). Gray seals are not expected The expected number of gray seals in takes. The takes by Level A harassment the project area was estimated using to be present in the Chesapeake Bay were calculated from approximately 21 systematic, land- and vessel-based during the months of June through percent of the pile-driving days during survey data for in-water and hauled out October (Table 16 and Table 17).

TABLE 16—SUMMARY OF HISTORICAL GRAY SEAL SIGHTINGS BY MONTH FROM 2014 TO 2018

Number of individual gray seals Monthly Month 2014 2015 2016 2017 2018 average

January ...... 0 0 0 0 0 February ...... 1 1 0 1 0.8 March ...... 0 0 0 0 0 April ...... 0 0 0 0 0 May ...... 0 0 0 0 0

June ...... Seals not expected to be present. 0

July ...... Seals not expected to be present. 0

August ...... Seals not expected to be present. 0

September ...... Seals not expected to be present. 0

October ...... Seals not expected to be present. 0

November ...... 0 0 0 0 ...... 0 December ...... 0 0 0 0 ...... 0 Source: Rees et al., 2016; Jones et al., 2018.

TABLE 17—AVERAGE NUMBER OF INDIVIDUAL GRAY SEAL SIGHTINGS SUMMARIZED BY SEASON

Average number of Season individuals per season

Spring (March–May) ...... 0 Summer (June–August) ...... 0 Fall (September–November) ...... 0 Winter (December–February) ...... 1 Note: Data generated from Table 16.

Gray seals are expected to be very winter month (December through occurrence of gray seals in the project uncommon in the project area. The February). Therefore, HRCP estimated area, we do not anticipate and are not historical data indicate that and NMFS is authorizing nine instances authorizing take by Level A harassment approximately one gray seal has been of take by Level B harassment of gray of gray seals. seen per year. To be conservative, HRCP seals (three gray seals per month requests three instances of take by Level multiple by three months = nine gray B harassment of gray seals during each seals). Because of the unlikely to low

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Harbor Porpoise (Engelhaupt et al., 2014; 2015; 2016) did extends 1,827 m during DTH drilling of not produce enough sightings to 36-in steel pipe piles. Because harbor Harbor porpoises are known to occur calculate densities. One group of two porpoises are relatively difficult to in the coastal waters near Virginia harbor porpoises was seen during spring observe, it is possible they may occur Beach (Hayes et al. 2019), and although 2015 (Engelhaupt et al., 2016). Based on within the calculated Level A they have been reported on rare this data, it estimated that one group of harassment zone without detection. As occasions in the Chesapeake Bay, closer two harbor porpoises could be exposed such, HRCP requested a small number to Norfolk, they are rarely seen in the to project-related in-water noise each of takes by Level A harassment for project area. Density data for this month during the spring (March–May) harbor porpoises during the project. species within the Project vicinity do for a total of six instances of take by Therefore, we authorize a total of two not exist or were not calculated because Level B harassment (i.e., one group of instances of take by Level A harassment, sample sizes were too small to produce two individuals per month multiplied the number requested by HRCP. reliable estimates of density. Harbor by three months = six harbor porpoises). Table 18 below summarizes the porpoise sighting data collected by the The largest calculated Level A authorized take for all the species U.S. Navy near Naval Station Norfolk harassment isopleth for high frequency described above as a percentage of stock and Virginia Beach from 2012 to 2015 cetaceans (i.e., harbor porpoises) abundance.

TABLE 18—AUTHORIZED TAKE BY LEVEL A AND B HARASSMENT AND AS A PERCENTAGE OF STOCK ABUNDANCE

Authorized Authorized level A level B Total takes Species Stock harassment harassment authorization Percentage of stock takes takes

Humpback whale Gulf of Maine ...... 0 12 12 Less than 2 percent. Harbor porpoise .. Gulf of Maine/Bay of Fundy ...... 2 4 6 Less than 1 percent. Bottlenose dol- WNA Coastal, Northern Migratory a 0 29,320 29,320 Less than 33. * phin. WNA Coastal, Southern Migra- 0 29,320 29,320 Less than 33. * tory a. NNCES a ...... 0 216 216 26.25. Harbor seal ...... Western North Atlantic ...... 459 1,725 2,184 Less than 1 percent. Gray seal ...... Western North Atlantic ...... 0 9 9 Less than 1 percent. a Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same probability of presence in project area. * Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population (size unknown).

Mitigation (1) The manner in which, and the visibility of the shutdown zone, pile degree to which, the successful installation must be delayed. However, In order to issue an IHA under section implementation of the measure(s) is work may extend into the night as 101(a)(5)(D) of the MMPA, NMFS must expected to reduce impacts to marine necessary under conditions where there set forth the permissible methods of mammals, marine mammal species or is full visibility of the shutdown zone or taking pursuant to such activity, and stocks, and their habitat. This considers where stopping ongoing work would other means of effecting the least the nature of the potential adverse otherwise create an unsafe work practicable impact on such species or impact being mitigated (likelihood, condition. stock and its habitat, paying particular scope, range). It further considers the attention to rookeries, mating grounds, likelihood that the measure will be Shutdown Zone for In-Water Heavy and areas of similar significance, and on effective if implemented (probability of Machinery Work the availability of such species or stock accomplishing the mitigating result if For in-water heavy machinery work for taking for certain subsistence uses implemented as proposed), the other than pile driving, if a marine (latter not applicable for this action). likelihood of effective implementation mammal comes within 10 m of such NMFS regulations require applicants for (probability implemented as proposed), operations, operations will cease and incidental take authorizations to include and; vessels will reduce speed to the information about the availability and (2) The practicability of the measures minimum level required to maintain feasibility (economic and technological) for applicant implementation, which steerage and safe working conditions. of equipment, methods, and manner of may consider such things as cost, conducting such activity or other means impact on operations, and, in the case Shutdown Zones of effecting the least practicable adverse of a military readiness activity, For all pile driving activities, HRCP impact upon the affected species or personnel safety, practicality of implementation, and impact on the will establish shutdown zones for a stocks and their habitat (50 CFR marine mammal (see Table 19 below). 216.104(a)(11)). effectiveness of the military readiness activity. The purpose of a shutdown zone is In evaluating how mitigation may or The following mitigation measures are generally to define an area within which may not be appropriate to ensure the included in the IHA: shutdown of the activity would occur least practicable adverse impact on upon sighting of a marine mammal (or species or stocks and their habitat, as Timing Restrictions in anticipation of an animal entering the well as subsistence uses where HRCP would conduct work during defined area). HRCP will maintain a applicable, we carefully consider two daylight hours, and if poor minimum 10 m shutdown zone for all primary factors: environmental conditions restrict full pile driving activities where the

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calculated PTS Isopleth is less than 10 vibratory hammer on days when it is During DTH drilling, a shutdown m as described in Table 11. anticipated that multiple vibratory zone of 100 m for harbor seals will be If multiple vibratory hammering hammers will be used regardless of pile implemented to reduce unnecessary occurs, a shutdown zone of 100 m will size. shutdowns. be implemented for all species for each

TABLE 19—SHUTDOWN ZONES

Level a harassment shutdown zone (m) Pile type/activity Sound source level at 10 m Low- Mid- High- frequency frequency frequency Phocid cetaceans cetaceans cetaceans

Vibratory Pile Driving

24-in steel pile installation (All Loca- 161 dB SPL ...... 15 10 21 10 tions). 36-in steel pile installation (All Loca- 167 dB SPL ...... 32 10 47 20 tions). 36-in steel pile installation (TMB 167 dB SPL...... 28 10 41 17 Platform). 42-in steel pile installation (All Loca- 168 dB SPL ...... 42 10 62 26 tions).

Impact Pile for the Jet Grouting Trestle

36-in steel pile installation ...... 183 dB SEL/193 SPL ...... 243 10 290 130 36-in steel pile installation (attenu- 176 dB SEL/186 SPL ...... 83 10 99 45 ated).

Impact Pile Driving North Trestle

36-in steel pile installation (North 183 dB SEL/193 SPL ...... 243 10 290 130 Shore Work Trestle).

Impact Pile Driving for North Trestle, Willoughby Bay, and South Trestle Test Pile Program

24-in concrete square pile installa- 166 dB SEL/190 SPL ...... 121 10 144 65 tion/removal. 30-in concrete square pile installa- 177 dB SEL/187 SPL ...... 652 24 777 349 tion/removal. 54-in concrete square pile installa- 177 dB SEL/187 SPL ...... 652 24 777 349 tion/removal.

Impact Pile Driving for South Island

36-in steel pile installation (TBM 183 dB SEL/193 SPL ...... 243 10 290 130 Platform). 36-in steel pile installation (Conveyor 183 dB SEL/193 SPL ...... 243 10 290 130 Trestle).

DTH Drilling

36-in steel pile installation (TBM 164SEL/180 dB SPL ...... 1,171 42 1,395 100 Platform). 36-in steel pile installation (North 164 SEL/180 dB SPL ...... 1,534 55 1,827 100 Shore Work Trestle). 36-in steel pile installation (Jet 164 SEL/180 dB SPL ...... 1,534 55 1,827 100 Grouting Trestle). 36-in steel pile installation (Conveyor 164 SEL/180 dB SPL ...... 1,534 55 1,827 100 Trestle).

Multiple Hammers—Vibratory Pile Driving (if occurs) *

42-in steel pile installation (assumes 173 dB SPL ...... 100 100 100 100 3 piles installed simultaneously, 6 piling events * 30 minutes each event in a 24-hr period). 42-in steel pile installation (assumes 171 dB SPL ...... 100 100 100 100 2 piles installed simultaneously, 9 piling events * 30 minutes each event in a 24-hr period). * These zones are applicable for any multiple hammer events of any pile size where sound fields overlap.

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Bubble Curtain requests for authorizations must include for 30 min and no marine mammals (for HRCP will use an air bubble curtain the suggested means of accomplishing which take has not been authorized) are system during impact pile driving of 36- the necessary monitoring and reporting present within the zone, work can in steel pipe piles for the Jet Grouting that will result in increased knowledge continue even if visibility becomes Trestle. Bubble curtains would meet the of the species and of the level of taking impaired within the monitoring zone. following requirements: or impacts on populations of marine When a marine mammal for which The bubble curtain must distribute air mammals that are expected to be Level B harassment take has been bubbles around 100 percent of the piling present in the action area. Effective authorized is present in the monitoring perimeter for the full depth of the water reporting is critical both to compliance zone, piling activities may begin and column. The lowest bubble ring must be as well as ensuring that the most value Level B harassment take will be in contact with the mudline and/or rock is obtained from the required recorded. monitoring. bottom for the full circumference of the Monitoring Zones ring, and the weights attached to the Monitoring and reporting bottom ring will ensure 100 percent requirements prescribed by NMFS The HRCP will establish monitoring mudline and/or rock bottom contact. No should contribute to improved zones for Level B harassment as parts of the ring or other objects will understanding of one or more of the presented in Table 12. The monitoring prevent full mudline and/or rock bottom following: zones for this project are areas where contact. The bubble curtain must be D Occurrence of marine mammal SPLs are equal to or exceed 120 dB rms operated such that there is proper species or stocks in the area in which (for vibratory pile driving/removal and (equal) balancing of air flow to all take is anticipated (e.g., presence, DTH drilling) or 160 dB rms (for impact bubblers. HRCP would employ the abundance, distribution, density); pile driving). These zones provide bubble curtain during impact pile D Nature, scope, or context of likely utility for monitoring conducted for driving in water depths greater than 6 m marine mammal exposure to potential mitigation purposes (i.e., shutdown (20 ft) at the Jet Grouting Trestle. stressors/impacts (individual or zone monitoring) by establishing cumulative, acute or chronic), through Soft Start monitoring protocols for areas adjacent better understanding of: (1) Action or to the shutdown zones. Monitoring of HRCP would use soft start techniques environment (e.g., source the Level B harassment zones enables when impact pile driving. Soft start characterization, propagation, ambient observers to be aware of and requires contractors to provide an initial noise); (2) affected species (e.g., life communicate the presence of marine set of strikes at reduced energy, history, dive patterns); (3) co-occurrence mammals in the project area, and thus followed by a 30-second waiting period, of marine mammal species with the prepare for potential shutdowns of then two subsequent reduced energy action; or (4) biological or behavioral activity. The HRCP will also be strike sets. A soft start would be context of exposure (e.g., age, calving or gathering information to help better implemented at the start of each day’s feeding areas); understand the impacts of their planned D Individual marine mammal impact pile driving and at any time activities on species and their responses (behavioral or physiological) following cessation of impact pile behavioral responses. If the entire Level to acoustic stressors (acute, chronic, or driving for a period of 30 minutes or B harassment zone is not visible, Level cumulative), other stressors, or longer. B harassment takes will be extrapolated cumulative impacts from multiple based upon the number of observed Non-Authorized Take Prohibited stressors; takes and the percentage of the Level B If a species enters or approaches the D How anticipated responses to harassment zone that is not visible. Level B harassment zone and that stressors impact either: (1) Long-term species is either not authorized for take fitness and survival of individual Multiple Hammer Level B Harassment or its authorized takes are met, pile marine mammals; or (2) populations, Zones driving and removal activities must shut species, or stocks; down immediately using delay and D Effects on marine mammal habitat Due to the likelihood of multiple shutdown procedures. Activities must (e.g., marine mammal prey species, active construction sites across the not resume until the animal has been acoustic habitat, or other important project area, it is possible that multiple confirmed to have left the area or an physical components of marine vibratory hammers with overlapping observation time period of 15 minutes mammal habitat); and sound fields may be in operation has elapsed. D Mitigation and monitoring simultaneously during certain times Based on our evaluation of the effectiveness. throughout the duration of the project. HRCP’s planned measures, NMFS has As described in the Estimated Take Pre-Activity Monitoring determined that the mitigation measures section, the decibel addition of provide the means effecting the least Prior to the start of daily in-water continuous noise sources results in practicable impact on the affected construction activity, or whenever a much larger zone sizes than a single species or stocks and their habitat, break in pile driving of 30 min or longer vibratory hammer. Decibel addition is paying particular attention to rookeries, occurs, PSOs will observe the shutdown not a consideration when sound fields mating grounds, and areas of similar and monitoring zones for a period of 30 do not overlap. Willoughby Bay is significance. min. The shutdown zone will be cleared largely surrounded by land, and sound when a marine mammal has not been will be prevented from propagating to Monitoring and Reporting observed within the zone for that 30- other project construction sites (see In order to issue an IHA for an min period. If a marine mammal is Figure 1–1 and Figure 6–1 of the activity, section 101(a)(5)(D) of the observed within the shutdown zone, application). Therefore, Willoughby Bay MMPA states that NMFS must set forth pile driving activities will not begin will be treated as an independent site requirements pertaining to the until the animal has left the shutdown with its own sound isopleths and monitoring and reporting of such taking. zone or has not been observed for 15 observer requirements when The MMPA implementing regulations at min. If the Level B harassment zone (i.e., construction is taking place within the 50 CFR 216.104 (a)(13) indicate that the monitoring zone) has been observed bay. Willoughby Bay is relatively small

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and will be monitored from the Visual Monitoring following conditions when selecting construction site by a single observer. Monitoring would be conducted 30 PSOs: D Additionally, the South Trestle is the minutes before, during, and 30 minutes Independent PSOs will be used (i.e., only site where the sound will after all pile driving/removal activities. not construction personnel); D At least one PSO must have prior propagate into Chesapeake Bay (see In addition, PSOs will record all experience working as a marine Figure 6–1 of the application). Sound incidents of marine mammal mammal observer during construction from other construction sites will not occurrence, regardless of distance from activities; overlap with South Trestle and will not activity, and will document any D Other PSOs may substitute propagate into Chesapeake Bay. behavioral reactions in concert with education (degree in biological science Therefore, the South Trestle also will be distance from piles being driven/ or related field) or training for treated as an independent site with its removed. Pile driving/removal activities own sound isopleths and observer experience; include the time to install, remove a D Where a team of three or more PSOs requirements when construction is single pile or series of piles, as long as taking place. When the South Trestle are required, a lead observer or the time elapsed between uses of the monitoring coordinator will be site is active, an observer will be pile driving equipment is no more than positioned on land to view as much of designated. The lead observer must have 30 minutes. prior experience working as a marine the Level B harassment zone as possible. Monitoring will be conducted by mammal observer during construction; If the entire Level B harassment zone is PSOs from land. The number of PSOs not visible, Level B harassment takes and will vary from one or more, depending D The HRCP will submit PSO will be extrapolated based upon the on the type of pile driving, method of number of observed takes and the curriculum vitaes for approval by NMFS pile driving and size of pile, all of for all observers prior to monitoring. percentage of the Level B harassment which determines the size of the zone that is not visible. The HRCP will ensure that the PSOs harassment zones. Monitoring locations have the following additional If two or more vibratory hammers at will be selected to provide an qualifications: the other three project sites (North unobstructed view of all water within D Visual acuity in both eyes Trestle, North Shore, South Island) are the shutdown zone and as much of the (correction is permissible) sufficient for installing piles, there is potential for the Level B harassment zone as possible for discernment of moving targets at the sound fields to overlap when pile driving activities. Monitoring water’s surface with ability to estimate installation occurs simultaneously. If locations may vary based on target size and distance; use of two piles that are 36-in or larger in construction activity and location of binoculars may be necessary to correctly diameter are simultaneously installed piles or equipment. HRCP will station identify the target; with vibratory hammers, the Level B between one and four PSOs at locations D Experience and ability to conduct Harassment zone can extend up to a 25 offering the best available views of the field observations and collect data km radius to the southwest (see Figure Level A and Level B monitoring zones according to assigned protocols; 6–1, 171 dB isopleth of the application). during in-water pile driving at the North D Experience or training in the field However, the Level B harassment zones Trestle, North Island, South Trestle, and identification of marine mammals, resulting from simultaneous use of South Island. When and where able, as including the identification of multiple vibratory hammers are determined by the PSO or Lead PSO behaviors; truncated in nearly all directions by the when multiple observers are required, D Sufficient training, orientation, or mainland and islands, which prevent Level A and Level B harassment zones experience with the construction propagation of sound beyond the may be monitored for multiple pile operation to provide for personal safety confines of a core area (see Figure 11– driving locations by the same individual during observations; 1 (area outlined in red) of the PSO. HRCP will be required to station D Writing skills sufficient to prepare a application). The largest ensonified between one and two PSOs at locations report of observations including but not radii extend to the south into the James offering the best available views of the limited to the number and species of and Nansemond rivers, areas where Level A and Level B monitoring zones marine mammals observed; dates and marine mammal abundance is during in-water pile driving at times when in-water construction anticipated to be low and approaching Willoughby Bay. If any entire Level B activities were conducted; dates, times, zero. Therefore, HRCP will monitor a monitoring zone is not visible, pile and reason for implementation of core area, called the Core Monitoring driving activities may continue, and the mitigation (or why mitigation was not Area, during times when two or more number of individual animals within implemented when required); and vibratory hammers are simultaneously the Level B zone will be estimated and marine mammal behavior; active at the other three project recorded. Estimated numbers of D Ability to communicate orally, by construction sites (North Trestle, North individuals will be extrapolated by radio or in person, with project Shore, South Island). The Core dividing the number of observed personnel to provide real-time Monitoring Area would encompass the individuals by the percentage of the information on marine mammals area between the two bridge/tunnels, monitoring zone that was visible. observed in the area as necessary; and with observers positioned at key areas to In addition, PSOs will work in shifts D Sufficient training, orientation, or monitor the geographic area between the lasting no longer than 4 hours with at experience with the construction bridges (see Figure 11–1 (area outlined least a 1-hour break between shifts, and operations to provide for personal safety in red) of the application). Depending will not perform duties as a PSO for during observations. on placement, the observers will be able more than 12 hours in a 24-hour period to view west/southwest towards Batten (to reduce PSO fatigue). Reporting of Injured or Dead Marine Bay and the mouth of the Nansemond Monitoring of pile driving will be Mammals River. Marine mammals transiting the conducted by qualified, NMFS- In the event that personnel involved area will be located and identified as approved PSOs, who will have no other in the construction activities discover they move in and out of the Chesapeake assigned tasks during monitoring an injured or dead marine mammal, Bay. periods. The HRCP will adhere to the HRCP will report the incident to the

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Office of Protected Resources (OPR), D Description of any marine mammal regulations (54 FR 40338; September 29, NMFS and to the Greater Atlantic behavior patterns during observation, 1989), the impacts from other past and Region New England/Mid-Atlantic including direction of travel and ongoing anthropogenic activities are Regional Stranding Coordinator as soon estimated time spent within the Level A incorporated into this analysis via their as feasible. If the death or injury was and Level B harassment zones while the impacts on the environmental baseline clearly caused by the specified activity, source was active; (e.g., as reflected in the regulatory status the HRCP must immediately cease the D Number of individuals of each of the species, population size and specified activities until NMFS is able species (differentiated by month as growth rate where known, ongoing to review the circumstances of the appropriate) detected within the sources of human-caused mortality, or incident and determine what, if any, monitoring zone, and estimates of ambient noise levels). Of note, is the additional measures are appropriate to number of marine mammals taken, by significant increase of takes by Level B ensure compliance with the terms of the species (a correction factor may be harassment for bottlenose dolphins IHA. HRCP must not resume their applied to total take numbers, as compared with what was evaluated in activities until notified by NMFS. appropriate); the notice of proposed IHA. Despite the The report must include the following D Detailed information about any increase in take numbers, our information: implementation of any mitigation determination remains the same. There D Time, date, and location (latitude/ triggered (e.g., shutdowns and delays), a could be multiple takes of individual longitude) of the first discovery (and description of specific actions that animals but without any long-term updated location information if known ensued, and resulting behavior of the adverse effects. Take by Level B and applicable); animal, if any; harassment of bottlenose dolphins will D D Species identification (if known) or Description of attempts to be minimized through use of mitigation description of the animal(s) involved; distinguish between the number of measures. individual animals taken and the D Condition of the animal(s) Pile driving activities associated with number of incidences of take, such as (including carcass condition if the the planned HRCP project, as outlined ability to track groups or individuals; animal is dead); previously, have the potential to disturb D Observed behaviors of the D An extrapolation of the estimated takes by Level B harassment based on or displace marine mammals. The animal(s), if alive; specified activities may result in take, in D If available, photographs or video the number of observed exposures within the Level B harassment zone and the form of Level B harassment footage of the animal(s); and (behavioral disturbance) or Level A D the percentage of the Level B General circumstances under which harassment (auditory injury), incidental the animal was discovered. harassment zone that was not visible; and to underwater sounds generated from Final Report D Submit all PSO datasheets and/or pile driving. Potential takes could occur The HRCP will submit a draft report raw sighting data (in a separate file from if individuals are present in the to NMFS no later than 90 days following the Final Report referenced immediately ensonified zone when pile driving the end of construction activities or 60 above). occurs. Level A harassment is only days prior to the issuance of any anticipated and authorized for harbor Negligible Impact Analysis and porpoises and harbor seals. subsequent IHA for the project. PSO Determination datasheets/raw sightings data would be No serious injury or mortality is required to be submitted with the NMFS has defined negligible impact anticipated given the nature of the reports. The HRCP will provide a final as an impact resulting from the activities and measures designed to report within 30 days following specified activity that cannot be minimize the possibility of injury to resolution of NMFS’ comments on the reasonably expected to, and is not marine mammals. The potential for draft report. Reports will contain, at reasonably likely to, adversely affect the these outcomes is minimized through minimum, the following: species or stock through effects on the construction method and the D Dates and times (begin and end) of annual rates of recruitment or survival implementation of the mitigation all marine mammal monitoring; (50 CFR 216.103). A negligible impact measures. When impact pile driving is D Construction activities occurring finding is based on the lack of likely used, implementation of bubble curtains during each daily observation period, adverse effects on annual rates of (during 36-in steel piles at the Jet including how many and what type of recruitment or survival (i.e., population- Grouting Trestle in water depths greater piles were driven or removed and by level effects). An estimate of the number than 6 m (20 ft)), soft start and what method (i.e., impact or vibratory); of takes alone is not enough information shutdown zones significantly reduce the D Weather parameters and water on which to base an impact possibility of injury. Given sufficient conditions during each monitoring determination. In addition to notice through use of soft starts (for period (e.g., wind speed, percent cover, considering estimates of the number of impact driving), marine mammals are visibility, sea state); marine mammals that might be ‘‘taken’’ expected to move away from a sound D The number of marine mammals through harassment, NMFS considers source that is annoying prior to it observed, by species, relative to the pile other factors, such as the likely nature becoming potentially injurious. location and if pile driving or removal of any responses (e.g., intensity, HRCP will use qualified PSOs was occurring at time of sighting; duration), the context of any responses stationed strategically to increase D Age and sex class, if possible, of all (e.g., critical reproductive time or detectability of marine mammals, marine mammals observed; location, migration), as well as effects enabling a high rate of success in D PSO locations during marine on habitat, and the likely effectiveness implementation of shutdowns to avoid mammal monitoring; of the mitigation. We also assess the injury for most species. PSOs will be D Distances and bearings of each number, intensity, and context of stationed to provide a relatively clear marine mammal observed to the pile estimated takes by evaluating this view of the shutdown zones and being driven or removed for each information relative to population monitoring zones. These factors will sighting (if pile driving or removal was status. Consistent with the 1989 limit exposure of animals to noise levels occurring at time of sighting); preamble for NMFS’s implementing that could result in injury.

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HRCP’s planned pile driving activities which is not likely to meaningfully Small Numbers are highly localized. Only a relatively affect its ability to forage and As noted above, only small numbers small portion of the Chesapeake Bay communicate with conspecifics. As of incidental take may be authorized may be affected. Localized noise described above, we expect that marine under sections 101(a)(5)(A) and (D) of exposures produced by project activities mammals would be likely to move away the MMPA for specified activities other may cause short-term behavioral from a sound source that represents an than military readiness activities. The modifications in affected cetaceans and aversive stimulus, especially at levels MMPA does not define small numbers pinnipeds. Moreover, the mitigation and that would be expected to result in PTS, and so, in practice, where estimated monitoring measures are expected to given sufficient notice through use of numbers are available, NMFS compares further reduce the likelihood of injury soft start. the number of individuals taken to the as well as reduce behavioral The project is not expected to have most appropriate estimation of disturbances. significant adverse effects on marine abundance of the relevant species or Effects on individuals that are taken mammal habitat. No important feeding stock in our determination of whether by Level B harassment, on the basis of and/or reproductive areas for marine reports in the literature as well as an authorization is limited to small mammals are known to be near the monitoring from other similar activities, numbers of marine mammals. project area. Project activities would not will likely be limited to reactions such Additionally, other qualitative factors permanently modify existing marine as increased swimming speeds, may be considered in the analysis, such mammal habitat. The activities may increased surfacing time, or decreased as the temporal or spatial scale of the cause some fish to leave the area of foraging (if such activity were occurring) activities. disturbance, thus temporarily impacting (e.g., Thorson and Reyff 2006). The authorized take of four of the five Individual animals, even if taken marine mammal foraging opportunities marine mammal species/stocks multiple times, will most likely move in a limited portion of the foraging comprises less than one-third of the best away from the sound source and be range. However, because of the available stock abundance, with the temporarily displaced from the areas of relatively small area of the habitat that exception of the bottlenose dolphin pile driving, although even this reaction may be affected, the impacts to marine stocks. There are three bottlenose has been observed primarily only in mammal habitat are not expected to dolphin stocks that could occur in the association with impact pile driving. cause significant or long-term negative project area. Therefore, the estimated The pile driving activities analyzed here consequences. dolphin takes by Level B harassment are similar to, or less impactful than, In summary and as described above, would likely be portioned among the numerous other construction activities the following factors primarily support western North Atlantic northern conducted along both Atlantic and our determination that the impacts migratory coastal stock, western North Pacific coasts, which have taken place resulting from this activity are not Atlantic southern migratory coastal with no known long-term adverse expected to adversely affect the species stock, and NNCES stock. Based on the consequences from behavioral or stock through effects on annual rates stocks’ respective occurrence in the harassment. Furthermore, many projects of recruitment or survival: area, NMFS estimated that there would be 216 takes from the NNCES stock, similar to this one are also believed to • No mortality is anticipated or with the remaining takes evenly split result in multiple takes of individual authorized; between the northern and southern animals without any documented long- • term adverse effects. Level B harassment Limited Level A harassment migratory coastal stocks. Based on will be minimized through use of exposures (harbor porpoises and harbor consideration of various factors mitigation measures described herein seals) are anticipated; described below, we have determined and, if sound produced by project • The anticipated incidents of Level B the numbers of individuals taken would activities is sufficiently disturbing, harassment consist of, at worst, likely comprise less than one-third of animals are likely to simply avoid the temporary modifications in behavior the best available population abundance area while the activity is occurring. that would not result in fitness impacts estimate of either coastal migratory In addition to the expected effects to individuals; stock. resulting from authorized Level B • The specified activity and Both the northern migratory coastal harassment, we anticipate that small associated ensonifed areas are very and southern migratory coastal stocks numbers of harbor porpoises and some small relative to the overall habitat have expansive ranges and they are the harbor seals may enter the Level A ranges of all species and does not only dolphin stocks thought to make harassment zones undetected, include habitat areas of special broad-scale, seasonal migrations in particularly during times of DTH significance (Biologically Important coastal waters of the western North drilling when the Level A harassment Areas or ESA-designated critical Atlantic. Given the large ranges zones are large. It is unlikely that the habitat); and associated with these two stocks it is unlikely that large segments of either animals would remain in the area long • enough for PTS to occur. If any animals The presumed efficacy of the stock would approach the project area did experience PTS, it would likely only mitigation measures in reducing the and enter into the Chesapeake Bay. The receive slight PTS, i.e. minor effects of the specified activity. majority of both stocks are likely to be degradation of hearing capabilities Based on the analysis contained found widely dispersed across their within regions of hearing that align most herein of the likely effects of the respective habitat ranges and unlikely to completely with the energy produced by specified activity on marine mammals be concentrated in or near the pile driving (i.e., the low-frequency and their habitat, and taking into Chesapeake Bay. region below 2 kHz), not severe hearing consideration the implementation of the Furthermore, the Chesapeake Bay and impairment or impairment in the monitoring and mitigation measures, nearby offshore waters represent the regions of greatest hearing sensitivity. If NMFS finds that the total marine boundaries of the ranges of each of the hearing impairment occurs, it is most mammal take from the activity will have two coastal stocks during migration. The likely that the affected animal’s a negligible impact on all affected northern migratory coastal stock is threshold would increase by a few dBs, marine mammal species or stocks. found during warm water months from

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coastal Virginia, including the depart the North Carolina estuarine marine mammals, NMFS finds that Chesapeake Bay and Long Island, New system and travel to the northern extent small numbers of marine mammals will York. The stock migrates south in late of the stock’s range. However, recent be taken relative to the population size summer and fall. During cold water evidence suggests that there is likely a of the affected species or stocks. months dolphins may be found in small resident community of NNCES Unmitigable Adverse Impact Analysis coastal waters from Cape Lookout, dolphins of indeterminate size that North Carolina, to the North Carolina/ inhabits the Chesapeake Bay year-round and Determination Virginia. During January–March, the (E. Patterson, NMFS, pers. comm.). There are no relevant subsistence uses southern migratory coastal stock Many of the dolphin observations in of the affected marine mammal stocks or appears to move as far south as northern the Bay are likely repeated sightings of species implicated by this action. Florida. From April to June, the stock the same individuals. The Potomac- Therefore, NMFS has determined that moves back north to North Carolina. Chesapeake Dolphin Project has the total taking of affected species or During the warm water months of July– observed over 1,200 unique animals stocks would not have an unmitigable August, the stock is presumed to occupy since observations began in 2015. Re- adverse impact on the availability of coastal waters north of Cape Lookout, sightings of the same individual can be such species or stocks for taking for North Carolina, to Assateague, Virginia, highly variable. Some dolphins are subsistence purposes. including the Chesapeake Bay. There is observed once per year, while others are likely some overlap between the highly regular with greater than 10 National Environmental Policy Act northern and southern migratory stocks sightings per year (J. Mann, Potomac- To comply with the National during spring and fall migrations, but Chesapeake Dolphin Project, pers. Environmental Policy Act of 1969 the extent of overlap is unknown. comm.). Similarly, using available (NEPA; 42 U.S.C. 4321 et seq.) and The Chesapeake Bay and waters photo-identification data, Engelhaupt et NOAA Administrative Order (NAO) offshore of the mouth are located on the al. (2016) determined that specific 216–6A, NMFS must evaluate our periphery of the migratory ranges of individuals were often observed in close proposed action (i.e., the promulgation both coastal stocks (although during proximity to their original sighting of regulations and subsequent issuance different seasons). Additionally, each of locations and were observed multiple of incidental take authorization) and the migratory coastal stocks are likely to times in the same season or same year. alternatives with respect to potential be located in the vicinity of the Ninety-one percent of re-sighted impacts on the human environment. Chesapeake Bay for relatively short individuals (100 of 110) in the study This action is consistent with categories timeframes. Given the limited number area were recorded less than 30 km from of activities identified in Categorical of animals from each migratory coastal the initial sighting location. Multiple Exclusion B4 of the Companion Manual stock likely to be found at the seasonal sightings of the same individual would for NAO 216–6A, which do not migratory boundaries of their respective considerably reduce the number of individually or cumulatively have the ranges, in combination with the short individual animals that are taken by potential for significant impacts on the time periods (∼two months) animals Level B harassment. Furthermore, the quality of the human environment and might remain at these boundaries, it is existence of a resident dolphin for which we have not identified any reasonable to assume that takes are population in the Bay would increase extraordinary circumstances that would likely to occur only within some small the percentage of dolphin takes that are preclude this categorical exclusion. portion of either of the migratory coastal actually re-sightings of the same stocks. Accordingly, NMFS determined that the individuals. action qualified to be categorically Both migratory coastal stocks likely In summary and as described above, excluded from further NEPA review. overlap with the NNCES stock at the following factors primarily support various times during their seasonal our determination regarding the Endangered Species Act (ESA) migrations. The NNCES stock is defined incidental take of small numbers of the Section 7(a)(2) of the Endangered as animals that primarily occupy waters affected stocks of bottlenose dolphin: of the Pamlico Sound estuarine system • Potential bottlenose dolphin takes Species Act of 1973 (ESA: 16 U.S.C. (which also includes Core, Roanoke, in the project area are likely to be 1531 et seq.) requires that each Federal and Albemarle sounds, and the Neuse allocated among three distinct stocks; agency insure that any action it River) during warm water months (July– • Bottlenose dolphin stocks in the authorizes, funds, or carries out is not August). Members of this stock also use project area have extensive ranges and likely to jeopardize the continued coastal waters (≤1 km from shore) of it would be unlikely to find a high existence of any endangered or North Carolina from Beaufort north to percentage of any one stock threatened species or result in the Virginia Beach, Virginia, including the concentrated in a relatively small area destruction or adverse modification of lower Chesapeake Bay. Comparison of such as the project area or the designated critical habitat. No dolphin photo-identification data Chesapeake Bay; incidental take of ESA-listed marine confirmed that limited numbers of • The Chesapeake Bay represents the mammals are expected or authorized. individual dolphins observed in migratory boundary for each of the Therefore, NMFS determined that Roanoke Sound have also been sighted specified dolphin stocks and it would consultation under section 7 of the ESA in the Chesapeake Bay (Young, 2018). be unlikely to find a high percentage of was not required for this action. Like the migratory coastal dolphin any stock concentrated at such Authorization stocks, the NNCES stock covers a large boundaries; and range. The spatial extent of most small • Many of the takes would likely be As a result of these determinations, and resident bottlenose dolphin repeats of the same animals and likely NMFS has issued an IHA to the HRCP populations is on the order of 500 km2, from a resident population of the for pile driving activities associated while the NNCES stock occupies over Chesapeake Bay. with the HRBT Expansion Project in 8,000 km2 (LeBrecque et al., 2015). Based on the analysis contained Hampton-Norfolk, Virginia for a period Given this large range, it is again herein of the planned activity (including of one year provided the previously unlikely that a preponderance of the mitigation and monitoring mentioned mitigation, monitoring, and animals from the NNCES stock would measures) and the anticipated take of reporting requirements are incorporated.

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Dated: August 4, 2020. final decision on the issuance of the incidental take authorization may be Donna S. Wieting, requested MMPA authorizations and provided to the public for review. Director, Office of Protected Resources, agency responses will be summarized in Authorization for incidental takings National Marine Fisheries Service. the final notice of our decision. shall be granted if NMFS finds that the [FR Doc. 2020–17344 Filed 8–7–20; 8:45 am] DATES: Comments and information must taking will have a negligible impact on BILLING CODE 3510–22–P be received no later than September 9, the species or stock(s) and will not have 2020. an unmitigable adverse impact on the ADDRESSES: Comments should be availability of the species or stock(s) for DEPARTMENT OF COMMERCE addressed to Jolie Harrison, Chief, taking for subsistence uses (where Permits and Conservation Division, relevant). Further, NMFS must prescribe National Oceanic and Atmospheric the permissible methods of taking and Administration Office of Protected Resources, National Marine Fisheries Service. Electronic other ‘‘means of effecting the least [RTID 0648–XA303] comments should be sent to ITP.esch@ practicable adverse impact’’ on the noaa.gov. affected species or stocks and their Takes of Marine Mammals Incidental to Instructions: NMFS is not responsible habitat, paying particular attention to Specified Activities; Taking Marine for comments sent by any other method, rookeries, mating grounds, and areas of Mammals Incidental to Marine Site to any other address or individual, or similar significance, and on the Characterization Surveys received after the end of the comment availability of such species or stocks for period. Comments received taking for certain subsistence uses AGENCY: National Marine Fisheries (referred to in shorthand as Service (NMFS), National Oceanic and electronically, including all attachments, must not exceed a 25- ‘‘mitigation’’); and requirements Atmospheric Administration (NOAA), pertaining to the mitigation, monitoring Commerce. megabyte file size. Attachments to electronic comments will be accepted in and reporting of such takings are set ACTION: Notice; proposed incidental forth. harassment authorization; request for Microsoft Word or Excel or Adobe PDF comments on proposed authorization file formats only. All comments National Environmental Policy Act and possible renewal. received are a part of the public record To comply with the National and will generally be posted online at Environmental Policy Act of 1969 SUMMARY: NMFS has received a request www.fisheries.noaa.gov/national/ (NEPA; 42 U.S.C. 4321 et seq.) and ; from rsted Wind Power North marine-mammal-protection/incidental- NOAA Administrative Order (NAO) ; America, LLC, ( rsted) for authorization take-authorizations-other-energy- 216–6A, NMFS must evaluate our to take marine mammals incidental to activities-renewable without change. All proposed action (i.e., the promulgation high-resolution geophysical (HRG) personal identifying information (e.g., of regulations and subsequent issuance survey activities in coastal waters from name, address) voluntarily submitted by of incidental take authorization) and New York to Massachusetts in certain the commenter may be publicly alternatives with respect to potential areas of the Commercial Lease of accessible. Do not submit confidential impacts on the human environment. Submerged Lands for Renewable Energy business information or otherwise This action is consistent with Development on the Outer Continental sensitive or protected information. categories of activities identified in Shelf (OCS). These areas are currently FOR FURTHER INFORMATION CONTACT: Categorical Exclusion B4 of the being leased by the Applicant’s Carter Esch, Office of Protected Companion Manual for NAO 216–6A, affiliates, Deepwater Wind New Resources, NMFS, (301) 427–8421. which do not individually or England, LLC, and Bay State Wind, LLC, Electronic copies of the applications cumulatively have the potential for respectively, and are identified as OCS– and supporting documents, as well as a significant impacts on the quality of the A 0486/0517, OCS–A 0487, and OCS–A list of the references cited in this human environment and for which we 0500 (collectively referred to herein as document, may be obtained by visiting have not identified any extraordinary the Lease Area). ;rsted is also planning the internet at: www.fisheries.noaa.gov/ circumstances that would preclude this to conduct marine site characterization national/marine-mammal-protection/ categorical exclusion. Accordingly, surveys along one or more potential incidental-take-authorizations-other- NMFS has preliminarily determined submarine export cable routes (ECRs) energy-activities-renewable. In case of that the proposed action qualifies to be originating from the Lease Area and problems accessing these documents, categorically excluded from further landing along the shore at locations please call the contact listed above. NEPA review. from New York to Massachusetts, SUPPLEMENTARY INFORMATION: Information in ;rsted’s application between Raritan Bay (part of the New and this notice collectively provide the Background York Bight) to Falmouth, Massachusetts. environmental information related to Pursuant to the Marine Mammal The MMPA prohibits the ‘‘take’’ of proposed issuance of the IHA for public Protection Act (MMPA), NMFS is marine mammals, with certain review and comment. We will review all requesting comments on its proposal to exceptions. Sections 101(a)(5)(A) and comments submitted in response to this issue an incidental harassment (D) of the MMPA (16 U.S.C. 1361 et notice prior to concluding our NEPA authorization (IHA) to incidentally take, seq.) direct the Secretary of Commerce process or making a final decision on by Level B harassment only, small (as delegated to NMFS) to allow, upon the request for incidental take numbers of marine mammals during the request, the incidental, but not authorization. specified activities. NMFS is also intentional, taking of small numbers of requesting comments on a possible one- marine mammals by U.S. citizens who Summary of Request time one-year renewal that could be engage in a specified activity (other than On April 15, 2020, NMFS received a issued under certain circumstances and, commercial fishing) within a specified request from ;rsted for authorization to if all requirements are met, as described geographical region if certain findings take marine mammals incidental to HRG in Request for Public Comments at the are made and either regulations are surveys in the OCS–A 0486/0517, OCS– end of this notice. NMFS will consider issued or, if the taking is limited to A 0487, and OCS–A 0500 Lease Areas public comments prior to making any harassment, a notice of a proposed designated and offered by the Bureau of

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Ocean Energy Management (BOEM) as Description of the Proposed Activity nearshore locations) and 24-hours per well as along one or more ECRs (ECR Overview day (offshore) using multiple vessels. Area) between the southern portions of ;rsted defines a survey day as a 24-hour the Lease Areas and shoreline locations ;rsted proposes to conduct HRG activity day and assumes a vessel covers from New York to Massachusetts, to surveys in support of offshore wind 70 kilometers (km) of survey tracks per support the development of an offshore development projects in the Lease Areas activity day. A survey day might be the wind project. The application was and ECR Area. The purpose of the HRG sum of 12-hour daylight only or considered adequate and complete on surveys is to obtain a baseline multiple partial 24-hour operations (if July 1, 2020. ;rsted’s request is for take, assessment of seabed/sub-surface soil less than 70 km is surveyed in 24 conditions in the Lease Areas and ECR by Level B harassment only, of small hours). Based on the planned 24-hours Area to support the siting of potential numbers of 15 species or stocks of operations, the survey activities for all future offshore wind projects. marine mammals. Neither ;rsted nor survey segments would require 1,302 NMFS expects serious injury or Underwater sound resulting from ; vessel days if one vessel were surveying mortality to result from this activity and rsted’s proposed site characterization surveys has the potential to result in the entire survey line continuously. the activity is expected to last no more incidental take of marine mammals in However, an estimated 5 vessels may be than one year; therefore, an IHA is the form of behavioral harassment. used simultaneously, with a maximum appropriate. of no more than 9 vessels. Therefore, all NMFS previously issued an IHA to Dates and Duration the survey effort will be completed in ;rsted for similar activities (84 FR HRG surveys, under this IHA, are one year. See Table 1 for the estimated 52464, October 2, 2019); ;rsted has anticipated to commence in September number of vessel days for each survey complied with all the requirements (e.g., 2020. ;rsted is proposing to conduct segment. The estimated durations to mitigation, monitoring, and reporting) of continuous HRG survey operations 12- complete survey activities do not that IHA. hours per day (daylight only in shallow, include weather downtime.

TABLE 1—SUMMARY OF PROPOSED HRG SURVEY SEGMENTS

Maximum number of survey days Total using Area number of medium survey days penetration SBPs (sparkers or boomers) 1

OCS–A–0486 and OCS–A–0517 ...... 217 114 OCA–A–0487 ...... 261 97 OCS–A–0500 ...... 164 112 ECR Area ...... 661 378

Total ...... 1,302 701 1 Days with no sparkers operating will use the Innomar parametric sub-bottom profiling equipment, ultra-short baseline positioning device (USBL) and/or other non-impulsive acoustic sources (see Detailed Description of Specified Activities section below).

Specific Geographic Region Detailed Description of the Specified approximately 4.0 kn (7.4 km) per hour. Activities The geophysical survey activities ;rsted’s survey activities would occur proposed by ;rsted would include the The HRG survey activities would be in the Lease Area (including OCS–A following: supported by vessels of sufficient size to 0486/0517, OCS–A 0487, and OCS–A • accomplish the survey goals in each of Shallow Penetration Sub-bottom 0500), located approximately 14 miles Profilers (SBPs; CHIRPs) to map the (mi) south of Martha’s Vineyard, the specified survey areas. Surveys within the ECR Area will include 24- near-surface stratigraphy (top 0 to 5 m Massachusetts at its closest point, as hour and 12-hour (daylight only) (0 to 16 ft) of sediment below seabed). well as within potential export cable surveys. Up to nine (24-hour plus 12- A CHIRP system emits sonar pulses that route corridors off the coast of New hour) vessels may work concurrently increase in frequency over time. The York, Connecticut, Rhode Island, and throughout the Survey Area considered pulse length frequency range can be Massachusetts (shown in Figure 1 of the in this proposal; however, no more than adjusted to meet project variables. These IHA application). In January 2020, 3 vessels are expected to work are typically mounted on the hull of the Deepwater Wind New England, LLC concurrently within any single lease vessel or from a side pole. requested that BOEM assign a portion of area, with an estimated four offshore • Medium penetration SBPs Lease Area OCS–A 0486 to Deepwater (24-hour) vessels and two nearshore (12- (Boomers) to map deeper subsurface Wind South Fork, designated OCS–A hour) vessels expected to work stratigraphy as needed. A boomer is a 0517; the Lease split was approved in concurrently in the ECR Area. Seasonal broad-band sound source operating in April 2020. Water depth in the Lease vessel restrictions are detailed in the the 3.5 Hz to 10 kHz frequency range. Area is 25–62 meters (m) and ranges Proposed Mitigation section below. HRG This system is typically mounted on a from 1–90 m along potential ECRs to equipment will either be deployed from sled and towed behind the vessel. shoreline locations between New York remotely operated vehicles (ROVs) or • Medium penetration SBPs and Massachusetts. mounted to or towed behind the survey (Sparkers) to map deeper subsurface vessel at a typical survey speed of stratigraphy as needed. A sparker

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creates acoustic pulses from 50 Hz to 4 angled beams from a transducer availability, and survey contractor kHz omni-directionally from the source mounted to a ship’s hull. The beams selection. Geophysical surveys are that can penetrate several hundred radiate out from the transducer in a fan- expected to use several equipment types meters into the seafloor. These are shaped pattern orthogonally to the concurrently in order to collect multiple typically towed behind the vessel with ship’s direction. aspects of geophysical data along one adjacent hydrophone arrays to receive • Seafloor imaging (sidescan sonar) transect, thereby reducing the duration the return signals. for seabed sediment classification of total survey activities. Selection of • Parametric SBPs, also called purposes, to identify natural and man- equipment combinations is based on sediment echosounders, for providing made acoustic targets resting on the specific survey objectives. high density data in sub-bottom profiles bottom as well as any anomalous The operational frequencies for MBES that are typically required for cable features. The sonar device emits conical and Sidescan Sonar that would be used routes, very shallow water, and or fan-shaped pulses down toward the for these surveys are greater than 180 archaeological surveys. These are seafloor in multiple beams at a wide kHz, outside the general hearing range typically mounted on the hull of the angle, perpendicular to the path of the of marine mammals likely to occur in vessel or from a side pole. sensor through the water. The acoustic • Ultra-short Baseline (USBL) return of the pulses is recorded in a the Survey Area. These equipment types Positioning and Global Acoustic series of cross-track slices, which can be are, therefore, not considered further in Positioning System (GAPS) to provide joined to form an image of the sea this notice. high accuracy ranges to track the bottom within the swath of the beam. Sparker and boomer systems, which positions of other HRG equipment by They are typically towed beside or produce the largest estimated Level B measuring the time between the behind the vessel or from an harassment isopleths (see Estimated acoustic pulses transmitted by the autonomous vehicle. Take section, Table 5), would be used vessel transceiver and the equipment Table 2 identifies all the for only a portion of the surveys days transponder necessary to produce the representative survey equipment that within the Survey Area. Surveys days acoustic profile. It is a two-component operate below 180 kHz that may be used that do not utilize sparkers or boomers system with a hull or pole mounted in support of planned geophysical would use Innomar parametric sonar transceiver and one to several survey activities, some of which have systems combined with a USBL system transponders either on the seabed or on the potential to be detected by marine or other intermittent non-impulsive the equipment. mammals. The make and model of the sources, which produce smaller • Multibeam echosounder (MBES) to listed geophysical equipment may vary estimated Level B harassment zones determine water depths and general depending on availability and the final (Table 5). A conservative estimate of the bottom topography. MBES sonar equipment choices will vary depending number of days using sparkers or systems project sonar pulses in several upon the final survey design, vessel boomers is provided in Table 1.

TABLE 2—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT

Typical HRG equipment Specific HRG Operating Source level Source level Beamwidth pulse Pulse category equipment frequency (dB rms) (dB 0-peak) (degrees) duration repetition range(kHz) (ms) rate

Shallow Sub-bot- ET 216 (2000DS 2–16; 2–8 195 - 24 ...... 20 6 tom Profilers. or 3200 top unit). ET 424 ...... 4–24 176 - 71 ...... 3.4 2 ET 512 ...... 0.7–12 179 - 80 ...... 9 8 GeoPulse 5430A .. 2–17 196 - 55 ...... 50 10 TB Chirp III—TTV 2–7 197 - 100...... 60 15 170. Parametric Sub- Innomar, 85–115 222 - 4...... 1 40 bottom Profilers. SES-2000 com- pact. Innomar, 85–115 222 - 4...... 1 50 SES-2000 Light & Light Plus. Innomar, 60–80 231 - 3...... 5 40 SES-2000 Me- dium-70. Innomar, 85–115 232 - 2...... 3.5 40 SES-2000 Me- dium-100. Innomar, 85–115 220 - 3–5...... 1 60 SES-2000 Quattro. Innomar, 90–110 220 - 5...... 0.5 40 SES-2000 Smart. Innomar, 85–115 225 - 1–3.5...... 1.5 60 SES-2000 Standard & Standard Plus. Medium Sub-bot- AA, Dura-spark 0.3–1.2 203 211 Omni...... 1.1 4 tom Profilers. UHD (400 tips, 500 J) 1.

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TABLE 2—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT—Continued

Typical HRG equipment Specific HRG Operating Source level Source level Beamwidth pulse Pulse category equipment frequency (dB rms) (dB 0-peak) (degrees) duration repetition range(kHz) (ms) rate

AA, Dura-spark 0.3–1.2 203 211 Omni...... 1.1 4 UHD (400+400) 1. GeoMarine, Geo- 0.4–5 203 211 Omni...... 1.1 2 Source or similar dual 400 tip sparker (≤800 J) 1. GeoMarine Geo- 0.3–1.2 203 211 Omni...... 1.1 4 Source 200 tip light weight sparker (400 J) 1. GeoMarine Geo- 0.3–1.2 203 211 Omni...... 1.1 4 Source 200–400 tip freshwater sparker (400 J) 1. AA, triple plate 0.1–5 205 211 80...... 0.6 4 S-Boom (700– 1,000 J) 2. Acoustic Cores ...... PanGeo (LF 2–6.5 177.5 - 73...... 4.5 0.06 CHIRP). PanGeo (HF 4.5–12.5 177.5 - 73...... 4.5 0.06 CHIRP). Acoustic Posi- Advances Naviga- 30 NR 176 Up to 300 ...... 90 5 tioning System tion, Subsonus. (USBL). AA, Easytrak 18–24 189 192 Up to 180 ...... 10 0.125–1 Alpha. AA, Easytrak 18–24 192 193 150–180...... 10 2 Nexus 2. AA, Easytrak 18–24 190 192 180...... 10 2 Nexus Lite. ET, BATS II ...... 16–21 NR NR 90 ...... 1–15 0.05–1.67 EvoLogics, S2C .... 18–78 NR NR 100-omni ...... NR NR iXblue, IxSea 8–16 188 - Omni...... 10 1 GAPS Beacon System. Kongsberg HiPAP 20.5–29.6 NR 207 15...... 30 0.8–30 501/502. Sonardyne Ranger 19–34 194 NR NR...... 5 1 2 and Mini Ranger 2 USBL HPT 3000/5/ 7000. Sonardyne Scout 35–50 188 NR 5...... 5 3 Pro. Tritech, MicroNav 20–28 NR 169 NR ...... NR 0.1–2 - = not applicable; NR = not reported; μPa = micropascal; AA = Applied Acoustics; BATS = Broadband Acoustic Tracking System; dB = dec- ibel; ET = EdgeTech; GAPS = Global Acoustic Positioning System; HF = high-frequency; HiPAP = high-precision acoustic positioning system; J = joule; LF = low-frequency; Omni = omnidirectional source; re = referenced to; SL = source level; SL0-pk = zero to peak source level; SLrms = root- mean-square source level; UHD = ultra-high definition. For discussion of acoustic terminology, please see Potential Effects of Specified Activities on Marine Mammals and their Habitat and Estimated Take sections. 1 The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey. The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not available. 2 Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP–D700 and CSP–N). The CSP–D700 power source was used in the 700 J measurements but not in the 1,000 J measurements. The CSP–N source was measured for both 700 J and 1,000 J operations but resulted in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

The deployment of certain types of this document (please see Proposed distribution and habitat preferences, HRG survey equipment, including some Mitigation and Proposed Monitoring and behavior and life history, of the of the equipment planned for use during and Reporting). potentially affected species. Additional ;rsted’s proposed activity, produces information regarding population trends Description of Marine Mammals in the sound in the marine environment that and threats may be found in NMFS’ Area of Specified Activity has the potential to result in harassment Stock Assessment Reports (SARs; of marine mammals. Proposed Sections 3 and 4 of the IHA www.fisheries.noaa.gov/national/ mitigation, monitoring, and reporting application summarize available marine-mammal-protection/marine- measures are described in detail later in information regarding status and trends, mammal-stock-assessments) and more

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general information about these species beaked dolphin (Lagenorhynchus be removed from a marine mammal (e.g., physical and behavioral albirostris), pantropical spotted dolphin stock while allowing that stock to reach descriptions) may be found on NMFS’ (Stenella attenuata), Fraser’s dolphin or maintain its optimum sustainable website (www.fisheries.noaa.gov/find- (Lagenodelphis hosei), rough-toothed population (as described in NMFS’ species). dolphin (Steno bredanensis), Clymene SARs). While no mortality is anticipated All species that could potentially dolphin (Stenella clymene), spinner or proposed for authorization, PBR and occur in the proposed survey areas are dolphin (Stenella longirostris), hooded serious injury or mortality from included in Table 6 of the IHA seal (Cystophora cristata), and harp seal anthropogenic sources are included here application. However, the temporal and/ (Pagophilus groenlandicus). As take of as a gross indicator of the status of the or spatial occurrence of several species these species is not anticipated as a species and other threats. listed in Table 6 of the IHA application result of the proposed activities, these Marine mammal abundance estimates is such that take of these species is not species are not analyzed further. In presented in this document represent expected to occur, either because they addition, the Florida manatee the total number of individuals that have very low densities in the Survey (Trichechus manatus) may be found in make up a given stock or the total Area or are known to occur further the coastal waters of the survey area. number estimated within a particular offshore than the Survey Area. These However, Florida manatees are managed study or survey area. NMFS’ stock are: the blue whale (Balaenoptera by the U.S. Fish and Wildlife Service abundance estimates for most species musculus), Cuvier’s beaked whale and are not considered further in this represent the total estimate of (Ziphius cavirostris), four species of document. individuals within the geographic area, Mesoplodont beaked whale Table 3 lists all species or stocks for if known, that comprises that stock. For (Mesoplodon spp.), dwarf and pygmy which take is expected and proposed to some species, this geographic area may sperm whale (Kogia sima and Kogia be authorized for this action, and extend beyond U.S. waters. All managed breviceps), short-finned pilot whale summarizes information related to the stocks in this region are assessed in (Globicephala macrorhynchus), population or stock, including NMFS’ Atlantic SARs (e.g., Hayes et al., northern bottlenose whale (Hyperoodon regulatory status under the MMPA and 2020). All values presented in Table 3 ampullatus), killer whale (Orcinus ESA and potential biological removal are the most recent available at the time orca), pygmy killer whale (Feresa (PBR), where known. For taxonomy, we of publication and are available online attenuata), false killer whale (Pseudorca follow Committee on Taxonomy (2020). at: www.fisheries.noaa.gov/national/ crassidens), melon-headed whale PBR is defined by the MMPA as the marine-mammal-protection/marine- (Peponocephala electra), striped maximum number of animals, not mammal-stock-assessment-reports- dolphin (Stenella coeruleoalba), white- including natural mortalities, that may region. TABLE 3—MARINE MAMMALS KNOWN TO OCCUR IN THE SURVEY AREA THAT MAY BE AFFECTED BY ;RSTED’S PROPOSED ACTIVITY

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent abun- PBR 3 min M/SI 3 strategic dance survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenidae: North Atlantic right whale Eubalaena glacialis ...... Western North Atlantic ...... E/D; Y 428 (0; 418; n/a) ...... 0.8 6.85 Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae ...... Gulf of Maine ...... -/-; N 1,396 (0; 1,380; See SAR) .... 22 12.15 Fin whale ...... Balaenoptera physalus ...... Western North Atlantic ...... E/D; Y 7,418 (0.25; 6,029; See SAR) 12 2.35 Sei whale ...... Balaenoptera borealis ...... Nova Scotia ...... E/D; Y 6,292 (1.015; 3,098; see 6.2 1 SAR). Minke whale ...... Balaenoptera acutorostrata .... Canadian East Coast ...... -/-; N 24,202 (0.3; 18,902; See 189 8.2 SAR).

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae: Sperm whale ...... Physeter macrocephalus ...... NA ...... E; Y 4,349 (0.28; 3,451; See SAR) 3.9 0 Family Delphinidae: Long-finned pilot whale .... Globicephala melas ...... Western North Atlantic ...... -/-; Y 39,215 (0.30; 30,627) ...... 306 21 Bottlenose dolphin ...... Tursiops truncatus ...... Western North Atlantic Off- -/-; N 62,851 (0.23; 51,914; See 519 28 shore. SAR). Common dolphin ...... Delphinus delphis ...... Western North Atlantic ...... -/-; N 172,825 (0.21; 145,216; See 1,452 419 SAR). Atlantic white-sided dol- Lagenorhynchus acutus ...... Western North Atlantic ...... -/-; N 93,233 (0.71; 54,443; See 544 26 phin. SAR). Atlantic spotted dolphin .... Stenella frontalis ...... Western North Atlantic ...... -/-; N 39,921 (0.27; 32,032; 2012) .. 320 0 Risso’s dolphin ...... Grampus griseus ...... Western North Atlantic ...... -/-; N 35,493 (0.19; 30,289; See 303 54.3 SAR). Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena ...... Gulf of Maine/Bay of Fundy ... -/-; N 95,543 (0.31; 74,034; See 851 217 SAR).

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals):

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TABLE 3—MARINE MAMMALS KNOWN TO OCCUR IN THE SURVEY AREA THAT MAY BE AFFECTED BY ;RSTED’S PROPOSED ACTIVITY—Continued

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent abun- PBR 3 min M/SI 3 strategic dance survey) 2 (Y/N) 1

Gray seal 4 ...... Halichoerus grypus ...... Western North Atlantic ...... -/-; N 27,131 (0.19; 23,158, 2016) .. 1,389 5,410 Harbor seal ...... Phoca vitulina ...... Western North Atlantic ...... -/-; N 75,834 (0.15; 66,884, 2018) .. 2,006 350 1—Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2—NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assess- ment-reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3—Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the 2020 SARs (Hayes et al., 2020). 4—NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

As indicated below, 15 species (with edge of Georges Bank, Cape Cod and the Mid-Atlantic Bight as Mid-Atlantic 15 managed stocks) temporally and Massachusetts Bays, the Bay of Fundy, U.S. Seasonal Management Areas (SMA) spatially co-occur with the survey and the Roseway Basin on the Scotian for right whales in 2008. SMAs were activities to the degree that take is Shelf (Hayes et al., 2018). In addition, developed to reduce the threat of reasonably likely to occur, and we have modest late winter use of a region south collisions between ships and right proposed authorizing it. The following of Martha’s Vineyard and Nantucket whales around their migratory route and subsections provide additional Islands was recently described (Stone et calving grounds. A portion of one SMA information on the biology, habitat use, al., 2017). NOAA Fisheries has overlaps spatially with a section of the abundance, distribution, and the designated two critical habitat areas for proposed Survey Area. The SMA is existing threats to the non-ESA-listed the NARW under the ESA: The Gulf of active from November 1 through April and ESA-listed marine mammals that Maine/Georges Bank region, and the 30 of each year. are both common in the waters of the southeast calving grounds from North The western North Atlantic outer continental shelf (OCS) of Carolina to Florida. population demonstrated overall growth Southern New England, and have the In the late fall months (e.g., October), of 2.8 percent per year between 1990 to likelihood of occurring, at least right whales are generally thought to 2010, despite a decline in 1993 and no seasonally, in the Survey Area. These depart from the feeding grounds in the growth between 1997 and 2000 (Pace et species include the North Atlantic right, North Atlantic and move south to their al., 2017). However, since 2010 the humpback, fin, sei, minke, sperm, and calving grounds off Georgia and Florida. population has been in decline, with a long-finned pilot whale, bottlenose, However, recent research indicates our 99.99 percent probability of a decline of common, Atlantic white-sided, Atlantic understanding of their movement just under 1 percent per year (Pace et spotted, and Risso’s dolphins, harbor patterns remains incomplete (Davis et al., 2017). Between 1990 and 2015, porpoise, and gray and harbor seals. al., 2017). A review of passive acoustic calving rates varied substantially, with Although the potential for interactions monitoring data from 2004 to 2014 low calving rates coinciding with all with long-finned pilot whales and throughout the western North Atlantic three periods of decline or no growth Atlantic spotted and Risso’s dolphins is demonstrated nearly continuous year- (Pace et al., 2017). On average, North minimal, small numbers of these species round right whale presence across their Atlantic right whale calving rates are may transit the Survey Area and are entire habitat range, including in estimated to be roughly half that of included in this analysis. locations previously thought of as southern right whales (Eubalaena Cetaceans migratory corridors, suggesting that not australis) (Pace et al., 2017), which are all of the population undergoes a increasing in abundance (NMFS’ SAR North Atlantic Right Whale consistent annual migration (Davis et 2015). In 2018, no new North Atlantic The North Atlantic right whale ranges al., 2017). North Atlantic right whales right whale calves were documented in from calving grounds in the are expected to be present in the their calving grounds; this represented southeastern United States to feeding proposed survey area during the the first time since annual NOAA aerial grounds in New England waters and proposed survey, especially summer surveys began in 1989 that no new right into Canadian waters (Waring et al., months, with numbers possibly lower in whale calves were observed. Data 2017). Right whales have been observed the fall. The proposed survey area is indicated that the number of adult in or near southern New England during part of a Biologically Important Area females fell from 200 in 2010 to 186 in all four seasons; however, they are most (BIA) for North Atlantic right whales; 2015, while the number of males fell common in the spring when they are this important migratory area is from 283 to 272 in the same time frame migrating north and in the fall during comprised of the waters of the (Pace et al., 2017). In addition, elevated their southbound migration (Kenney continental shelf offshore the East Coast North Atlantic right whale mortalities and Vigness-Raposa 2009). Surveys have of the United States and extends from have occurred since June 7, 2017 along demonstrated the existence of seven Florida through Massachusetts. A map the U.S. and Canadian coast. As of July areas where North Atlantic right whales showing designated BIAs is available at: 2020, a total of 31 confirmed dead congregate seasonally: The coastal https://cetsound.noaa.gov/biologically- stranded whales (21 in Canada; 10 in waters of the southeastern U.S., the important-area-map. the United States) have been Great South Channel, Jordan Basin, NMFS’ regulations at 50 CFR part documented. This event has been Georges Basin along the northeastern 224.105 designated nearshore waters of declared an Unusual Mortality Event

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(UME), with human interactions, from April to June. Calves were Sei Whale including entanglement in fixed fishing observed 10 times and feeding was The Nova Scotia stock of sei whales gear and vessel strikes, implicated in at observed 10 times during the Kraus et can be found in deeper waters of the least 16 of the mortalities thus far. More al. study (2016). That study also continental shelf edge waters of the information is available online at: observed one instance of courtship northeastern U.S. and northeastward to www.fisheries.noaa.gov/national/ behavior. Although humpback whales south of Newfoundland. The southern marine-life-distress/2017-2019-north- were rarely seen during fall and winter portion of the stock’s range during atlantic-right-whale-unusual-mortality- surveys, acoustic data indicate that this spring and summer includes the Gulf of event. species may be present within the MA Maine and Georges Bank. Spring is the Humpback Whale WEA year-round, with the highest rates period of greatest abundance in U.S. of acoustic detections in the winter and Humpback whales are found waters, with sightings concentrated spring (Kraus et al., 2016). Other along the eastern margin of Georges worldwide in all oceans. Humpback sightings of note include 46 sightings of whales were listed as endangered under Bank and into the Northeast Channel humpback whales in the New York-New area, and along the southwestern edge of the Endangered Species Conservation Jersey Harbor Estuary documented Act (ESCA) in June 1970. In 1973, the Georges Bank in the area of between 2011–2016 (Brown et al., Hydrographer Canyon (Waring et al., ESA replaced the ESCA, and 2017). humpbacks continued to be listed as 2015). Sei whales occur in shallower Since January 2016, elevated endangered. On September 8, 2016, waters to feed. The main threats to this humpback whale mortalities have NMFS divided the species into 14 stock are interactions with fisheries and occurred along the Atlantic coast from distinct population segments (DPS), vessel collisions. Maine to Florida. The event has been removed the current species-level declared a UME. As of July 2020, partial Minke Whale listing, and in its place listed four DPSs or full necropsy examinations have been as endangered and one DPS as Minke whales can be found in threatened (81 FR 62259; September 8, conducted on approximately half of the temperate, tropical, and high-latitude 2016). The remaining nine DPSs were 126 known cases. Of the whales waters. The Canadian East Coast stock not listed. The West Indies DPS, which examined, about 50 percent had can be found in the area from the ° is not listed under the ESA, is the only evidence of human interaction, either western half of the Davis Strait (45 W) DPS of humpback whale that is ship strike or entanglement. While a to the Gulf of Mexico (Waring et al., expected to occur in the Survey Area. portion of the whales have shown 2016). This species generally occupies The best estimate of population evidence of pre-mortem vessel strike, waters less than 100 m deep on the abundance for the West Indies DPS is this finding is not consistent across all continental shelf. There appears to be a 12,312 individuals, as described in the whales examined and more research is strong seasonal component to minke NMFS Status Review of the Humpback needed. NOAA is consulting with whale distribution in the survey areas, Whale under the Endangered Species researchers that are conducting studies in which spring to fall are times of Act (Bettridge et al., 2015). on the humpback whale populations, relatively widespread and common In New England waters, feeding is the and these efforts may provide occurrence while during winter the principal activity of humpback whales, information on changes in whale species appears to be largely absent and their distribution in this region has distribution and habitat use that could (Waring et al., 2016). been largely correlated to abundance of provide additional insight into how Since January 2017, elevated minke prey species, although behavior and these vessel interactions occurred. whale mortalities have occurred along bathymetry are factors influencing Three previous UMEs involving the Atlantic coast from Maine through foraging strategy (Payne et al., 1986, humpback whales have occurred since South Carolina. This event has been 1990). Humpback whales are frequently 2000 (in 2003, 2005, and 2006). More declared a UME. As of July 2020, partial piscivorous when in New England information is available at: or full necropsy examinations have been waters, feeding on Herring (Clupea www.fisheries.noaa.gov/national/ conducted on approximately 60 percent harengus), sand lance (Ammodytes marine-life-distress/2016-2019- of the 92 known cases. Preliminary spp.), and other small fishes, as well as humpback-whale-unusual-mortality- findings in several of the whales have euphausiids in the northern Gulf of event-along-atlantic-coast. A BIA for shown evidence of human interactions Maine (Paquet et al., 1997). During humpback whales for feeding has been or infectious disease, but these findings winter, the majority of humpback designated northeast of the lease areas are not consistent across all the whales whales from the North Atlantic feeding from March through December examined, so more research is needed. area (including the Gulf of Maine) mate (LeBreque et al., 2015). More information is available at: and calve in the West Indies, where Fin Whale www.fisheries.noaa.gov/national/ spatial and genetic mixing among marine-life-distress/2017-2019-minke- feeding groups occurs, though Fin whales are common in waters of whale-unusual-mortality-event-along- significant numbers of animals are the U.S. Atlantic Exclusive Economic atlantic-coast. found in mid- and high-latitude regions Zone (EEZ), principally from Cape Sperm Whale at this time and some individuals have Hatteras northward (Waring et al., been sighted repeatedly within the same 2016). Fin whales are present north of The distribution of the sperm whale winter season, indicating that not all 35-degree latitude in every season and in the U.S. EEZ occurs on the humpback whales migrate south every are broadly distributed throughout the continental shelf edge, over the winter (Waring et al., 2017). western North Atlantic for most of the continental slope, and into mid-ocean Kraus et al. (2016) observed year (Waring et al., 2016). They are regions (Waring et al., 2014). The basic humpbacks in the RI/MA & MA Wind typically found in small groups of up to social unit of the sperm whale appears Energy Areas (WEAs) and surrounding five individuals (Brueggeman et al., to be the mixed school of adult females areas during all seasons. Humpback 1987). The main threats to fin whales plus their calves and some juveniles of whales were observed most often during are fishery interactions and vessel both sexes, normally numbering 20–40 spring and summer months, with a peak collisions (Waring et al., 2016). animals in all. There is evidence that

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some social bonds persist for many Atlantic Spotted Dolphin region, generally in waters less than 150 years (Christal et al., 1998). This species Atlantic spotted dolphins are found in m deep (Waring et al., 2016). They are forms stable social groups, site fidelity, tropical and warm temperate waters seen from the coastline to deep waters ≤ and latitudinal range limitations in ranging from southern New England ( 1800 m; Westgate and Read 1998), groups of females and juveniles south to Gulf of Mexico and the although the majority of the population (Whitehead, 2002). In summer, the Caribbean to Venezuela (Waring et al., is found over the continental shelf distribution of sperm whales includes 2014). This stock regularly occurs in (Waring et al., 2016). The main threat to the area east and north of Georges Bank continental shelf waters south of Cape the species is interactions with fisheries, and into the Northeast Channel region, Hatteras and in continental shelf edge with documented take in the U.S. as well as the continental shelf (inshore and continental slope waters north of northeast sink gillnet, mid-Atlantic of the 100 m isobath) south of New this region (Waring et al., 2014). There gillnet, and northeast bottom trawl England. In the fall, sperm whale are two forms of this species, with the fisheries and in the Canadian herring occurrence south of New England on the larger ecotype inhabiting the continental weir fisheries (Waring et al., 2016). continental shelf is at its highest level, shelf, usually found inside or near the Pinnipeds and there remains a continental shelf 200 m isobaths (Waring et al., 2014). Harbor Seal edge occurrence in the mid-Atlantic Common Dolphin bight. In winter, sperm whales are The harbor seal is found in all The common dolphin is found world- concentrated east and northeast of Cape nearshore waters of the North Atlantic wide in temperate to subtropical seas. In Hatteras. and North Pacific Oceans and adjoining the North Atlantic, common dolphins seas above about 30° N (Burns, 2009). In Long-Finned Pilot Whale are commonly found over the the western North Atlantic, harbor seals continental shelf between the 100 m and are distributed from the eastern Long-finned pilot whales are found 2,000 m isobaths and over prominent Canadian Arctic and Greenland south to from North Carolina north to Iceland, underwater topography and east to the southern New England and New York, Greenland, and the Barents Sea (Waring mid-Atlantic Ridge (Waring et al., 2016). and occasionally to the Carolinas et al., 2016). In U.S. Atlantic waters, the Bottlenose Dolphin (Waring et al., 2016). Haulout and species is distributed principally along pupping sites are located off Manomet, the continental shelf edge off the There are two distinct bottlenose dolphin morphotypes in the western MA and the Isles of Shoals, ME, but northeastern U.S. coast in winter and generally do not occur in areas in early spring and in late spring, pilot North Atlantic: The coastal and offshore forms (Waring et al., 2016). The southern New England (Waring et al., whales move onto Georges Bank and 2016). into the Gulf of Maine and more migratory coastal morphotype resides in waters typically less than 20 m deep, Since July 2018, elevated numbers of northern waters and remain in these along the inner continental shelf (within harbor seal and gray seal mortalities areas through late autumn (Waring et 7.5 km (4.6 miles) of shore), around have occurred across Maine, New al., 2016). islands, and is continuously distributed Hampshire, and Massachusetts. This event has been declared a UME. Atlantic White-Sided Dolphin south of Long Island, New York into the Gulf of Mexico. This migratory coastal Additionally, stranded seals have White-sided dolphins are found in population is subdivided into 7 stocks shown clinical signs as far south as temperate and sub-polar waters of the based largely upon spatial distribution Virginia, although not in elevated North Atlantic, primarily in continental (Waring et al., 2015). Of these 7 coastal numbers; therefore, the UME shelf waters to the 100-m depth contour stocks, the Western North Atlantic investigation now encompasses all seal from central West Greenland to North Migratory Coastal Stock is common in strandings from Maine to Virginia. Carolina (Waring et al., 2016). The Gulf the coastal continental shelf waters off Lastly, ice seals (harp and hooded seals) of Maine stock is most common in the coastal of New Jersey (Waring et al., have also started stranding with clinical continental shelf waters from Hudson 2017). Generally, the offshore migratory signs, again not in elevated numbers, Canyon to Georges Bank, and in the Gulf morphotype is found exclusively and those two seal species have also been added to the UME investigation. of Maine and lower Bay of Fundy. seaward of 34 km (21 miles) and in As of March 2020, a total of 3,152 Sighting data indicate seasonal shifts in waters deeper than 34 m (111.5 feet). reported strandings (of all species) had distribution (Northridge et al., 1997). This morphotype is primarily expected occurred. Full or partial necropsy During January to May, low numbers of in waters north of Long Island, New York (Waring et al., 2017; Hayes et al., examinations have been conducted on white-sided dolphins are found from some of the seals and samples have been Georges Bank to Jeffreys Ledge (off New 2017; 2018). The offshore form is distributed primarily along the outer collected for testing. Based on tests Hampshire), with even lower numbers continental shelf and continental slope conducted thus far, the main pathogen south of Georges Bank, as documented in the Northwest Atlantic Ocean from found in the seals is phocine distemper by a few strandings on beaches of Georges Bank to the Florida Keys and is virus. NMFS is performing additional Virginia to South Carolina. From June the only type that may be present in the testing to identify any other factors that through September, large numbers of survey area as the survey area is north may be involved in this UME. white-sided dolphins are found from of the northern extent of the Western Information on this UME is available Georges Bank to the lower Bay of North Atlantic Migratory Coastal Stock. online at: www.fisheries.noaa.gov/new- Fundy. From October to December, england-mid-atlantic/marine-life- white-sided dolphins occur at Harbor Porpoise distress/2018-2019-pinniped-unusual- intermediate densities from southern In the Lease Area, only the Gulf of mortality-event-along. Georges Bank to southern Gulf of Maine Maine/Bay of Fundy stock may be (Payne and Heinemann 1990). Sightings present. This stock is found in U.S. and Gray Seal south of Georges Bank, particularly Canadian Atlantic waters and is There are three major populations of around Hudson Canyon, occur year- concentrated in the northern Gulf of gray seals found in the world: eastern round, but at low densities. Maine and southern Bay of Fundy Canada (western North Atlantic stock),

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northwestern Europe and the Baltic Sea. Southall et al. (2007) retained. The content of this section, the Estimated Gray seals in the survey area belong to functional groups and the associated Take section, and the Proposed the western North Atlantic stock. The frequencies are indicated below (note Mitigation section, to draw conclusions range for this stock is thought to be from that these frequency ranges correspond regarding the likely impacts of these New Jersey to Labrador. Current to the range for the composite group, activities on the reproductive success or population trends show that gray seal with the entire range not necessarily survivorship of individuals and how abundance is likely increasing in the reflecting the capabilities of every those impacts on individuals are likely U.S. Atlantic EEZ (Waring et al., 2016). species within that group): to impact marine mammal species or Although the rate of increase is • Low-frequency cetaceans stocks. unknown, surveys conducted since their (mysticetes): Generalized hearing is Background on Sound arrival in the 1980s indicate a steady estimated to occur between increase in abundance in both Maine approximately 7 Hertz (Hz) and 35 kHz; Sound is a physical phenomenon and Massachusetts (Waring et al., 2016). • Mid-frequency cetaceans (larger consisting of minute vibrations that It is believed that recolonization by toothed whales, beaked whales, and travel through a medium, such as air or Canadian gray seals is the source of the most delphinids): Generalized hearing is water, and is generally characterized by U.S. population (Waring et al., 2016). estimated to occur between several variables. Frequency describes As described above, elevated seal approximately 150 Hz and 160 kHz; the sound’s pitch and is measured in Hz mortalities, including gray seals, have • High-frequency cetaceans or kHz, while sound level describes the occurred from Maine to Virginia since (porpoises, river dolphins, and members sound’s intensity and is measured in July 2018. This event has been declared of the genera Kogia and dB. Sound level increases or decreases a UME, with phocine distemper virus Cephalorhynchus; including two exponentially with each dB of change. identified as the main pathogen found members of the genus Lagenorhynchus, The logarithmic nature of the scale in the seals. NMFS is performing on the basis of recent echolocation data means that each 10-dB increase is a 10- additional testing to identify any other and genetic data): Generalized hearing fold increase in acoustic power (and a factors that may be involved in this is estimated to occur between 20-dB increase is then a 100-fold UME. Information on this UME is approximately 275 Hz and 160 kHz; and increase in power). A 10-fold increase in available online at: • Pinnipeds in water; Phocidae (true acoustic power does not mean that the www.fisheries.noaa.gov/new-england- seals): Generalized hearing is estimated sound is perceived as being 10 times mid-atlantic/marine-life-distress/2018- to occur between approximately 50 Hz louder, however. Sound levels are 2019-pinniped-unusual-mortality-event- to 86 kHz. compared to a reference sound pressure along. The pinniped functional hearing (micro-Pascal) to identify the medium. group was modified from Southall et al. For air and water, these reference Marine Mammal Hearing (2007) on the basis of data indicating pressures are ‘‘re: 20 micro Pascals Hearing is the most important sensory that phocid species have consistently (mPa)’’ and ‘‘re: 1 mPa,’’ respectively. modality for marine mammals demonstrated an extended frequency Root mean square (RMS) is the underwater, and exposure to range of hearing compared to otariids, quadratic mean sound pressure over the anthropogenic sound can have especially in the higher frequency range duration of an impulse. RMS is deleterious effects. To appropriately (Kastelein et al., 2009; Reichmuth and calculated by squaring all the sound assess the potential effects of exposure Holt, 2013). amplitudes, averaging the squares, and to sound, it is necessary to understand For more detail concerning these then taking the square root of the the frequency ranges marine mammals groups and associated frequency ranges, average (Urick 1975). RMS accounts for are able to hear. Current data indicate please see NMFS Technical Guidance both positive and negative values; that not all marine mammal species (2018) for a review of available squaring the pressures makes all values have equal hearing capabilities (e.g., information. Fifteen marine mammal positive so that they may be accounted Richardson et al., 1995; Wartzok and species (thirteen cetacean and two for in the summation of pressure levels. Ketten, 1999; Au and Hastings, 2008). pinnipeds (both phocid) species) have This measurement is often used in the To reflect this, Southall et al. (2007) the reasonable potential to co-occur context of discussing behavioral effects, recommended that marine mammals be with the proposed survey activities (see in part because behavioral effects, divided into functional hearing groups Table 3). Of the cetacean species that which often result from auditory cues, based on directly measured or estimated may be present, five are classified as may be better expressed through hearing ranges on the basis of available low-frequency cetaceans (i.e., all averaged units rather than by peak behavioral response data, audiograms mysticete species), seven are classified pressures. derived using auditory evoked potential as mid-frequency cetaceans (i.e., all When sound travels (propagates) from techniques, anatomical modeling, and delphinid species and the sperm whale), its source, its loudness decreases as the other data. Note that no direct and one is classified as a high-frequency distance traveled by the sound measurements of hearing ability have cetacean (i.e., harbor porpoise). increases. Thus, the loudness of a sound been successfully completed for at its source is higher than the loudness mysticetes (i.e., low-frequency Potential Effects of Specified Activities of that same sound one km away. cetaceans). Subsequently, NMFS (2018) on Marine Mammals and Their Habitat Acousticians often refer to the loudness described generalized hearing ranges for This section includes a summary and of a sound at its source (typically these marine mammal hearing groups. discussion of the ways that components referenced to one meter from the source) Generalized hearing ranges were chosen of the specified activity may impact as the source level and the loudness of based on the approximately 65 decibel marine mammals and their habitat. The sound elsewhere as the received level (dB) threshold from the normalized Estimated Take section later in this (i.e., typically the receiver). For composite audiograms, with the document includes a quantitative example, a humpback whale 3 km from exception for lower limits for low- analysis of the number of individuals a device that has a source level of 230 frequency cetaceans where the lower that are expected to be taken by this dB may only be exposed to sound that bound was deemed to be biologically activity. The Negligible Impact Analysis is 160 dB loud, depending on how the implausible and the lower bound from and Determination section considers the sound travels through water (e.g.,

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spherical spreading (6 dB reduction between the animal and the source, and conspecifics and in interpretation of with doubling of distance) was used in (4) the level of the sound relative to environmental cues for purposes such this example). As a result, it is ambient conditions (Southall et al., as predator avoidance and prey capture. important to understand the difference 2007). Depending on the degree (elevation of between source levels and received When considering the influence of threshold in dB), duration (i.e., recovery levels when discussing the loudness of various kinds of sound on the marine time), and frequency range of TTS and sound in the ocean or its impacts on the environment, it is necessary to the context in which it is experienced, marine environment. understand that different kinds of TTS can have effects on marine As sound travels from a source, its marine life are sensitive to different mammals ranging from discountable to propagation in water is influenced by frequencies of sound. Current data serious. For example, a marine mammal various physical characteristics, indicate that not all marine mammal may be able to readily compensate for including water temperature, depth, species have equal hearing capabilities a brief, relatively small amount of TTS salinity, and surface and bottom (Richardson et al., 1995; Wartzok and in a non-critical frequency range that properties that cause refraction, Ketten, 1999; Au and Hastings, 2008). takes place during a time when the reflection, absorption, and scattering of Animals are less sensitive to sounds at animal is traveling through the open sound waves. Oceans are not the outer edges of their functional ocean, where ambient noise is lower homogeneous and the contribution of hearing range and are more sensitive to and there are not as many competing each of these individual factors is a range of frequencies within the middle sounds present. Alternatively, a larger extremely complex and interrelated. of their functional hearing range. amount and longer duration of TTS The physical characteristics that Hearing Impairment sustained during a time when determine the sound’s speed through communication is critical for successful the water will change with depth, Marine mammals may experience mother/calf interactions could have temporary or permanent hearing season, geographic location, and with more serious impacts if it were in the impairment when exposed to loud time of day (as a result, in actual active same frequency band as the necessary sounds. Hearing impairment is sonar operations, crews will measure vocalizations and of a severity that it classified by temporary threshold shift oceanic conditions, such as sea water impeded communication. The fact that (TTS) and permanent threshold shift temperature and depth, to calibrate animals exposed to levels and durations (PTS). PTS is considered auditory injury models that determine the path the of sound that would be expected to (Southall et al., 2007) and occurs in a sonar signal will take as it travels result in this physiological response specific frequency range and amount. through the ocean and how strong the would also be expected to have Irreparable damage to the inner or outer sound signal will be at a given range behavioral responses of a comparatively cochlear hair cells may cause PTS; along a particular transmission path). As more severe or sustained nature is also however, other mechanisms are also sound travels through the ocean, the notable and potentially of more involved, such as exceeding the elastic intensity associated with the wavefront importance than the simple existence of limits of certain tissues and membranes diminishes, or attenuates. This decrease a TTS. in intensity is referred to as propagation in the middle and inner ears and loss, also commonly called transmission resultant changes in the chemical Currently, TTS data only exist for four loss. composition of the inner ear fluids species of cetaceans (bottlenose (Southall et al., 2007). There are no dolphin, beluga whale (Delphinapterus Acoustic Impacts empirical data for onset of PTS in any leucas), harbor porpoise, and Yangtze Geophysical surveys may temporarily marine mammal; therefore, PTS-onset finless porpoise (Neophocaena impact marine mammals in the area due must be estimated from TTS-onset phocaenoides)) and three species of to elevated in-water sound levels. measurements and from the rate of TTS pinnipeds (northern elephant seal Marine mammals are continually growth with increasing exposure levels (Mirounga angustirostris), harbor seal, exposed to many sources of sound. above the level eliciting TTS-onset. PTS and California sea lion (Zalophus Naturally occurring sounds such as is presumed to be likely if the hearing californianus)) exposed to a limited lightning, rain, sub-sea earthquakes, and threshold is reduced by ≥40 dB (that is, number of sound sources (i.e., mostly biological sounds (e.g., snapping 40 dB of TTS). tones and octave-band noise) in shrimp, whale songs) are widespread laboratory settings (e.g., Finneran et al., throughout the world’s oceans. Marine Temporary Threshold Shift (TTS) 2002 and 2010; Nachtigall et al., 2004; mammals produce sounds in various TTS is the mildest form of hearing Kastak et al., 2005; Lucke et al., 2009; contexts and use sound for various impairment that can occur during Mooney et al., 2009a,b; Popov et al., biological functions including, but not exposure to a loud sound (Kryter 1985). 2011; Finneran and Schlundt, 2010). In limited to: (1) Social interactions, (2) While experiencing TTS, the hearing general, harbor seals (Kastak et al., 2005; foraging, (3) orientation, and (4) threshold rises, and a sound must be Kastelein et al., 2012a) and harbor predator detection. Interference with louder in order to be heard. At least in porpoises (Lucke et al., 2009; Kastelein producing or receiving these sounds terrestrial mammals, TTS can last from et al., 2012b) have a lower TTS onset may result in adverse impacts. Audible minutes or hours to (in cases of strong than other measured pinniped or distance, or received levels, of sound TTS) days, can be limited to a particular cetacean species. However, even for depends on the nature of the sound frequency range, and can occur to these animals, which are better able to source, ambient noise conditions, and varying degrees (i.e., a loss of a certain hear higher frequencies and may be the sensitivity of the receptor to the number of dBs of sensitivity). For sound more sensitive to higher frequencies, sound (Richardson et al., 1995). Type exposures at or somewhat above the exposures on the order of approximately and significance of marine mammal TTS threshold, hearing sensitivities in 170 dBrms or higher for brief transient reactions to sound are likely dependent both terrestrial and marine mammals signals are likely required for even on a variety of factors including, but not recover rapidly after exposure to the temporary (recoverable) changes in limited to: (1) The behavioral state of noise ends. hearing sensitivity that would likely not the animal (e.g., feeding, traveling, etc.), Marine mammal hearing plays a be categorized as physiologically (2) frequency of the sound, (3) distance critical role in communication with damaging (Lucke et al., 2009).

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Additionally, the existing marine area of exposure when a sub-bottom background noise that are similar in mammal TTS data come from a limited profiler emits a pulse is small—because frequency to the signal in question number of individuals within these if the animal was in the area, it would primarily determine the degree of species. There are no data available on have to pass the transducer at close masking of that signal. In general, little noise-induced hearing loss for range in order to be subjected to sound is known about the degree to which mysticetes. For summaries of data on levels that could cause TTS and would marine mammals rely upon detection of TTS in marine mammals or for further likely exhibit avoidance behavior to the sounds from conspecifics, predators, discussion of TTS onset thresholds, area near the transducer rather than prey, or other natural sources. In the please see Finneran (2015). swim through at such a close range. absence of specific information about Scientific literature highlights the Further, the restricted beam shape of the the importance of detecting these inherent complexity of predicting TTS majority of the geophysical survey natural sounds, it is not possible to onset in marine mammals, as well as the equipment planned for use (Table 2) predict the impact of masking on marine importance of considering exposure makes it unlikely that an animal would mammals (Richardson et al., 1995). In duration when assessing potential be exposed more than briefly during the general, masking effects are expected to impacts (Mooney et al., 2009a, 2009b; passage of the vessel. be less severe when sounds are transient Kastak et al., 2007). Generally, with Masking than when they are continuous. sound exposures of equal energy, Masking is typically of greater concern quieter sounds (lower sound pressure Masking is the obscuring of sounds of for those marine mammals that utilize levels (SPL)) of longer duration were interest to an animal by other sounds, low-frequency communications, such as found to induce TTS onset more than typically at similar frequencies. Marine baleen whales, because of how far low- louder sounds (higher SPL) of shorter mammals are highly dependent on frequency sounds propagate. sound, and their ability to recognize duration (more similar to sub-bottom Marine mammal communications sound signals amid other sound is profilers). For intermittent sounds, less would not likely be masked appreciably important in communication and threshold shift will occur than from a by the sub-bottom profiler signals given detection of both predators and prey continuous exposure with the same the directionality of the signals for most (Tyack 2000). Background ambient energy (some recovery will occur geophysical survey equipment types sound may interfere with or mask the between intermittent exposures) (Kryter planned for use (Table 2) and the brief ability of an animal to detect a sound et al., 1966; Ward 1997). For sound period when an individual mammal is signal even when that signal is above its exposures at or somewhat above the likely to be within its beam. TTS-onset threshold, hearing sensitivity absolute hearing threshold. Even in the recovers rapidly after exposure to the absence of anthropogenic sound, the Non-Auditory Physical Effects (Stress) sound ends; intermittent exposures marine environment is often loud. Classic stress responses begin when recover faster in comparison with Natural ambient sound includes an animal’s central nervous system continuous exposures of the same contributions from wind, waves, perceives a potential threat to its duration (Finneran et al., 2010). NMFS precipitation, other animals, and (at homeostasis. That perception triggers considers TTS as Level B harassment frequencies above 30 kHz) thermal stress responses regardless of whether a that is mediated by physiological effects sound resulting from molecular stimulus actually threatens the animal; on the auditory system. agitation (Richardson et al., 1995). Animals in the Survey Area during Background sound may also include the mere perception of a threat is the HRG survey are unlikely to incur anthropogenic sound, and masking of sufficient to trigger a stress response TTS hearing impairment due to the natural sounds can result when human (Moberg 2000; Seyle 1950). Once an characteristics of the sound sources, activities produce high levels of animal’s central nervous system which include relatively low source background sound. Conversely, if the perceives a threat, it mounts a biological levels (176 to 232 dB re 1 mPa-m) and background level of underwater sound response or defense that consists of a generally very short pulses and duration is high (e.g., on a day with strong wind combination of the four general of the sound. Even for high-frequency and high waves), an anthropogenic biological defense responses: behavioral cetacean species (e.g., harbor porpoises), sound source would not be detectable as responses, autonomic nervous system which may have increased sensitivity to far away as would be possible under responses, neuroendocrine responses, or TTS (Lucke et al., 2009; Kastelein et al., quieter conditions and would itself be immune responses. 2012b), individuals would have to make masked. Ambient sound is highly In the case of many stressors, an a very close approach and also remain variable on continental shelves animal’s first and sometimes most very close to vessels operating these (Myrberg 1978; Desharnais et al., 1999). economical (in terms of biotic costs) sources in order to receive multiple This results in a high degree of response is behavioral avoidance of the exposures at relatively high levels, as variability in the range at which marine potential stressor or avoidance of would be necessary to cause TTS. mammals can detect anthropogenic continued exposure to a stressor. An Intermittent exposures—as would occur sounds. animal’s second line of defense to due to the brief, transient signals Although masking is a phenomenon stressors involves the sympathetic part produced by these sources—require a which may occur naturally, the of the autonomic nervous system and higher cumulative SEL to induce TTS introduction of loud anthropogenic the classical ‘‘fight or flight’’ response than would continuous exposures of the sounds into the marine environment at which includes the cardiovascular same duration (i.e., intermittent frequencies important to marine system, the gastrointestinal system, the exposure results in lower levels of TTS) mammals increases the severity and exocrine glands, and the adrenal (Mooney et al., 2009a; Finneran et al., frequency of occurrence of masking. For medulla to produce changes in heart 2010). Moreover, most marine mammals example, if a baleen whale is exposed to rate, blood pressure, and gastrointestinal would more likely avoid a loud sound continuous low-frequency sound from activity that humans commonly source rather than swim in such close an industrial source, this would reduce associate with ‘‘stress.’’ These responses proximity as to result in TTS. Kremser the size of the area around that whale have a relatively short duration and may et al. (2005) noted that the probability within which it can hear the calls of or may not have significant long-term of a cetacean swimming through the another whale. The components of effect on an animal’s welfare.

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An animal’s third line of defense to Holberton et al., 1996; Hood et al., 1998; (NRC 2003). More importantly, marine stressors involves its neuroendocrine Jessop et al., 2003; Krausman et al., mammals might experience stress systems; the system that has received 2004; Lankford et al., 2005; Reneerkens responses at received levels lower than the most study has been the et al., 2002; Thompson and Hamer, those necessary to trigger onset TTS. hypothalamus-pituitary-adrenal system 2000). Information has also been Based on empirical studies of the time (also known as the HPA axis in collected on the physiological responses required to recover from stress mammals). Unlike stress responses of marine mammals to exposure to responses (Moberg 2000), we also associated with the autonomic nervous anthropogenic sounds (Fair and Becker assume that stress responses are likely system, virtually all neuro-endocrine 2000; Romano et al., 2004). For to persist beyond the time interval functions that are affected by stress— example, Rolland et al. (2012) found required for animals to recover from including immune competence, that noise reduction from reduced ship TTS and might result in pathological reproduction, metabolism, and traffic in the Bay of Fundy was and pre-pathological states that would behavior—are regulated by pituitary associated with decreased stress in be as significant as behavioral responses hormones. Stress-induced changes in North Atlantic right whales. to TTS. the secretion of pituitary hormones have Studies of other marine animals and In general, there are few data on the been implicated in failed reproduction terrestrial animals would also lead us to potential for strong, anthropogenic (Moberg 1987; Rivier 1995), reduced expect some marine mammals to underwater sounds to cause non- immune competence (Blecha 2000), and experience physiological stress auditory physical effects in marine behavioral disturbance. Increases in the responses and, perhaps, physiological mammals. The available data do not circulation of glucocorticosteroids responses that would be classified as allow identification of a specific (cortisol, corticosterone, and ‘‘distress’’ upon exposure to high exposure level above which non- aldosterone in marine mammals; see frequency, mid-frequency, and low- auditory effects can be expected Romano et al., 2004) have been long frequency sounds. For example, Jansen (Southall et al., 2007). There is currently been equated with stress. (1998) reported on the relationship no definitive evidence that any of these The primary distinction between between acoustic exposures and effects occur even for marine mammals stress (which is adaptive and does not physiological responses that are in close proximity to an anthropogenic normally place an animal at risk) and indicative of stress responses in humans sound source. In addition, marine distress is the biotic cost of the (e.g., elevated respiration and increased mammals that show behavioral response. During a stress response, an heart rates). Jones (1998) reported on avoidance of survey vessels and related animal uses glycogen stores that can be reductions in human performance when sound sources are unlikely to incur non- quickly replenished once the stress is faced with acute, repetitive exposures to auditory impairment or other physical alleviated. In such circumstances, the acoustic disturbance. Trimper et al. effects. NMFS does not expect that the cost of the stress response would not (1998) reported on the physiological generally short-term, intermittent, and pose a risk to the animal’s welfare. stress responses of osprey to low-level transitory HRG and geotechnical However, when an animal does not have aircraft noise while Krausman et al. activities would create conditions of sufficient energy reserves to satisfy the (2004) reported on the auditory and long-term, continuous noise and chronic energetic costs of a stress response, physiology stress responses of acoustic exposure leading to long-term energy resources must be diverted from endangered Sonoran pronghorn to physiological stress responses in marine other biotic function, which impairs military overflights. Smith et al. (2004a, mammals. those functions that experience the 2004b), for example, identified noise- Behavioral Disturbance diversion. For example, when mounting induced physiological transient stress a stress response diverts energy away responses in hearing-specialist fish (i.e., Behavioral disturbance may include a from growth in young animals, those goldfish) that accompanied short- and variety of effects, including subtle animals may experience stunted growth. long-term hearing losses. Welch and changes in behavior (e.g., minor or brief When mounting a stress response Welch (1970) reported physiological avoidance of an area or changes in diverts energy from a fetus, an animal’s and behavioral stress responses that vocalizations), more conspicuous reproductive success and its fitness will accompanied damage to the inner ears changes in similar behavioral activities, suffer. In these cases, the animals will of fish and several mammals. and more sustained and/or potentially have entered a pre-pathological or Hearing is one of the primary senses severe reactions, such as displacement pathological state which is called marine mammals use to gather from or abandonment of high-quality ‘‘distress’’ (Seyle 1950) or ‘‘allostatic information about their environment habitat. Behavioral responses to sound loading’’ (McEwen and Wingfield 2003). and to communicate with conspecifics. are highly variable and context-specific This pathological state will last until the Although empirical information on the and any reactions depend on numerous animal replenishes its biotic reserves relationship between sensory intrinsic and extrinsic factors (e.g., sufficient to restore normal function. impairment (TTS, PTS, and acoustic species, state of maturity, experience, Note that these examples involved a masking) on marine mammals remains current activity, reproductive state, long-term (days or weeks) stress limited, it seems reasonable to assume auditory sensitivity, time of day), as response exposure to stimuli. that reducing an animal’s ability to well as the interplay between factors Relationships between these gather information about its (e.g., Richardson et al., 1995; Wartzok et physiological mechanisms, animal environment and to communicate with al., 2003; Southall et al., 2007; Weilgart behavior, and the costs of stress other members of its species would be 2007; Archer et al., 2010). Behavioral responses have also been documented stressful for animals that use hearing as reactions can vary not only among fairly well through controlled their primary sensory mechanism. individuals but also within an experiments; because this physiology Therefore, we assume that acoustic individual, depending on previous exists in every vertebrate that has been exposures sufficient to trigger onset PTS experience with a sound source, studied, it is not surprising that stress or TTS would be accompanied by context, and numerous other factors responses and their costs have been physiological stress responses because (Ellison et al., 2012), and can vary documented in both laboratory and free- terrestrial animals exhibit those depending on characteristics associated living animals (for examples see, responses under similar conditions with the sound source (e.g., whether it

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is moving or stationary, number of foraging behavior, effects to breathing, click production, calling, and singing. sources, distance from the source). interference with or alteration of Changes in vocalization behavior in Please see Appendices B–C of Southall vocalization, avoidance, and flight. response to anthropogenic noise can et al. (2007) for a review of studies Changes in dive behavior can vary occur for any of these modes and may involving marine mammal behavioral widely and may consist of increased or result from a need to compete with an responses to sound. decreased dive times and surface increase in background noise or may Habituation can occur when an intervals as well as changes in the rates reflect increased vigilance or a startle animal’s response to a stimulus wanes of ascent and descent during a dive (e.g., response. For example, in the presence with repeated exposure, usually in the Frankel and Clark 2000; Costa et al., of potentially masking signals, absence of unpleasant associated events 2003; Ng and Leung 2003; Nowacek et humpback whales and killer whales (Wartzok et al., 2003). Animals are most al., 2004; Goldbogen et al., 2013a,b). have been observed to increase the likely to habituate to sounds that are Variations in dive behavior may reflect length of their vocalizations (Miller et predictable and unvarying. It is interruptions in biologically significant al., 2000; Fristrup et al., 2003; Foote et important to note that habituation is activities (e.g., foraging) or they may be al., 2004), while right whales have been appropriately considered as a of little biological significance. The observed to shift the frequency content ‘‘progressive reduction in response to impact of an alteration to dive behavior of their calls upward while reducing the stimuli that are perceived as neither resulting from an acoustic exposure rate of calling in areas of increased aversive nor beneficial,’’ rather than as, depends on what the animal is doing at anthropogenic noise (Parks et al., 2007). more generally, moderation in response the time of the exposure and the type In some cases, animals may cease sound to human disturbance (Bejder et al., and magnitude of the response. production during production of 2009). The opposite process is Disruption of feeding behavior can be aversive signals (Bowles et al., 1994). sensitization, when an unpleasant difficult to correlate with anthropogenic Avoidance is the displacement of an sound exposure, so it is usually inferred experience leads to subsequent individual from an area or migration by observed displacement from known responses, often in the form of path as a result of the presence of a foraging areas, the appearance of avoidance, at a lower level of exposure. sound or other stressor and is one of the secondary indicators (e.g., bubble nets As noted, behavioral state may affect the most obvious manifestations of or sediment plumes), or changes in dive type of response. For example, animals disturbance in marine mammals behavior. As for other types of that are resting may show greater (Richardson et al., 1995). For example, behavioral response, the frequency, behavioral change in response to gray whales are known to change disturbing sound levels than animals duration, and temporal pattern of signal direction—deflecting from customary that are highly motivated to remain in presentation, as well as differences in migratory paths—in order to avoid noise an area for feeding (Richardson et al., species sensitivity, are likely from seismic surveys (Malme et al., 1995; NRC 2003; Wartzok et al., 2003). contributing factors to differences in 1984). Avoidance may be short-term, Controlled experiments with captive response in any given circumstance with animals returning to the area once marine mammals have shown (e.g., Croll et al., 2001; Nowacek et al.; the noise has ceased (e.g., Bowles et al., pronounced behavioral reactions, 2004; Madsen et al., 2006; Yazvenko et 1994; Goold 1996; Stone et al., 2000; including avoidance of loud sound al., 2007). A determination of whether Morton and Symonds, 2002; Gailey et sources (Ridgway et al., 1997; Finneran foraging disruptions incur fitness al., 2007). Longer-term displacement is et al., 2003). Observed responses of wild consequences would require marine mammals to loud, pulsed sound information on or estimates of the possible, however, which may lead to sources (typically seismic airguns or energetic requirements of the affected changes in abundance or distribution acoustic harassment devices) have been individuals and the relationship patterns of the affected species in the varied but often consist of avoidance between prey availability, foraging effort affected region if habituation to the behavior or other behavioral changes and success, and the life history stage of presence of the sound does not occur suggesting discomfort (Morton and the animal. (e.g., Blackwell et al., 2004; Bejder et al., Symonds, 2002; see also Richardson et Variations in respiration naturally 2006; Teilmann et al., 2006). al., 1995; Nowacek et al., 2007). vary with different behaviors and A flight response is a dramatic change Available studies show wide variation alterations to breathing rate as a in normal movement to a directed and in response to underwater sound; function of acoustic exposure can be rapid movement away from the therefore, it is difficult to predict expected to co-occur with other perceived location of a sound source. specifically how any given sound in a behavioral reactions, such as a flight The flight response differs from other particular instance might affect marine response or an alteration in diving. avoidance responses in the intensity of mammals perceiving the signal. If a However, respiration rates in and of the response (e.g., directed movement, marine mammal does react briefly to an themselves may be representative of rate of travel). Relatively little underwater sound by changing its annoyance or an acute stress response. information on flight responses of behavior or moving a small distance, the Various studies have shown that marine mammals to anthropogenic impacts of the change are unlikely to be respiration rates may either be signals exist, although observations of significant to the individual, let alone unaffected or could increase, depending flight responses to the presence of the stock or population. However, if a on the species and signal characteristics, predators have occurred (Connor and sound source displaces marine again highlighting the importance in Heithaus, 1996). The result of a flight mammals from an important feeding or understanding species differences in the response could range from brief, breeding area for a prolonged period, tolerance of underwater noise when temporary exertion and displacement impacts on individuals and populations determining the potential for impacts from the area where the signal provokes could be significant (e.g., Lusseau and resulting from anthropogenic sound flight to, in extreme cases, marine Bejder, 2007; Weilgart 2007; NRC 2005). exposure (e.g., Kastelein et al., 2001, mammal strandings (Evans and However, there are broad categories of 2005b, 2006; Gailey et al., 2007). England, 2001). However, it should be potential response, which we describe Marine mammals vocalize for noted that response to a perceived in greater detail here, that include different purposes and across multiple predator does not necessarily invoke alteration of dive behavior, alteration of modes, such as whistling, echolocation flight (Ford and Reeves, 2008) and

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whether individuals are solitary or in surveyed again, thereby reducing the sonars operating in this range may be groups may influence the response. likelihood of repeated HRG-related more easily audible and have potential Behavioral disturbance can also impacts within the survey area. effects over larger areas than low impact marine mammals in more subtle We have also considered the potential frequency systems that have more ways. Increased vigilance may result in for severe behavioral responses such as typically been considered in terms of costs related to diversion of focus and stranding and associated indirect injury anthropogenic noise impacts. It is, attention (i.e., when a response consists or mortality from ;rsted’s use of HRG however, important to note that the of increased vigilance, it may come at survey equipment, on the basis of a relatively lower output frequency, the cost of decreased attention to other 2008 mass stranding of approximately higher output power, and complex critical behaviors such as foraging or 100 melon-headed whales in a nature of the system implicated in this resting). These effects have generally not Madagascar lagoon system. An event, in context of the other factors been demonstrated for marine investigation of the event indicated that noted here, likely produced a fairly mammals, but studies involving fish use of a high-frequency mapping system unusual set of circumstances that and terrestrial animals have shown that (12-kHz multibeam echosounder) was indicate that such events would likely increased vigilance may substantially the most plausible and likely initial remain rare and are not necessarily reduce feeding rates (e.g., Beauchamp behavioral trigger of the event, while relevant to use of lower-power, higher- and Livoreil 1997; Fritz et al., 2002; providing the caveat that there is no frequency systems more commonly used Purser and Radford 2011). In addition, unequivocal and easily identifiable for HRG survey applications. The risk of chronic disturbance can cause single cause (Southall et al., 2013). The similar events recurring may be very population declines through reduction investigatory panel’s conclusion was low, given the extensive use of active of fitness (e.g., decline in body based on: (1) Very close temporal and acoustic systems used for scientific and condition) and subsequent reduction in spatial association and directed navigational purposes worldwide on a reproductive success, survival, or both movement of the survey with the daily basis and the lack of direct (e.g., Harrington and Veitch, 1992; Daan stranding event. (2) the unusual nature evidence of such responses previously et al., 1996; Bradshaw et al., 1998). of such an event coupled with reported. However, Ridgway et al. (2006) reported previously documented apparent that increased vigilance in bottlenose Tolerance behavioral sensitivity of the species to dolphins exposed to sound over a five- Numerous studies have shown that other sound types (Southall et al., 2006; day period did not cause any sleep underwater sounds from industrial deprivation or stress effects. Brownell et al., 2009), and (3) the fact activities are often readily detectable by Many animals perform vital functions, that all other possible factors considered marine mammals in the water at such as feeding, resting, traveling, and were determined to be unlikely causes. distances of many km. However, other socializing, on a diel cycle (24-hour Specifically, regarding survey patterns studies have shown that marine cycle). Disruptions of such functions prior to the event and in relation to mammals at distances more than a few resulting from reactions to stressors bathymetry, the vessel transited in a km away often show no apparent such as sound exposure are more likely north-south direction on the shelf break response to industrial activities of to be significant if they last more than parallel to the shore, ensonifying large various types (Miller et al., 2005). This one diel cycle or recur on subsequent areas of deep-water habitat prior to is often true even in cases when the days (Southall et al., 2007). operating intermittently in a sounds must be readily audible to the Consequently, a behavioral response concentrated area offshore from the animals based on measured received lasting less than one day and not stranding site; this may have trapped levels and the hearing sensitivity of that recurring on subsequent days is not the animals between the sound source mammal group. Although various considered particularly severe unless it and the shore, thus driving them baleen whales, toothed whales, and (less could directly affect reproduction or towards the lagoon system. The frequently) pinnipeds have been shown survival (Southall et al., 2007). Note that investigatory panel systematically to react behaviorally to underwater there is a difference between multi-day excluded or deemed highly unlikely sound from sources such as airgun substantive behavioral reactions and nearly all other potential reasons for pulses or vessels under some multi-day anthropogenic activities. For these animals leaving their typical conditions, at other times, mammals of example, just because an activity lasts pelagic habitat for an area extremely all three types have shown no overt for multiple days does not necessarily atypical for the species (i.e., a shallow reactions (e.g., Malme et al., 1986; mean that individual animals are either lagoon system). Notably, this was the Richardson et al., 1995; Madsen and exposed to activity-related stressors for first time that such a system has been Mohl 2000; Croll et al., 2001; Jacobs and multiple days or, further, exposed in a associated with a stranding event. The Terhune 2002; Madsen et al., 2002; manner resulting in sustained multi-day panel also noted several site- and Miller et al., 2005). In general, substantive behavioral responses. situation-specific secondary factors that pinnipeds seem to be more tolerant of Marine mammals are likely to avoid may have contributed to the avoidance exposure to some types of underwater the HRG survey activity, especially the responses that led to the eventual sound than are baleen whales. naturally shy harbor porpoise, while entrapment and mortality of the whales. Richardson et al. (1995) found that harbor seals might be attracted to survey Specifically, shoreward-directed surface vessel sound does not seem to affect vessels out of curiosity. However, currents and elevated chlorophyll levels pinnipeds that are already in the water. because the sub-bottom profilers and in the area preceding the event may Richardson et al. (1995) went on to other HRG survey equipment operate have played a role (Southall et al., explain that seals on haul-outs from a moving vessel, and the maximum 2013). The report also notes that prior sometimes respond strongly to the radius to the Level B harassment use of a similar system in the general presence of vessels and at other times threshold is relatively small, the area area may have sensitized the animals appear to show considerable tolerance and time that this equipment would be and also concluded that, for odontocete of vessels, and Brueggeman et al. (1992) affecting a given location is very small. cetaceans that hear well in higher observed ringed seals (Pusa hispida) Further, once an area has been frequency ranges where ambient noise is hauled out on ice pans displaying short- surveyed, it is not likely that it will be typically quite low, high-power active term escape reactions when a ship

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approached within 0.16–0.31 miles Marine Mammal Habitat authorized. Below we describe how the (0.25–0.5 km). Due to the relatively high take is estimated. vessel traffic in the Survey Area it is The HRG survey equipment will not Generally speaking, we estimate take contact the seafloor and does not possible that marine mammals are by considering: (1) Acoustic thresholds represent a source of pollution. We are habituated to noise (e.g., DP thrusters) recommended by NMFS for use in not aware of any available literature on from vessels in the area. evaluating when marine mammals will impacts to marine mammal prey from be behaviorally harassed or incur some Vessel Strike sound produced by HRG survey degree of permanent hearing equipment. However, as the HRG survey impairment, (2) the area or volume of Ship strikes of marine mammals can equipment introduces noise to the water that will be ensonified above cause major wounds, which may lead to marine environment, there is the these levels in a day, (3) the density or the death of the animal. An animal at potential for it to result in avoidance of occurrence of marine mammals within the surface could be struck directly by the area around the HRG survey these ensonified area, and (4) and the a vessel, a surfacing animal could hit activities on the part of marine mammal number of days of activities. We note the bottom of a vessel, or a vessel’s prey. Any avoidance of the area on the that while these basic factors can propeller could injure an animal just part of marine mammal prey would be contribute to a basic calculation to below the surface. The severity of expected to be short term and provide an initial prediction of takes, injuries typically depends on the size temporary. additional information that can and speed of the vessel (Knowlton and Because of the temporary nature of qualitatively inform take estimates is Kraus 2001; Laist et al., 2001; the disturbance, and the availability of also sometimes available (e.g., previous Vanderlaan and Taggart 2007). similar habitat and resources (e.g., prey monitoring results or average group The most vulnerable marine mammals species) in the surrounding area, the size). Below, we describe the factors are those that spend extended periods of impacts to marine mammals and the considered here in more detail and time at the surface in order to restore food sources that they utilize are not present the proposed take estimate. oxygen levels within their tissues after expected to cause significant or long- Acoustic Thresholds deep dives (e.g., the sperm whale). In term consequences for individual addition, some baleen whales, such as marine mammals or their populations. NMFS recommends use of acoustic the North Atlantic right whale, seem Impacts on marine mammal habitat thresholds that identify the received generally unresponsive to vessel sound, from the proposed activities will be level of underwater sound above which making them more susceptible to vessel temporary, insignificant, and exposed marine mammals would be collisions (Nowacek et al., 2004). These discountable. reasonably expected to be behaviorally harassed (equated to Level B species are primarily large, slow moving Estimated Take whales. Smaller marine mammals (e.g., harassment) or to incur PTS of some degree (equated to Level A harassment). bottlenose dolphin) move quickly This section provides an estimate of Level B Harassment for non-explosive through the water column and are often the number of incidental takes proposed sources—Though significantly driven by for authorization through this IHA, seen riding the bow wave of large ships. received level, the onset of behavioral which will inform both NMFS’ Marine mammal responses to vessels disturbance from anthropogenic noise consideration of ‘‘small numbers’’ and may include avoidance and changes in exposure is also informed to varying the negligible impact determination. dive pattern (NRC 2003). degrees by other factors related to the An examination of all known ship Harassment is the only type of take source (e.g., frequency, predictability, strikes from all shipping sources expected to result from these activities. duty cycle), the environment (e.g., (civilian and military) indicates vessel Except with respect to certain activities bathymetry), and the receiving animals speed is a principal factor in whether a not pertinent here, section 3(18) of the (hearing, motivation, experience, vessel strike results in death (Knowlton MMPA defines ‘‘harassment’’ as any act demography, behavioral context) and and Kraus 2001; Laist et al., 2001; of pursuit, torment, or annoyance, can be difficult to predict (Southall et Jensen and Silber 2003; Vanderlaan and which (i) has the potential to injure a al., 2007, Ellison et al., 2012). Based on Taggart 2007). In assessing records with marine mammal or marine mammal what the available science indicates and known vessel speeds, Laist et al. (2001) stock in the wild (Level A harassment), the practical need to use a threshold found a direct relationship between the or (ii) has the potential to disturb a based on a factor that is both predictable occurrence of a whale strike and the marine mammal or marine mammal and measurable for most activities, speed of the vessel involved in the stock in the wild by causing disruption NMFS uses a generalized acoustic collision. The authors concluded that of behavioral patterns, including, but threshold based on received level to most deaths occurred when a vessel was not limited to, migration, breathing, estimate the onset of behavioral traveling in excess of 24.1 km/h (14.9 nursing, breeding, feeding, or sheltering harassment. NMFS predicts that marine mph; 13 kn). Given the slow vessel (Level B harassment). mammals are likely to be behaviorally speeds and predictable course necessary Authorized takes would be by Level B harassed in a manner we consider Level for data acquisition, ship strike is harassment only, in the form of B harassment when exposed to unlikely to occur during the geophysical disruption of behavioral patterns for underwater anthropogenic noise above surveys. Marine mammals would be individual marine mammals resulting received levels of 120 dB re 1 able to easily avoid the survey vessel from exposure to noise from certain microPascal root mean square (mPa rms) due to the slow vessel speed. Further, HRG sources. Based on the nature of the for continuous (e.g., vibratory driving, ;rsted would implement measures (e.g., activity and the anticipated drilling) and above 160 dB re 1 mPa protected species monitoring, vessel effectiveness of the mitigation measures (rms) for non-explosive impulsive (e.g., speed restrictions and separation (i.e., exclusion zones and shutdown seismic airguns) or intermittent sources distances; see Proposed Mitigation) set measures), discussed in detail below in (e.g., scientific sonar) sources. ;rsted’s forth in the BOEM lease to reduce the Proposed Mitigation section, Level A proposed activity includes the use of risk of a vessel strike to marine mammal harassment or and/or mortality is intermittent sources, therefore the 160 species in the survey area. neither anticipated nor proposed to be dB re 1 mPa (rms) threshold is

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applicable. Some of the sources planned five different marine mammal groups These thresholds are provided in for use (i.e., sparkers and boomers) are (based on hearing sensitivity) as a result Table 4 below. The references, analysis, also impulsive. of exposure to noise from two different and methodology used in the Level A harassment for non-explosive types of sources (impulsive or non- development of the thresholds are sources—NMFS’ Technical Guidance impulsive). As mentioned previously, described in NMFS 2018 Technical for Assessing the Effects of ;rsted’s proposed activity includes the Guidance, which may be accessed at: Anthropogenic Sound on Marine use of impulsive (e.g., sparkers and www.fisheries.noaa.gov/national/ Mammal Hearing (Version 2.0) (NMFS, boomers) and non-impulsive marine-mammal-protection/marine- 2018) identifies dual criteria to assess intermittent (e.g., CHIRP SBPs) sources. mammal-acoustic-technical-guidance. auditory injury (Level A harassment) to

TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * (received level) Hearing group Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6:LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impul- sive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds (LE) indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area NMFS considers the data provided by planned for use by ;rsted that has the Here, we describe operational and Crocker and Fratantonio (2016) to potential to result in Level B harassment environmental parameters of the activity represent the best available information of marine mammals, sound produced by that will feed into identifying the area on source levels associated with HRG the Applied Acoustics Dura-Spark UHD ensonified above the acoustic equipment and, therefore, recommends sparkers and GeoMarine Geo-Source thresholds, which include sources that source levels provided by Crocker sparker would propagate furthest to the levels and transmission loss coefficient. and Fratantonio (2016) be incorporated Level B harassment threshold (141 m; NMFS has developed a user-friendly in the method described above to Table 5). As described above, only a methodology for determining the rms estimate isopleth distances to the Level portion of ;rsted’s survey activity days sound pressure level (SPLrms) at the 160- A and Level B harassment thresholds. In will employ sparkers or boomers; dB isopleth for the purposes of cases when the source level for a therefore, for the purposes of the estimating the extent of Level B specific type of HRG equipment is not exposure analysis, it was assumed that provided in Crocker and Fratantonio harassment isopleths associated with sparkers would be the dominant (2016), NMFS recommends that either HRG survey equipment (NMFS, 2020). acoustic source for approximately 701 of the source levels provided by the This methodology incorporates the total 1,302 survey activity days. For frequency and some directionality to manufacturer be used, or, in instances the remaining 601 survey days, the TB refine estimated ensonified zones. where source levels provided by the ;rsted used NMFS’s methodology with manufacturer are unavailable or Chirp III (54 m; Table 5) was assumed additional modifications to incorporate unreliable, a proxy from Crocker and to be the dominant source. Thus, the a seawater absorption formula and Fratantonio (2016) be used instead. distances to the isopleths corresponding account for energy emitted outside of Table 2 shows the HRG equipment types to the threshold for Level B harassment the primary beam of the source. For that may be used during the proposed for sparkers (141 m) and the TB Chirp sources that operate with different beam surveys and the sound levels associated III (54 m) were used as the basis of the widths, the maximum beam width was with those HRG equipment types. take calculation for all marine mammals used (see Table 2). The lowest frequency Results of modeling using the for 54% and 46% of survey activity of the source was used when calculating methodology described above indicated days, respectively. the absorption coefficient (Table 2). that, of the HRG survey equipment

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TABLE 5—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLDS

Radial distance to level A harassment threshold Radial dis- (m) * tance to level B harassment threshold Sound source High fre- Phocid (m) Low frequency Mid frequency quency pinnipeds cetaceans cetaceans cetaceans (underwater) All marine mammals

ET 216 CHIRP ...... <1 <1 2.9 0 12 ET 424 CHIRP ...... 0 0 0 0 4 ET 512i CHIRP ...... 0 0 <1 0 6 GeoPulse 5430 ...... <1 <1 36.5 <1 29 TB CHIRP III ...... <1 <1 16.9 <1 54 Innomar Parametric SBPs ...... <1 <1 1.7 <1 4 AA Triple plate S-Boom (700/1,000 J) ...... <1 0 4.7 <1 76 AA, Dura-spark UHD (500 J/400 tip) ...... <1 0 2.8 <1 141 AA, Dura-spark UHD 400+400 ...... <1 0 2.8 <1 141 GeoMarine, Geo-Source dual 400 tip sparker ...... <1 0 2.8 <1 141 Pangeo Acoustic Corer (LF CHIRP) ...... <1 0 <1 <1 4 Pangeo Acoustic Corer (HF CHIRP) ...... <1 <1 <1 <1 4 USBL (all models) ...... 0 0 1.7 0 50 * AA = Applied Acoustics; CHIRP = Compressed High-Intensity Radiated Pulse; ET = EdgeTech; SBP = Sub-bottom Profiler; TB = Teledyne Benthos; UHD = Ultra-high Definition; USBL = Ultra-short Baseline. Distances to the Level A harassment threshold based on the larger of the dual criteria (peak SPL and SELcum) are shown.

Isopleth distances to Level A where the SELcum would not exceed the active HRG sources. In addition, harbor harassment thresholds for all types of 24-hour SELcum. porpoises are a notoriously shy species HRG equipment and all marine mammal Modeled distances to isopleths which is known to avoid vessels. Harbor functional hearing groups were modeled corresponding to the Level A porpoise would also be expected to using the NMFS User Spreadsheet and harassment threshold are very small avoid a sound source prior to that NMFS Technical Guidance (2018). The (<1 m) for three of the four marine source reaching a level that would result dual criteria (peak SPL and SELcum) mammal functional hearing groups that in injury (Level A harassment). were applied to all HRG sources using may be impacted by the proposed Therefore, we have determined that the the modeling methodology as described activities (i.e., low frequency and mid potential for take by Level A harassment above, and the isopleth distances for frequency cetaceans, and phocid of harbor porpoises is so low as to be each functional hearing group were then pinnipeds; see Table 5). Based on the discountable. As NMFS has determined carried forward in the exposure extremely small Level A harassment that the likelihood of take of any marine analysis. For the GeoMarine Geo-Source zones for these functional hearing mammals in the form of Level A dual 400 tip sparker, Applied Acoustics groups, the potential for species within harassment occurring as a result of the Triple plate S-Boom and Dura-Spark these functional hearing groups to be proposed surveys is so low as to be models, the peak SPL metric resulted in taken by Level A harassment is discountable, we therefore do not larger isopleth distances for the high considered so low as to be discountable. propose to authorize the take by Level frequency hearing group; for all other These three functional hearing groups A harassment of any marine mammals. HRG sources, the SELcum metric resulted encompass all but one of the marine For more information about Level A in larger isopleth distances. Distances to mammal species listed in Table 3 that harassment exposure estimation, please the Level A harassment threshold based may be impacted by the proposed see section 6.2.1 of the IHA application. on the larger of the dual criteria (peak activities. There is one species (harbor Marine Mammal Occurrence SPL and SELcum) are shown in Table 5. porpoise) within the high frequency Distances to the Level A harassment functional hearing group that may be In this section we provide the threshold for Innomar were calculated impacted by the proposed activities. information about the presence, density, using a Matlab-based numerical model. However, the largest modeled distance or group dynamics of marine mammals Cumulative sound exposure level from to the Level A harassment threshold for that will inform the take calculations. a moving source to an assumed the high frequency functional hearing The habitat-based density models stationary marine mammal was group was only 36.5 m (Table 5). As produced by the Duke University calculated based on the safe distance noted above, modeled distances to Marine Geospatial Ecology Laboratory method described in Sivle et al. (2015), isopleths corresponding to the Level A (Roberts et al., 2016a,b, 2017, 2018) with modifications to include harassment threshold are also assumed represent the best available information absorption loss and beamwidth. The to be conservative. Level A harassment regarding marine mammal densities in cumulative received level was then would also be more likely to occur at the proposed survey area. The density frequency weighted using the NMFS close approach to the sound source or data presented by Roberts et al. (2018) frequency weighting function for as a result of longer duration exposure (2016a,b, 2017, 2018) incorporates aerial each marine mammal functional hearing to the sound source, and mitigation and shipboard line-transect survey data group. Finally, the safe horizontal measures—including a 100 m exclusion from NMFS and other organizations and distance (i.e., isopleth distance to the zone for harbor porpoises—are expected incorporates data from 8 physiographic Level A harassment threshold) was to minimize the potential for close and 16 dynamic oceanographic and determined numerically at a point approach or longer duration exposure to biological covariates, and controls for

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the influence of sea state, group size, 2018) were mapped using a geographic For bottlenose dolphin densities, availability bias, and perception bias on information system (GIS). Density grid Roberts et al. (2016b 2017, 2018) does the probability of making a sighting. cells that included any portion of the not differentiate by stock. The Western These density models were originally proposed Survey Area were selected for North Atlantic northern migratory developed for all cetacean taxa in the all survey months. Densities for the coastal stock primarily occurs in coastal U.S. Atlantic (Roberts et al., 2016a,b). In recently split Lease Areas OCS–A 0486 waters from the shoreline to subsequent years, certain models have and OCS–A 0517 were combined, as the approximately the 20 m isobath (Hayes been updated based on additional data Lease Areas occupy the same habitat et al., 2018). As the Lease Area is as well as certain methodological and densities and, therefore, overlap. located north of the northern extent of improvements. More information is For each of the survey areas (i.e., OCS– the range of the Western North Atlantic available online at A 0486/0517, OCS–A 0487. OCS–A Migratory Coastal Stock and within seamap.env.duke.edu/models/Duke-EC- 0500, and ECR Area), the densities of depths exceeding 20 m, where only the GOM-2015/. Marine mammal density each species as reported by Roberts et offshore stock would be expected to estimates in the Survey Area (animals/ al. (2016b, 2017, 2018) were averaged by occur, all calculated bottlenose dolphin km2) were obtained using the most month; those values were then used to exposures within the Lease Area are recent model results for all taxa (Roberts calculate a mean annual density for expected to be from the offshore stock. et al., 2016b, 2017, 2018). The updated each species for each segment of the Similarly, Roberts et al. (2018) produced models incorporate additional sighting Survey Area. Estimated mean monthly density models for all seals but did not data, including sightings from the and annual densities (animals per km2) differentiate by seal species. Because the NOAA Atlantic Marine Assessment of all marine mammal species that may seasonality and habitat use by gray seals Program for Protected Species be taken by the proposed survey, for all roughly overlaps with that of harbor (AMAPPS) surveys from 2010–2014 survey areas, are shown in Tables 8, 9, seals in the survey areas, it was assumed (NEFSC & SEFSC, 2011, 2012, 2014a, 10, and 11 of the IHA application. The that the mean annual density of seals 2014b, 2015, 2016). mean annual density values used to could refer to either of the respective For the exposure analysis, density estimate take numbers are shown in species and was, therefore, divided data from Roberts et al. (2016b, 2017, Table 6 below. equally between the two species.

TABLE 6—MEAN ANNUAL MARINE MAMMAL DENSITIES (NUMBER OF ANIMALS PER 100 km2) IN THE SURVEY AREAS

OCS–A OCS–A OCS–A ECR Species 0486/0517 0487 0500 Area

North Atlantic right whale ...... 0.21 0.19 0.18 0.07 Humpback whale ...... 0.14 0.13 0.12 0.05 Fin whale ...... 0.21 0.26 0.27 0.15 Sei whale ...... 0.01 0.01 0.02 0.01 Minke whale ...... 0.05 0.06 0.07 0.04 Sperm Whale ...... 0.01 0.01 0.01 0.01 Pilot whale ...... 0.16 0.33 0.68 0.37 Bottlenose dolphin ...... 1.17 0.77 0.72 3.51 Common dolphin ...... 4.68 7.58 4.40 2.60 Atlantic white-sided dolphin ...... 1.46 2.55 3.86 1.98 Atlantic spotted dolphin ...... 0.01 0.02 0.05 0.05 Risso’s dolphin ...... 0.00 0.00 0.01 0.01 Harbor porpoise ...... 3.44 4.62 5.65 3.20 Gray seal ...... 0.73 0.70 0.65 1.59 Harbor seal ...... 0.73 0.70 0.65 1.59 Note: All density values derived from Roberts et al. (2016b, 2017, 2018). Densities shown represent the mean annual density values calculated.

Take Calculation and Estimation the HRG survey equipment and the B harassment was 141 m for the portion Here we describe how the information estimated trackline distance traveled per of survey days (54%) employing provided above is brought together to day by the survey vessel. The daily area sparkers and boomers and 54 m for the produce a quantitative take estimate. In is multiplied by the mean annual portion of survey days (46%) when only order to estimate the number of marine density of a given marine mammal non-impulsive sources will be used. mammals predicted to be exposed to species. This value is then multiplied by ;rsted estimates that the proposed sound levels that would result in the number of proposed vessel days. surveys will achieve a maximum daily harassment, radial distances to As noted previously, not all noise track line distance of 70 km per 24-hour predicted isopleths corresponding to producing survey equipment/sources day during the proposed HRG survey Level B harassment thresholds are will be operated concurrently by each activity days; this distance accounts for calculated, as described above. Those survey vessel on every vessel day. The the vessel traveling at approximately 4.0 distances are then used to calculate the greatest distance to the Level B kn, during active survey periods only. area(s) around the HRG survey harassment threshold for impulsive Estimates of incidental take by Level B equipment predicted to be ensonified to sources (sparkers or boomers) is 141 m, harassment for impulsive and non- sound levels that exceed harassment while the greatest distance to the Level impulsive HRG equipment were thresholds. The area estimated to be B harassment threshold for other calculated using the 141 m and 54 m ensonified to relevant thresholds in a intermittent sources (e.g., CHIRPs, Level B harassment isopleths, single day is then calculated, based on Innomar, USBL) is 54 m. Therefore, the respectively, to determine the daily areas predicted to be ensonified around distance used to estimate take by Level ensonified areas for 24-hour operations

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(impulsive 19.8 km2; non-impulsive vision devices), it is reasonable to exclusion zones, ramp-up and 7.659 km2), estimated daily vessel track assume that night time operations for an shutdown protocols). NMFS predicts of approximately 70 km, and the extended period could result in a that, in the absence of mitigation, 24 relevant species density, multiplied by limited number of right whales being right whales may be taken by Level B the number of survey days estimated for exposed to underwater sound exceeding harassment throughout the Survey Area the specific Survey Area segment Level B harassment levels. Take has over the 12-month project duration. The (Tables 7 and 8). been conservatively calculated based on conservative estimate of exposure at For the North Atlantic right whale, the largest isopleth for both types of Level B harassment levels coupled with NMFS proposes to establish a 500-m survey days (i.e., using impulsive or the proposed monitoring and mitigation exclusion zone which substantially non-impulsive sources), and is thereby measures make it likely that this exceeds the distance to the Level B prediction is an overestimate. harassment isopleth for both survey likely an overestimate because the days using impulsive sources (141 m) acoustic source resulting in the largest As described above, NMFS has and survey days using non-impulsive isopleth would not be used on 100 determined that the likelihood of take of sources (54 m). However, ;rsted will be percent of survey days for each category. any marine mammals in the form of operating 24 hours per day for a In addition, ;rsted will implement Level A harassment occurring as a result majority of the total of 1,302 vessel specific mitigation and monitoring of the proposed surveys is so low as to days. Even with the implementation of protocols for both types of survey days be discountable; therefore, we do not mitigation measures (including visual (e.g., night vision goggles with thermal propose to authorize take of any marine monitoring at night with use of night clip-ons for nighttime operations, mammals by Level A harassment.

TABLE 7—NUMBERS OF POTENTIAL INCIDENTAL TAKE BY LEVEL B HARASSMENT OF MARINE MAMMALS IN EACH OF THE SURVEY SEGMENTS BY SURVEY TYPE AND DURATION (* I = IMPULSIVE; NI = NON-IMPULSIVE)

Estimated takes by Level B harassment Survey type OCS–A 0486/0517 OCS–A 0487 OCS–A 0500 ECR Area I * NI* I NI I NI I NI

Vessel days ...... 114 103 97 164 112 52 378 283 Species: North Atlantic right whale ...... 4.74 1.64 3.65 2.36 3.99 0.71 5.24 1.5 Humpback whale...... 3.16 1.09 2.50 1.61 2.66 0.47 3.74 1.07 Fin whale...... 4.74 1.64 4.99 3.23 5.99 1.06 11.23 3.21 Sei whale...... 0.23 0.08 0.19 0.12 0.44 0.08 0.75 0.21 Minke whale...... 1.13 0.39 1.15 0.74 1.55 0.28 3.0 0.86 Sperm whale...... 0.02 0.08 0.19 0.12 0.22 0.04 0.75 0.21 Long-finned pilot whale ...... 3.61 1.25 6.34 4.10 15.08 2.68 27.69 7.93 Bottlenose dolphin (W.N. Atlantic Off- shore) ...... 26.40 9.12 14.79 9.56 15.97 2.83 262.70 75.19 Common dolphin...... 105.64 36.49 145.58 94.09 97.57 17.32 194.59 55.69 Atlantic white-sided dolphin...... 32.96 11.38 48.98 31.65 85.60 15.19 148.19 42.41 Atlantic spotted dolphin...... 0.23 0.08 0.45 0.25 1.11 0.20 3.74 1.07 Risso’s dolphin...... 0.00 0.00 0.00 0.00 0.22 0.04 0.75 0.21 Harbor porpoise...... 77.65 26.82 88.73 57.35 125.29 22.24 239.50 68.54 Gray seal ...... 16.48 5.69 13.44 8.69 14.41 2.56 119.00 34.06 Harbor seal...... 16.48 5.69 13.44 8.69 14.41 2.56 119.00 34.06

TABLE 8—NUMBERS OF POTENTIAL INCIDENTAL TAKE OF MARINE MAMMALS PROPOSED FOR AUTHORIZATION AND PROPOSED TAKES AS A PERCENTAGE OF POPULATION

Total Estimated Proposed proposed takes by takes by Total takes instances of Species Level B Level B proposed for take as a harassment harassment authorization percentage of population

North Atlantic right whale ...... 24 24 24 5.60 Humpback whale 1 ...... 16 21 21 1.50 Fin whale ...... 36 36 36 0.49 Sei whale ...... 2 2 2 0.03 Minke whale 1 ...... 9 13 13 0.05 Sperm whale 1 ...... 2 3 3 0.07 Long-finned pilot whale ...... 69 69 69 0.18 Bottlenose dolphin (W.N. Atlantic Offshore) 2 ...... 417 417 419 0.67 Common dolphin 12 ...... 747 2,205 2,211 1.28 Atlantic white-sided dolphin 2 ...... 416 416 418 0.45 Atlantic spotted dolphin ...... 7 7 7 0.02 Risso’s dolphin 1 ...... 1 30 30 0.08 Harbor porpoise 2 ...... 706 706 916 0.96 Harbor seal 2 ...... 214 214 215 0.28

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TABLE 8—NUMBERS OF POTENTIAL INCIDENTAL TAKE OF MARINE MAMMALS PROPOSED FOR AUTHORIZATION AND PROPOSED TAKES AS A PERCENTAGE OF POPULATION—Continued

Total Estimated Proposed proposed takes by takes by Total takes instances of Species Level B Level B proposed for take as a harassment harassment authorization percentage of population

Gray seal 2 ...... 214 214 215 0.79 1 The proposed number of authorized takes (Level B harassment only) for these species has been increased from the estimated take number to mean group size (Risso’s dolphin: Palka (2012); sperm whale: Barkaszi and Kelly (2018)) or increased based on PSO sighting observations from ;rsted’s HRG survey activities in the same Survey Area in 2019 and 2020 (humpback and minke whales, and common dolphins). 2 Total take by Level B harassment proposed for authorization has been increased to include modeled exposures resulting from estimation of take by Level A harassment, which is not anticipated (see Section 6.2.1 of the IHA application).

Orsted has requested additional take stocks, and their habitat. This considers zones prior to the initiation of ramp-up authorizations beyond the modelled the nature of the potential adverse of HRG equipment. During this period, takes for humpback and minke whales impact being mitigated (likelihood, the exclusion zone will be monitored by and common dolphins, based on scope, range). It further considers the the PSOs, using the appropriate visual increased detection of these species likelihood that the measure will be technology. Ramp-up may not be during its 2019 survey. Orsted’s effective if implemented (probability of initiated if any marine mammal(s) is justification for this request can be accomplishing the mitigating result if within its respective exclusion zone. If found in its application, which is implemented as planned), the a marine mammal is observed within an available here: https:// likelihood of effective implementation exclusion zone during the pre-clearance www.fisheries.noaa.gov/permit/ (probability implemented as planned), period, ramp-up may not begin until the incidental-take-authorizations-under- and animal(s) has been observed exiting its marine-mammal-protection-act. We (2) The practicability of the measures respective exclusion zone or until an specifically invite comment on this for applicant implementation, which additional time period has elapsed with aspect of Orsted’s requested take may consider such things as cost, no further sighting (i.e., 15 minutes for authorization. impact on operations, and, in the case small odontocetes and seals, and 30 of a military readiness activity, minutes for all other species). Proposed Mitigation personnel safety, practicality of In order to issue an IHA under implementation, and impact on the Ramp-Up of Survey Equipment Section 101(a)(5)(D) of the MMPA, effectiveness of the military readiness When technically feasible, a ramp-up NMFS must set forth the permissible activity. procedure would be used for HRG methods of taking pursuant to such Proposed Mitigation Measures survey equipment capable of adjusting activity, and other means of effecting energy levels at the start or re-start of the least practicable impact on such NMFS proposes the following survey activities. The ramp-up species or stock and its habitat, paying mitigation measures be implemented procedure would be used at the particular attention to rookeries, mating during ;rsted’s proposed marine site beginning of HRG survey activities in grounds, and areas of similar characterization surveys. order to provide additional protection to significance, and on the availability of Marine Mammal Exclusion Zones and marine mammals near the Survey Area such species or stock for taking for Monitoring Zone by allowing them to vacate the area certain subsistence uses (latter not prior to the commencement of survey Marine mammal exclusion zones (EZ) applicable for this action). NMFS equipment operation at full power. would be established around the HRG regulations require applicants for A ramp-up would begin with the survey equipment and monitored by incidental take authorizations to include powering up of the smallest acoustic protected species observers (PSOs): information about the availability and • 500 m EZ for North Atlantic right HRG equipment at its lowest practical feasibility (economic and technological) whales; power output appropriate for the of equipment, methods, and manner of • 100 m EZ for all marine mammals, survey. When technically feasible, the conducting such activity or other means with the exception of certain small power would then be gradually turned of effecting the least practicable adverse delphinids specified below, for survey up and other acoustic sources would be impact upon the affected species or days operating impulsive acoustic added. stocks and their habitat (50 CFR sources (boomer and/or sparker). Ramp-up activities will be delayed if 216.104(a)(11)). If a marine mammal is detected a marine mammal(s) enters its In evaluating how mitigation may or approaching or entering the EZs during respective exclusion zone. Ramp-up may not be appropriate to ensure the the HRG survey, the vessel operator will continue if the animal has been least practicable adverse impact on would adhere to the shutdown observed exiting its respective exclusion species or stocks and their habitat, as procedures described below to zone or until an additional time period well as subsistence uses where minimize noise impacts on the animals. has elapsed with no further sighting (i.e, applicable, we carefully consider two These stated requirements will be 15 minutes for small odontocetes and primary factors: included in the site-specific training to seals and 30 minutes for all other (1) The manner in which, and the be provided to the survey team. species). degree to which, the successful Activation of survey equipment implementation of the measure(s) is Pre-Clearance of the Exclusion Zones through ramp-up procedures may not expected to reduce impacts to marine ;rsted would implement a 30-minute occur when visual observation of the mammals, marine mammal species or pre-clearance period of the exclusion pre-clearance zone is not expected to be

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effective (i.e., during inclement Vessel Strike Avoidance other than a right whale, the vessel conditions such as heavy rain or fog). ;rsted will ensure that vessel operator must assume that it is a right operators and crew maintain a vigilant whale and take appropriate action. Shutdown Procedures • All vessels must maintain a watch for cetaceans and pinnipeds and minimum separation distance of 100 m An immediate shutdown of the slow down or stop their vessels to avoid from sperm whales and all other baleen impulsive HRG survey equipment striking these species. Survey vessel whales. would be required if a marine mammal crew members responsible for is sighted entering or within its • All vessels must, to the maximum navigation duties will receive site- extent practicable, attempt to maintain a respective exclusion zone. No shutdown specific training on marine mammals is required for surveys operating only minimum separation distance of 50 m and sea turtle sighting/reporting and from all other marine mammals, with an non-impulsive acoustic sources. The vessel strike avoidance measures. Vessel vessel operator must comply understanding that at times this may not strike avoidance measures would be possible (e.g., for animals that immediately with any call for shutdown include the following, except under by the Lead PSO. Any disagreement approach the vessel). circumstances when complying with • When protected species are sighted between the Lead PSO and vessel these requirements would put the safety operator should be discussed only after while a vessel is underway, the vessel of the vessel or crew at risk: shall take action as necessary to avoid shutdown has occurred. Subsequent • Vessel operators and crews must restart of the survey equipment can be violating the relevant separation maintain a vigilant watch for all distance (e.g., attempt to remain parallel initiated if the animal has been observed protected species and slow down, stop exiting its respective exclusion zone or to the animal’s course, avoid excessive their vessel, or alter course, as speed or abrupt changes in direction until an additional time period has appropriate and regardless of vessel elapsed (i.e., 15 minutes for small until the animal has left the area). If size, to avoid striking any protected marine mammals are sighted within the odontocetes and seals and 30 minutes species. A visual observer aboard the for all other species). relevant separation distance, the vessel vessel must monitor a vessel strike must reduce speed and shift the engine If a species for which authorization avoidance zone around the vessel to neutral, not engaging the engines has not been granted, or, a species for (distances stated below). Visual until animals are clear of the area. This which authorization has been granted observers monitoring the vessel strike does not apply to any vessel towing gear but the authorized number of takes have avoidance zone may be third-party or any vessel that is navigationally been met, approaches or is observed observers (i.e., PSOs) or crew members, constrained. within the Level B harassment zone (54 but crew members responsible for these • These requirements do not apply in m, non-impulsive; 141 m impulsive), duties must be provided sufficient any case where compliance would shutdown would occur. training to (1) distinguish protected create an imminent and serious threat to If the acoustic source is shut down for species from other phenomena and (2) a person or vessel or to the extent that reasons other then mitigation (e.g., broadly to identify a marine mammal as a vessel is restricted in its ability to mechanical difficulty) for less than 30 a right whale, other whale (defined in maneuver and, because of the minutes, it may be activated again this context as sperm whales or baleen restriction, cannot comply. without ramp-up if PSOs have whales other than right whales), or other maintained constant observation and no marine mammal. Seasonal Operating Requirements detections of any marine mammal have • All vessels (e.g., source vessels, ;rsted will limit to three the number occurred within the respective chase vessels, supply vessels), of survey vessels that will operate exclusion zones. If the acoustic source regardless of size, must observe a 10- concurrently from March through June is shut down for a period longer than 30 knot speed restriction in specific areas within the Lease Areas (OSC–A 0486/ minutes and PSOs have maintained designated by NMFS for the protection 0517, OCS–A 0487, and OCS–A 500) constant observation, then pre-clearance of North Atlantic right whales from and ECR Area north of the Lease Areas and ramp-up procedures will be vessel strikes: any dynamic management up to, but not including, coastal and bay initiated as described in the previous areas (DMAs) when in effect, the Cape waters. ;rsted would operate either a section. Cod Bay Seasonal Management Area single vessel, two vessels concurrently The shutdown requirement would be (SMA) (from January 1 through May 15), or, for short periods, no more than three waived for small delphinids of the the Off Race Point SMA (from March 1 survey vessels concurrently in the areas following genera: Delphinus, through April 30), the Great South described above during the March-June Lagenorhynchus, Stenella, and Channel SMA (from April 1 through timeframe when right whale densities Tursiops. Specifically, if a delphinid July 31), the Mid-Atlantic SMAs (from are greatest. This practice will help to from the specified genera is visually November 1 through April 30), and the reduce the number of right whale takes detected approaching the vessel (i.e., to Southeast SMA (from November 15 and to minimize the number of times bow ride) or towed equipment, through April 15). See that right whales may be exposed to shutdown is not required. Furthermore, www.fisheries.noaa.gov/national/ project noise in a day. if there is uncertainty regarding endangered-species-conservation/ Between watch shifts, members of the identification of a marine mammal reducing-ship-strikes-north-atlantic- monitoring team will consult NOAA species (i.e., whether the observed right-whales for specific detail regarding Fisheries North Atlantic right whale marine mammal(s) belongs to one of the these areas. reporting systems for the presence of delphinid genera for which shutdown is • Vessel speeds must also be reduced North Atlantic right whales throughout waived), PSOs must use best to 10 knots or less when mother/calf survey operations. The Survey Area professional judgement in making the pairs, pods, or large assemblages of occurs near the SMAs located off the decision to call for a shutdown. cetaceans are observed near a vessel. coast of Rhode Island (Block Island Additionally, shutdown is required if a • All vessels must maintain a Sounds SMA) and at the entrance to delphinid is detected in the exclusion minimum separation distance of 500 m New York Harbor (New York Bight zone and belongs to a genus other than from right whales. If a whale is observed SMA). If survey vessels transit through those specified. but cannot be confirmed as a species these SMAs, they must adhere to the

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seasonal mandatory speed restrictions cumulative impacts from multiple operations. The PSO(s) would ensure from November 1 through April 30. stressors. 360° visual coverage around the vessel Throughout all survey operations, • How anticipated responses to from the most appropriate observation ;rsted will monitor NOAA Fisheries stressors impact either: (1) Long-term posts and would conduct visual North Atlantic right whale reporting fitness and survival of individual observations using binoculars and/or systems for the establishment of a DMA. marine mammals; or (2) populations, NVDs and the naked eye while free from If NOAA Fisheries should establish a species, or stocks. distractions and in a consistent, DMA in the Lease Area under survey, • Effects on marine mammal habitat systematic, and diligent manner. PSOs the vessels will abide by speed (e.g., marine mammal prey species, may be on watch for a maximum of four restrictions in the DMA per the lease acoustic habitat, or other important consecutive hours followed by a break condition. physical components of marine of at least two hours between watches Based on our evaluation of the mammal habitat). and may conduct a maximum of 12 applicant’s proposed measures, as well • Mitigation and monitoring hours of observation per 24-hour period. as other measures considered by NMFS, effectiveness. In cases where multiple vessels are NMFS has preliminarily determined Proposed Monitoring Measures surveying concurrently, any that the proposed mitigation measures observations of marine mammals would provide the means of effecting the least Visual monitoring will be performed be communicated to PSOs on all nearby practicable impact on marine mammal by qualified, NMFS-approved PSOs, the survey vessels. species or stocks and their habitat, resumes of whom will be provided to PSOs must be equipped with paying particular attention to rookeries, NMFS for review and approval prior to binoculars and have the ability to mating grounds, and areas of similar the start of survey activities. ;rsted estimate distance and bearing to significance. would employ independent, dedicated, detected marine mammals, particularly trained PSOs, meaning that the PSOs in proximity to exclusion zones. Proposed Monitoring and Reporting must (1) be employed by a third-party Reticulated binoculars must also be In order to issue an IHA for an observer provider, (2) have no tasks available to PSOs for use as appropriate activity, Section 101(a)(5)(D) of the other than to conduct observational based on conditions and visibility to MMPA states that NMFS must set forth effort, collect data, and communicate support the sighting and monitoring of requirements pertaining to the with and instruct relevant vessel crew marine mammals. During nighttime monitoring and reporting of such taking. with regard to the presence of marine operations, night-vision goggle with The MMPA implementing regulations at mammals and mitigation requirements thermal clip-ons and infrared 50 CFR 216.104 (a)(13) indicate that (including brief alerts regarding technology would be used. Position data requests for authorizations must include maritime hazards), and (3) have would be recorded using hand-held or the suggested means of accomplishing successfully completed an approved vessel GPS units for each sighting. the necessary monitoring and reporting PSO training course appropriate for During good conditions (e.g., daylight that will result in increased knowledge their designated task. On a case-by-case hours; Beaufort sea state (BSS) 3 or less), of the species and of the level of taking basis, non-independent observers may to the maximum extent practicable, or impacts on populations of marine be approved by NMFS for limited, PSOs would also conduct observations mammals that are expected to be specific duties in support of approved, when the acoustic source is not present in the proposed action area. independent PSOs on smaller vessels operating for comparison of sighting Effective reporting is critical both to with limited crew capacity operating in rates and behavior with and without use compliance as well as ensuring that the nearshore waters. of the active acoustic sources. Any most value is obtained from the required The PSOs will be responsible for observations of marine mammals by monitoring. monitoring the waters surrounding each crew members aboard any vessel Monitoring and reporting survey vessel to the farthest extent associated with the survey would be requirements prescribed by NMFS permitted by sighting conditions, relayed to the PSO team. should contribute to improved including exclusion zones, during all Data on all PSO observations would understanding of one or more of the HRG survey operations. PSOs will be recorded based on standard PSO following: visually monitor and identify marine collection requirements. This would • Occurrence of marine mammal mammals, including those approaching include dates, times, and locations of species or stocks in the area in which or entering the established exclusion survey operations; dates and times of take is anticipated (e.g., presence, zones during survey activities. It will be observations, location and weather; abundance, distribution, density). the responsibility of the Lead PSO on details of marine mammal sightings • Nature, scope, or context of likely duty to communicate the presence of (e.g., species, numbers, behavior); and marine mammal exposure to potential marine mammals as well as to details of any observed marine mammal stressors/impacts (individual or communicate the action(s) that are behavior that occurs (e.g., noted cumulative, acute or chronic), through necessary to ensure mitigation and behavioral disturbances). better understanding of: (1) Action or monitoring requirements are environment (e.g., source implemented as appropriate. Proposed Reporting Measures characterization, propagation, ambient During all HRG survey operations Within 90 days after completion of noise); (2) affected species (e.g., life (e.g., any day on which use of an HRG survey activities, a final technical report history, dive patterns); (3) co-occurrence source is planned to occur), a minimum will be provided to NMFS that fully of marine mammal species with the of one PSO must be on duty during documents the methods and monitoring action; or (4) biological or behavioral daylight operations on each survey protocols, summarizes the data recorded context of exposure (e.g., age, calving or vessel, conducting visual observations during monitoring, summarizes the feeding areas). at all times on all active survey vessels number of marine mammals observed • Individual marine mammal during daylight hours (i.e., from 30 during survey activities (by species, responses (behavioral or physiological) minutes prior to sunrise through 30 when known), summarizes the to acoustic stressors (acute, chronic, or minutes following sunset). Two PSOs mitigation actions taken during surveys cumulative), other stressors, or will be on watch during nighttime (including what type of mitigation and

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the species and number of animals that • If available, description of the would be in the form of short-term Level prompted the mitigation action, when presence and behavior of any other B behavioral harassment in the form of known), and provides an interpretation marine mammals immediately temporary avoidance of the area or of the results and effectiveness of all preceding the strike; decreased foraging (if such activity was mitigation and monitoring. Any • Estimated fate of the animal (e.g., occurring), reactions that are considered recommendations made by NMFS must dead, injured but alive, injured and to be of low severity and with no lasting be addressed in the final report prior to moving, blood or tissue observed in the biological consequences (e.g., Southall acceptance by NMFS. water, status unknown, disappeared); et al., 2007). Even repeated Level B In addition to the final technical and harassment of some small subset of an report, ;rsted will provide the reports • To the extent practicable, overall stock is unlikely to result in any described below as necessary during photographs or video footage of the significant realized decrease in viability survey activities. animal(s). for the affected individuals, and thus In the event that ;rsted personnel Negligible Impact Analysis and would not result in any adverse impact discover an injured or dead marine Determination to the stock as a whole. As described mammal, ;rsted would report the above, Level A harassment is not incident to the NMFS Office of NMFS has defined negligible impact expected to occur given the nature of Protected Resources (OPR) and the as an impact resulting from the the operations, the estimated size of the NMFS New England/Mid-Atlantic specified activity that cannot be Level A harassment zones, the relatively Stranding Coordinator as soon as reasonably expected to, and is not low densities of marine mammals in the feasible. The report would include the reasonably likely to, adversely affect the Survey Area, and the required following information: species or stock through effects on shutdown zones for certain activities. • Time, date, and location (latitude/ annual rates of recruitment or survival In addition to being temporary, the longitude) of the first discovery (and (50 CFR 216.103). A negligible impact maximum expected harassment zone updated location information if known finding is based on the lack of likely around a survey vessel is 141 m; almost and applicable); adverse effects on annual rates of half of survey days would include • Species identification (if known) or recruitment or survival (i.e., population- activity with a reduced acoustic description of the animal(s) involved; level effects). An estimate of the number harassment zone of 54 m per vessel, • Condition of the animal(s) of takes alone is not enough information producing expected effects of (including carcass condition if the on which to base an impact particularly low severity. Therefore, the animal is dead); determination. In addition to ensonified area surrounding each vessel • Observed behaviors of the considering estimates of the number of is relatively small compared to the animal(s), if alive; marine mammals that might be ‘‘taken’’ overall distribution of the animals in the • If available, photographs or video through harassment, NMFS considers area and their use of the habitat. footage of the animal(s); and other factors, such as the likely nature Feeding behavior is not likely to be • General circumstances under which of any responses (e.g., intensity, significantly impacted as prey species the animal was discovered. duration), the context of any responses are mobile and are broadly distributed In the unanticipated event of a ship (e.g., critical reproductive time or throughout the Survey Area; therefore, strike of a marine mammal by any vessel location, migration), as well as effects marine mammals that may be involved in the activities covered by the on habitat, and the likely effectiveness temporarily displaced during survey IHA, ;rsted would report the incident of the mitigation. We also assess the activities are expected to be able to to the NMFS OPR and the NMFS New number, intensity, and context of resume foraging once they have moved England/Mid-Atlantic Stranding estimated takes by evaluating this away from areas with disturbing levels Coordinator as soon as feasible. The information relative to population of underwater noise. Because of the report would include the following status. Consistent with the 1989 temporary nature of the disturbance and information: preamble for NMFS’s implementing the availability of similar habitat and • Time, date, and location (latitude/ regulations (54 FR 40338; September 29, resources in the surrounding area, the longitude) of the incident; 1989), the impacts from other past and impacts to marine mammals and the • Species identification (if known) or ongoing anthropogenic activities are food sources that they utilize are not description of the animal(s) involved; incorporated into this analysis via their expected to cause significant or long- • Vessel’s speed during and leading impacts on the environmental baseline term consequences for individual up to the incident; (e.g., as reflected in the regulatory status marine mammals or their populations. • Vessel’s course/heading and what of the species, population size and ESA-listed species for which takes are operations were being conducted (if growth rate where known, ongoing proposed are North Atlantic right, fin, applicable); sources of human-caused mortality, or sei, and sperm whales; impacts on these • Status of all sound sources in use; ambient noise levels). species are anticipated to be limited to • Description of avoidance measures/ To avoid repetition, our analysis lower level behavioral effects. NMFS requirements that were in place at the applies to all the species listed in Table does not anticipate that serious injury or time of the strike and what additional 3, given that NMFS expects the mortality would occur to ESA-listed measures were taken, if any, to avoid anticipated effects of the proposed species, even in the absence of proposed strike; survey to be similar in nature. NMFS mitigation, and the proposed • Environmental conditions (e.g., does not anticipate that serious injury or authorization does not authorize any wind speed and direction, Beaufort sea mortality would occur as a result from serious injury or mortality. The state, cloud cover, visibility) HRG surveys, even in the absence of proposed survey activities are not immediately preceding the strike; mitigation, and no serious injury or anticipated to affect the fitness or • Estimated size and length of animal mortality is proposed to be authorized. reproductive success of individual that was struck; As discussed in the Potential Effects animals. Since impacts to individual • Description of the behavior of the section, non-auditory physical effects survivorship and fecundity are unlikely, marine mammal immediately preceding and vessel strike are not expected to the proposed survey is not expected to and following the strike; occur. We expect that all potential takes result in population-level effects for any

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ESA-listed species or alter current within the biologically important severe Level B harassment. No Level A population trends of any ESA-listed feeding habitat. In addition, any harassment is anticipated or authorized. species. displacement of fin whales from the BIA NMFS expects that takes would be in The status of the North Atlantic right would be expected to be temporary in the form of short-term Level B whale population is of heightened nature. Therefore, we do not expect fin behavioral harassment by way of brief concern and, therefore, merits whale feeding to be negatively impacted startling reactions and/or temporary additional analysis. Elevated North by the proposed survey. vacating of the area, or decreased Atlantic right whale mortalities began in As noted previously, there are several foraging (if such activity was June 2017, primarily in Canada. Overall, active UMEs occurring in the vicinity of occurring)—reactions that (at the scale preliminary findings support human ;rsted’s proposed Survey Area. and intensity anticipated here) are interactions, specifically vessel strikes Elevated humpback whale mortalities considered to be of low severity, with and entanglements, as the cause of have occurred along the Atlantic coast no lasting biological consequences. death for the majority of right whales. from Maine through Florida since Since both the sources and marine The proposed survey area includes a January 2016. Of the cases examined, mammals are mobile, animals would biologically important migratory route approximately half had evidence of only be exposed briefly to a small for North Atlantic right whales (effective human interaction (ship strike or ensonified area that might result in take. March–April and November–December) entanglement). The UME does not yet Additionally, required mitigation that extends from Massachusetts to provide cause for concern regarding measures would further reduce Florida (LeBrecque et al., 2015). Off the population-level impacts. Despite the exposure to sound that could result in south coast of Massachusetts and Rhode UME, the relevant population of more severe behavioral harassment. Island, this biologically important humpback whales (the West Indies In summary and as described above, migratory area extends from the coast to breeding population, or distinct the following factors primarily support beyond the shelf break. The spatial population segment (DPS)) remains our preliminary determination that the acoustic footprint of the proposed stable at approximately 12,000 impacts resulting from this activity are survey is very small relative to the individuals. not expected to adversely affect the spatial extent of the available migratory Beginning in January 2017, elevated species or stock through effects on minke whale strandings have occurred habitat; therefore, right whale migration annual rates of recruitment or survival: along the Atlantic coast from Maine is not expected to be impacted by the • No mortality or serious injury is through South Carolina, with highest proposed survey. Required vessel strike anticipated or authorized; avoidance measures will also decrease numbers in Massachusetts, Maine, and • No Level A harassment (PTS) is risk of ship strike during migration; no New York. This event does not provide anticipated or authorized; ship strike is expected to occur. cause for concern regarding population • Foraging success is not likely to be Additionally, only very limited take by level impacts, as the likely population significantly impacted as effects on Level B harassment of North Atlantic abundance is greater than 20,000 species that serve as prey species for right whales has been proposed as HRG whales. marine mammals from the survey are survey operations are required to Elevated numbers of harbor seal and gray seal mortalities were first observed expected to be minimal; maintain a 500 m EZ and shutdown if • a North Atlantic right whale is sighted in July 2018 and have occurred across The availability of alternate areas of at or within the EZ. The 500 m Maine, New Hampshire, and similar habitat value for marine shutdown zone for right whales is Massachusetts. Based on tests mammals to temporarily vacate the conservative, considering the Level B conducted so far, the main pathogen survey area during the planned survey harassment isopleth for the most found in the seals is phocine distemper to avoid exposure to sounds from the virus, although additional testing to activity; impactful acoustic source (i.e., • GeoMarine Geo-Source 400 tip sparker) identify other factors that may be Take is anticipated to be primarily is estimated to be 141 m, and thereby involved in this UME are underway. Level B behavioral harassment minimizes the potential for behavioral The UME does not yet provide cause for consisting of brief startling reactions harassment of this species. concern regarding population-level and/or temporary avoidance of the The proposed Survey Area includes a impacts to any of these stocks. For Survey Area; fin whale feeding BIA effective between harbor seals, the population abundance • While the Survey Area is within March and October. The fin whale is over 75,000 and annual M/SI (350) is areas noted as biologically important for feeding area is sufficiently large (2,933 well below PBR (2,006) (Hayes et al., North Atlantic right whale migration, km2), and the acoustic footprint of the 2018). The population abundance for the activities would occur in such a proposed survey is sufficiently small gray seals in the United States is over comparatively small area such that any that whale feeding habitat would not be 27,000, with an estimated abundance, avoidance of the Survey Area due to reduced in any way, and any impacts to including seals in Canada, of activities would not affect migration. In foraging behavior within the habitat are approximately 505,000. In addition, the addition, mitigation measures to expected to be minimal. Behavioral abundance of gray seals is likely shutdown at 500 m to minimize harassment is typically context- increasing in the U.S. Atlantic EEZ as potential for Level B behavioral dependent, and current literature well as in Canada (Hayes et al., 2018). harassment would limit any take of the demonstrates that some mysticetes are The required mitigation measures are species. Similarly, due to the small less likely to be susceptible to expected to reduce the number and/or footprint of the survey activities in disruption of behavioral patterns when severity of takes by providing animals relation to the size of a biologically engaged in feeding (Southall et al., 2007; the opportunity to move away from the important area for fin whales’ foraging, Goldbogen et al., 2013; Harris et al., sound source throughout the Survey the survey activities would not affect 2019). Any fin whales temporarily Area before HRG survey equipment foraging behavior of this species; and displaced from the proposed survey area reaches full energy, thus preventing • The proposed mitigation measures, would be expected to have sufficient animals from being exposed to sound including visual monitoring and habitat available to them and would not levels that have the potential to cause shutdowns, are expected to minimize be prevented from feeding in other areas injury (Level A harassment) or more potential impacts to marine mammals.

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Based on the analysis contained habitat. To ensure ESA compliance for Specified Activities section of this herein of the likely effects of the the issuance of IHAs, NMFS consults notice is planned or (2) the activities as specified activity on marine mammals internally, in this case with the NMFS described in the Specified Activities and their habitat, and taking into Greater Atlantic Regional Fisheries section of this notice would not be consideration the implementation of the Office (GARFO), whenever we propose completed by the time the IHA expires proposed monitoring and mitigation to authorize take for endangered or and a Renewal would allow for measures, NMFS preliminarily finds threatened species. Within the Survey completion of the activities beyond that that the total marine mammal take from Area, fin, sei, humpback, North Atlantic described in the Dates and Duration the proposed activity will have a right, and sperm whales are listed as section of this notice, provided all of the negligible impact on all affected marine endangered species under the ESA. following conditions are met: mammal species or stocks. Under section 7 of the ESA, BOEM • A request for renewal is received no consulted with NMFS on commercial Small Numbers later than 60 days prior to the needed wind lease issuance and site assessment Renewal IHA effective date (recognizing As noted above, only small numbers activities on the Atlantic Outer that the Renewal IHA expiration date of incidental take may be authorized Continental Shelf in Massachusetts, cannot extend beyond one year from under sections 101(a)(5)(A) and (D) of Rhode Island, New York, and New expiration of the initial IHA). the MMPA for specified activities other Jersey Wind Energy Areas. NOAA’s • The request for renewal must than military readiness activities. The GARFO issued a Biological Opinion include the following: MMPA does not define small numbers concluding that these activities may (1) An explanation that the activities and so, in practice, where estimated adversely affect but are not likely to to be conducted under the requested numbers are available, NMFS compares jeopardize the continues existence of Renewal IHA are identical to the the number of individuals taken to the these marine mammal species. The activities analyzed under the initial most appropriate estimation of Biological Opinion can be found online IHA, are a subset of the activities, or abundance of the relevant species or at: https://www.fisheries.noaa.gov/new- include changes so minor (e.g., stock in our determination of whether england-mid-atlantic/consultations/ reduction in pile size) that the changes an authorization is limited to small section-7-biological-opinions-greater- do not affect the previous analyses, numbers of marine mammals. atlantic-region. NMFS will conclude the mitigation and monitoring Additionally, other qualitative factors ESA section 7 consultation prior to requirements, or take estimates (with may be considered in the analysis, such reaching a determination regarding the the exception of reducing the type or as the temporal or spatial scale of the proposed issuance of the authorization. amount of take). activities. If the IHA is issued, the Biological (2) A preliminary monitoring report The numbers of marine mammals that Opinion may be amended to include an showing the results of the required we propose for authorization to be incidental take statement for these monitoring to date and an explanation taken, for all species and stocks, would marine mammal species, as appropriate. showing that the monitoring results do be small relative to the relevant stocks Proposed Authorization not indicate impacts of a scale or nature or populations (less than 6 percent for not previously analyzed or authorized. all species and stocks) as shown in As a result of these preliminary • Upon review of the request for Table 8. Based on the analysis contained determinations, NMFS proposes to issue Renewal, the status of the affected herein of the proposed activity an IHA to ;rsted for HRG survey species or stocks, and any other (including the proposed mitigation and activities effective one year from the pertinent information, NMFS monitoring measures) and the date of issuance, provided the determines that there are no more than anticipated take of marine mammals, previously mentioned mitigation, minor changes in the activities, the NMFS preliminarily finds that small monitoring, and reporting requirements mitigation and monitoring measures numbers of marine mammals will be are incorporated. A draft of the will remain the same and appropriate, taken relative to the population size of proposed IHA itself is available for and the findings in the initial IHA all affected species or stocks. review in conjunction with this notice remain valid. at: www.fisheries.noaa.gov/permit/ Unmitigable Adverse Impact Analysis incidental-take-authorizations-under- Dated: August 5, 2020. and Determination marine-mammal-protection-act. Donna Wieting, There are no relevant subsistence uses Director, Office of Protected Resources, of the affected marine mammal stocks or Request for Public Comments National Marine Fisheries Service. species implicated by this action. We request comment on our analyses, [FR Doc. 2020–17354 Filed 8–7–20; 8:45 am] Therefore, NMFS has determined that the proposed authorization, and any BILLING CODE 3510–22–P the total taking of affected species or other aspect of this Notice of Proposed stocks would not have an unmitigable IHA for ;rsted’s proposed activity. We adverse impact on the availability of also request at this time comment on the DEPARTMENT OF COMMERCE such species or stocks for taking for potential Renewal of this proposed IHA subsistence purposes. as described in the paragraph below. National Oceanic and Atmospheric Please include with your comments any Administration Endangered Species Act supporting data or literature citations to Science Advisory Board Section 7(a)(2) of the Endangered help inform decisions on the request for Species Act of 1973 (16 U.S.C. 1531 et this IHA or a subsequent Renewal IHA. AGENCY: National Oceanic and seq.) requires that each Federal agency On a case-by-case basis, NMFS may Atmospheric Administration (NOAA), insure that any action it authorizes, issue a one-time one-year Renewal IHA Department of Commerce (DOC). funds, or carries out is not likely to following notice to the public providing ACTION: Notice of public meetings. jeopardize the continued existence of an additional 15 days for public any endangered or threatened species or comments when (1) up to another year SUMMARY: This notice sets forth the result in the destruction or adverse of identical or nearly identical, or nearly schedule and proposed agenda of two modification of designated critical identical, activities as described in the meetings of the Science Advisory Board

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(SAB). The members will discuss issues should be received in the SAB Council address: New England outlined in the section on Matters to be Executive Director’s Office by Fishery Management Council, 50 Water considered. September 7, 2020 to provide sufficient Street, Mill 2, Newburyport, MA 01950. DATES: There are two meetings: the first time for SAB review. Written comments FOR FURTHER INFORMATION CONTACT: meeting is scheduled for August 27, received by the SAB Executive Director Thomas A. Nies, Executive Director, 2020, from 3:00 p.m. to 3:45 p.m. after these dates will be distributed to New England Fishery Management Eastern Daylight Time (EDT). The the SAB, but may not be reviewed prior second meeting is scheduled for to the meeting date. Council; telephone: (978) 465–0492. September 22, 2020, from 3:00 p.m. to Special Accommodations: These SUPPLEMENTARY INFORMATION: 5:00 p.m. Eastern Daylight Time (EDT). meetings are physically accessible to These times and the agenda topics people with disabilities. Requests for Agenda described below are subject to change. special accommodations may be directed to the Executive Director no The Advisory Panel will review For the latest agenda please refer to the results of the 2020 management track SAB website: http://sab.noaa.gov/ later than 12:00 p.m. (EDT). assessment for Atlantic herring. They SABMeetings.aspx. Matters To Be Considered: The meeting on August 27, 2020 will will also continue development of ADDRESSES: Due to the current consider the Precipitation Prediction Framework 8 to the Atlantic Herring Pandemic both meetings will be held Grand Challenge report by the Climate Fishery Management Plan and review virtually. The link for the webinar Working Group. The September 22, preliminary analyses. Framework 8 is registration for the August 27, 2020 2020 meeting will consider updates considering fishery specifications for meeting may be found here: https:// contained in the SAB long-term work fishing years 2021–23 and adjusting attendee.gotowebinar.com/register/ plan based on the NOAA Priorities. measures in the herring plan that 1216984958297330448. The link for the Meeting materials, including work potentially inhibit the mackerel fishery September 22, 2020 meeting will be products, will be made available on the from achieving optimum yield. Other posted on the SAB website when SAB website: http://sab.noaa.gov/ business will be discussed as necessary. available. SABMeetings.aspx. Although non-emergency issues not FOR FURTHER INFORMATION CONTACT: Dr. Dated: August 5, 2020. contained on the agenda may come Cynthia Decker, Executive Director, Eric Locklear, before this Council for discussion, those SSMC3, Room 11230, 1315 East-West Deputy Chief Financial Officer/ issues may not be the subject of formal Hwy., Silver Spring, MD 20910; Phone Administrative Officer, Office of Oceanic and Number: 301–734–1156; Email: Atmospheric Research, National Oceanic and action during this meeting. Council [email protected]; or visit the Atmospheric Administration. action will be restricted to those issues SAB website at http://sab.noaa.gov/ [FR Doc. 2020–17418 Filed 8–7–20; 8:45 am] specifically listed in this notice and any SABMeetings.aspx. BILLING CODE 3510–KD–P issues arising after publication of this notice that require emergency action SUPPLEMENTARY INFORMATION: The under section 305(c) of the Magnuson- NOAA Science Advisory Board (SAB) DEPARTMENT OF COMMERCE Stevens Act, provided the public has was established by a Decision Memorandum dated September 25, been notified of the Council’s intent to National Oceanic and Atmospheric take final action to address the 1997, and is the only Federal Advisory Administration Committee with responsibility to advise emergency. The public also should be the Under Secretary of Commerce for [RTID 0648–XA355] aware that the meeting will be recorded. Oceans and Atmosphere on strategies Consistent with 16 U.S.C. 1852, a copy New England Fishery Management of the recording is available upon for research, education, and application Council; Public Meeting of science to operations and information request. services. SAB activities and advice AGENCY: National Marine Fisheries Special Accommodations provide necessary input to ensure that Service (NMFS), National Oceanic and National Oceanic and Atmospheric Atmospheric Administration (NOAA), This meeting is physically accessible Administration (NOAA) science Commerce. to people with disabilities. Requests for programs are of the highest quality and ACTION: Notice of public meeting. sign language interpretation or other provide optimal support to resource auxiliary aids should be directed to SUMMARY: The New England Fishery management. Thomas A. Nies, Executive Director, at Status: The August 27, 2020 meeting Management Council (Council) is scheduling a public meeting of its (978) 465–0492, at least 5 days prior to will be open to public participation the meeting date. with a 5-minute public comment period Herring Advisory Panel via webinar to at 3:40 p.m. (EDT). The September 22, consider actions affecting New England Authority: 16 U.S.C. 1801 et seq. fisheries in the exclusive economic zone 2020 meeting will have a 5-minute Dated: August 5, 2020. (EEZ). Recommendations from this public comment period at 4:45 p.m. Tracey L. Thompson, (EDT). The SAB expects that public group will be brought to the full Council for formal consideration and action, if Acting Deputy Director, Office of Sustainable statements presented at its meetings will Fisheries, National Marine Fisheries Service. not be repetitive of previously appropriate. [FR Doc. 2020–17403 Filed 8–7–20; 8:45 am] submitted verbal or written statements. DATES: This webinar will be held on In general, each individual or group Tuesday, August 25, 2020 at 9.30 a.m. BILLING CODE 3510–22–P making a verbal presentation will be Webinar registration URL information: limited to a total time of three minutes. https://attendee.gotowebinar.com/ Written comments for the August 27, register/4792386764946327823. 2020 meeting should be received by ADDRESSES: August 12, 2020 and written comments Meeting address: The meeting will be for the September 22, 2020 meeting held via webinar.

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DEPARTMENT OF COMMERCE 2. Click the ‘‘Comment Now!’’ icon, According to applicable Federal complete the required fields, and regulations, a NMFS Regional National Oceanic and Atmospheric 3. Enter or attach your comments. Administrator may authorize ‘‘for Administration —OR— limited testing, public display, data Email written comments to wcr.hms@ [RTID 0648–XA322] collection, exploratory, health and noaa.gov. Include the identifier safety, environmental cleanup, and/or Fisheries Off West Coast States; ‘‘NOAA–NMFS–2020–0103’’ in the hazard removal purposes, the target or Highly Migratory Fisheries; Exempted comments. incidental harvest of species managed Fishing Permit To Fish With Longline Instructions: Comments must be under an FMP or fishery regulations that Gear in the West Coast Exclusive submitted by one of the above methods would otherwise be prohibited’’ (50 CFR Economic Zone to ensure they are received, 600.745(b)). Issuance of an EFP provides documented, and considered by NMFS. such authorization. AGENCY: National Marine Fisheries Comments sent by any other method, to On April 29, 2019, NMFS issued an Service (NMFS), National Oceanic and any other address or individual, or EFP, which was signed by the Atmospheric Administration (NOAA), received after the end of the comment applicants and became valid in June of Commerce. period, may not be considered. All 2019 (84 FR 20108, May 8, 2019), for ACTION: Notice of intent to prepare an comments received are a part of the two vessels to target swordfish and Environmental Impact Statement; public record. All personal identifying other HMS using shallow-set longline announcement of public scoping period information (e.g., name, address, etc.) (SSLL) and deep-set longline (DSLL) and request for comments. submitted voluntarily by the sender will gear in the West Coast EEZ off California be publicly accessible. Do not submit and Oregon. NMFS had completed a SUMMARY: NMFS announces its intent to confidential business information, or final Environmental Assessment (EA) prepare an Environmental Impact otherwise sensitive or protected and Finding of No Significant Impact Statement (EIS), in accordance with the information. NMFS will accept (FONSI) on April 19, 2019, which found National Environmental Policy Act anonymous comments (enter ‘‘N/A’’ in that the impacts of this EFP on the (NEPA) of 1969, to analyze the potential the required fields if you wish to remain human environment were not short- and long-term impacts of the anonymous). significant under the terms of NEPA. proposed action to issue an Exempted FOR FURTHER INFORMATION CONTACT: Also, on July 11, 2018, NMFS had Fishing Permit (EFP), on the human Amber Rhodes, NMFS, 562–980–3231, completed an Endangered Species Act (biological, physical, social, and [email protected] or Lyle (ESA) Section 7 consultation which had economic) environment. This notice of Enriquez, NMFS, 562–980–4025, concluded that the fishing activities intent to prepare an EIS invites [email protected]. authorized under the EFP were not interested parties to provide comments SUPPLEMENTARY INFORMATION: likely to jeopardize the continued on alternatives to be considered in an existence of ESA-listed species, or result EIS, potential terms and conditions to Background in the destruction or adverse minimize adverse effects to the In 2015, the Pacific Fishery modification of critical habitat. Issuance environment, and to identify potential Management Council (hereafter, the of this EFP was followed by litigation in issues, concerns, and any reasonable Council) recommended that NMFS issue the United States District Court for the additional alternatives that should be an EFP authorizing the applicants to Northern District of California, in which considered. engage fish with longline gear within the plaintiffs alleged, among other DATES: Written comments on the scope the Exclusive Economic Zone (EEZ). claims, that NMFS had not used the best of the analysis will be accepted through When soliciting requests for EFP scientific information available (BSIA) September 9, 2020. Comments must be proposals, the Council’s objective was to in its NEPA analysis or ESA Section 7 received by 5 p.m. Pacific Daylight Time test gear types or methods that could consultation, and that as a result, (PDT) on September 9, 2020. Public serve as an alternative to using drift NMFS’ issuance of the EFP violated comments will also be accepted during gillnet (DGN) gear to catch swordfish in both NEPA and the ESA. Center for a webinar scheduled for 10 a.m. to 12 the U.S. West Coast EEZ, or to test Biological Diversity, et al. v. Ross, et al., p.m. PDT, August 27, 2020. Please different approaches to contemporary 4:19-cv-03135–KAW (N.D. Cal.). On notify Amber Rhodes (see FOR FURTHER DGN fishing practices. DGN and December 20, 2019, the Court ruled in INFORMATION CONTACT, below) by August harpoon are the only two gear types favor of the plaintiffs, and vacated and 21, 2020, if you plan to attend the currently authorized under the Fishery set aside the EFP, EA and FONSI, and webinar. Instructions for connecting or Management Plan (FMP) for U.S. West 2018 Biological Opinion. No SSLL or calling into the webinar will be posted Coast Fisheries for Highly Migratory DSLL fishing activity occurred within at: www.fisheries.noaa.gov/west-coast/ Species (HMS FMP); of the two, DGN the West Coast EEZ under the EFP since laws-and-policies/west-coast-region- contributes the majority of the landings the Court’s ruling. national-environmental-policy-act- to the West Coast. Since 1985, U.S. West NMFS is reviewing options and documents. Accommodations for Coast swordfish catch has dramatically additional data for re-analyzing the persons with disabilities are available; declined. This is in large part due to impacts of this EFP with respect to ESA accommodation requests should be attrition in the DGN fleet. Additionally, and NEPA. Other than acquiring gear directed to Amber Rhodes at least 10 the state of California has developed a and landings permits and fishing working days prior to the webinar. DGN ‘‘permit transition program’’ that is licenses to fish waters off California and ADDRESSES: You may submit comments expected to further reduce participation Oregon, there are no other permits, on the scope of this EIS by any of the in this fleet and is designed to limit the licenses, or entitlements needed to following methods: Submit electronic duration of current participants’ DGN conduct the proposed action. public comments via the Federal e- fishing practices. Without other lawful, Rulemaking Portal. economically viable gear types, the U.S. Purpose and Need for the Proposed 1. Go to www.regulations.gov/ West Coast swordfish fishery is unlikely Action #!docketDetail;D=NOAA-NMFS-2020- to operate at optimum yield into the The purpose of EFPs is to allow 0103. foreseeable future. fishing practices that are new to a

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fishery and not otherwise permitted list of measures below includes a menu Council’s recommendations to NMFS to under a FMP. For example, EFP trials to of terms and conditions that could approve the EFP between 2015 and fish for swordfish with deep-set buoy apply to the action alternatives in the 2019. In addition to those opportunities gear led to a Council recommendation to EIS. for public comment and the NMFS to authorize the gear. However, it 1. 100 percent observer coverage. opportunities being provided with this remains unclear whether deep-set buoy 2. EFP fishing trips limited to Federal notice, NMFS will also make a draft EIS gear will be an economically feasible waters only, and cannot co-occur on for the proposed action available for substitute for DGN, which is used to trips that include fishing under public comment. harvest both swordfish and other alternative authorizations. Dated: August 4, 2020. marketable highly migratory species. 3. Vessel monitoring systems installed Jennifer M. Wallace, The specific purpose of this EFP is to and operating for all EFP activities. allow exploratory longline fishing to 4. No transfer of fish to or from Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. gauge impacts, determine whether this vessels operating under the EFP while at type of fishing is economically viable, sea. [FR Doc. 2020–17332 Filed 8–7–20; 8:45 am] and assess the type and extent of 5. No fishing within 50 nautical miles BILLING CODE 3510–22–P interactions with protected species and of the mainland shore and islands. non-target finfish. 6. No fishing within the Leatherback The proposed action is needed Critical Habitat area (77 FR 4170, DEPARTMENT OF COMMERCE January 26, 2012). because fishing with longline gear is National Oceanic and Atmospheric 7. No fishing within the Southern currently prohibited in the West Coast Administration EEZ under 50 CFR 660.712(a)(1) .This California Bight. prohibition pre-dates gear and 8. Restrictions on setting gear within [RTID 0648–XA267] operational modifications in U.S. the boundaries of the Pacific leatherback longline fisheries that have proven conservation area from August 15 Takes of Marine Mammals Incidental to effective elsewhere for reducing through November 15. Specified Activities; Taking Marine protected species interactions, injuries, 9. Restrictions on EFP fishing in Mammals Incidental to the Transit and mortalities (50 CFR 665.812 and waters north of the Oregon/California Protection Program Pier and Support 665.815). Without testing potentially border. Facilities Project at Naval Base Kitsap viable alternatives to fishing with DGN, 10. Gear and bait requirements (e.g., Bangor, Washington 50 CFR 665.812 and 665.813). the U.S. West Coast swordfish fishery is AGENCY: National Marine Fisheries 11. Limits on bycatch (e.g., striped unlikely to operate at optimum yield Service (NMFS), National Oceanic and marlin). into the foreseeable future. Atmospheric Administration (NOAA), 12. Requirement for setting SSLL at Commerce. Gear Configurations and Operations night. Longline gear is an umbrella term 13. Seabird avoidance, protection, and ACTION: Notice; proposed incidental referring to two distinct gear handling measures (50 CFR 660.712(c) harassment authorization; request for configurations. These configurations and 50 CFR 660.21). comments on proposed authorization include deep-set and shallow-set. DSLL 14. Prior to making fishing sets, EFP and possible renewal. ∼ operators will be required to consult the is typically fished at depths of 984 to SUMMARY: NMFS has received a request ∼ dynamic ocean modeling tool, EcoCast. 1,312 feet ( 300 to 400 meters (m) or from the U.S. Navy (Navy) for 15. Operators must participate in a deeper) and more commonly used to authorization to take marine mammals NMFS-hosted workshop focused on target tunas. SSLL is typically fished at incidental to the Transit Protection compliance with terms and conditions less than 328 feet (<100 m depth) and Program Pier and Support Facilities of the EFP, including training on the use more commonly used to target Project at Naval Base Kitsap Bangor in of EcoCast. swordfish. The proposed action area for Silverdale, Washington over two years. 16. Operators must possess on board this EFP is the United States EEZ off Pursuant to the Marine Mammal a valid Pacific HMS permit (50 CFR California and Oregon. Protection Act (MMPA), NMFS is 666.707(a)). Alternatives requesting comments on its proposal to Public Scoping Process issue two incidental harassment The range of alternatives includes a authorizations (IHAs) to incidentally No Action alternative and reasonable The primary purpose of the scoping take marine mammals during the action alternatives that meet the process is for the public to assist NMFS specified activities. NMFS is also purpose and need. These action in developing the EIS. NMFS requests requesting comments on possible one- alternatives may differ in the limits set that the comments be specific. In time, one-year renewals that could be on sea turtles observed hooked, particular, we request information issued under certain circumstances and entangled, or killed during fishing regarding: Important issues; possible if all requirements are met, as described under the EFP. Additionally, the action alternatives that meet the purpose and in Request for Public Comments at the alternatives may differ in limits set on need; direct, indirect, and cumulative end of this notice. NMFS will consider fishing activity (e.g., number of vessels, environmental impacts; and potential public comments prior to making any sets, or hooks, and time-area terms and conditions that may minimize final decision on the issuance of the constraints). adverse effects, including time or area restrictions or both to reduce requested MMPA authorizations and Terms and Conditions environmental impacts. In addition to agency responses will be summarized in In addition to the loggerhead and written public comments received the final notice of our decision. leatherback sea turtle limits, the action during this scoping period and the DATES: Comments and information must alternatives will include terms and comments received during the proposed be received no later than September 9, conditions to facilitate data collection webinar, NMFS will consider public 2020. and mitigate potential impacts of the comments and recommendations of the ADDRESSES: Comments should be EFP activities on the environment. The Council’s advisory bodies related to the addressed to Jolie Harrison, Chief,

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Permits and Conservation Division, affected species or stocks and their Description of Proposed Activity Office of Protected Resources, National habitat, paying particular attention to Overview Marine Fisheries Service, and submitted rookeries, mating grounds, and areas of via email to [email protected]. similar significance, and on the The Navy is proposing to construct Instructions: NMFS is not responsible availability of the species or stocks for and operate a pier for berthing of Transit for comments sent by any other method, taking for certain subsistence uses Protection Program (TPP) blocking to any other address or individual, or (referred to in shorthand as vessels, which provide security escort to received after the end of the comment ‘‘mitigation’’); and requirements Fleet Ballistic Missile Submarines period. Comments, including all pertaining to the mitigation, monitoring between Naval Base Kitsap Bangor and attachments, must not exceed a 25- and reporting of the takings are set forth. the Strait of Juan de Fuca. These vessels megabyte file size. All comments The definitions of all applicable MMPA are currently berthed on a space- received are a part of the public record statutory terms cited above are included available basis at various locations at and will generally be posted online at in the relevant sections below. Kitsap Bangor. Kitsap Bangor is located https://www.fisheries.noaa.gov/ on Hood Canal approximately 20 miles national/marine-mammal-protection/ National Environmental Policy Act (mi) (32 kilometers (km)) west of Seattle, incidental-take-authorizations- To comply with the National Washington. Construction activities construction-activities without change. Environmental Policy Act of 1969 include vibratory and impact pile All personal identifying information (NEPA; 42 U.S.C. 4321 et seq.) and driving and vibratory pile removal, over (e.g., name, address) voluntarily NOAA Administrative Order (NAO) approximately 80 days in year 1 and 10 submitted by the commenter may be 216–6A, NMFS must review our days in year 2. publicly accessible. Do not submit proposed action (i.e., the issuance of an Dates and Duration confidential business information or IHA) with respect to potential impacts The Navy anticipates that otherwise sensitive or protected on the human environment. construction for the TPP project will information. This action is consistent with occur over two years. The proposed FOR FURTHER INFORMATION CONTACT: categories of activities identified in IHAs would be effective from July 16, Leah Davis, Office of Protected Categorical Exclusion B4 (IHAs with no 2021 to January 15, 2022 for Year 1 Resources, NMFS, (301) 427–8401. anticipated serious injury or mortality) activities, and July 16, 2022 to January Electronic copies of the application and of the Companion Manual for NOAA 15, 2023 for Year 2 activities. The Navy supporting documents, as well as a list Administrative Order 216–6A, which do expects that pile driving will require a of the references cited in this document, not individually or cumulatively have maximum of 90 in-water pile-driving may be obtained online at: https:// the potential for significant impacts on days over the two-year period. They www.fisheries.noaa.gov/national/ the quality of the human environment anticipate completing the majority of marine-mammal-protection/incidental- and for which we have not identified the proposed construction during Year 1 take-authorizations-construction- any extraordinary circumstances that on approximately 80 in-water workdays. activities. In case of problems accessing would preclude this categorical Year 2 activities will include fender pile these documents, please call the contact exclusion. Accordingly, NMFS has and guide pile installation only on listed above. preliminarily determined that the approximately 10 in-water workdays. SUPPLEMENTARY INFORMATION: issuance of the proposed IHA qualifies Pile driving and removal are expected to to be categorically excluded from occur up to five hours per day during Background further NEPA review. daylight hours. Each year, pile driving The MMPA prohibits the ‘‘take’’ of We will review all comments will occur during the in-water work marine mammals, with certain submitted in response to this notice window (IWWW) at Kitsap Bangor from exceptions. Sections 101(a)(5)(A) and prior to concluding our NEPA process July 16 to January 15. This IWWW is (D) of the MMPA (16 U.S.C. 1361 et or making a final decision on the IHA typically imposed by the U.S. Army seq.) direct the Secretary of Commerce request. Corps of Engineers, the U.S. Fish and (as delegated to NMFS) to allow, upon Summary of Request Wildlife Service (USFWS), and the request, the incidental, but not NMFS in an effort to avoid in-water intentional, taking of small numbers of On January 14, 2020, NMFS received construction when Endangered Species marine mammals by U.S. citizens who a request from the Navy for an IHA to Act (ESA)-listed juvenile salmonids are engage in a specified activity (other than take marine mammals incidental to the most likely to be present. commercial fishing) within a specified Transit Protection Program Pier and geographical region if certain findings Support Facilities Project at Naval Base Specific Geographic Region are made and either regulations are Kitsap Bangor in Silverdale, Washington Naval Base Kitsap Bangor is located issued or, if the taking is limited to over two years. The Navy submitted a north of the community of Silverdale in harassment, a notice of a proposed revised application on March 23, 2020, Kitsap County on the Hood Canal. Hood incidental take authorization may be which was deemed adequate and Canal is a long, narrow, fjord-like basin provided to the public for review. complete on June 10, 2020. The Navy’s of western Puget Sound, characterized Authorization for incidental takings request is for take of a small number of by relatively steep sides and irregular shall be granted if NMFS finds that the five species of marine mammals, by seafloor topography. In the entrance to taking will have a negligible impact on Level B harassment and Level A Hood Canal, water depths in the center the species or stock(s) and will not have harassment. Neither the Navy nor NMFS of the waterway near Admiralty Inlet an unmitigable adverse impact on the expects serious injury or mortality to vary between 300 and 420 feet (ft) (91 availability of the species or stock(s) for result from this activity and, therefore, and 128 m). As the canal extends taking for subsistence uses (where IHAs are appropriate. southwestward toward the Olympic relevant). Further, NMFS must prescribe The IHAs, if issued, will be effective Mountain Range and Thorndyke Bay, the permissible methods of taking and from July 16, 2021 to January 15, 2022 water depth decreases to approximately other ‘‘means of effecting the least for Year 1 activities, and July 16, 2022 160 ft (49 m). The proposed location for practicable adverse impact’’ on the to January 15, 2023 for Year 2 activities. the TPP Pier is at the tip of the Keyport/

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Bangor Spit, north of the Keyport/ the waterway off the Bangor waterfront generate underwater sound (Urick, Bangor Dock (Figure 1). The Bangor are generally 200 to 400 ft (61 to 122 m). 1983). Other sources of human- waterfront on Naval Base Kitsap Human-generated sound is a generated underwater sound not occupies approximately 5 mi (8 km) of significant contributor to the ambient specific to naval installations include the shoreline within northern Hood acoustic environment at Kitsap Bangor. sounds from echo sounders on Canal (1.7 percent of the entire Hood Normal port activities include vessel commercial and recreational vessels, Canal coastline). Depths in the center of traffic from large ships, support vessels industrial ship noise, and noise from and security boats, and loading and recreational boat engines. maintenance operations, which all

Detailed Description of Specific Activity including a pedestrian walkway. The Each camel will be 65 ft (19.8 m) long main pier section will also be concrete by 12 ft (3.7 m) wide and constructed of The Navy plans to construct a pier for and approximately 299 ft (91.1 m) long grated material. The camels will serve as berthing TPP blocking vessels. The TPP and 69 ft (21 m) wide. both a standoff for the blocking vessels pier will consist of an L-shaped, pile- The contractor will need to construct and a platform for boarding the blocking supported trestle from shore connecting a 140-ft (42.6 m) by 20-ft (6.1 m) vessels. The camels will be accessed via to a pile-supported main pier section. temporary work trestle (falsework piles brows down from the main pier deck. The Navy will also install two dolphins, and timber decking). The permanent The brow platforms and brows will also one south and one north of the pier trestle piles in the intertidal area will be be constructed of grated material. NMFS which will be used solely for mooring driven from the deck of the temporary does not expect camel or brow platform support. Additionally, the contractor work trestle; the temporary trestle will installation to result in the take of will construct a temporary work trestle subsequently be removed using a marine mammals, and we do not (falsework piles and timber decking) for vibratory hammer. discuss their installation further in this use during construction. Pier and trestle construction will notice. The proposed TPP pier will consist of require one derrick barge with a crane The fender piles will be installed on an L-shaped pile-supported trestle from and one support/material barge. the outer side of the pier to protect it shore connecting to a pile-supported The Navy plans to install a fender from accidental damage by vessels. main pier section. The trestle will be system along the west face of the pier Where geotechnical conditions do not concrete and approximately 114 ft (34.7 with two berthing camels where the allow piles to be driven to the required m) long and 39 ft (11.9 m) wide, blocking vessels will tie up to the pier. depth using vibratory methods, an

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impact hammer may be used to drive from sheet piles and will be constructed The Navy will primarily install piles some of the 36-in (91.4 cm) support landward of mean higher high water using a vibratory hammer, but may use piles for part or all of their length. The (MHHW). Therefore, we do not expect an impact hammer to install steel 24-in (61.0 cm) fender piles and 30-in the shoreline abutment to result in take support piles. Steel support piles will be (76.2 cm) camel guide piles will not be of marine mammals, and it is not advanced to the extent practicable with impact driven. discussed further in this notice. a vibratory driver. For load-bearing The Navy plans to construct two The trestle, pier, and dolphins will structures, an impact hammer is dolphins, one south of the pier, and one require in-water installation of a total of typically required to strike a pile a north of the pier for mooring support. 120 permanent steel piles that are 24, number of times to ensure it has met the The dolphins will support mooring 30, or 36 inches in diameter, and 40 load-bearing specifications, a process hardware for the bow and stern lines of temporary steel falsework piles that are referred to as ‘‘proofing.’’ Piles will only the blocking vessels. The structural 36 inches in diameter. system for the mooring dolphins will An additional four 36-inch trestle be impact driven when required for consist of a 12 ft by 12 ft (3.7 m by 3.7 support piles and 20 36-inch falsework proofing or when a pile cannot be m) cast-in-place concrete pile cap and piles will be located above MHHW, advanced with a vibratory driver due to four 36-inch battered steel pipe piles. however, we do not expect installation hard substrate conditions. The Navy The Navy plans to construct a shoreline of piles above MHHW to result in take does not plan to conduct pile driving abutment under the pier trestle. The of marine mammals, and these piles are with multiple hammers concurrently. shoreline abutment will be constructed not discussed further.

TABLE 1—SUMMARY OF PILES TO BE INSTALLED OR REMOVED IN YEAR 1 ACROSS ALL STRUCTURES

Number of Pile type Driving method in-water piles

36-inch Steel Pipe Piles ...... Vibratory and Impact (proofing) ...... 100 36-inch Steel Falsework Piles ...... Vibratory ...... a 40 a These piles will be installed and later removed.

TABLE 2—SUMMARY OF PILES TO BE INSTALLED IN YEAR 2

Number of Pile type Driving method in-water piles

24-inch Steel Fender Piles ...... Vibratory ...... 10 30-inch Steel Guide Piles ...... Vibratory ...... 10

Navy will also conduct several affected species. Additional information population (as described in NMFS’s construction activities in upland areas, regarding population trends and threats SARs). While no mortality is anticipated including installation of diesel fuel may be found in NMFS’s Stock or authorized here, PBR and annual tanks, installation of a paved parking Assessment Reports (SARs; https:// serious injury and mortality from area, construction of a vessel www.fisheries.noaa.gov/national/ anthropogenic sources are included here maintenance facility, among other marine-mammal-protection/marine- as gross indicators of the status of the activities. Given their location, we do mammal-stock-assessments) and more species and other threats. general information about these species not expect any of these upland Marine mammal abundance estimates construction activities to result in the (e.g., physical and behavioral presented in this document represent take of marine mammals, and they are descriptions) may be found on NMFS’s the total number of individuals that not discussed further in this notice. website (https:// make up a given stock or the total Please refer to the Navy’s application for www.fisheries.noaa.gov/find-species). number estimated within a particular additional detail on these project Table 3 lists all species or stocks for study or survey area. NMFS’s stock components. which take is expected and proposed to Proposed mitigation, monitoring, and be authorized for this action, and abundance estimates for most species reporting measures are described in summarizes information related to the represent the total estimate of detail later in this document (please see population or stock, including individuals within the geographic area, Proposed Mitigation and Proposed regulatory status under the MMPA and if known, that comprises that stock. For Monitoring and Reporting). ESA and potential biological removal some species, this geographic area may (PBR), where known. For taxonomy, we extend beyond U.S. waters. All managed Description of Marine Mammals in the follow Committee on Taxonomy (2020). stocks in this region are assessed in Area of Specified Activities PBR is defined by the MMPA as the NMFS’s U.S. Pacific and Alaska SARs Sections 3 and 4 of the application maximum number of animals, not (e.g., Carretta et al., 2020). All values summarize available information including natural mortalities, that may presented in Table 3 are the most recent regarding status and trends, distribution be removed from a marine mammal available at the time of publication and and habitat preferences, and behavior stock while allowing that stock to reach are available in the 2019 SARs (Carretta and life history, of the potentially or maintain its optimum sustainable et al., 2020, Muto et al., 2020).

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TABLE 3—SPECIES PROPOSED FOR AUTHORIZED TAKE

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent abun- PBR min M/SI c strategic dance survey) b (Y/N) a

Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Killer Whale ...... Orcinus orca ...... West Coast Tran- -, -, N 243 d (N/A, 243, 2009) ...... 2.4 0 sient. Family Phocoenidae (porpoises): Harbor porpoise ...... Phocoena phocoena ...... Washington Inland -, -, N 11,233 (0.37, 8,308, 2015) ...... 66 ≥7.2 Waters.

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): California Sea Lion ...... Zalophus californianus ...... United States ...... -, -, N 257,606 (N/A, 233,515, 2014) ..... 14,011 >321 Steller sea lion ...... Eumetopias jubatus monteriensis Eastern U.S...... -, -, N 43,201 e (see SAR, 43,201, 2017) 2,592 113 Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... Washington Inland -, -, N 1,088 (0.15, UNK, 1999) f ...... UNK 0.2 Waters, Hood Canal. a–ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as de- pleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. b–NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assess- ment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. c–These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fish- eries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. d–Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted infre- quently. e–Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys. f–The abundance estimate for this stock is greater than eight years old and is therefore not considered current. PBR is considered undetermined for this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document.

As indicated above, all five species resident to the inland waters of found some transient groups frequenting (with five managed stocks) in Table 3 Washington state and British Columbia; the vicinity of harbor seal haulouts temporally and spatially co-occur with however, it has not been seen in Hood around southern Vancouver Island the activity to the degree that take is Canal in over 15 years. Dall’s porpoise during August and September, which is reasonably likely to occur, and we have (Phocoenoides dalli) was documented the peak period for pupping through proposed authorizing it. While once in Hood Canal in 2009 and more post-weaning of harbor seal pups. Not humpback whale, gray whale, Southern recently once in 2018 (Orca Network, all transient groups were seasonal in Resident killer whale, Dall’s porpoise, 2019); however, Dall’s porpoises are these studies, and their movements and bottlenose dolphin have been unlikely to be present in Hood Canal. appeared to be unpredictable. From sighted in the area, the temporal and Bottlenose dolphin (Tursiops truncatus) 2004–2010, transient killer whales spatial occurrence of these species is were documented in Hood Canal twice occurred in Washington inland waters such that take is not expected to occur, in 2018 (Orca Network, 2019); however, most frequently in August–September and they are not discussed further bottlenose dolphins are unlikely to be with a strong second peak in April–May beyond the explanation provided here. present in Hood Canal. (Houghton et al., 2015). Humpback whales (Megaptera The number of West Coast Transient novaeangliae) have been detected year- Killer Whale killer whales in Washington inland round in small numbers in Puget Sound. Killer whales in the project area are waters at any one time was previously In Hood Canal, after an absence of expected to be from the West Coast considered likely to be fewer than 20 sightings for over 15 years, an Transient stock, which occurs from individuals (Wiles, 2004). Recent individual was seen over a 1-week California through southeastern Alaska research suggests that the transient period in early 2012, with additional 1- with a preference for coastal waters of killer whales use of inland waters day sightings in 2015, 2016, and 2017 southern Alaska and British Columbia increased from 2004 through 2010, with (Orca Network, 2019). However, these (Krahn et al., 2002). Transient killer the trend likely due to increasing prey sightings are exceptions to the normal whales in the Pacific Northwest spend abundance (Houghton et al., 2015). occurrence of the species in Washington most of their time along the outer coast Many of the West Coast Transients in inland waters. Gray whales of British Columbia and Washington, Washington inland waters have been (Eschrichtius robustus) have been but visit inland waters in search of catalogued by photo identification. infrequently documented in Hood Canal harbor seals, sea lions, and other prey. Transient killer whales were observed waters over the past decade. There were Transients may occur in inland waters for lengthy periods in Hood Canal in five sightings in 2017 and one in 2018 in any month (Orca Network, 2015). 2003 (59 days) and 2005 (172 days) (Orca Network, 2017, 2019). These However, Morton (1990) found bimodal between the months of January and July sightings are an exception to the normal peaks in spring (March) and fall (London, 2006), but were not observed seasonal occurrence of gray whales in (September to November) for transients again until March 2016 (Orca Network, Puget Sound feeding areas. The on the northeastern coast of British 2016). Transient killer whales were Southern Resident killer whale stock is Columbia, and Baird and Dill (1995) observed in Hood Canal on two days in

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March 2016, one day in April 2016, porpoises were sighted per day in the indicate Steller sea lions begin arriving eight consecutive days in May 2016, one deeper waters. in September and depart by the end of day in 2017, 11 consecutive days in May (Navy, 2016, 2019). Survey Steller Sea Lion April 2018, and one day on two methods and frequency are detailed additional occasions in 2018. Some of Steller sea lions in the project area are Appendix A of the Navy’s application. the sightings in 2016 and 2018 were in expected to be from the Eastern U.S. California Sea Lion Dabob Bay (Orca Network, 2017, 2019). stock. The Eastern U.S. stock of Steller Killer whales were historically sea lions is found along the coasts of Jeffries et al. (2000) and Jeffries (2012) documented in Hood Canal by sound southeast Alaska to northern California identified dedicated, regular haulouts recordings in 1958 (Ford, 1991), a where they occur at rookeries and used by adult and subadult California photograph from 1973, sound numerous haulout locations along the sea lions in Washington inland waters. recordings in 1995 (Unger, 1997), and coastline (Jeffries et al., 2000; Scordino, Main haulouts occur at Naval Base anecdotal accounts of historical use. 2006; NMFS, 2013). Along the northern Kitsap Bangor, Naval Base Kitsap Long-term use of Hood Canal is likely Washington coast, up to 25 pups are Bremerton, and Naval Station Everett, as anomalous. The more typical use of born annually (Jeffries, 2013). Male well as in Rich Passage near Hood Canal appears to be short-term Steller sea lions often disperse widely Manchester, Seattle (Shilshole Bay), occupancy for foraging in a small area, outside of the breeding season from south Puget Sound (Commencement followed by departure from Hood Canal. breeding rookeries in northern Bay, Budd Inlet), and numerous California (St. George Reef) and navigation buoys south of Whidbey Harbor Porpoise southern Oregon (Rogue Reef) Island to Olympia in south Puget Sound Harbor porpoise in Puget Sound are (Scordino, 2006; Wright et al., 2010). (Jeffries et al., 2000; Jeffries, 2012) expected to be from the Washington Based on mark recapture sighting (Figure 4–1 of the Navy’s application). Inland Waters stock. In Washington studies, males migrate back into these Race Rocks, British Columbia, Canada inland waters, harbor porpoise are Oregon and California locations from (Canadian side of the Strait of Juan de known to occur in the Strait of Juan de winter feeding areas in Washington, Fuca) has been identified as a major Fuca and the San Juan Island area year- British Columbia, and Alaska (Scordino, winter haulout for California sea lions round (Calambokidis & Baird, 1994; 2006). (Edgell and Demarchi, 2012). California Osmek et al., 1996; Carretta et al., 2012). In Washington, Steller sea lions use sea lions are typically present most of Harbor porpoises were historically one haulout sites primarily along the outer the year except for mid-June through of the most commonly observed marine coast from the Columbia River to Cape July in Washington inland waters, with mammals in Puget Sound (Scheffer & Flattery, as well as along the Vancouver peak abundance numbers between Slipp, 1948); however, there was a Island side of the Strait of Juan de Fuca October and May (NMFS, 1997; Jeffries significant decline in sightings (Jeffries et al., 2000). A major winter et al., 2000). California sea lions are beginning in the 1940s (Everitt et al., haulout is located in the Strait of Juan expected to forage within the area, 1979; Calambokidis et al., 1992). Only a de Fuca at Race Rocks, British following local prey availability. During few sightings were reported between the Columbia, Canada (Canadian side of the summer months and associated 1970s and 1980s (Calambokidis et al., Strait of Juan de Fuca) (Edgell and breeding periods, the inland waters are 1992; Osmek et al., 1996; Suryan & Demarchi, 2012). Numbers vary not considered a high-use area by Harvey, 1998), and no harbor porpoise seasonally in Washington with peak California sea lions, as they are sightings were recorded during multiple numbers present during the fall and returning to rookeries in California ship and aerial surveys conducted in winter months and a decline in the waters. However, California sea lions Puget Sound (including Hood Canal) in summer months that corresponds to the have been documented during shore- 1991 and 1994 (Calambokidis et al., breeding season at coastal rookeries based surveys at Naval Base Kitsap 1992; Osmek et al., 1996). Incidental (approximately late May to early June) Bangor in Hood Canal since 2008 in all sightings of marine mammals during (Jeffries et al., 2000). In Puget Sound, survey months, with as many as 320 aerial bird surveys conducted as part of Jeffries (2012) identified five winter individuals observed at one time the Puget Sound Ambient Monitoring haulout sites used by adult and subadult (October 2018) hauled out on Program (PSAMP) detected few harbor (immature or pre-breeding animals) submarines at Delta Pier and on port porpoises in Puget Sound between 1992 Steller sea lions, ranging from security barrier (PSB) floats (Navy, 2016, and 1999 (Nysewander et al., 2005). immediately south of Port Townsend 2019; Appendix A of the Navy’s However, these sightings may have been (near Admiralty Inlet) to Olympia in application). Relatively few individuals negatively biased due to the low southern Puget Sound (see Figure 4–1 of (<17 sighted per survey) were present elevation of the plane that may have the Navy’s application). Numbers of during these surveys from June through caused an avoidance behavior. Since animals observed at these sites ranged August. 1999, PSAMP data, stranding data, and from a few to less than 100 (Jeffries, aerial surveys conducted from 2013 to 2012). In addition, Steller sea lions Harbor Seal 2015 documented increasing numbers of opportunistically haul out on various Harbor seals are a coastal species, harbor porpoise in Puget Sound navigational buoys in Admiralty Inlet rarely found more than 12 mi (19.3 km) (Nysewander, 2005; WDFW, 2008; south through southern Puget Sound from shore. They frequently occupy Jeffries, 2013; Jefferson et al., 2016; near Olympia (Jeffries, 2012). Typically, bays, estuaries, and inlets. Individual Smultea et al., 2017). one or two animals occur at a time on seals have been observed several miles Sightings in Hood Canal, north of the these buoys. upstream in coastal rivers (Baird, 2001). Hood Canal Bridge, have increased in Steller sea lions have been seasonally Ideal harbor seal habitat includes recent years (Calambokidis, 2010). documented in shore-based surveys at haulout sites, areas providing shelter During line-transect vessel surveys Naval Base Kitsap Bangor in Hood Canal during breeding periods, and areas with conducted in the Hood Canal in 2011 since 2008 with up to 15 individuals sufficient food (Bj

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made structures such as log booms, for two construction projects, the Test swimming in nearby waters, and docks, and recreational floats (Wilson, Pile Project and EHW–2 construction swimming near Delta Pier (Navy, 2016). 1978; Prescott, 1982; Schneider & projects (HDR, 2012; Hart Crowser, Marine Mammal Hearing Payne, 1983, Gilbert & Guldager, 1998; 2013, 2014, 2015). Small numbers of Jeffries et al., 2000; Lambourn et al., harbor seals have been documented Hearing is the most important sensory 2010). Harbor seals do not make hauling out on the PSB floats, modality for marine mammals extensive pelagic migrations, though wavescreens at Carderock Pier, buoys, underwater, and exposure to some long distance movement of tagged barges, marine vessels, and logs (Agness anthropogenic sound can have animals in Alaska (108 mi (174 km)) and and Tannenbaum, 2009; Tannenbaum et deleterious effects. To appropriately along the U.S. west coast (up to 342 mi al., 2009, 2011; Navy, 2016) and on assess the potential effects of exposure (550 km)) have been recorded (Brown & man-made floating structures near to sound, it is necessary to understand Mate, 1983; Womble & Gende, 2013). Keyport Bangor Dock and Delta Pier. the frequency ranges marine mammals Harbor seals have also displayed strong Opportunistic surveys by a Naval are able to hear. Current data indicate fidelity to haulout sites. Facilities Engineering Command that not all marine mammal species Harbor seals are the most common, biologist in August and September 2016 have equal hearing capabilities (e.g., widely distributed marine mammal recorded as many as 28 harbor seals Richardson et al., 1995; Wartzok and found in Washington marine waters and hauled out under Marginal Wharf or Ketten, 1999; Au and Hastings, 2008). are frequently observed in the nearshore swimming in adjacent waters. On two To reflect this, Southall et al. (2007) marine environment. They occur year- occasions, four to six individuals were recommended that marine mammals be round and breed in Washington. observed hauled out near Delta Pier. divided into functional hearing groups Numerous harbor seal haulouts occur in The Navy identified a few based on directly measured or estimated Washington inland waters. Haulouts observations of harbor seal births or hearing ranges on the basis of available include intertidal and subtidal rock neonates. In 2014, the Navy’s behavioral response data, audiograms outcrops, beaches, reefs, sandbars, log knowledge of harbor seal births derived using auditory evoked potential booms, and floats. Numbers of increased due to increased pinniped techniques, anatomical modeling, and individuals at haulouts range from a few surveys on the waterfront and increased other data. Note that no direct to between 100 and 500 individuals contact with waterfront personnel who measurements of hearing ability have (Jeffries et al., 2000). have had lengthy careers at Bangor been successfully completed for Harbor seals are expected to occur (Navy, 2016). Known harbor seal births mysticetes (i.e., low-frequency year-round at Naval Base Kitsap Bangor. include one on the Carderock wave cetaceans). Subsequently, NMFS (2018) In Hood Canal, where Kitsap Bangor is screen in August 2011 and at least one described generalized hearing ranges for located, known haulouts occur on the on a small 10 by 10 ft (3 by 3 m) floating these marine mammal hearing groups. west side of Hood Canal at the mouth dock at EHW–2 in fall 2013, as reported Generalized hearing ranges were chosen of the Dosewallips River and on the by EHW–2 construction crews, and based on the approximately 65 decibel western and northern shorelines in afterbirth observed on a float at (dB) threshold from the normalized Dabob Bay located approximately 8 mi Magnetic Silencing Facility with an composite audiograms, with the (13 km) away from the Navy’s unknown date. In addition, Navy exception for lower limits for low- installation. Vessel-based surveys biologists learned that harbor seal frequency cetaceans where the lower conducted from 2007 to 2010 at Kitsap pupping has occurred on a section of bound was deemed to be biologically Bangor, observed harbor seals in every the Service Pier since approximately implausible and the lower bound from month of surveys (Agness & 2001, according to the Port Operations Southall et al. (2007) retained. Marine Tannenbaum, 2009; Tannenbaum et al., vessel crews. Harbor seal mother and mammal hearing groups and their 2009, 2011). Harbor seals were routinely pup sets were observed in 2014 hauled associated hearing ranges are provided seen during marine mammal monitoring out on the Carderock wavescreen and in Table 4.

TABLE 4—MARINE MAMMAL HEARING GROUPS [NMFS, 2018]

Hearing group Generalized hearing range *

Low-frequency (LF) cetaceans (baleen whales) ...... 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...... 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & 275 Hz to 160 kHz. L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ...... 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ...... 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing (Hemila¨ et al., 2006; Kastelein et al., species) have the reasonable potential to group was modified from Southall et al. 2009; Reichmuth and Holt, 2013). co-occur with the proposed construction (2007) on the basis of data indicating For more detail concerning these (Table 4). Of the cetacean species that that phocid species have consistently groups and associated frequency ranges, may be present, one is classified as a demonstrated an extended frequency please see NMFS (2018) for a review of mid-frequency cetacean (i.e., killer range of hearing compared to otariids, available information. Five marine whale), and one is classified as a high- especially in the higher frequency range mammal species (two cetacean and two frequency cetacean (i.e., harbor pinniped (two otariid and one phocid) porpoise).

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Potential Effects of Specified Activities by 10–20 dB from day to day impacts to marine mammals are on Marine Mammals and Their Habitat (Richardson et al. 1995). The result is expected to primarily be acoustic in This section includes a summary and that, depending on the source type and nature. Acoustic stressors include discussion of the ways that components its intensity, sound from the specified effects of heavy equipment operation of the specified activity may impact activity may be a negligible addition to during pile installation and removal. the local environment or could form a marine mammals and their habitat. The Acoustic Impacts distinctive signal that may affect marine Estimated Take section later in this The introduction of anthropogenic document includes a quantitative mammals. In-water construction activities noise into the aquatic environment from analysis of the number of individuals associated with the project would pile driving and removal is the primary that are expected to be taken by this include impact pile driving, vibratory means by which marine mammals may activity. The Negligible Impact Analysis pile driving, and vibratory pile removal. be harassed from the Navy’s specified and Determination section considers the The sounds produced by these activities activity. In general, animals exposed to content of this section, the Estimated fall into one of two general sound types: natural or anthropogenic sound may Take section, and the Proposed Impulsive and non-impulsive. experience physical and psychological Mitigation section, to draw conclusions Impulsive sounds (e.g., explosions, effects, ranging in magnitude from none regarding the likely impacts of these gunshots, sonic booms, impact pile to severe (Southall et al. 2007). In activities on the reproductive success or driving) are typically transient, brief general, exposure to pile driving and survivorship of individuals and how (less than 1 second), broadband, and removal noise has the potential to result those impacts on individuals are likely consist of high peak sound pressure in auditory threshold shifts and to impact marine mammal species or with rapid rise time and rapid decay behavioral reactions (e.g., avoidance, stocks. (ANSI 1986; NIOSH 1998; ANSI 2005; temporary cessation of foraging and Acoustic effects on marine mammals NMFS 2018a). Non-impulsive sounds vocalizing, changes in dive behavior). during the specified activity can occur (e.g., aircraft, machinery operations Exposure to anthropogenic noise can from vibratory and impact pile driving. such as drilling or dredging, vibratory also lead to non-observable The effects of underwater noise from the pile driving, and active sonar systems) physiological responses such an Navy’s proposed activities have the can be broadband, narrowband or tonal, increase in stress hormones. Additional potential to result in Level A and Level brief or prolonged (continuous or noise in a marine mammal’s habitat can B harassment of marine mammals in the intermittent), and typically do not have mask acoustic cues used by marine action area. the high peak sound pressure with raid mammals to carry out daily functions Description of Sound Sources rise/decay time that impulsive sounds such as communication and predator do (ANSI 1995; NIOSH 1998; NMFS and prey detection. The effects of pile The marine soundscape is comprised 2018a). The distinction between these driving and removal noise on marine of both ambient and anthropogenic two sound types is important because mammals are dependent on several sounds. Ambient sound is defined as they have differing potential to cause factors, including, but not limited to, the all-encompassing sound in a given physical effects, particularly with regard sound type (e.g., impulsive vs. non- place and is usually a composite of to hearing (e.g., Ward 1997 in Southall impulsive), the species, age and sex sound from many sources both near and et al. 2007). class (e.g., adult male vs. mom with far. The sound level of an area is Two types of pile hammers would be calf), duration of exposure, the distance defined by the total acoustical energy used on this project: Impact and between the pile and the animal, being generated by known and vibratory. Impact hammers operate by received levels, behavior at time of unknown sources. These sources may repeatedly dropping a heavy piston onto exposure, and previous history with include physical (e.g., waves, wind, a pile to drive the pile into the substrate. exposure (Wartzok et al. 2004; Southall precipitation, earthquakes, ice, Sound generated by impact hammers is et al. 2007). Here we discuss physical atmospheric sound), biological (e.g., characterized by rapid rise times and auditory effects (threshold shifts) sounds produced by marine mammals, high peak levels, a potentially injurious followed by behavioral effects and fish, and invertebrates), and combination (Hastings and Popper potential impacts on habitat. anthropogenic sound (e.g., vessels, 2005). Vibratory hammers install piles NMFS defines a noise-induced dredging, aircraft, construction). by vibrating them and allowing the threshold shift (TS) as a change, usually The sum of the various natural and weight of the hammer to push them into an increase, in the threshold of anthropogenic sound sources at any the sediment. Vibratory hammers audibility at a specified frequency or given location and time—which produce significantly less sound than portion of an individual’s hearing range comprise ‘‘ambient’’ or ‘‘background’’ impact hammers. Peak sound pressure above a previously established reference sound—depends not only on the source levels (SPLs) may be 180 dB or greater, level (NMFS 2018). The amount of levels (as determined by current but are generally 10 to 20 dB lower than threshold shift is customarily expressed weather conditions and levels of SPLs generated during impact pile in dB. A TS can be permanent or biological and shipping activity) but driving of the same-sized pile (Oestman temporary. As described in NMFS also on the ability of sound to propagate et al. 2009). Rise time is slower, (2018), there are numerous factors to through the environment. In turn, sound reducing the probability and severity of consider when examining the propagation is dependent on the injury, and sound energy is distributed consequence of TS, including, but not spatially and temporally varying over a greater amount of time (Nedwell limited to, the signal temporal pattern properties of the water column and sea and Edwards 2002; Carlson et al. 2005). (e.g., impulsive or non-impulsive), floor, and is frequency-dependent. As a The likely or possible impacts of the likelihood an individual would be result of the dependence on a large Navy’s proposed activity on marine exposed for a long enough duration or number of varying factors, ambient mammals could involve both non- to a high enough level to induce a TS, sound levels can be expected to vary acoustic and acoustic stressors. the magnitude of the TS, time to widely over both coarse and fine spatial Potential non-acoustic stressors could recovery (seconds to minutes or hours to and temporal scales. Sound levels at a result from the physical presence of the days), the frequency range of the given frequency and location can vary equipment and personnel; however, any exposure (i.e., spectral content), the

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hearing and vocalization frequency frequency range that takes place during underwater sound by changing its range of the exposed species relative to a time when the animal is traveling behavior or moving a small distance, the the signal’s frequency spectrum (i.e., through the open ocean, where ambient impacts of the change are unlikely to be how an animal uses sound within the noise is lower and there are not as many significant to the individual, let alone frequency band of the signal; e.g., competing sounds present. the stock or population. However, if a Kastelein et al. 2014), and the overlap Alternatively, a larger amount and sound source displaces marine between the animal and the source (e.g., longer duration of TTS sustained during mammals from an important feeding or spatial, temporal, and spectral). time when communication is critical for breeding area for a prolonged period, Permanent Threshold Shift (PTS)— successful mother/calf interactions impacts on individuals and populations NMFS defines PTS as a permanent, could have more serious impacts. We could be significant (e.g., Lusseau & irreversible increase in the threshold of note that reduced hearing sensitivity as Bejder 2007; Weilgart 2007; NRC 2005). audibility at a specified frequency or a simple function of aging has been Disturbance may result in changing portion of an individual’s hearing range observed in marine mammals, as well as durations of surfacing and dives, above a previously established reference humans and other taxa (Southall et al. number of blows per surfacing, or level (NMFS 2018). Available data from 2007), so we can infer that strategies moving direction and/or speed; humans and other terrestrial mammals exist for coping with this condition to reduced/increased vocal activities; indicate that a 40 dB threshold shift some degree, though likely not without changing/cessation of certain behavioral approximates PTS onset (see Ward et al. cost. activities (such as socializing or 1958, 1959; Ward 1960; Kryter et al. Currently, TTS data only exist for four feeding); visible startle response or 1966; Miller 1974; Ahroon et al. 1996; species of cetaceans (bottlenose aggressive behavior (such as tail/fluke Henderson et al. 2008). PTS levels for dolphin, beluga whale (Delphinapterus slapping or jaw clapping); avoidance of marine mammals are estimates, as with leucas), harbor porpoise, and Yangtze areas where sound sources are located. the exception of a single study finless porpoise (Neophocoena Pinnipeds may increase their haul out unintentionally inducing PTS in a asiaeorientalis)) and five species of time, possibly to avoid in-water harbor seal (Kastak et al. 2008), there are pinnipeds exposed to a limited number disturbance (Thorson and Reyff 2006). no empirical data measuring PTS in of sound sources (i.e., mostly tones and Behavioral responses to sound are marine mammals largely due to the fact octave-band noise) in laboratory settings highly variable and context-specific and that, for various ethical reasons, (Finneran 2015). TTS was not observed any reactions depend on numerous experiments involving anthropogenic in trained spotted (Phoca largha) and intrinsic and extrinsic factors (e.g., noise exposure at levels inducing PTS ringed (Pusa hispida) seals exposed to species, state of maturity, experience, are not typically pursued or authorized impulsive noise at levels matching current activity, reproductive state, (NMFS 2018). previous predictions of TTS onset auditory sensitivity, time of day), as Temporary Threshold Shift (TTS)— (Reichmuth et al. 2016). In general, well as the interplay between factors TTS is a temporary, reversible increase harbor seals and harbor porpoises have (e.g., Richardson et al. 1995; Wartzok et in the threshold of audibility at a a lower TTS onset than other measured al. 2003; Southall et al., 2007; Weilgart specified frequency or portion of an pinniped or cetacean species (Finneran 2007; Archer et al,. 2010). Behavioral individual’s hearing range above a 2015). Additionally, the existing marine reactions can vary not only among previously established reference level mammal TTS data come from a limited individuals but also within an (NMFS 2018). Based on data from number of individuals within these individual, depending on previous cetacean TTS measurements (see species. No data are available on noise- experience with a sound source, Southall et al. 2007), a TTS of 6 dB is induced hearing loss for mysticetes. For context, and numerous other factors considered the minimum threshold shift summaries of data on TTS in marine (Ellison et al. 2012), and can vary clearly larger than any day-to-day or mammals or for further discussion of depending on characteristics associated session-to-session variation in a TTS onset thresholds, please see with the sound source (e.g., whether it subject’s normal hearing ability Southall et al. (2007), Finneran and is moving or stationary, number of (Schlundt et al. 2000; Finneran et al. Jenkins (2012), Finneran (2015), and sources, distance from the source). In 2000, 2002). As described in Finneran Table 5 in NMFS (2018). Installing piles general, pinnipeds seem more tolerant (2015), marine mammal studies have requires a combination of impact pile of, or at least habituate more quickly to, shown the amount of TTS increases driving and vibratory pile driving. For potentially disturbing underwater sound with cumulative sound exposure level this project, these activities would not than do cetaceans, and generally seem (SELcum) in an accelerating fashion: At occur at the same time and there would to be less responsive to exposure to low exposures with lower SELcum, the be pauses in activities producing the industrial sound than most cetaceans. amount of TTS is typically small and sound during each day. Given these Please see Appendices B–C of Southall the growth curves have shallow slopes. pauses and that many marine mammals et al. (2007) for a review of studies At exposures with higher SELcum, the are likely moving through the involving marine mammal behavioral growth curves become steeper and ensonified area and not remaining for responses to sound. approach linear relationships with the extended periods of time, the potential Disruption of feeding behavior can be noise SEL. for TS declines. difficult to correlate with anthropogenic Depending on the degree (elevation of Behavioral Harassment—Exposure to sound exposure, so it is usually inferred threshold in dB), duration (i.e., recovery noise from pile driving and removal also by observed displacement from known time), and frequency range of TTS, and has the potential to behaviorally disturb foraging areas, the appearance of the context in which it is experienced, marine mammals. Available studies secondary indicators (e.g., bubble nets TTS can have effects on marine show wide variation in response to or sediment plumes), or changes in dive mammals ranging from discountable to underwater sound; therefore, it is behavior. As for other types of serious (similar to those discussed in difficult to predict specifically how any behavioral response, the frequency, auditory masking, below). For example, given sound in a particular instance duration, and temporal pattern of signal a marine mammal may be able to readily might affect marine mammals presentation, as well as differences in compensate for a brief, relatively small perceiving the signal. If a marine species sensitivity, are likely amount of TTS in a non-critical mammal does react briefly to an contributing factors to differences in

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response in any given circumstance controlled experiments and for both far away as would be possible under (e.g., Croll et al. 2001; Nowacek et al. laboratory and free-ranging animals quieter conditions and would itself be 2004; Madsen et al. 2006; Yazvenko et (e.g., Holberton et al., 1996; Hood et al., masked. al. 2007). A determination of whether 1998; Jessop et al., 2003; Krausman et Airborne Acoustic Effects—Pinnipeds foraging disruptions incur fitness al., 2004; Lankford et al., 2005). Stress that occur near the project site could be consequences would require responses due to exposure to exposed to airborne sounds associated information on or estimates of the anthropogenic sounds or other stressors with pile driving and removal that have energetic requirements of the affected and their effects on marine mammals the potential to cause behavioral individuals and the relationship have also been reviewed (Fair and harassment, depending on their distance between prey availability, foraging effort Becker 2000; Romano et al., 2002b) and, from pile driving activities. Cetaceans and success, and the life history stage of more rarely, studied in wild populations are not expected to be exposed to the animal. (e.g., Romano et al., 2002a). For airborne sounds that would result in Stress responses—An animal’s example, Rolland et al. (2012) found harassment as defined under the perception of a threat may be sufficient that noise reduction from reduced ship MMPA. to trigger stress responses consisting of traffic in the Bay of Fundy was Airborne noise would primarily be an some combination of behavioral associated with decreased stress in issue for pinnipeds that are swimming responses, autonomic nervous system North Atlantic right whales. These and or hauled out near the project site responses, neuroendocrine responses, or other studies lead to a reasonable within the range of noise levels immune responses (e.g., Seyle 1950; expectation that some marine mammals exceeding the acoustic thresholds. We Moberg 2000). In many cases, an will experience physiological stress recognize that pinnipeds in the water animal’s first and sometimes most responses upon exposure to acoustic could be exposed to airborne sound that economical (in terms of energetic costs) stressors and that it is possible that may result in behavioral harassment response is behavioral avoidance of the some of these would be classified as when looking with their heads above potential stressor. Autonomic nervous ‘‘distress.’’ In addition, any animal water. Most likely, airborne sound system responses to stress typically experiencing TTS would likely also would cause behavioral responses involve changes in heart rate, blood experience stress responses (NRC, similar to those discussed above in pressure, and gastrointestinal activity. 2003), however distress is an unlikely relation to underwater sound. For These responses have a relatively short result of this project based on instance, anthropogenic sound could duration and may or may not have a observations of marine mammals during cause hauled-out pinnipeds to exhibit significant long-term effect on an previous, similar projects in the area. changes in their normal behavior, such animal’s fitness. as reduction in vocalizations, or cause Neuroendocrine stress responses often Masking—Sound can disrupt behavior them to temporarily abandon the area involve the hypothalamus-pituitary- through masking, or interfering with, an and move further from the source. adrenal system. Virtually all animal’s ability to detect, recognize, or However, these animals would neuroendocrine functions that are discriminate between acoustic signals of previously have been ‘taken’ because of affected by stress—including immune interest (e.g., those used for intraspecific exposure to underwater sound above the competence, reproduction, metabolism, communication and social interactions, behavioral harassment thresholds, and behavior—are regulated by pituitary prey detection, predator avoidance, which are, in all cases, larger than those hormones. Stress-induced changes in navigation) (Richardson et al. 1995). associated with airborne sound. Thus, the secretion of pituitary hormones have Masking occurs when the receipt of a the behavioral harassment of these been implicated in failed reproduction, sound is interfered with by another animals is already accounted for in altered metabolism, reduced immune coincident sound at similar frequencies these estimates of potential take. competence, and behavioral disturbance and at similar or higher intensity, and Therefore, authorization of incidental (e.g., Moberg 1987; Blecha 2000). may occur whether the sound is natural take resulting from airborne sound for Increases in the circulation of (e.g., snapping shrimp, wind, waves, pinnipeds is not warranted, and glucocorticoids are also equated with precipitation) or anthropogenic (e.g., airborne sound is not discussed further stress (Romano et al., 2004). pile driving, shipping, sonar, seismic here. The primary distinction between exploration) in origin. The ability of a stress (which is adaptive and does not noise source to mask biologically Marine Mammal Habitat Effects normally place an animal at risk) and important sounds depends on the The Navy’s construction activities ‘‘distress’’ is the cost of the response. characteristics of both the noise source could have localized, temporary impacts During a stress response, an animal uses and the signal of interest (e.g., signal-to- on marine mammal habitat by glycogen stores that can be quickly noise ratio, temporal variability, increasing in-water sound pressure replenished once the stress is alleviated. direction), in relation to each other and levels and slightly decreasing water In such circumstances, the cost of the to an animal’s hearing abilities (e.g., quality. Construction activities are of stress response would not pose serious sensitivity, frequency range, critical short duration and would likely have fitness consequences. However, when ratios, frequency discrimination, temporary impacts on marine mammal an animal does not have sufficient directional discrimination, age or TTS habitat through increases in underwater energy reserves to satisfy the energetic hearing loss), and existing ambient sound. Increased noise levels may affect costs of a stress response, energy noise and propagation conditions. acoustic habitat (see masking discussion resources must be diverted from other Masking of natural sounds can result above) and adversely affect marine functions. This state of distress will last when human activities produce high mammal prey in the vicinity of the until the animal replenishes its levels of background sound at project area (see discussion below). energetic reserves sufficient to restore frequencies important to marine During impact and vibratory pile normal function. mammals. Conversely, if the driving, elevated levels of underwater Relationships between these background level of underwater sound noise would ensonify Hood Canal where physiological mechanisms, animal is high (e.g., on a day with strong wind both fish and mammals may occur and behavior, and the costs of stress and high waves), an anthropogenic could affect foraging success. responses are well-studied through sound source would not be detectable as Additionally, marine mammals may

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avoid the area during construction, and peripheral sensory structures, to impact pile driving (Halvorsen et al., however, displacement due to noise is which vary among species, fishes hear 2012b; Casper et al., 2013). expected to be temporary and is not sounds using pressure and particle The most likely impact to fish from expected to result in long-term effects to motion sensitivity capabilities and pile driving activities at the project the individuals or populations. detect the motion of surrounding water areas would be temporary behavioral A temporary and localized increase in (Fay et al., 2008). The potential effects avoidance of the area. The duration of turbidity near the seafloor would occur of noise on fishes depends on the fish avoidance of an area after pile in the immediate area surrounding the overlapping frequency range, distance driving stops is unknown, but a rapid area where piles are installed (and from the sound source, water depth of return to normal recruitment, removed in the case of the temporary exposure, and species-specific hearing distribution and behavior is anticipated. piles). The sediments on the sea floor sensitivity, anatomy, and physiology. The area impacted by the project is will be disturbed during pile driving; Key impacts to fishes may include relatively small compared to the however, suspension will be brief and behavioral responses, hearing damage, available habitat in the remainder of localized and is unlikely to measurably barotrauma (pressure-related injuries), Hood Canal. Any behavioral avoidance affect marine mammals or their prey in and mortality. by fish of the disturbed area would still the area. In general, turbidity associated Fish react to sounds which are leave significantly large areas of fish and with pile installation is localized to especially strong and/or intermittent marine mammal foraging habitat in the about a 25–foot (7.6–meter) radius low-frequency sounds, and behavioral nearby vicinity. Additionally, as noted around the pile (Everitt et al. 1980). responses such as flight or avoidance previously, the Navy will adhere to the Cetaceans are not expected to be close are the most likely effects. Short IWWW for pile extraction and enough to the pile driving areas to duration, sharp sounds can cause overt installation (July 16 to January 15) to reduce potential effects to salmonids, experience effects of turbidity, and any or subtle changes in fish behavior and including juvenile ESA-listed pinnipeds could avoid localized areas of local distribution. The reaction of fish to salmonids. As described in the turbidity. Therefore, we expect the noise depends on the physiological state preceding, the potential for the Navy’s impact from increased turbidity levels of the fish, past exposures, motivation construction to affect the availability of to be discountable to marine mammals (e.g., feeding, spawning, migration), and prey to marine mammals or to and do not discuss it further. other environmental factors. Hastings meaningfully impact the quality of and Popper (2005) identified several In-Water Construction Effects on physical or acoustic habitat is studies that suggest fish may relocate to Potential Foraging Habitat considered to be insignificant. avoid certain areas of sound energy. The proposed activities would not Additional studies have documented Estimated Take result in permanent impacts to habitats effects of pile driving on fish, although used directly by marine mammals This section provides an estimate of several are based on studies in support except for the actual footprint of the the number of incidental takes proposed of large, multiyear bridge construction project. The total seafloor area affected for authorization through this IHA, projects (e.g., Scholik and Yan, 2001, by pile installation and removal is a which will inform both NMFS’s 2002; Popper and Hastings, 2009). very small area compared to the vast consideration of ‘‘small numbers’’ and Several studies have demonstrated that foraging area available to marine the negligible impact determination. impulse sounds might affect the mammals in Hood Canal. Harassment is the only type of take Avoidance by potential prey (i.e., fish) distribution and behavior of some expected to result from these activities. of the immediate area due to the fishes, potentially impacting foraging Except with respect to certain activities temporary loss of this foraging habitat is opportunities or increasing energetic not pertinent here, section 3(18) of the also possible. The duration of fish costs (e.g., Fewtrell and McCauley, MMPA defines ‘‘harassment’’ as any act avoidance of this area after pile driving 2012; Pearson et al., 1992; Skalski et al., of pursuit, torment, or annoyance, stops is unknown, but we anticipate a 1992; Santulli et al., 1999; Paxton et al., which (i) has the potential to injure a rapid return to normal recruitment, 2017). However, some studies have marine mammal or marine mammal distribution and behavior. Any shown no or slight reaction to impulse stock in the wild (Level A harassment); behavioral avoidance by fish of the sounds (e.g., Pena et al., 2013; Wardle or (ii) has the potential to disturb a disturbed area would still leave large et al., 2001; Jorgenson and Gyselman, marine mammal or marine mammal areas of fish and marine mammal 2009; Cott et al., 2012). stock in the wild by causing disruption foraging habitat in the nearby vicinity in SPLs of sufficient strength have been of behavioral patterns, including, but Hood Canal. known to cause injury to fish and fish not limited to, migration, breathing, mortality. However, in most fish nursing, breeding, feeding, or sheltering Effects on Potential Prey species, hair cells in the ear (Level B harassment). Sound may affect marine mammals continuously regenerate and loss of Authorized takes would primarily be through impacts on the abundance, auditory function likely is restored by Level B harassment, as use of the behavior, or distribution of prey species when damaged cells are replaced with acoustic sources (i.e., vibratory and (e.g., fish). Marine mammal prey varies new cells. Halvorsen et al. (2012a) impact pile driving) has the potential to by species, season, and location. Here, showed that a TTS of 4–6 dB was result in disruption of behavioral we describe studies regarding the effects recoverable within 24 hours for one patterns for individual marine of noise on known marine mammal species. Impacts would be most severe mammals. There is also some potential prey. when the individual fish is close to the for auditory injury (Level A harassment) Fish utilize the soundscape and source and when the duration of to result, primarily for phocids, because components of sound in their exposure is long. Injury caused by predicted auditory injury zones are environment to perform important barotrauma can range from slight to larger than for mid-frequency cetaceans functions such as foraging, predator severe and can cause death, and is most and otariids, and Navy expects that avoidance, mating, and spawning (e.g., likely for fish with swim bladders. protected species observers (PSOs) will Zelick et al., 1999; Fay, 2009). Barotrauma injuries have been not be able to effectively observe the Depending on their hearing anatomy documented during controlled exposure entire Level A harassment zone due to

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the numerous docks in the area. Acoustic Thresholds driving, drilling) and above 160 dB re 1 Auditory injury is unlikely to occur for NMFS recommends the use of mPa (rms) for non-explosive impulsive mid-frequency cetaceans, high- acoustic thresholds that identify the (e.g., seismic airguns) or intermittent frequency cetaceans, and otariids. The received level of underwater sound (e.g., scientific sonar) sources. proposed mitigation and monitoring above which exposed marine mammals Navy’s proposed activity includes the measures are expected to minimize the would be reasonably expected to be use of continuous (vibratory pile severity of the taking to the extent behaviorally harassed (equated to Level driving) and impulsive (impact pile practicable. B harassment) or to incur PTS of some driving) sources, and therefore the 120 As described previously, no mortality degree (equated to Level A harassment). and 160 dB re 1 mPa (rms) thresholds are is anticipated or proposed to be Level B Harassment for non-explosive applicable. authorized for this activity. Below we sources—Though significantly driven by Level A harassment for non-explosive sources—NMFS’ Technical Guidance describe how the take is estimated. received level, the onset of behavioral disturbance from anthropogenic noise for Assessing the Effects of Generally speaking, we estimate take exposure is also informed to varying Anthropogenic Sound on Marine by considering: (1) Acoustic thresholds degrees by other factors related to the Mammal Hearing (Version 2.0) above which NMFS believes the best source (e.g., frequency, predictability, (Technical Guidance, 2018) identifies available science indicates marine duty cycle), the environment (e.g., dual criteria to assess auditory injury mammals will be behaviorally harassed bathymetry), and the receiving animals (Level A harassment) to five different or incur some degree of permanent (hearing, motivation, experience, marine mammal groups (based on hearing impairment; (2) the area or demography, behavioral context) and hearing sensitivity) as a result of volume of water that will be ensonified can be difficult to predict (Southall et exposure to noise from two different above these levels in a day; (3) the al., 2007, Ellison et al., 2012). Based on types of sources (impulsive or non- density or occurrence of marine what the available science indicates and impulsive). Navy’s proposed activity mammals within these ensonified areas; the practical need to use a threshold includes the use of impulsive (impact and, (4) and the number of days of based on a factor that is both predictable pile driving) and non-impulsive activities. We note that while these and measurable for most activities, (vibratory pile driving) sources. basic factors can contribute to a basic NMFS uses a generalized acoustic These thresholds are provided in the calculation to provide an initial threshold based on received level to table below. The references, analysis, prediction of takes, additional estimate the onset of behavioral and methodology used in the information that can qualitatively harassment. NMFS predicts that marine development of the thresholds are inform take estimates is also sometimes mammals are likely to be behaviorally described in NMFS 2018 Technical available (e.g., previous monitoring harassed in a manner we consider Level Guidance, which may be accessed at results or average group size). Below, we B harassment when exposed to https://www.fisheries.noaa.gov/ describe the factors considered here in underwater anthropogenic noise above national/marine-mammal-protection/ more detail and present the proposed received levels of 120 dB re 1 mPa (rms) marine-mammal-acoustic-technical- take estimate. for continuous (e.g., vibratory pile- guidance.

TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: (Underwater) ...... LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. (Underwater) ...... * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impul- sive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area thresholds, which include source levels expected to be affected via sound and transmission loss coefficient. generated by the primary components of Here, we describe operational and the project (i.e., impact pile driving and environmental parameters of the activity The sound field in the project area is the existing background noise plus vibratory pile driving and removal). The that will feed into identifying the area largest calculated Level B harassment ensonified above the acoustic additional construction noise from the proposed project. Marine mammals are zone is 11.7 km (7.3 mi) from the

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source, with an area of 49.1 km2 (18.9 each pile size and activity are presented dB to 10 dB. In their analysis, the Navy mi2). in Table 6. averaged different metrics for the same The source levels were derived from The Navy will implement bubble pile size. NMFS independently the Navy’s document titled ‘‘Proxy curtains (e.g. pneumatic barrier calculated the average source level Source Sound Levels and Potential typically comprised of hosing or PVC reduction, averaging reductions of the piping that disrupts underwater noise same metric (ex: SPLrms) reported for Bubble Curtain Attenuation for Acoustic propagation; see Proposed Mitigation both 36-in and 48-in piles. As such, Modeling of Nearshore Marine Pile section below) during impact pile NMFS calculated an SEL reduction of Driving at Navy Installations in Puget driving, with the possible exception of 8.5 dB, an SPLrms reduction of 8 dB, Sound’’ (Navy 2015a). In that document, short periods when the device is turned and an SPLpk reduction of 10 dB. the Navy reviewed relevant data off to test the effectiveness of the noise Therefore, given that the site-specific 8 available for various types and sizes of attenuation device. We have reduced dB reduction proposed by the Navy is piles typically used for pile driving and the source level for these activities by 8 the same or lower than the result of recommend proxy source values for dB in consideration of site-specific NMFS’s site-specific calculation, NMFS Navy installations in Puget Sound. This measurements of source level reduction preliminarily accepted Navy’s proposal document is included as Appendix B in with use of bubble curtains (Navy, to use an 8 dB reduction during impact the Navy’s application. Source levels for 2015). These reductions ranged from 8 pile driving.

TABLE 6—PROJECT SOUND SOURCE LEVELS (NAVY, 2015)

Source level @10m Pile type and size Installation method dB RMS dB Peak dB SEL

36-inch Steel ...... Impact ...... a 194 a 211 a 181 24-inch Steel ...... Vibratory ...... 161 30-inch Steel ...... 166 36-inch Steel ...... 166 a Unattenuated.

Transmission loss (TL) is the decrease value of 15 is used as the transmission used for these tools, we anticipate that in acoustic intensity as an acoustic loss coefficient in the above formula. isopleths produced are typically going pressure wave propagates out from a Site-specific transmission loss data for to be overestimates of some degree, source. TL parameters vary with the TPP pier site are not available, which may result in some degree of frequency, temperature, sea conditions, therefore the default coefficient of 15 is overestimate of Level A harassment current, source and receiver depth, used to determine the distances to the take. However, these tools offer the best water depth, water chemistry, and Level A and Level B harassment way to predict appropriate isopleths bottom composition and topography. thresholds. when more sophisticated 3D modeling When the NMFS Technical Guidance The general formula for underwater TL methods are not available, and NMFS (2016) was published, in recognition of is: continues to develop ways to TL = B * Log10 (R1/R2), the fact that ensonified area/volume could be more technically challenging quantitatively refine these tools, and where to predict because of the duration will qualitatively address the output TL = transmission loss in dB component in the new thresholds, we where appropriate. For stationary B = transmission loss coefficient developed a User Spreadsheet that sources such as pile driving, NMFS User R1 = the distance of the modeled SPL from Spreadsheet predicts the distance at the driven pile, and includes tools to help predict a simple which, if a marine mammal remained at R2 = the distance from the driven pile of the isopleth that can be used in conjunction initial measurement with marine mammal density or that distance the whole duration of the Absent site-specific acoustical occurrence to help predict takes. We activity, it would incur PTS. Inputs monitoring with differing measured note that because of some of the used in the User Spreadsheet, and the transmission loss, a practical spreading assumptions included in the methods resulting isopleths are reported below.

TABLE 7—USER SPREADSHEET INPUT PARAMETERS USED FOR CALCULATING LEVEL A HARASSMENT ISOPLETHS

Weighting Duration Distance from Pile size and Spreadsheet factor Source Number of to drive Number of Propagation source level installation tab used adjustment level piles within a single pile strikes (xLogR) measurement method (kHz) 24-h period (minutes) per pile (meters)

36-inch Steel- E.1) Impact 2 173 dB 4 30 400 15 10 Impact. pile driving. SELa. 24-inch Steel- A.1) Vibratory 2.5 161 dB b 5 60 Vibratory. pile driving. RMS. 30-inch Steel- 166 dB Vibratory. RMS 36-inch Steel- 166 dB Vibratory. RMS a This source level includes an 8dB reduction from the use of a bubble curtain. b The Navy expects to install only 4 piles per day using a vibratory hammer; however, for purposes of calculating the Level A harassment zones, they have conservatively assumed that they may install 5 piles per day.

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TABLE 8—CALCULATED DISTANCES TO LEVEL A AND LEVEL B HARASSMENT ISOPLETHS

Distance to level A harassment isopleth (m) Distance to Installation level B Pile type and size method harassment LF cetacean MF cetacean HF cetacean Phocid Otariid isopleth (m)

36-inch Steel ...... Impact ...... 294 (1m pk) ... 11 351 (14m pk) 158 (1m pk) ... 12 541 24-inch Steel ...... Vibratory ..... 20 ...... 2 30 ...... 12 ...... 1 5,400 30-inch Steel ...... 43 ...... 4 64 ...... 26 ...... 2 11,700 36-inch Steel ...... 43 ...... 4 64 ...... 26 ...... 2 11,700

Marine Mammal Occurrence and Take Puget Sound indicated density in Puget of 15 individuals in November 2018. Calculation and Estimation Sound was 0.91 individuals/sq km) (95 Because the daily average number of In this section we provide the percent CI = 0.72–1.10, all seasons Steller sea lions hauled out at Kitsap information about the presence, density, pooled) and density in Hood Canal was Bangor has increased since 2013 or group dynamics of marine mammals 0.44/sq km (95 percent CI = 0.29–0.75, compared to prior years, the Navy relied that will inform the take calculations. all seasons pooled) (Smultea et al., on monitoring data from July 2012 We describe how the information 2017). Mean group size of harbor through February 2019 to determine the provided above is brought together to porpoises in Puget Sound in the 2013– average of the maximum count of produce a quantitative take estimate. 2015 surveys was 1.7 in Hood Canal. hauled out Steller sea lions for each In consideration of the harbor month in the IWWW (Navy, 2016, Killer Whale porpoise take estimate, the Navy 2019). While pinnipeds may haul out Transient killer whales occasionally conservatively assumed that vibratory longer than the period required for pile occur throughout Puget Sound but are installation of 36-inch piles would driving, therefore not being exposed to rare in Hood Canal. In Puget Sound, occur on every in-water work day, given underwater sound, the Navy they are typically observed in small that that activity resulted in the largest conservatively assumed that any Steller groups with an average group size of six Level B harassment zone. The Navy sea lion that hauls out at Kitsap Bangor individuals (Houghton, 2012). Based on estimated Level B harassment takes of may enter the Level B harassment zone this Puget Sound average, the Navy harbor porpoise by multiplying the 0.44 each day during pile driving. estimated that two groups of six whales animals/km2 by 49.1 km2 (estimated For each in-water work month, the may occur within the Level B Level B harassment zone during Navy averaged the maximum number of harassment zone during construction vibratory driving of 36-inch piles) by the hauled out Steller sea lions observed in each year, and has requested 12 Level B number of in-water workdays during a single survey at Kitsap Bangor during harassment takes of killer whale for each year. Therefore, during Year 1, the that month for each year (2008 to 2019; Year 1 and Year 2. NMFS concurs with Navy estimated 1,728 Level B see Appendix A of the Navy’s this estimate, and proposes to authorize harassment takes (0.44 animals/km2 × application). The Navy then averaged 12 Level B harassment takes of killer 49.1km2 × 80 days). During Year 2, the these monthly averages across the entire whale in each year. Given the estimated Navy estimated 216 Level B harassment in-water work period, resulting in a number of construction days in Year 2 takes (0.44 animals/km2 × 49.1 km2 × 10 maximum average of four Steller sea (10 days), NMFS expects that 12 Level days). NMFS concurs with this lions hauled out per day. The Navy B harassment takes is a conservative approach, and proposes to authorize assumed that each of these animals may estimate for Year 2, but is appropriate 1,728 Level B harassment takes of enter the Level B harassment zone on given that it accounts for the occurrence harbor porpoise in Year 1, and 216 each in-water work day. Therefore, the of just two groups. Level B harassment takes of harbor Navy requested 320 Level B harassment The largest Level A harassment zone porpoise in Year 2. takes of Steller sea lion in Year 1 (4 for mid-frequency cetaceans extends 11 The largest Level A harassment zone Steller sea lions × 80 in-water work m from the source during impact pile for high-frequency cetaceans extends days), and 40 Level B harassment takes driving of 36-inch steel piles (Table 8). 351 m from the source during impact of Steller sea lions during Year 2 (4 Given the small size of the Level A pile driving of 36-inch steel piles (Table Steller sea lions × 10 in-water work harassment zones, we would not expect 8). The Navy is planning to implement days). NMFS concurs with this Level A harassment take of killer whales a 355 m shutdown zone for all cetaceans approach and proposes to authorize 320 to occur. Additionally, the Navy is during that activity (Table 10), which Level B harassment takes of Steller sea planning to implement a 355 m incorporates the entire Level A lion during Year 1, and 40 Level B shutdown zone for all cetaceans during harassment zone, and the 14 m peak harassment takes of Steller sea lion that activity (Table 10). These shutdown PTS isopleth (Table 8). Therefore, the during Year 2. zones are expected to eliminate the shutdown zones are expected to The largest Level A harassment zone potential for Level A harassment take of eliminate the potential for Level A for otariids extends 11 m from the killer whale. Therefore, NMFS does not harassment take of harbor porpoise, and source during impact pile driving of 36- propose to authorize Level A NMFS does not propose to authorize inch steel piles (Table 8). Given the harassment take of killer whale in Year Level A harassment take of harbor small size of the Level A harassment 1 or Year 2. porpoise. zones, we would not expect Level A harassment take of Steller sea lion to Steller Sea Lion Harbor Porpoise occur. Additionally, the Navy is Harbor porpoises may be present in Steller sea lions are routinely seen planning to implement a 15m shutdown all major regions of Puget Sound hauled out from mid-September through zone during that activity (Table 10). The throughout the year. Aerial surveys May on submarines at Naval Base Kitsap Navy’s shutdown zones are expected to conducted throughout 2013 to 2015 in Bangor, with a maximum haulout count eliminate the potential for Level A

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harassment take of Steller sea lion. small size of the Level A harassment The Navy conservatively assumed Therefore, NMFS does not propose to zones, we would not expect Level A that each of the estimated 35 harbor authorize Level A harassment take of harassment take of California sea lion to seals may occur within the Level B Steller sea lion. occur. Additionally, the Navy is harassment zone on each pile driving planning to implement a 15 m day. Therefore, the Navy requested California sea lion shutdown zone during that activity 2,800 Level B harassment takes of From August through June, California (Table 10). The Navy’s shutdown zones harbor seal in Year 1 (35 harbor seals × sea lions routinely haul out on the PSB are expected to eliminate the potential 80 in-water work days), and 350 Level floats and submarines at Kitsap Bangor. for Level A harassment take of B harassment takes of harbor seal during For each in-water work month, the Navy California sea lion. Therefore, NMFS Year 2 (35 harbor seals × 10 in-water averaged the maximum number of does not propose to authorize Level A work days). NMFS concurs with this hauled out California sea lions observed harassment take of California sea lion. approach and proposes to authorize in a single survey at Kitsap Bangor 2,800 Level B harassment takes of Harbor Seal during that month for each year (2008 harbor seal during Year 1, and 350 Level to 2019; see Appendix A of the Navy’s The harbor seal is the only species of B harassment takes of harbor seal during application). The Navy then averaged Year 2. these monthly averages across the entire marine mammal that is consistently The largest Level A harassment zone in-water work period, resulting in a abundant and considered resident in for phocids during Year 1 extends 158 maximum average of 54 California sea Hood Canal (Jeffries et al., 2003). The m during impact installation of 36-inch lions hauled out per day. The daily closest major haulouts to Kitsap Bangor steel piles (Table 8). The Navy is average number of California sea lions that are regularly used by harbor seals planning to implement a 160 m hauled out at Kitsap Bangor has are the mouth of the Dosewallips River shutdown zone during that activity increased since 2013 compared to prior located approximately 13.2 km (8.2 mi) (Table 10), which incorporates the years. Therefore, the Navy relied on away. No harbor seal haulouts were entire Level A harassment zone, and the monitoring data from July 2012 through seen on the shoreline opposite Kitsap 1 m peak PTS isopleth (Table 8). February 2019 to determine the average Bangor (the east-side of the Toandos of the maximum count (Navy, 2016, Peninsula) during 2015 and 2016 beach However, the Navy estimates that some 2019). seine surveys. A small haulout occurs at harbor seals may enter, and remain While pinnipeds may haul out longer Kitsap Bangor under Marginal Wharf inside the Level A harassment zone than the period required for pile and small numbers of harbor seals are undetected by PSOs for a period long driving, therefore not being exposed to known to routinely haul out around the enough to be taken by Level A underwater sound, the Navy Carderock pier (see Figure 1–2 of the harassment during Year 1. NMFS conservatively assumed that any Navy’s application). Boat-based surveys concurs, and proposes to authorize 20 California sea lion hauled out at Kitsap and monitoring indicate that harbor Level A harassment takes of harbor seal Bangor may swim into the Level B seals regularly swim in the waters at in Year 1 (1 harbor seal for every 4 in- harassment zone on each pile driving Kitsap Bangor. Hauled out adults, water work days). day. Therefore, the Navy requested mother/pup pairs, and neonates have During Year 2, the largest Level A 4,320 Level B harassment takes of been documented occasionally but harassment zone for phocids extends 26 California sea lion in Year 1 (54 quantitative data are limited. Incidental m from the source during vibratory pile California sea lions × 80 in-water work surveys in August and September 2016 driving of 30 and 36-inch steel piles, as days), and 540 Level B harassment takes recorded as many as 28 harbor seals no impact pile driving is planned for of California sea lions during Year 2 (54 hauled out under Marginal Wharf or Year 2. The Navy expects to be able to California sea lions × 10 in-water work swimming in adjacent waters. Assuming effectively monitor this zone and days). NMFS concurs with this a few other individuals may be present implement a 30 m shutdown zone. approach and proposes to authorize elsewhere on the Kitsap Bangor Therefore, the Navy does not expect 4,320 Level B harassment takes of waterfront, the Navy estimates that 35 Level A harassment take to occur during California sea lion during Year 1, and harbor seals may be present during Year 2. NMFS concurs that the Navy’s 540 Level B harassment takes of summer and early fall months. Based on shutdown zones are expected to California sea lion during Year 2. haulout survey data from Naval Station eliminate the potential for Level A The largest Level A harassment zone Everett (Navy, 2016), the number of harassment take of harbor seal in Year for otariids extends 11 m from the harbor seals present at Kitsap Bangor is 2, and does not propose to authorize source during impact pile driving of 36- likely to be lower in late fall and winter Level A harassment take of harbor seal inch steel piles (Table 8). Given the months. in Year 2.

TABLE 9—ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK

Year 1 Year 2 Level B Species Stock Stock Level A Level B Total take harassment Total take Abundance harassment harassment (percent of take (percent of take take stock) (percent of stock) stock)

Killer whale ...... West Coast Tran- 243 ...... 0 12 12 (4.9)...... 12 12 (4.9) sient. Harbor porpoise .... Washington Inland 11,233 ...... 1,728 1,728 (15.4) ... 216 216 (1.9) Waters. Steller sea lion ...... Eastern U.S...... 43,201 ...... 320 320 (0.7) ...... 40 40 (0.1) California sea lion United States ...... 257,606 ...... 4,320 4,320 (1.7) ..... 540 540 (0.2)

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TABLE 9—ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK—Continued

Year 1 Year 2 Level B Species Stock Stock Level A Level B Total take harassment Total take Abundance harassment harassment (percent of take (percent of take take stock) (percent of stock) stock)

Harbor seal ...... Washington Inland Unknown ...... 20 2,800 2,820 (Un- 350 350 (Un- Waters, Hood known). known) Canal.

Proposed Mitigation effective if implemented (probability of • If take reaches the authorized limit In order to issue an IHA under accomplishing the mitigating result if for an authorized species, pile Section 101(a)(5)(D) of the MMPA, implemented as planned), the installation/removal will shut down likelihood of effective implementation NMFS must set forth the permissible immediately if these species approach (probability implemented as planned), methods of taking pursuant to the the Level B harassment zone to avoid and; activity, and other means of effecting additional take. (2) The practicability of the measures The following mitigation measures the least practicable impact on the for applicant implementation, which species or stock and its habitat, paying apply to the Navy’s in-water may consider such things as cost, construction activities. particular attention to rookeries, mating impact on operations, and, in the case • Establishment of Shutdown grounds, and areas of similar of a military readiness activity, Zones—The Navy will establish significance, and on the availability of personnel safety, practicality of shutdown zones for all pile driving and the species or stock for taking for certain implementation, and impact on the removal activities. The purpose of a subsistence uses (latter not applicable effectiveness of the military readiness shutdown zone is generally to define an for this action). NMFS regulations activity. require applicants for incidental take In addition to the measures described area within which shutdown of the authorizations to include information later in this section, the Navy will activity would occur upon sighting of a about the availability and feasibility employ the following mitigation marine mammal (or in anticipation of an (economic and technological) of measures: animal entering the defined area). equipment, methods, and manner of • For in-water heavy machinery work Shutdown zones will vary based on the conducting the activity or other means other than pile driving, if a marine activity type and marine mammal of effecting the least practicable adverse mammal comes within 10 m, operations hearing group (Table 10). In addition to impact upon the affected species or shall cease and vessels shall reduce the shutdown zones listed in Table 10, stocks and their habitat (50 CFR speed to the minimum level required to the Navy has proposed to shut down 216.104(a)(11)). maintain steerage and safe working pile driving if a cetacean is observed In evaluating how mitigation may or conditions; within the Level B harassment zone. may not be appropriate to ensure the • Conduct briefings between • PSOs—The placement of PSOs least practicable adverse impact on construction supervisors and crews and during all pile driving and removal species or stocks and their habitat, as the marine mammal monitoring team activities (described in detail in the well as subsistence uses where prior to the start of all pile driving Proposed Monitoring and Reporting applicable, we carefully consider two activity and when new personnel join section) will ensure that the entire primary factors: the work, to explain responsibilities, shutdown zone is visible during pile (1) The manner in which, and the communication procedures, marine driving and removal (except where degree to which, the successful mammal monitoring protocol, and structures may interfere with visibility implementation of the measure(s) is operational procedures; of harbor seals). Should environmental expected to reduce impacts to marine • For those marine mammals for conditions deteriorate such that marine mammals, marine mammal species or which Level B harassment take has not mammals within the entire shutdown stocks, and their habitat. This considers been requested, in-water pile zone would not be visible (e.g., fog, the nature of the potential adverse installation/removal will shut down heavy rain), pile driving and removal impact being mitigated (likelihood, immediately if such species are must be delayed until the PSO is scope, range). It further considers the observed within or entering the Level B confident marine mammals within the likelihood that the measure will be harassment zone; and shutdown zone could be detected.

TABLE 10—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL

Cetaceans Phocids Otariids (m) (m) (m)

All Vibratory Pile Driving ...... 65 30 10 All Impact Pile Driving ...... 355 160 15

• Monitoring for Level A and Level B where SPLs are equal to or exceed the vibratory pile driving) to the extent Harassment—The Navy will monitor 160 dB rms threshold for impact driving practicable and the Level A harassment the Level B harassment zones (areas and the 120 dB rms threshold during zones. Monitoring zones provide utility

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for observing by establishing monitoring Æ The bubble curtain must distribute • Individual marine mammal protocols for areas adjacent to the air bubbles around 100 percent of the responses (behavioral or physiological) shutdown zones. Monitoring zones piling perimeter for the full depth of the to acoustic stressors (acute, chronic, or enable observers to be aware of and water column. cumulative), other stressors, or communicate the presence of marine Æ The lowest bubble ring shall be in cumulative impacts from multiple mammals in the project area outside the contact with the mudline for the full stressors. shutdown zone and thus prepare for a circumference of the ring, and the • How anticipated responses to potential cessation of activity should the weights attached to the bottom ring stressors impact either: (1) Long-term animal enter the shutdown zone. shall ensure 100 percent mudline fitness and survival of individual Placement of PSOs on the pier, contact. No parts of the ring or other marine mammals; or (2) populations, shoreline, and a vessel (see Proposed objects shall prevent full mudline species, or stocks. Monitoring and Reporting) around the contact. • Effects on marine mammal habitat TPP site will allow PSOs to observe Æ The bubble curtain shall be (e.g., marine mammal prey species, marine mammals within the Level B operated such that there is proper acoustic habitat, or other important harassment zones. (equal) balancing of air flow to all physical components of marine • Pre-activity Monitoring—Prior to bubblers. mammal habitat). • the start of daily in-water construction Based on our evaluation of the Navy’s Mitigation and monitoring activity, or whenever a break in pile proposed measures, NMFS has effectiveness. driving/removal of 30 minutes or longer preliminarily determined that the Visual Monitoring occurs, PSOs will observe the shutdown proposed mitigation measures provide and monitoring zones for a period of 30 the means effecting the least practicable Marine mammal monitoring must be minutes. The shutdown zone will be impact on the affected species or stocks conducted in accordance with the considered cleared when a marine and their habitat, paying particular Marine Mammal Monitoring Plan. mammal has not been observed within attention to rookeries, mating grounds, Marine mammal monitoring during pile the zone for that 30-minute period. If a and areas of similar significance. driving and removal must be conducted marine mammal is observed within the by NMFS-approved PSOs in a manner shutdown zone, a soft-start cannot Proposed Monitoring and Reporting consistent with the following: • proceed until the animal has left the In order to issue an IHA for an Independent PSOs (i.e., not zone or has not been observed for 15 activity, Section 101(a)(5)(D) of the construction personnel) who have no minutes. When a marine mammal for MMPA states that NMFS must set forth other assigned tasks during monitoring which Level B harassment take is requirements pertaining to the periods must be used; authorized is present in the Level B • Where a team of three or more PSOs monitoring and reporting of such taking. harassment zone, activities may begin are required, a lead observer or The MMPA implementing regulations at and Level B harassment take will be monitoring coordinator must be 50 CFR 216.104 (a)(13) indicate that recorded. If the entire Level B designated. The lead observer must have requests for authorizations must include harassment zone is not visible at the prior experience working as a marine the suggested means of accomplishing start of construction, pile driving mammal observer during construction; the necessary monitoring and reporting activities can begin. If work ceases for • Other PSOs may substitute that will result in increased knowledge more than 30 minutes, the pre-activity education (degree in biological science of the species and of the level of taking monitoring of the shutdown zones will or related field) or training for or impacts on populations of marine commence. experience; and • Soft Start—Soft-start procedures are mammals that are expected to be • The Navy must submit PSO believed to provide additional present in the proposed action area. curriculum vitae for approval by NMFS protection to marine mammals by Effective reporting is critical both to prior to the onset of pile driving. providing warning and/or giving marine compliance as well as ensuring that the PSOs must have the following mammals a chance to leave the area most value is obtained from the required additional qualifications: prior to the hammer operating at full monitoring. • Ability to conduct field capacity. For impact pile driving, Monitoring and reporting observations and collect data according contractors will be required to provide requirements prescribed by NMFS to assigned protocols. an initial set of three strikes from the should contribute to improved • Experience or training in the field hammer at reduced energy, followed by understanding of one or more of the identification of marine mammals, a 30-second waiting period. This following: including the identification of procedure will be conducted three times • Occurrence of marine mammal behaviors. before impact pile driving begins. Soft species or stocks in the area in which • Sufficient training, orientation, or start will be implemented at the start of take is anticipated (e.g., presence, experience with the construction each day’s impact pile driving and at abundance, distribution, density). operation to provide for personal safety any time following cessation of impact • Nature, scope, or context of likely during observations. pile driving for a period of 30 minutes marine mammal exposure to potential • Writing skills sufficient to prepare a or longer. stressors/impacts (individual or report of observations including but not • Pile driving energy attenuator—The cumulative, acute or chronic), through limited to the number and species of Navy will use a marine pile-driving better understanding of: (1) Action or marine mammals observed; dates and energy attenuator (i.e., air bubble environment (e.g., source times when in-water construction curtain system) during impact pile characterization, propagation, ambient activities were conducted; dates, times, driving. The use of sound attenuation noise); (2) affected species (e.g., life and reason for implementation of will reduce SPLs and the size of the history, dive patterns); (3) co-occurrence mitigation (or why mitigation was not zones of influence for Level A of marine mammal species with the implemented when required); and harassment and Level B harassment. action; or (4) biological or behavioral marine mammal behavior. Bubble curtains will meet the following context of exposure (e.g., age, calving or • Ability to communicate orally, by requirements: feeding areas). radio or in person, with project

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personnel to provide real-time sighting (if pile driving or removal was Negligible Impact Analysis and information on marine mammals occurring at time of sighting). Determination • observed in the area as necessary. Description of any marine mammal NMFS has defined negligible impact At least two PSOs will monitor for behavior patterns during observation, as an impact resulting from the marine mammals during all pile driving including direction of travel and specified activity that cannot be and removal activities. PSO locations estimated time spent within the Level A reasonably expected to, and is not will provide a view of the entire and Level B harassment zones while the reasonably likely to, adversely affect the shutdown zone for all activities, other source was active. species or stock through effects on • Number of individuals of each than areas where structures may annual rates of recruitment or survival species (differentiated by month as potentially block limited portions of the (50 CFR 216.103). A negligible impact appropriate) detected within the zone, and as much of the Level B finding is based on the lack of likely monitoring zone, and estimates of harassment zones as possible. PSO adverse effects on annual rates of number of marine mammals taken, by locations are as follows: recruitment or survival (i.e., population- species (a correction factor may be i. During vibratory pile driving, two level effects). An estimate of the number applied to total take numbers, as PSOs will be stationed on the pier or of takes alone is not enough information appropriate). shore. on which to base an impact ii. During impact pile driving, two • Detailed information about any determination. In addition to PSOs will be stationed on the pier, and implementation of any mitigation considering estimates of the number of one additional PSO will observe from a triggered (e.g., shutdowns and delays), a marine mammals that might be ‘‘taken’’ vessel positioned approximately 200 m description of specific actions that through harassment, NMFS considers from shore. ensued, and resulting behavior of the other factors, such as the likely nature Monitoring will be conducted 30 animal, if any. minutes before, during, and 30 minutes • Description of attempts to of any responses (e.g., intensity, after pile driving/removal activities. In distinguish between the number of duration), the context of any responses addition, observers shall record all individual animals taken and the (e.g., critical reproductive time or incidents of marine mammal number of incidences of take, such as location, migration), as well as effects occurrence, regardless of distance from ability to track groups or individuals. on habitat, and the likely effectiveness activity, and shall document any If no comments are received from of the mitigation. We also assess the behavioral reactions in concert with NMFS within 30 days, the draft report number, intensity, and context of distance from piles being driven or will constitute the final report. If estimated takes by evaluating this removed. Pile driving activities include comments are received, a final report information relative to population the time to install or remove a single addressing NMFS comments must be status. Consistent with the 1989 pile or series of piles, as long as the time submitted within 30 days after receipt of preamble for NMFS’s implementing elapsed between uses of the pile driving comments. regulations (54 FR 40338; September 29, equipment is no more than 30 minutes. In the event that personnel involved 1989), the impacts from other past and in the construction activities discover ongoing anthropogenic activities are Reporting an injured or dead marine mammal, the incorporated into this analysis via their A draft marine mammal monitoring IHA-holder shall report the incident to impacts on the environmental baseline report will be submitted to NMFS the Office of Protected Resources (OPR) (e.g., as reflected in the regulatory status within 90 days after the completion of (301–427–8401), NMFS and to the West of the species, population size and pile driving and removal activities. The Coast Region Stranding Hotline (866– growth rate where known, ongoing report will include an overall 767–6114) as soon as feasible. If the sources of human-caused mortality, or description of work completed, a death or injury was clearly caused by ambient noise levels). narrative regarding marine mammal the specified activity, the IHA-holder To avoid repetition, this introductory sightings, and associated PSO data must immediately cease the specified discussion of our analyses applies to all sheets. Specifically, the report must activities until NMFS is able to review of the species listed in Table 9, given include: the circumstances of the incident and that many of the anticipated effects of • Dates and times (begin and end) of determine what, if any, additional this project on different marine mammal all marine mammal monitoring. measures are appropriate to ensure stocks are expected to be relatively • Construction activities occurring compliance with the terms of the IHA. similar in nature. Where there are during each daily observation period, The IHA-holder must not resume their meaningful differences between species including how many and what type of activities until notified by NMFS. or stocks in anticipated individual piles were driven or removed and by The report must include the following responses to activities, impact of what method (i.e., impact or vibratory). information: expected take on the population due to • Weather parameters and water i. Time, date, and location (latitude/ differences in population status, or conditions during each monitoring longitude) of the first discovery (and impacts on habitat, they are described period (e.g., wind speed, percent cover, updated location information if known independently in the analysis below. visibility, sea state). and applicable); The analysis below applies to both the • The number of marine mammals ii. Species identification (if known) or Year 1 and Year 2 proposed IHAs, observed, by species, relative to the pile description of the animal(s) involved; except where noted otherwise. location and if pile driving or removal iii. Condition of the animal(s) Pile driving and removal activities was occurring at time of sighting. (including carcass condition if the associated with the project, as outlined • Age and sex class, if possible, of all animal is dead); previously, have the potential to disturb marine mammals observed. iv. Observed behaviors of the or displace marine mammals. • PSO locations during marine animal(s), if alive; Specifically, the specified activities may mammal monitoring. v. If available, photographs or video result in take, in the form of Level A • Distances and bearings of each footage of the animal(s); and harassment and Level B harassment marine mammal observed to the pile vi. General circumstances under from underwater sounds generated by being driven or removed for each which the animal was discovered. pile driving and removal. Potential takes

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could occur if marine mammals are seals may sustain some Level A • No mortality or serious injury is present in zones ensonified above the harassment in the form of auditory anticipated or authorized. thresholds for Level A or Level B injury in Year 1 only. However, animals • For all species except harbor seal, harassment, identified above, while that experience PTS would likely only no Level A harassment is anticipated or activities are underway. receive slight PTS, i.e., minor proposed for authorization. The nature of the pile driving project degradation of hearing capabilities • The Level A harassment exposures precludes the likelihood of serious within regions of hearing that align most are anticipated to result only in slight injury or mortality. The mitigation is completely with the frequency range of PTS, within the lower frequencies expected to ensure that no Level A the energy produced by pile driving associated with pile driving for harbor harassment occurs to any species except (i.e., the low-frequency region below seals only; harbor seal, which may be taken by 2kHz), not severe hearing impairment or • The intensity of anticipated takes Level A harassment during Year 1 impairment in the reigns of greatest by Level B harassment is relatively low activities. The nature of the estimated hearing sensitivity. If hearing for all stocks. takes anticipated to occur are similar impairment does occur, it is most likely • Pile driving is only expected to among all species and similar in Year 1 that the affected animal would lose a occur for a maximum of five hours in a and Year 2, other than the potential few dBs in its hearing sensitivity, which day. • Level A harassment take of harbor seal in most cases, is not likely to We do not expect significant or in Year 1, described further below. meaningfully affect its ability to forage long-term negative effects to marine For all species and stocks, take will and communicate with conspecifics. As mammal habitat. occur within a limited portion of Hood described above, we expect that marine Year 1 IHA—Based on the analysis Canal, and for the Hood Canal stock of mammals would be likely to move away contained herein of the likely effects of harbor seals, the project site is from a sound source that represents an the specified activity on marine approximately 13.2 km (8.2 mi) away aversive stimulus, especially at levels mammals and their habitat, and taking from the nearest major haulout at the that would be expected to result in PTS, into consideration the implementation mouth of the Dosewallips River. For all given sufficient notice through use of of the proposed monitoring and species other than harbor seal, take soft start. mitigation measures, NMFS would be limited to Level B harassment As noted above in the Description of preliminarily finds that the total marine only due to potential behavioral Marine Mammals in the Area of mammal take from the Navy’s disturbance and TTS. Effects on Specified Activities, the Navy has construction activities will have a individuals that are taken by Level B identified a few observations of harbor negligible impact on all affected marine harassment, on the basis of reports in seal births at Kitsap Bangor. However, mammal species or stocks. the literature as well as monitoring from Kitsap Bangor is not a significant Year 2 IHA—Based on the analysis other similar activities, will likely be rookery area; observation of these births contained herein of the likely effects of limited to reactions such as increased are very rare, and only a few have been the specified activity on marine swimming speeds, increased surfacing reported. The closest major haulouts to mammals and their habitat, and taking time, or decreased foraging (if such Kitsap Bangor that are regularly used by into consideration the implementation activity were occurring) (e.g., Thorson harbor seals are at the mouth of the of the proposed monitoring and and Reyff 2006; HDR, Inc. 2012; Lerma Dosewallips River, located mitigation measures, NMFS 2014; ABR 2016). Level B harassment approximately 13.2 km (8.2 mi) away. preliminarily finds that the total marine will be reduced to the level of least Given the rarity of harbor seal births at mammal take from the Navy’s practicable adverse impact through use Kitsap Bangor and the maximum of five construction activities will have a of mitigation measures described herein, hours of pile driving anticipated in a negligible impact on all affected marine and, if sound produced by project day, we do not expect harbor seals to mammal species or stocks. activities is sufficiently disturbing, give birth in the TPP project area while Small Numbers animals are likely to simply avoid the the project is underway. area while the activity is occurring. The project is also not expected to As noted above, only small numbers While vibratory driving associated with have significant adverse effects on of incidental take may be authorized the proposed project may produce affected marine mammals’ habitats. The under Sections 101(a)(5)(A) and (D) of sound at distances of many kilometers project activities will not modify the MMPA for specified activities other from the project site, the project site existing marine mammal habitat for a than military readiness activities. The itself is located on a busy waterfront significant amount of time. The MMPA does not define small numbers with high amounts of vessel traffic. activities may cause some fish to leave and so, in practice, where estimated Therefore, we expect that animals the area of disturbance, thus temporarily numbers are available, NMFS compares disturbed by project sound would impacting marine mammals’ foraging the number of individuals taken to the simply avoid the area and use more- opportunities in a limited portion of the most appropriate estimation of preferred habitats, particularly as pile foraging range; but, because of the short abundance of the relevant species or driving is expected to occur for a duration of the activities and the stock in our determination of whether maximum of five hours per day. relatively small area of the habitat that an authorization is limited to small Further, the instances of take proposed may be affected, the impacts to marine numbers of marine mammals. When the for authorization for killer whale West mammal habitat are not expected to predicted number of individuals to be Coast Transient stock, harbor porpoise cause significant or long-term negative taken is fewer than one third of the Washington Inland Waters stock, Steller consequences. species or stock abundance, the take is sea lion Eastern U.S. stock, and In summary and as described above, considered to be of small numbers. California sea lion United States stock is the following factors primarily support Additionally, other qualitative factors small when compared to stock our preliminary determination that the may be considered in the analysis, such abundance. impacts resulting from this activity are as the temporal or spatial scale of the In addition to the expected effects not expected to adversely affect the activities. resulting from proposed Level B species or stock through effects on For the Washington Inland Waters, harassment, we anticipate that harbor annual rates of recruitment or survival: Hood Canal stock of harbor seal, no

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valid abundance estimate is available. anticipated take of marine mammals, data or literature citations to help The most recent abundance estimate for NMFS preliminarily finds that small inform decisions on the request for harbor seals in Washington inland numbers of marine mammals will be these IHAs or subsequent Renewal waters is from 1999, which estimated taken relative to the population size of IHAs. 1,088 harbor seals in the Washington the affected species or stocks in Year 2 On a case-by-case basis, NMFS may Inland Waters, Hood Canal stock. It is of the project. issue a one-time, one-year Renewal IHA generally believed that harbor seal populations have increased significantly Unmitigable Adverse Impact Analysis following notice to the public providing since (e.g., Mapes, 2013). The estimated and Determination an additional 15 days for public instances of take of the Washington There are no relevant subsistence uses comments when (1) up to another year Inland Waters, Hood Canal stock of of the affected marine mammal stocks or of identical or nearly identical activities, harbor seals in Year 1 (Table 9) appear species implicated by this action. as described in the Description of high when compared to the latest stock Therefore, NMFS has determined that Proposed Activity section of this notice, abundance from 1999. However, when the total taking of affected species or is planned or (2) the activities as other qualitative factors are used to stocks would not have an unmitigable described in the Description of inform an assessment of the likely adverse impact on the availability of Proposed Activity section of this notice number of individual harbor seals taken, such species or stocks for taking for would not be completed by the time the the resulting numbers are considered subsistence purposes. IHA expires and a Renewal would allow small in Year 1 and Year 2. Endangered Species Act for completion of the activities beyond We anticipate that estimated takes of that described in the Dates and Duration harbor seals are likely to occur only Section 7(a)(2) of the Endangered section of this notice, provided all of the within some portion of the relevant Species Act of 1973 (ESA: 16 U.S.C. following conditions are met: population, rather than to animals from 1531 et seq.) requires that each Federal • the stock as a whole. For example, takes agency insure that any action it A request for renewal is received no anticipated to occur at Kitsap Bangor authorizes, funds, or carries out is not later than 60 days prior to the needed would be expected to accrue to the same likely to jeopardize the continued Renewal IHA effective date (recognizing individual seals that routinely occur on existence of any endangered or that the Renewal IHA expiration date haulouts at these locations, rather than threatened species or result in the cannot extend beyond one year from occurring to new seals on each destruction or adverse modification of expiration of the initial IHA). construction day. In summary, harbor designated critical habitat. To ensure • The request for renewal must seals taken as a result of the specified ESA compliance for the issuance of include the following: activities are expected to comprise only IHAs, NMFS consults internally a limited portion of individuals whenever we propose to authorize take (1) An explanation that the activities comprising the overall relevant stock for endangered or threatened species. to be conducted under the requested abundance. Therefore, we find that No incidental take of ESA-listed Renewal IHA are identical to the small numbers of harbor seals will be species is proposed for authorization or activities analyzed under the initial taken relative to the population size of expected to result from this activity. IHA, are a subset of the activities, or the Hood Canal stock of harbor seal in Therefore, NMFS has determined that include changes so minor (e.g., Year 1 and Year 2. formal consultation under section 7 of reduction in pile size) that the changes For all other species and stocks, our the ESA is not required for this action. do not affect the previous analyses, analysis shows that, in Year 1 and Year mitigation and monitoring Proposed Authorization 2, take of all species or stocks is below requirements, or take estimates (with one third of the estimated stock As a result of these preliminary the exception of reducing the type or abundance. The number of animals determinations, NMFS proposes to issue amount of take). authorized to be taken for the killer an IHA to Navy for conducting the whale West Coast Transient stock, Transit Protection Program Pier and (2) A preliminary monitoring report harbor porpoise Washington Inland Support Facilities Project at Naval Base showing the results of the required Waters stock, Steller sea lion Eastern Kitsap Bangor in Silverdale, Washington monitoring to date and an explanation U.S. stock, and California sea lion over two years, beginning July 2021 and showing that the monitoring results do United States stock, would be July 2022, provided the previously not indicate impacts of a scale or nature considered small relative to the relevant mentioned mitigation, monitoring, and not previously analyzed or authorized. stock’s abundances even if each reporting requirements are incorporated. • Upon review of the request for estimated taking occurred to a new Drafts of the proposed IHAs can be Renewal, the status of the affected individual, which is an unlikely found at https:// species or stocks, and any other scenario. www.fisheries.noaa.gov/permit/ pertinent information, NMFS Year 1 IHA—Based on the analysis incidental-take-authorizations-under- determines that there are no more than contained herein of the activity marine-mammal-protection-act. minor changes in the activities, the (including the mitigation and mitigation and monitoring measures monitoring measures) and the Request for Public Comments anticipated take of marine mammals, We request comment on our analyses, will remain the same and appropriate, NMFS preliminarily finds that small the proposed authorizations, and any and the findings in the initial IHA numbers of marine mammals will be other aspect of this notice of proposed remain valid. taken relative to the population size of IHAs for the proposed Transit Dated: August 5, 2020. the affected species or stocks in Year 1 Protection Program Pier and Support Donna S. Wieting, Facilities Project. We also request at this of the project. Director, Office of Protected Resources, Year 2 IHA—Based on the analysis time comment on the potential Renewal National Marine Fisheries Service. contained herein of the activity of these proposed IHAs as described in (including the mitigation and the paragraph below. Please include [FR Doc. 2020–17409 Filed 8–7–20; 8:45 am] monitoring measures) and the with your comments any supporting BILLING CODE 3510–22–P

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DEPARTMENT OF COMMERCE require emergency action under section Additional information on SEDAR 305(c) of the Magnuson-Stevens Fishery and the SEDAR guidelines can be found National Oceanic and Atmospheric Conservation and Management Act, at http://sedarweb.org/. The terms of Administration provided the public has been notified of reference for the SEDAR Pool, along [RTID 0648–XA333] the intent to take final action to address with a list of current members, can be the emergency. found at https:// Pacific Fishery Management Council; Special Accommodations www.fisheries.noaa.gov/atlantic-highly- Public Meeting migratory-species/southeast-data- Requests for sign language assessment-and-review-and-atlantic- AGENCY: National Marine Fisheries interpretation or other auxiliary aids highly. Service (NMFS), National Oceanic and should be directed to Mr. Kris Atmospheric Administration (NOAA), Kleinschmidt (kris.kleinschmidt@ FOR FURTHER INFORMATION CONTACT: Commerce. noaa.gov; (503) 820–2412) at least 10 Karyl Brewster-Geisz, (301) 425–8503. ACTION: Notice of public meeting. days prior to the meeting date. SUPPLEMENTARY INFORMATION: Dated: August 5, 2020. Background SUMMARY: The Pacific Fishery Management Council’s (Pacific Council) Tracey L. Thompson, Section 302(g)(2) of the Magnuson- Groundfish Management Team (GMT) Acting Deputy Director, Office of Sustainable Stevens Fishery Conservation and will hold an online meeting to discuss Fisheries, National Marine Fisheries Service. Management Act (Magnuson-Stevens items on the Pacific Council’s [FR Doc. 2020–17402 Filed 8–7–20; 8:45 am] Act), 16 U.S.C. 1801 et seq., states that September 2020 meeting agenda. The BILLING CODE 3510–22–P each Council shall establish such meeting is open to the public. advisory panels as are necessary or appropriate to assist it in carrying out its DATES: The online meeting will be held DEPARTMENT OF COMMERCE Tuesday, August 25, 2020, from 1 p.m. functions under the Magnuson-Stevens Act. For the purposes of this section, to 3 p.m., Pacific Daylight Time, or until National Oceanic and Atmospheric NMFS applies the above Council business for the day has been Administration completed. provision to Atlantic HMS management [RTID 0648–XA332] (see section 304(g)(1) of the Magnuson- ADDRESSES: This meeting will be held Stevens Act, which provides that the online. Specific meeting information, Atlantic Highly Migratory Species; Secretary will prepare fishery including directions on how to join the Atlantic Highly Migratory Species management plans (FMPs) for HMS and meeting and system requirements will Southeast Data, Assessment, and consult with Advisory Panels under be provided in the meeting Review Workshops Advisory Panel section 302(g) for such FMPs). As such, announcement on the Pacific Council’s AGENCY: NMFS has established the SEDAR Pool website (see www.pcouncil.org). You National Marine Fisheries Service (NMFS), National Oceanic and under this section. The SEDAR Pool may send an email to Mr. Kris currently consists of 30 individuals, Kleinschmidt (kris.kleinschmidt@ Atmospheric Administration (NOAA), Commerce. each of whom may be selected to review noaa.gov) or contact him at (503) 820– data and advise NMFS regarding the 2412 for technical assistance. ACTION: Notice; nominations for shark stock assessment Advisory Panel. scientific information, including but not Council address: Pacific Fishery limited to data and models, used in Management Council, 7700 NE SUMMARY: NMFS solicits nominations stock assessments for oceanic sharks in Ambassador Place, Suite 101, Portland, for the ‘‘SEDAR Pool,’’ also known as the Atlantic Ocean, Gulf of Mexico, and OR 97220–1384. the Atlantic Highly Migratory Species Caribbean Sea. While the SEDAR Pool FOR FURTHER INFORMATION CONTACT: (HMS) Southeast Data, Assessment, and was created specifically for Atlantic Todd Phillips, Staff Officer; telephone: Review (SEDAR) Workshops Advisory oceanic sharks, it may be expanded to (503) 820–2426; email: todd.phillips@ Panel. The SEDAR Pool is comprised of include other HMS, as needed. noaa.gov. a group of individuals who may be The primary purpose of the SUPPLEMENTARY INFORMATION: selected to consider data and advise individuals in the SEDAR Pool is to The primary purpose of the GMT NMFS regarding the scientific review, at SEDAR workshops, the online meeting is to prepare for the information, including but not limited scientific information (including but not Pacific Council’s September 2020 to data and models, used in stock limited to data and models) used in meeting. The GMT will discuss items assessments for oceanic sharks in the stock assessments that are used to related to groundfish management and Atlantic Ocean, Gulf of Mexico, and advise NMFS, as a delegate to the administrative Pacific Council agenda Caribbean Sea. Nominations are being Secretary of Commerce (Secretary), items. A detailed agenda for the online sought for a 5-year appointment (2021– about the conservation and management meeting will be available on the Pacific 2026). Individuals with definable of Atlantic HMS, specifically but not Council’s website prior to the meeting. interests in the recreational and limited to, Atlantic sharks. Individuals The GMT may also address other commercial fishing and related in the SEDAR Pool, if selected, may assignments relating to groundfish industries, environmental community, participate in the various data, management. No management actions academia, and non-governmental assessment, and review workshops will be decided by the GMT. organizations will be considered for during the SEDAR process of any HMS Although non-emergency issues not membership on the SEDAR Pool. stock assessment. In order to ensure that contained in the meeting agenda may be DATES: Nominations must be received the peer review is unbiased, individuals discussed, those issues may not be the on or before September 9, 2020. who participated in a data and/or subject of formal action during this ADDRESSES: You may submit assessment workshop for a particular meeting. Action will be restricted to nominations and request the SEDAR stock assessment will not be allowed to those issues specifically listed in this Pool Statement of Organization, serve as reviewers for the same stock document and any issues arising after Practices, and Procedures electronically assessment. However, these individuals publication of this document that via email to [email protected]. may be asked to attend the review

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workshop to answer specific questions be reimbursed for their travel-related a presentation on dolphinfish tagging from the reviewers concerning the data expenses to attend such workshops. research via webinar on August 26, and/or assessment workshops. Members 2020. B. Nomination Procedures for of the SEDAR Pool may serve as Appointments to the SEDAR Pool DATES: The webinar presentation will be members of other Advisory Panels Member tenure will be for 5 years. held on Wednesday, August 26, 2020, concurrent with, or following, their from 1 p.m. until 2:30 p.m. service on the SEDAR Pool. Nominations are sought for terms beginning early in 2021 and expiring in ADDRESSES: Procedures and Guidelines 2026. Nomination packages should Meeting address: The presentation A. Participants include: will be provided via webinar. The 1. The name, address, phone number, webinar is open to members of the The SEDAR Pool is comprised of and email of the applicant or nominee; public. Information, including a link to individuals representing the commercial 2. A description of the applicant’s or webinar registration will be posted on and recreational fishing communities nominee’s interest in Atlantic shark the Council’s website at: https:// for Atlantic sharks, the environmental stock assessments or the Atlantic shark safmc.net/safmc-meetings/other- community active in the conservation fishery; meetings/ as it becomes available. and management of Atlantic sharks, and 3. A statement of the applicant’s or Council address: South Atlantic the academic community that have nominee’s background and/or Fishery Management Council, 4055 relevant expertise either with sharks qualifications; and Faber Place Drive, Suite 201, N. and/or stock assessment methodologies 4. A written commitment that the Charleston, SC 29405. for marine fish species. In addition, applicant or nominee shall participate FOR FURTHER INFORMATION CONTACT: Kim individuals who may not necessarily actively and in good faith in the tasks Iverson, Public Information Officer, work directly with sharks, but who are of the SEDAR Pool, as requested. SAFMC; phone: (843) 302–8439 or toll involved in fisheries with similar life C. Meeting Schedule free: (866) SAFMC–10; fax: (843) 769– history, biology, and fishery issues may 4520; email: [email protected]. be part of the SEDAR Pool. Members of Individual members of the SEDAR the SEDAR Pool must have Pool meet to participate in stock SUPPLEMENTARY INFORMATION: The demonstrated experience in the assessments at the discretion of the Council will host a presentation from fisheries, related industries, research, Office of Sustainable Fisheries, NMFS. the Dolphinfish Research Program on teaching, writing, conservation, or Stock assessment timing, frequency, and recent tagging efforts for dolphin and management of marine organisms. The relevant species will vary depending on wahoo and ongoing research. A question distribution of representation among the the needs determined by NMFS and and answer session will follow the interested parties is not defined or SEDAR staff. In 2021 and continuing presentation. Members of the public limited. through 2022, NMFS intends to conduct will have the opportunity to participate Additional members of the SEDAR a research track assessment for the and provide comments relative to the Pool may also include representatives hammerhead shark species in the presentation. The presentation is for from each of the five Atlantic Regional hammerhead shark management group. informational purposes only and no Fishery Management Councils, each of During an assessment year, meetings management actions will be taken. the 18 Atlantic states, both the U.S. and meeting logistics will be Special Accommodations Virgin Islands and Puerto Rico, and determined according to the SEDAR The meeting is physically accessible each of the interstate commissions: The Guidelines. All meetings are open for to people with disabilities. Requests for Atlantic States Marine Fisheries observation by the public. auxiliary aids should be directed to the Commission and the Gulf States Marine Dated: August 5, 2020. Fisheries Commission. Council office (see ADDRESSES) 3 days Jennifer M. Wallace, If NMFS requires additional members prior to the meeting. to ensure a diverse pool of individuals Acting Director, Office of Sustainable Note: The times and sequence specified in Fisheries, National Marine Fisheries Service. for data or assessment workshops, this agenda are subject to change. NMFS may request individuals to [FR Doc. 2020–17394 Filed 8–7–20; 8:45 am] Authority: 16 U.S.C. 1801 et seq. become members of the SEDAR Pool BILLING CODE 3510–22–P outside of the annual nomination Dated: August 5, 2020. period. Tracey L. Thompson, DEPARTMENT OF COMMERCE SEDAR Pool members serve at the Acting Deputy Director, Office of Sustainable discretion of the Secretary. Not all National Oceanic and Atmospheric Fisheries, National Marine Fisheries Service. members will attend each SEDAR Administration [FR Doc. 2020–17400 Filed 8–7–20; 8:45 am] workshop. Rather, NMFS will invite BILLING CODE 3510–22–P certain members to participate at [RTID 0648–XA320] specific stock assessment workshops dependent on their ability to participate, Fisheries of the South Atlantic; South DEPARTMENT OF COMMERCE discuss, and recommend scientific Atlantic Fishery Management Council; decisions regarding the species being Public Meetings National Oceanic and Atmospheric assessed. AGENCY: National Marine Fisheries Administration NMFS is not obligated to fulfill any Service (NMFS), National Oceanic and [RTID 0648–XA323] requests (e.g., requests for an assessment Atmospheric Administration (NOAA), of a certain species) that may be made Commerce. Fisheries of the South Atlantic; South by the SEDAR Pool or its individual ACTION: Notice of a Dolphinfish Tagging Atlantic Fishery Management Council; members. Members of the SEDAR Pool Research presentation. Public Meetings who are invited to attend stock assessment workshops will not be SUMMARY: The South Atlantic Fishery AGENCY: National Marine Fisheries compensated for their services but may Management Council (Council) will host Service (NMFS), National Oceanic and

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Atmospheric Administration (NOAA), Requests for auxiliary aids should be requirements and provide the requested Commerce. directed to the Council office (see data in the desired format. ED is ACTION: Notice of public meeting. ADDRESSES) 5 days prior to the meeting. soliciting comments on the proposed Note: The times and sequence specified in information collection request (ICR) that SUMMARY: The South Atlantic Fishery this agenda are subject to change. is described below. The Department of Management Council (Council) will Education is especially interested in convene a meeting of the South Atlantic Authority: 16 U.S.C. 1801 et seq. public comment addressing the Selectivity Workgroup via webinar to Dated: August 5, 2020. following issues: (1) Is this collection address gear selectivity for fishery stock Tracey L. Thompson, necessary to the proper functions of the assessments for species managed by the Department; (2) will this information be Council. Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. processed and used in a timely manner; DATES: The South Atlantic Selectivity (3) is the estimate of burden accurate; [FR Doc. 2020–17401 Filed 8–7–20; 8:45 am] Workgroup meeting will be held via (4) how might the Department enhance webinar on Tuesday, August 25, 2020, BILLING CODE 3510–22–P the quality, utility, and clarity of the from 1 p.m. until 4:30 p.m. information to be collected; and (5) how ADDRESSES: might the Department minimize the DEPARTMENT OF EDUCATION Meeting address: The meeting will be burden of this collection on the held via webinar. The webinar is open [Docket No.: ED–2020–SCC–0126] respondents, including through the use to members of the public. Information, of information technology. Please note including a link to webinar registration Agency Information Collection that written comments received in and meeting materials will be posted on Activities; Submission to the Office of response to this notice will be the Council’s website at: https:// Management and Budget for Review considered public records. safmc.net/safmc-meetings/other- and Approval; Comment Request; Title of Collection: Application Forms meetings/ as it becomes available. Application Forms and Instructions for and Instructions for the Centers for Council address: South Atlantic the Centers for International Business International Business Education Fishery Management Council, 4055 Education (84.220a) Program (84.220a) Program. Faber Place Drive, Suite 201, N. OMB Control Number: 1840–0616. AGENCY: Office of Postsecondary Charleston, SC 29405. Type of Review: An extension of an Education (OPE), Department of existing information collection. FOR FURTHER INFORMATION CONTACT: Education (ED). Respondents/Affected Public: Private Chip Collier, Deputy Director for ACTION: Notice. Sector. Science, SAFMC; phone: (843) 302– Total Estimated Number of Annual 8444 or toll free: (866) SAFMC–10; fax: SUMMARY: In accordance with the Responses: 27. (843)769–4520; email: chip.collier@ Paperwork Reduction Act of 1995, ED is Total Estimated Number of Annual safmc.net. proposing an extension of an existing Burden Hours: 2,700. SUPPLEMENTARY INFORMATION: The South information collection. Abstract: This information collection Atlantic Selectivity Workgroup consists DATES: Interested persons are invited to (OMB 1840–0616) includes application of scientists with expertise in selectivity submit comments on or before instructions and forms for the Centers or gears used in fisheries in the South September 9, 2020. for International Business Education (CIBE) Program (CFDA Number Atlantic region including members of ADDRESSES: Written comments and the Council’s Scientific and Statistical recommendations for proposed 84.220A) authorized under Title VI of Committee chosen to participate. The information collection requests should the Higher Education Act of 1965, as Workgroup will provide be sent within 30 days of publication of amended (20 U.S.C. Sections 611 and recommendations on selectivity for this notice to www.reginfo.gov/public/ 612). The type of collection is an species managed by the Council for do/PRAMain. Find this particular extension of a previously-approved consideration in upcoming stock information collection request by information collection (application). Centers for International Business assessments. selecting ‘‘Department of Education’’ Education (CIBEs) offer consulting Agenda items include: under ‘‘Currently Under Review,’’ then services on international business and 1. Terms of Reference for South Atlantic check ‘‘Only Show ICR for Public marketing to businesses in their areas, Selectivity Workgroup Comment’’ checkbox. 2. Review of Gear and Assessment develop business language curriculum, FOR FURTHER INFORMATION CONTACT: For Selectivity and teach international business topics specific questions related to collection 3. An overview of a Selectivity Study to undergraduate and graduate students. activities, please contact Timothy conducted by the Florida Fish and They also partner with businesses and Duvall, 202–453–7521. Wildlife Research Institute professional associations to offer 4. A presentation from NOAA Fisheries SUPPLEMENTARY INFORMATION: The internships and other real-world on Stereo-video Experiments Department of Education (ED), in experience to prepare career-ready 5. A review of submitted working accordance with the Paperwork international business students. CIBEs papers to aid in the evaluation of Reduction Act of 1995 (PRA) (44 U.S.C. serve to strengthen the American selectivity 3506(c)(2)(A)), provides the general economy in our increasingly 6. Discuss and provide public and Federal agencies with an interconnected world by enabling U.S. recommendations related to opportunity to comment on proposed, citizens and companies to compete in selectivity issues for Black Sea Bass, revised, and continuing collections of the international business arena. Red Snapper and Vermilion information. This helps the Department The CIBE program provides grants for Snapper. assess the impact of its information up to 48 months to pay the Federal collection requirements and minimize share of the cost of planning, Special Accommodations the public’s reporting burden. It also establishing, and operating Centers for These meetings are physically helps the public understand the International Business Education. accessible to people with disabilities. Department’s information collection Eligible applicants are U.S. institutions

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of higher education or combinations of (Direct Loan) Program with first rate information for variable-rate Direct such institutions. disbursement dates on or after July 1, Loans is announced in a separate This program responds to the ongoing 2020, and before July 1, 2021. Federal Register notice. national need for individuals with FOR FURTHER INFORMATION CONTACT: expertise and competence in world Fixed-Rate Direct Subsidized Loans, Travis Sturlaugson, U.S. Department of Direct Unsubsidized Loans, and Direct languages, international business, and Education, 830 First Street NE, 11th U.S. global economic competitiveness; PLUS Loans First Disbursed on or After Floor, Washington, DC 20202. July 1, 2013 advance national security by developing Telephone: (202) 377–4174. Email: a pipeline of highly proficient linguists [email protected]. Section 455(b) of the Higher and experts in critical world regions; If you use a telecommunications Education Act of 1965, as amended and contribute to developing a globally device for the deaf (TDD) or a text (HEA) (20 U.S.C. 1087e(b)), includes competent workforce able to engage telephone (TTY), call the Federal Relay formulas for determining the interest with a multilingual/multicultural Service (FRS), toll free, at 1–800–877– rates for all Direct Subsidized Loans, clientele at home and abroad. Approval 8339. Direct Unsubsidized Loans, and Direct of this collection is necessary in order SUPPLEMENTARY INFORMATION: Direct PLUS Loans first disbursed on or after to conduct fiscal year (FY) 2022 Subsidized Loans, Direct Unsubsidized July 1, 2013. The interest rate for these program competitions. Loans, Direct PLUS Loans, and Direct loans is a fixed rate that is determined Dated: August 4, 2020. Consolidation Loans (collectively annually for all loans first disbursed Kate Mullan, referred to as ‘‘Direct Loans’’) may have during any 12-month period beginning PRA Coordinator, Strategic Collections and either fixed or variable interest rates, on July 1 and ending on June 30. The Clearance Governance and Strategy Division, depending on when the loan was first rate is equal to the high yield of the 10- Office of Chief Data Officer, Office of disbursed or, in the case of a Direct year Treasury notes auctioned at the Planning, Evaluation and Policy Consolidation Loan, when the final auction held before June 1 of that Development. application for the loan was received. 12-month period, plus a statutory add- [FR Doc. 2020–17337 Filed 8–7–20; 8:45 am] Direct Subsidized Loans, Direct on percentage that varies depending on BILLING CODE 4000–01–P Unsubsidized Loans, and Direct PLUS the loan type and, for Direct Loans first disbursed on or after July 1, Unsubsidized Loans, whether the loan 2006, and Direct Consolidation Loans was made to an undergraduate or DEPARTMENT OF EDUCATION for which the application was received graduate student. The calculated on or after February 1, 1999, have fixed interest rate may not exceed a maximum Annual Notice of Interest Rates for rate specified in the HEA. If the interest Fixed-Rate Federal Student Loans interest rates that apply for the life of the loan. Direct Subsidized Loans, rate formula results in a rate that Made Under the William D. Ford exceeds the statutory maximum rate, the Federal Direct Loan Program Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed before July rate is the statutory maximum rate. AGENCY: Federal Student Aid, 1, 2006, and Direct Consolidation Loans Loans first disbursed during different Department of Education. for which the application was received 12-month periods that begin on July 1 and end on June 30 may have different ACTION: Notice. before February 1, 1999, have variable interest rates that are determined interest rates, but the rate determined Catalog of Federal Domestic Assistance annually and are in effect during the for any loan is a fixed interest rate for (CFDA) Number: 84.268. period from July 1 of one year through the life of the loan. SUMMARY: The Chief Operating Officer June 30 of the following year. On May 12, 2020, the United States for Federal Student Aid announces the This notice announces the fixed Treasury Department held a 10-year interest rates for Federal Direct Stafford/ interest rates for Direct Subsidized Treasury note auction that resulted in a Ford Loans (Direct Subsidized Loans), Loans, Direct Unsubsidized Loans, and high yield of 0.700 percent. Federal Direct Unsubsidized Stafford/ Direct PLUS Loans with first Chart 1 shows the fixed interest rates Ford Loans (Direct Unsubsidized disbursement dates on or after July 1, for Direct Subsidized Loans, Direct Loans), and Federal Direct PLUS Loans 2020, and before July 1, 2021, and Unsubsidized Loans, and Direct PLUS (Direct PLUS Loans) made under the provides interest rate information for Loans first disbursed on or after July 1, William D. Ford Federal Direct Loan other fixed-rate Direct Loans. Interest 2020, and before July 1, 2021.

CHART 1—DIRECT SUBSIDIZED LOANS, DIRECT UNSUBSIDIZED LOANS, AND DIRECT PLUS LOANS FIRST DISBURSED ON OR AFTER 07/01/2020 AND BEFORE 07/01/2021

10-year Treas- ury note high Fixed interest Loan type Borrower type yield 05/12/ Add-on Maximum rate rate 2020 (%) (%) (%) (%)

Direct Subsidized Loans ...... Undergraduate students ...... 0.700 2.05 8.25 2.75 Direct Unsubsidized Loans Direct Unsubsidized Loans 1 ...... Graduate and professional students 0.700 3.60 9.50 4.30 Direct PLUS Loans...... Parents of dependent under- 0.700 4.60 10.50 5.30 graduate students. Graduate and professional students 1 Graduate and professional students are not eligible to receive Direct Subsidized Loans.

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For reference, Chart 2 compares the Direct PLUS Loans first disbursed rates for loans first disbursed during fixed interest rates for Direct Subsidized during the period July 1, 2020, through each previous 12-month period from Loans, Direct Unsubsidized Loans, and June 30, 2021, with the fixed interest July 1, 2013, through June 30, 2019.

CHART 2—DIRECT SUBSIDIZED LOANS, DIRECT UNSUBSIDIZED LOANS, AND DIRECT PLUS LOANS FIRST DISBURSED ON OR AFTER 07/01/2013 AND BEFORE 07/01/2021

First disbursed Fixed interest rates (%) Direct Subsidized Direct Loans; Direct Unsubsidized Federal Register Notice On/after Before Unsubsidized Loans Direct PLUS Loans (graduate or Loans (under- professional graduate stu- students) dents)

07/01/2020 ...... 07/01/2021 2.75 4.30 5.30 N/A. 07/01/2019 ...... 07/01/2020 4.53 6.08 7.08 85 FR 2417 (January 15, 2020). 07/01/2018 ...... 07/01/2019 5.05 6.60 7.60 83 FR 53864 (October 25, 2018). 07/01/2017 ...... 07/01/2018 4.45 6.00 7.00 82 FR 29062 (June 27, 2017). 07/01/2016 ...... 07/01/2017 3.76 5.31 6.31 81 FR 38159 (June 13, 2016). 07/01/2015 ...... 07/01/2016 4.29 5.84 6.84 80 FR 42488 (July 17, 2015). 07/01/2014 ...... 07/01/2015 4.66 6.21 7.21 79 FR 37301 (July 1, 2014). 07/01/2013 ...... 07/01/2014 3.86 5.41 6.41 78 FR 59011 (September 25, 2013).

Fixed-Rate Direct Subsidized Loans, Loans first disbursed on or after July 1, Direct Unsubsidized Loans, and Direct 2006, and before July 1, 2013, have fixed PLUS Loans First Disbursed on or After interest rates that are specified in July 1, 2006, and Before July 1, 2013 section 455(b) of the HEA (20 U.S.C. Direct Subsidized Loans, Direct 1087e(b)). Chart 3 shows the interest Unsubsidized Loans, and Direct PLUS rates for these loans.

CHART 3—DIRECT SUBSIDIZED LOANS, DIRECT UNSUBSIDIZED LOANS, AND DIRECT PLUS LOANS FIRST DISBURSED ON OR AFTER 07/01/2006 AND BEFORE 07/01/2013

First First Interest Loan type Borrower type disbursed disbursed rate on/after before (%)

Subsidized ...... Undergraduate students ...... 07/01/2011 07/01/2013 3.40 Subsidized ...... Undergraduate students ...... 07/01/2010 07/01/2011 4.50 Subsidized ...... Undergraduate students ...... 07/01/2009 07/01/2010 5.60 Subsidized ...... Undergraduate students ...... 07/01/2008 07/01/2009 6.00 Subsidized ...... Undergraduate students ...... 07/01/2006 07/01/2008 6.80 Subsidized ...... Graduate or professional students ...... 07/01/2006 2 07/01/2012 6.80 Unsubsidized ...... Undergraduate and graduate or professional students ...... 07/01/2006 07/01/2013 6.80 PLUS ...... Graduate or professional students and parents of dependent 07/01/2006 07/01/2013 7.90 undergraduate students. 2 Effective for loan periods beginning on or after July 1, 2012, graduate and professional students are no longer eligible to receive Direct Sub- sidized Loans.

Fixed-Rate Direct Consolidation Loans the loans consolidated, rounded to the section 455(b) of the HEA the 8.25 Section 455(b) of the HEA specifies nearest higher one-eighth of one percent interest rate cap does not apply that all Direct Consolidation Loans for percent. For Direct Consolidation Loans to Direct Consolidation Loans made which the application was received on for which the application was received based on applications received on or or after February 1, 1999, have a fixed on or after February 1, 1999, and before after July 1, 2013. Chart 4 shows the interest rate that is equal to the July 1, 2013, the interest rate may not interest rates for fixed-rate Direct weighted average of the interest rates on exceed 8.25 percent. However, under Consolidation Loans.

CHART 4—DIRECT CONSOLIDATION LOANS MADE BASED ON APPLICATIONS RECEIVED ON OR AFTER 02/01/1999

Interest rate Maximum interest rate Application received (%) (%)

On/after 07/01/2013 ...... Weighted average of the interest rates on the loans consolidated, None rounded to the nearest higher one-eighth of one percent..

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CHART 4—DIRECT CONSOLIDATION LOANS MADE BASED ON APPLICATIONS RECEIVED ON OR AFTER 02/01/1999— Continued

Interest rate Maximum interest rate Application received (%) (%)

On/after 02/01/1999 and before 07/ (same as above) ...... 8.25% 01/2013.

Accessible Format: Individuals with which the application was received on loan type and when the loan was disabilities can obtain this document in before February 1, 1999. The rates first disbursed or, for certain Direct an accessible format (e.g., braille, large announced in this notice are in effect for Consolidation Loans, when the print, audiotape, or compact disc) by the period July 1, 2020, through June 30, application for the loan was received. contacting the person listed under FOR 2021. The HEA specifies a maximum interest FURTHER INFORMATION CONTACT. FOR FURTHER INFORMATION CONTACT: rate for these loan types. If the interest Electronic Access to This Document: Travis Sturlaugson, U.S. Department of rate formula results in a rate that The official version of this document is Education, 830 First Street NE, 11th exceeds the statutory maximum rate, the the document published in the Federal Floor, Washington, DC 20202. rate is the statutory maximum rate. Register. You may access the official Telephone: (202) 377–4174. Email: Variable-Rate Direct Subsidized Loans, edition of the Federal Register and the [email protected]. Code of Federal Regulations at Direct Unsubsidized Loans, and Direct If you use a telecommunications PLUS Loans www.govinfo.gov. At this site you can device for the deaf (TDD) or a text view this document, as well as all other telephone (TTY), call the Federal Relay For Direct Subsidized Loans and documents of this Department Service (FRS), toll free, at 1–800–877– Direct Unsubsidized Loans with first published in the Federal Register, in 8339. disbursement dates before July 1, 2006, text or Portable Document Format and for Direct PLUS Loans with first (PDF). To use PDF you must have SUPPLEMENTARY INFORMATION: Direct disbursement dates on or after July 1, Adobe Acrobat Reader, which is Subsidized Loans, Direct Unsubsidized 1998, and before July 1, 2006, the available free at the site. Loans, Direct PLUS Loans, and Direct interest rate is equal to the lesser of— You may also access documents of the Consolidation Loans (collectively (1) The bond equivalent rate of 91-day Department published in the Federal referred to as ‘‘Direct Loans’’) may have Treasury bills auctioned at the final Register by using the article search either fixed or variable interest rates, auction held before the June 1 feature at www.federalregister.gov. depending on when the loan was first immediately preceding the 12-month Specifically, through the advanced disbursed or, in the case of a Direct period to which the interest rate applies, search feature at this site, you can limit Consolidation Loan, when the plus a statutory add-on percentage; or your search to documents published by application for the loan was received. (2) 8.25 percent (for Direct Subsidized the Department. Direct Subsidized Loans, Direct Loans and Direct Unsubsidized Loans) Unsubsidized Loans, and Direct PLUS Program Authority: 20 U.S.C. 1087, et seq. or 9.00 percent (for Direct PLUS Loans). Loans first disbursed before July 1, For Direct Subsidized Loans and Mark A. Brown, 2006, and Direct Consolidation Loans Direct Unsubsidized Loans with first Chief Operating Officer, Federal Student Aid. for which the application was received disbursement dates on or after July 1, [FR Doc. 2020–17395 Filed 8–7–20; 8:45 am] before February 1, 1999, have variable 1995, and before July 1, 2006, the BILLING CODE 4000–01–P interest rates. For these loans, a new rate statutory add-on percentage varies is determined annually and is in effect depending on whether the loan is in an during the period from July 1 of one in-school, grace, or deferment status, or DEPARTMENT OF EDUCATION year through June 30 of the following in any other status. For all other loans, year. the statutory add-on percentage is the Annual Notice of Interest Rates for Direct Subsidized Loans, Direct same during any status. Variable-Rate Federal Student Loans Unsubsidized Loans, and Direct PLUS The bond equivalent rate of 91-day Made Under the William D. Ford Loans first disbursed on or after July 1, Treasury bills auctioned on May 26, Federal Direct Loan Program 2006, and Direct Consolidation Loans 2020, is 0.132 percent, rounded to 0.13 AGENCY: Federal Student Aid, for which the application was received percent. Department of Education. on or after February 1, 1999, have fixed For Direct PLUS Loans with first interest rates that apply for the life of ACTION: Notice. disbursement dates before July 1, 1998, the loan. the interest rate is equal to the lesser Catalog of Federal Domestic Assistance This notice announces the interest of— (CFDA) Number: 84.268. rates for variable-rate Direct Loans that (1) The weekly average 1-year SUMMARY: The Chief Operating Officer will apply during the period from July constant maturity Treasury yield, as for Federal Student Aid announces the 1, 2020, through June 30, 2021. Interest published by the Board of Governors of interest rates for Federal Direct Stafford/ rate information for fixed-rate Direct the Federal Reserve System, for the last Ford Loans (Direct Subsidized Loans), Loans is announced in a separate notice calendar week ending on or before the Federal Direct Unsubsidized Stafford/ published in the Federal Register. June 26 preceding the 12-month period Ford Loans (Direct Unsubsidized Interest rates for variable-rate Direct to which the interest rate applies, plus Loans), and Federal Direct PLUS Loans Loans are determined in accordance a statutory add-on percentage; or (Direct PLUS Loan) with first with formulas specified in section (2) 9.00 percent. disbursement dates before July 1, 2006, 455(b) of the Higher Education Act of The weekly average of the one-year and for Federal Direct Consolidation 1965, as amended (HEA) (20 U.S.C. constant maturity Treasury yield, as Loans (Direct Consolidation Loans) for 1087e(b)). The formulas vary depending published by the Board of Governors of

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the Federal Reserve System, for the last Unsubsidized Consolidation Loans, and Interest Rate Charts calendar week ending on or before June (only for Direct Consolidation Loans Charts 1 and 2 show the interest rate 26, 2020, is 0.17 percent. made based on applications received formulas used to determine the interest before July 1, 2006) Direct PLUS Variable-Rate Direct Consolidation rates for all variable-rate Direct Loans Loans Consolidation Loans. In most cases the and the rates that are in effect during the interest rates for variable-rate Direct A Direct Consolidation Loan may 12-month period from July 1, 2020, Subsidized Consolidation Loans, Direct have up to three components, through June 30, 2021. Unsubsidized Consolidation Loans, and depending on the types of loans that Chart 1 shows the interest rates for were repaid by the consolidation loan Direct PLUS Consolidation Loans are loans with rates based on the 91-day and when the application for the determined in accordance with the same Treasury bill rate. Chart 2 shows the consolidation loan was received. The formulas that apply to Direct Subsidized interest rates for loans with rates based three components are called Direct Loans, Direct Unsubsidized Loans, and on the weekly average of the one-year Subsidized Consolidation Loans, Direct Direct PLUS Loans, respectively. constant maturity Treasury yield.

CHART 1—DIRECT SUBSIDIZED LOANS, DIRECT UNSUBSIDIZED LOANS, DIRECT SUBSIDIZED CONSOLIDATION LOANS, DIRECT UNSUBSIDIZED CONSOLIDATION LOANS, DIRECT PLUS LOANS, AND DIRECT PLUS CONSOLIDATION LOANS [Interest rates based on 91-day Treasury bill]

Loan type Cohort 91-day Add-on (%) Maximum rate Interest rate 07/01/20 through 06/ T-bill rate (%) 30/21 (%) 05/26/20 (%)

Subsidized, Un- First disbursed 0.13 1.70 (in-school, 2.30 (any other 8.25 1.83 (in-school, 2.43 (any other subsidized. on/after 07/ grace, status). grace, status) 01/98 and be- deferment). deferment). fore 07/01/06.

Subsidized Con- First disbursed ...... solidation, Un- on/after 07/ subsidized 01/98 and be- Consolidation. fore 10/01/98; or Application received be- fore 10/01/98 and first dis- bursed on/ after 10/01/98.

PLUS ...... First disbursed 0.13 3.10 9.00 3.23 on/after 07/ 01/98 and be- fore 07/01/06.

PLUS Consolida- First disbursed ...... tion. on/after 07/ 01/1998 and before 10/01/ 1998; or Ap- plication re- ceived before 10/01/98 and first disbursed on/after 10/ 01/98. Subsidized, Un- First disbursed 0.13 2.50 (in-school, 3.10 (any other 8.25 2.63 (in-school, 3.23 (any other subsidized, on/after 07/ grace, status). grace, status) Subsidized 01/95 and be- deferment). deferment). Consolidation, fore 07/01/98. Unsubsidized Consolidation.

Subsidized, Un- First disbursed 0.13 .10 8.25 3.23 subsidized, before 07/01/ Subsidized 95. Consolidation, Unsubsidized Consolidation.

Subsidized Con- Application re- 0.13 2.30 8.25 2.43 solidation, Un- ceived on/ subsidized after 10/01/98 Consolidation, and before PLUS Consoli- 02/01/99. dation.

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CHART 2—DIRECT PLUS LOANS AND DIRECT PLUS CONSOLIDATION LOANS [Interest rates based on weekly average of one-year constant maturity treasury yield]

Weekly aver- age of 1-year constant matu- rity Treasury Interest rate yield for last Add-on Maximum rate 07/01/20 Loan type Cohort calendar week (%) (%) through 06/30/ ending on or 21 before 06/26/ (%) 20 (%)

PLUS, PLUS Consolidation ...... First disbursed before 07/01/98 ...... 0.17 3.10 9.00 3.27

Accessible Format: Individuals with interest rates for loans made under the FFEL Program loans may be found in a disabilities can obtain this document in Federal Family Education Loan (FFEL) Federal Register notice published on an accessible format (e.g., braille, large Program that have variable interest September 15, 2015 (80 FR 55342). print, audiotape, or compact disc) on rates. The rates announced in this notice For the majority of variable-rate FFEL request to the contact person listed are in effect for the period July 1, 2020, Program loans, the annual interest rate under FOR FURTHER INFORMATION through June 30, 2021. is equal to the lesser of— CONTACT. FOR FURTHER INFORMATION CONTACT: (1) The bond equivalent rate of the 91- Electronic Access to This Document: Travis Sturlaugson, U.S. Department of day Treasury bills auctioned at the final The official version of this document is Education, 830 First Street NE, 11th auction held before June 1 of each year, the document published in the Federal Floor, Washington, DC 20202. plus a statutory add-on percentage; or Register. You may access the official Telephone: (202) 377–4174. Email: (2) A statutorily established maximum edition of the Federal Register and the [email protected]. interest rate. Code of Federal Regulations at If you use a telecommunications The bond equivalent rate of the 91- www.govinfo.gov. At this site you can device for the deaf (TDD) or a text day Treasury bills auctioned on May 26, view this document, as well as all other telephone (TTY), call the Federal Relay 2020, is 0.132 percent, rounded to 0.13 documents of this Department Service (FRS), toll free, at 1–800–877– percent. published in the Federal Register, in 8339. For PLUS Loans first disbursed before text or Portable Document Format SUPPLEMENTARY INFORMATION: Section July 1, 1998, and for all SLS Loans, the (PDF). To use PDF you must have 427A of the Higher Education Act of annual interest rate is equal to the lesser Adobe Acrobat Reader, which is 1965, as amended (HEA) (20 U.S.C. of— available free at the site. 1077a), provides formulas for (1) The weekly average of the one-year You may also access documents of the determining the interest rates charged to constant maturity Treasury yield, as Department published in the Federal borrowers on loans made under the published by the Board of Governors of Register by using the article search FFEL Program, including Federal the Federal Reserve System, for the last feature at www.federalregister.gov. Subsidized and Unsubsidized Stafford calendar week ending on or before June Specifically, through the advanced Loans (Stafford Loans), Federal PLUS 26 of each year, plus a statutory add-on search feature at this site, you can limit Loans (PLUS Loans), Federal percentage; or your search to documents published by Consolidation Loans (Consolidation (2) A statutorily established maximum the Department. Loans), and Federal Supplemental interest rate. Program Authority: 20 U.S.C. 1087 et Loans for Students (SLS Loans). No new The weekly average of the one-year seq. loans have been made under the FFEL constant maturity Treasury yield, as published by the Board of Governors of Mark A. Brown, Program since June 30, 2010. The FFEL Program includes loans the Federal Reserve System, for the last Chief Operating Officer, Federal Student Aid. with variable interest rates that change calendar week ending on or before June [FR Doc. 2020–17396 Filed 8–7–20; 8:45 am] each year and loans with fixed interest 26, 2020, is 0.17 percent. BILLING CODE 4000–01–P rates that remain the same for the life of For Consolidation Loans that have a the loan. For loans with a variable variable interest rate, the annual interest interest rate, the specific interest rate rate for the portion of a Consolidation DEPARTMENT OF EDUCATION formula that applies to a particular loan Loan that repaid loans other than loans Annual Notice of Interest Rates for depends on the date of the first made under the Health Education Variable-Rate Federal Student Loans disbursement of the loan or, in the case Assistance Loans (HEAL) Program is Made Under the Federal Family of a Consolidation Loan, the date the equal to— Education Loan Program Prior to July application for the loan was received. If (1) The bond equivalent rate of the 91- 1, 2010 a loan has a variable interest rate, a new day Treasury bill auctioned at the final rate is determined annually and is in auction held before June 1 of each year, AGENCY: Federal Student Aid, effect during the period from July 1 of plus a statutory add-on percentage; or Department of Education. one year through June 30 of the (2) A statutorily established maximum ACTION: Notice. following year. interest rate. This notice announces the interest If a Consolidation Loan (whether a Catalog of Federal Domestic Assistance rates for variable-rate FFEL Program variable-rate loan or a fixed-rate loan) (CFDA) Number: 84.032. loans that will be in effect during the repaid loans made under the HEAL SUMMARY: The Chief Operating Officer period from July 1, 2020, through June Program, the interest rate on the portion for Federal Student Aid announces the 30, 2021. Interest rates for fixed-rate of the Consolidation Loan that repaid

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HEAL loans is a variable rate that is is in an in-school, grace, or deferment ‘‘converted’’ variable-rate Federal equal to the average of the bond status, or in any other status. If the Stafford Loans and certain Federal equivalent rates of the 91-day Treasury interest rate calculated in accordance Consolidation Loans. bills auctioned for the quarter ending with the applicable formula exceeds the Chart 2 shows the interest rates for June 30, plus a statutory add-on statutory maximum interest rate, the loans with rates based on the weekly percentage. For the portion of a statutory maximum rate applies. average of the one-year constant Consolidation Loan that repaid HEAL Charts 1 through 4 show the interest maturity Treasury yield. loans, there is no maximum interest rate formulas that are used to determine rate. the interest rates for all variable-rate Chart 3 shows the interest rates for The average of the bond equivalent FFEL Program loans and the interest ‘‘converted’’ variable-rate Federal rates of the 91-day Treasury bills rates that are in effect during the 12- Stafford Loans. These are loans that auctioned for the quarter ending on June month period from July 1, 2020, through originally had varying fixed interest 30, 2020, is 0.15 percent. June 30, 2021. Unless otherwise rates. The statutory add-on percentages and indicated, the cohorts shown in each Finally, Chart 4 shows the interest maximum interest rates vary depending chart include all borrowers, regardless rates for variable-rate Federal on loan type and when the loan was of prior borrowing. Consolidation Loans, and for the portion first disbursed. In addition, the add-on Chart 1 shows the interest rates for of any Federal Consolidation Loan that percentage for certain Stafford Loans is loans with rates based on the 91-day repaid loans made under the HEAL different depending on whether the loan Treasury bill, with the exception of Program.

CHART 1—SUBSIDIZED FEDERAL STAFFORD LOANS, UNSUBSIDIZED FEDERAL STAFFORD LOANS, AND FEDERAL PLUS LOANS [Interest rate based on 91-day treasury bill]

Loan type Cohort 91-day Add-on (%) Maximum rate Interest rate 07/01/20 through 06/ T-bill rate (%) 30/21 (%) 05/26/20 (%)

Subsidized Staf- First disbursed 0.13 1.70 (in-school, 2.30 (any other 8.25 1.83 (in-school, 2.43 (any other ford. on/after 07/ grace, status). grace, status). Unsubsidized 01/98 and be- deferment). deferment). Stafford. fore 07/01/06.

PLUS ...... First disbursed 0.13 3.10 9.00 3.23. on/after 07/ 01/98 and be- fore 07/01/06.

Subsidized Staf- First disbursed 0.13 2.50 (in-school, 3.10 (any other 8.25 2.63 (in-school, 3.23 (any other ford. on/after 07/ grace, status). grace, status). Unsubsidized 01/95 and be- deferment). deferment). Stafford. fore 07/01/98.

Subsidized Staf- First disbursed 0.13 3.10 8.25 3.23. ford. on/after 07/ Unsubsidized 01/94 and be- Stafford. fore 07/01/95, for a period of enrollment that included or began on or after 07/ 01/94.

Subsidized Staf- First disbursed 0.13 3.10 9.00 3.23. ford. on/after 10/ Unsubsidized 01/92 and be- Stafford. fore 07/01/94; and First dis- bursed on/ after 07/01/ 94, for a pe- riod of enroll- ment ending before 07/01/ 94 (new bor- rowers).

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CHART 2—FEDERAL PLUS LOANS AND SLS LOANS [Interest rate based on weekly average of one-year constant maturity treasury yield]

Weekly average of 1-year constant maturity Interest Treasury Add-on Maximum rate rate 07/01/20 Loan type Cohort yield for (%) (%) through last calendar 06/30/21 week ending (%) on or before 06/26/20 (%)

PLUS ...... First disbursed on/after 07/01/94 and before 07/ 0.17 3.10 9.00 3.27 01/98. PLUS ...... First disbursed on/after 10/01/92 and before 07/ 0.17 3.10 10.00 3.27 01/94. SLS ...... First disbursed on/after 10/01/92, for a period of 0.17 3.10 11.00 3.27 enrollment beginning before 07/01/94. PLUS ...... First disbursed before 10/01/92 ...... 0.17 3.25 12.00 3.42 SLS

CHART 3—‘‘CONVERTED’’ VARIABLE-RATE SUBSIDIZED AND UNSUBSIDIZED FEDERAL STAFFORD LOANS [Interest rate based on 91-day treasury bill]

Original fixed Interest interest rate 91-day rate 07/01/20 Loan type Cohort (later converted T-bill rate Add-on Maximum rate through to variable rate) 05/26/20 (%) (%) 06/30/21 (%) (%) (%)

Subsidized Staf- First disbursed on or after 07/23/92 8.00, increasing 0.13 3.10 10.00 3.23 ford. and before 07/01/94 (prior bor- to 10.00. Unsubsidized rowers). Stafford. Subsidized Staf- First disbursed on or after 07/23/92 9.00 ...... 0.13 3.10 9.00 3.23 ford. and before 07/01/94 (prior bor- Unsubsidized rowers). Stafford. Subsidized Staf- First disbursed on or after 07/23/92 8.00 ...... 0.13 3.10 8.00 3.23 ford. and before 07/01/94 (prior bor- Unsubsidized rowers). Stafford. Subsidized Staf- First disbursed on or after 07/23/92 7.00 ...... 0.13 3.10 7.00 3.23 ford. and before 07/01/94 (prior bor- Unsubsidized rowers). Stafford. Subsidized Staf- First disbursed on or after 07/23/92 8.00, increasing 0.13 3.25 10.00 3.38 ford. and before 10/01/92 (new bor- to 10.00. Unsubsidized rowers). Stafford. Subsidized Staf- First disbursed on or after 07/01/88 8.00, increasing 0.13 3.25 10.00 3.38 ford. and before 07/23/92. to 10.00. Unsubsidized Stafford.

CHART 4—FEDERAL CONSOLIDATION LOANS

Average of the bond equivalent 91-day rates of the Interest Consolidation loan T-bill rate 91-day T-bills Add-on Maximum rate rate 07/01/20 component Cohort 05/26/20 auctioned (%) (%) through (%) for the 06/30/21 quarter ending (%) 06/30/20 (%)

Portion of loan that repaid Application received on/ 0.13 N/A 3.10 8.25...... 3.23 loans other than HEAL after 11/13/97 and before loans. 10/01/98.

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CHART 4—FEDERAL CONSOLIDATION LOANS—Continued

Average of the bond equivalent 91-day rates of the Interest Consolidation loan T-bill rate 91-day T-bills Add-on Maximum rate rate 07/01/20 component Cohort 05/26/20 auctioned (%) (%) through (%) for the 06/30/21 quarter ending (%) 06/30/20 (%)

Portion of the loan that re- Application received on/ N/A 0.15 3.00 None...... 3.15 paid HEAL loans. after 11/13/97.

Accessible format: Individuals with Processing Facility Recycle Wastewater disposal facility located outside of disabilities can obtain this document in from the Savannah River Site (Final South Carolina and licensed by either an accessible format (e.g., braille, large EA). The Proposed Action in the Final the NRC or an Agreement State under 10 print, audiotape, or compact disc) on EA is the disposal of up to 10,000 CFR part 61. Treatment and disposal request to the contact person listed gallons of stabilized (grouted) Defense alternatives for this waste are discussed under FOR FURTHER INFORMATION Waste Processing Facility (DWPF) under the ‘‘Proposed Action and CONTACT. recycle wastewater from the Savannah Alternatives’’ section. Any proposal to Electronic access to this document: River Site (SRS) at a commercial low- dispose of more than 10,000 gallons of The official version of this document is level radioactive waste (LLW) disposal DWPF recycle wastewater would be the document published in the Federal facility located outside of South evaluated in a separate NEPA review. Register. You may access the official Carolina and licensed by either the The proposed action would be edition of the Federal Register and the Nuclear Regulatory Commission (NRC) implemented starting within 12 Code of Federal Regulations at or an Agreement State. Based on the months 1 of this Finding of No www.govinfo.gov. At this site you can information and analysis in the Final Significant Impact and would inform view this document, as well as all other EA, DOE intends to ship up to 8 gallons planning activities for the three years documents of this Department of the DWPF recycle wastewater to the between the completion of the Salt published in the Federal Register, in Waste Control Specialists, LLC (WCS) Waste Processing Facility (SWPF) text or Portable Document Format Federal Waste Facility (FWF), a licensed mission (estimated 2031) and DWPF (PDF). To use PDF you must have commercial disposal facility located in mission completion (estimated 2034). Adobe Acrobat Reader, which is Andrews, Texas, for stabilization and During that three-year period, DOE will available free at the site. disposal. not have the option of returning DWPF You may also access documents of the ADDRESSES: This Finding of No recycle wastewater to the tank farm Department published in the Federal Significant Impact and the Final EA are (which is how SRS presently addresses Register by using the article search available on the DOE National DWPF recycle wastewater) and SWPF feature at www.federalregister.gov. Environmental Policy Act (NEPA) for processing because SWPF will have Specifically, through the advanced website at: https://www.energy.gov/ completed its mission of treating salt search feature at this site, you can limit nepa/doeea-2115-commercial-disposal- waste from the tank farms and will your search to documents published by defense-waste-processing-facility- undergo closure. The proposed action the Department. recycle-wastewater-savannah. enables DOE to develop an alternative Program Authority: 20 U.S.C. 1071 et seq. FOR FURTHER INFORMATION CONTACT: capability for stabilization and disposal James Joyce and/or Theresa Kliczewski, of DWPF recycle through the use of a Mark A. Brown, U.S. Department of Energy, Office of licensed commercial facility. Chief Operating Officer, Federal Student Aid. Environmental Management, Office of SRS generated large quantities of [FR Doc. 2020–17397 Filed 8–7–20; 8:45 am] Waste and Materials Management (EM– liquid radioactive waste as a result of its BILLING CODE 4000–01–P 4.2), 1000 Independence Avenue SW, nuclear materials production mission. Washington, DC 20585. Emails: This liquid radioactive waste has [email protected] and historically been managed as high-level DEPARTMENT OF ENERGY [email protected]. Phone radioactive waste (HLW). The waste was number: (202)586–5000. placed into underground storage tanks Finding of No Significant Impact for at SRS and consists primarily of three SUPPLEMENTARY INFORMATION: the Commercial Disposal of Defense physical forms: Sludge, saltcake, and Waste Processing Facility Recycle Background liquid supernatant. The sludge portion Wastewater From the Savannah River DOE prepared the Final EA in in the underground tanks is being Site accordance with Council on transferred on-site to the DWPF for vitrification in borosilicate glass to AGENCY: Environmental Quality (CEQ) Office of Environmental immobilize the radioactive constituents. Management, Department of Energy. regulations and DOE NEPA implementing procedures at 40 CFR The resulting vitrified waste form is ACTION: Finding of No Significant poured as molten glass into production Impact. parts 1500 through 1508 and 10 CFR part 1021, respectively. In the Final EA, canisters where it cools into a solid SUMMARY: The Department of Energy the proposed action is the disposal of up 1 This small quantity (up to 8 gallons) would (DOE) has completed the Final to 10,000 gallons of stabilized (grouted) enable DOE to initiate the transportation, Environmental Assessment for the DWPF recycle wastewater from the SRS stabilization, and disposal within the next 12 Commercial Disposal of Defense Waste H-Area Tank Farm at a commercial LLW months.

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glass-waste and is securely stored at NRC’s performance objectives for recycle wastewater from SRS H-Area SRS until DOE establishes a final commercial LLW disposal facilities are Tank Farm at a commercial LLW disposition path. DWPF operations specified in 10 CFR part 61, subpart C, disposal facility located outside of generate recycle wastewater. The DWPF ‘‘Performance Objectives.’’ South Carolina and licensed by either recycle wastewater is a combination of As stated in the Supplemental Notice, NRC or an Agreement State under 10 several dilute liquid waste streams DOE will continue its current practice of CFR part 61. If implemented, this consisting primarily of condensates managing all of its defense reprocessing proposal would provide alternative from the vitrification processes. Other wastes as if they were HLW unless and treatment and disposal options for components of the DWPF recycle until a specific waste is determined to DWPF recycle wastewater through the wastewater include process samples, be another category of waste based on use of existing, licensed, off-site sample line flushes, sump flushes, and detailed technical assessments of its commercial treatment and disposal cleaning solutions from the characteristics and an evaluation of facilities. DOE has developed three decontamination and filter dissolution potential disposal pathways. action alternatives for accomplishing processes. Currently, the DWPF recycle As discussed in the Final EA, DOE this Proposed Action. The Final EA also wastewater is returned to the tank farm has evaluated representative samples of evaluated the No Action alternative. for volume reduction by evaporation or the DWPF recycle wastewater (see Final • Alternative 1: Deploy retrieval and is beneficially reused in salt dissolution EA, Appendix A) and prepared a on-site treatment capability at SRS to or sludge washing. The DWPF recycle technical evaluation and an official stabilize up to 10,000 gallons of DWPF wastewater is currently managed as determination for up to 8 gallons of recycle wastewater and then transport HLW because it has radionuclides from DWPF recycle wastewater that the solid waste form to a licensed reprocessing waste as a result of DWPF demonstrate and document, that the commercial LLW disposal facility. The operations or storage in tanks that DWPF recycle wastewater would meet stabilization technology planned for the contain residual quantities of criterion 1 for non-HLW under DOE’s DWPF recycle wastewater is grout. reprocessing waste. interpretation of the NWPA definition of Depending upon whether the final On October 10, 2018, DOE published HLW. As part of this process, DOE packaged waste form is classified as a notice in the Federal Register would verify with the licensee of the Class A, B, or C LLW, it would then be requesting public comment on its disposal facility that the stabilized shipped for disposal to either to the interpretation of the definition of the waste meets the facility’s waste WCS FWF in Texas and/or the statutory term, ‘‘high-level radioactive acceptance criteria and all other EnergySolutions in Utah. waste,’’ as set forth in the Atomic requirements of the disposal facility, • Alternative 2: Retrieval and Energy Act of 1954, as amended (42 including applicable regulatory transport of up to 10,000 gallons of SRS U.S.C. 2011 et seq.) and the Nuclear requirements for treatment and disposal DWPF recycle wastewater to a licensed Waste Policy Act (NWPA) (42 U.S.C. prior to disposal and applicable U.S. commercial LLW disposal facility (WCS 10101 et seq.) (83 FR 50909). In that Department of Transportation (USDOT) FWF or EnergySolutions site) with the notice, DOE explained the history and requirements for packaging and capability to stabilize and dispose of the basis for its interpretation to classify the transportation from SRS to the final waste form. reprocessing waste based on its commercial treatment or disposal • Alternative 3: Retrieval and radiological contents and not on the facility. transport of up to 10,000 gallons of SRS origin of the waste. Subsequently, on DOE announced in a June 10, 2019, DWPF recycle wastewater to a permitted June 10, 2019, DOE published a notice in the Federal Register (84 FR and/or licensed commercial treatment Supplemental Notice in the Federal 26847) its intent to prepare an facility for stabilization and then Register (84 FR 26835) that provided Environmental Assessment for the transport the final solidified waste form DOE’s interpretation as informed by Commercial Disposal of Defense Waste to a licensed commercial LLW disposal public review and comment and further Processing Facility Recycle Wastewater facility (WCS FWF or EnergySolutions). consideration by DOE. DOE revised its from the Savannah River Site (Draft EA). Under the No Action alternative, up interpretation after consideration of On December 10, 2019, DOE announced to 10,000 gallons of DWPF recycle public comments, which included in the Federal Register (84 FR 67438) wastewater would remain in the SRS comments from the NRC, members of the availability of the Draft EA for liquid waste system until disposition Congress, affected states and Native public comment. DOE also posted the occurs. This alternative would require American tribes, and individual Draft EA on DOE websites for public another, as yet determined, process to stakeholders, in order to clarify its review. DOE held an informational handle the DWPF recycle wastewater meaning and import. This interpretation meeting on the Draft EA in Augusta, during the final years of the DWPF intends to facilitate the safe disposal of Georgia on December 17, 2019, and an mission (2031–2034), when DOE will no defense reprocessing waste if the waste informational internet webinar meeting longer have the option of returning meets either of the following two on December 19, 2019, to provide the DWPF recycle wastewater to SWPF for criteria: public and stakeholders with an processing. 1. Does not exceed concentration overview of the Draft EA and the Potential Environmental Impacts limits for Class C low-level radioactive Department’s HLW interpretation. On waste as set out in section 61.55 of title December 30, 2019, DOE announced in The analyses in the Final EA 10, Code of Federal Regulations, and the Federal Register (84 FR 71909) that, demonstrates that the proposed action meets the performance objectives of a in response to stakeholder requests, the and alternatives entail minimal risk to disposal facility; or original 30-day public comment period human health or to the quality of the 2. does not require disposal in a deep was extended to February 10, 2020 (i.e., environment for all three action geologic repository and meets the an extension of 32 days). alternatives analyzed. All the proposed performance objectives of a disposal alternatives would have minor potential facility as demonstrated through a Proposed Action and Alternatives environmental impacts. Section 3 of the performance assessment conducted in DOE’s Proposed Action in the Final Final EA analyzed the following accordance with applicable EA is the disposal of up to 10,000 resource areas in detail: (1) Air quality, requirements. gallons of stabilized (grouted) DWPF (2) human health (normal operations),

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(3) human health (accidents and or equal to 17 to 28 mrem, which is period on the Draft EA. Commenters intentional destructive acts), (4) waste approximately 1,000 times below the included federal and state agencies, management, and (5) transportation. DOE exposure guidelines of 25 rem for environmental groups, advisory groups, Air quality impacts would be a member of the public at the nearest and citizens. Appendix C of the Final negligible for all alternatives. The site boundary. This exposure would be EA includes responses to public recycle wastewater would be transferred expected to result in 0 zero LCFs. comments received on the Draft EA. from Tank 22 to a temporary enclosure Treatment and/or disposal of the DWPF DOE considered all public comments for on-site stabilization (Alternative 1 recycle wastewater at a permitted and/ received in preparing the Final EA. only) and packaging (Alternatives 2 and or licensed facility would not change 3). Measures would be taken to prevent the accident impacts at those sites Determination radiological air emissions during the on- compared to their ongoing operations. In the Final EA, DOE evaluated the site activities. These measures would Waste management impacts at SRS potential environmental impacts include the use of air filters on and the potential disposal sites would associated with retrieval, transportation, containers, transfer hoses, and be minimal. The 10,000 gallons of stabilization, and disposal of up to temporary structures. The estimated DWPF recycle wastewater would 10,000 gallons of DWPF recycle number of truck shipments (up to 30 represent about 10,000 gallons of wastewater from SRS at a licensed shipments) would produce negligible air stabilized waste, or about 0.002 percent commercial LLW disposal facility emissions, including greenhouse gas, of the EnergySolutions licensed capacity outside of the state of South Carolina. and treatment and disposal actions at or .01 percent of WCS FWF licensed Implementation of any of the action the commercial facilities would not capacity. Actions at SRS would also alternatives analyzed in the Final EA cause any additional air emissions result in small quantities (probably less would entail minor impacts and low beyond those already expected from than 10 cubic yards) of job control waste risks, and does not constitute a major their ongoing, permitted and/or licensed that would be negligible compared with Federal action significantly affecting the operations. LLW quantities generated by existing quality of the human environment in Potential impacts to workers at SRS operations at SRS. Stabilization accordance with DOE’s NEPA and the public from normal operations activities at a commercial site for implementing procedures, 10 CFR part would be minimal for all three action Alternatives 2 and 3 would not generate 1021, and the regulations promulgated alternatives. Potential doses to workers additional waste types beyond those by the CEQ for implementing NEPA, 40 would be well within the administrative already expected and associated with CFR 1508.27. Therefore, the preparation control level for SRS workers and would the site license. of an environmental impact statement is result in zero latent cancer fatalities The transportation of stabilized (solid not required. (LCFs). In addition, DOE would form) or liquid DWPF recycle Based on the analysis in the Final EA, implement measures (e.g., use of wastewater would involve DOE intends to ship the DWPF recycle shielding and personal protective approximately 9 truck shipments for wastewater to WCS FWF, a licensed equipment) to minimize worker Alternative 1 (solid form), 15 truck commercial disposal facility located in exposures and maintain doses as low as shipments for Alternative 2 (liquid Andrews, Texas, for stabilization and reasonably achievable. Because there form), and 30 truck shipments for disposal (Alternative 2). Current would be no radiological emissions or Alternative 3 (15 shipments in liquid characterization analysis shows that the effluents associated with any of the form and 15 shipments in solid form). DWPF recycle wastewater is anticipated three alternatives, and no direct The waste would be packaged and to be Class B LLW. Of the licensed radiation dose off-site, there would be shipped in accordance with USDOT commercial facilities analyzed in the no dose to the public from normal requirements. The potential radiological Final EA, the WCS FWF is the only operations. Potential impacts from and non-radiological risks to the truck facility that can accept Class A, B, and treatment and disposal actions at the crew and the public along the C LLW for disposal. In addition, WCS commercial facility would not result in transportation route would be has the capability to stabilize the DWPF any notable increase in human health negligible. In the event an accident did recycle wastewater on-site prior to impacts beyond those already expected occur, the probability of a release of disposal. from ongoing LLW treatment and radiological material would be Specifically, as soon as August 26, disposal operations under their extremely unlikely. 2020, DOE intends to initiate removal of environmental permits and/or licenses. Consistent with both CEQ and DOE DWPF wastewater from Tank 22 to An accident or intentional destructive NEPA regulations, the analysis in the begin the disposition process and act involving the release of DWPF Final EA focused on the subjects within the next 12 months,2 DOE recycle wastewater during on-site relevant to the proposed action and its intends to initiate the shipment of a activities would result in minimal impacts. Based on a screening analysis small quantity (up to 8 gallons) from the impacts to workers and the public, described in the Final EA, the following up to 10,000 gallons of DWPF recycle based on conservative accident scenario resource areas do not require additional wastewater to the WCS FWF for analysis. For example, the potential detailed analysis: Land, visual, geology treatment and disposal in accordance dose from an accident to a maximally and soils, water resources (surface, with the facility’s waste acceptance exposed worker would be less than or groundwater, and wetlands), cultural criteria, license conditions, equal to 30 to 38 millirems (mrem), and paleontological resources, environmental permits, and all other which is significantly below DOE’s ecological resources (biota, threatened applicable requirements. DOE has administrative control level of 2,000 and endangered species), noise, evaluated representative samples of the mrem per year for a worker, and below socioeconomics and environmental DWPF recycle wastewater (see Final EA, the SRS contractor’s administrative justice, infrastructure and utilities, and Appendix A) and prepared a technical control level of 500 mrem per year. This industrial safety. exposure would be expected to result in External Review and Comments 2 This small quantity (up to 8 gallons) would zero LCFs. The potential dose from an enable DOE to initiate the transportation, accident to an off-site maximally Nineteen comment documents were stabilization, and disposal within the next 12 exposed individual would be less than received during the public comment months.

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evaluation and an official determination DATES: August 25, 2020; 11:00 a.m. to Docket Number: PR20–32–001. for up to 8 gallons of DWPF recycle 7:00 p.m. Applicants: Columbia Gas of Ohio, wastewater that demonstrate and ADDRESSES: Cisco WebEx Secure Video Inc. document, that the DWPF recycle Conferencing. Description: Tariff filing per wastewater would meet criterion 1 for FOR FURTHER INFORMATION CONTACT: 284.123(b),(e)/: COH SOC Revision non-HLW under DOE’s interpretation of Rachel Barnhill, Office of RDT&E (NA– effective Sept 1 2020 to be effective 9/ the NWPA definition of HLW. The 11), National Nuclear Security 1/2020. technical reports are available at: Administration, U.S. Department of Filed Date: 7/31/2020. https://www.energy.gov/em/program- Energy, 1000 Independence Ave. SW, Accession Number: 202007315141. scope/high-level-radioactive-waste-hlw- Washington, DC 20585, (202) 586–7183; Comments/Protests Due: 5 p.m. ET 8/ interpretation. [email protected]. 21/2020. Signing Authority SUPPLEMENTARY INFORMATION: Docket Numbers: RP19–1426–007. Background: The DPAC provides advice Applicants: National Fuel Gas Supply This document of the Department of and recommendations to the Deputy Corporation. Energy was signed on August 4, 2020, Administrator for Defense Programs on Description: Compliance filing by Elizabeth A. Connell, Associate the stewardship and maintenance of the Compliance Filing (GT&C 42)—RP19– Principal Deputy Assistant Secretary for Nation’s nuclear deterrent. 1429 to be effective 2/1/2020. Regulatory and Policy Affairs, Office of Purpose of the Meeting: The purpose Filed Date: 7/29/20. Environmental Management, pursuant of this meeting is to finalize DPAC Accession Number: 20200729–5101. to delegated authority from the recommendations to the Stockpile Comments Due: 5 p.m. ET 8/10/20. Secretary of Energy. That document Responsiveness Program and discuss Docket Numbers: RP20–1081–000. with the original signature and date is the path ahead on new topics. Applicants: Equitrans, L.P. maintained by DOE. For administrative Type of Meeting: In the interest of Description: § 4(d) Rate Filing: purposes only, and in compliance with national security, the meeting will be Expired Negotiated Rate Agreement—9/ requirements of the Office of the Federal closed to the public. The Federal 30/2020 to be effective 10/1/2020. Register, the undersigned DOE Federal Advisory Committee Act, 5 U.S.C. App. Filed Date: 8/3/20. Register Liaison Officer has been 2, section 10(d), and the Federal Accession Number: 20200803–5036. authorized to sign and submit the Advisory Committee Management Comments Due: 5 p.m. ET 8/17/20. document in electronic format for Regulation, 41 CFR 102–3.155, Docket Numbers: RP20–1082–000. publication, as an official document of incorporate by reference the Applicants: Equitrans, L.P. the Department of Energy. This Government in the Sunshine Act, 5 Description: § 4(d) Rate Filing: administrative process in no way alters U.S.C. 552b, which, at 552b(c)(1) and Formula Based Negotiated Rate—10/1/ the legal effect of this document upon (c)(3) permits closure of meetings where 2020 Update to be effective 10/1/2020. publication in the Federal Register. restricted data or other classified Filed Date: 8/3/20. matters will be discussed. Such data Signed in Washington, DC, on August 5, Accession Number: 20200803–5037. and matters will be discussed at this 2020. Comments Due: 5 p.m. ET 8/17/20. Treena V. Garrett, meeting. Tentative Agenda: Welcome; reading Docket Numbers: RP20–1083–000. Federal Register Liaison Officer, Department of final draft of report; discussion of Applicants: Equitrans, L.P. of Energy. report, as necessary; (tentative) Description: § 4(d) Rate Filing: [FR Doc. 2020–17374 Filed 8–7–20; 8:45 am] acceptance of report; discussion of next Negotiated Rate Capacity Release BILLING CODE 6450–01–P charges; conclusion. Agreements—8/1/2020 to be effective 8/ Public Participation: There will be no 1/2020. public participation in this closed Filed Date: 8/3/20. DEPARTMENT OF ENERGY meeting. Those wishing to provide Accession Number: 20200803–5043. National Nuclear Security written comments or statements to the Comments Due: 5 p.m. ET 8/17/20. Administration Committee are invited to send them to Docket Numbers: RP20–1084–000. Rachel Barnhill at the address listed Applicants: Algonquin Gas Defense Programs Advisory above. Transmission, LLC. Committee Minutes: The minutes of the meeting Description: § 4(d) Rate Filing: will not be available. Negotiated Rates—August 2020 Cleanup AGENCY: Office of Defense Programs, Signed in Washington, DC on August 5, Filing to be effective 9/3/2020. National Nuclear Security 2020. Filed Date: 8/3/20. Administration, Department of Energy. LaTanya Butler, Accession Number: 20200803–5071. ACTION: Notice of closed meeting. Deputy Committee Management Officer. Comments Due: 5 p.m. ET 8/17/20. [FR Doc. 2020–17404 Filed 8–7–20; 8:45 am] The filings are accessible in the SUMMARY: This notice announces a BILLING CODE 6450–01–P Commission’s eLibrary system (https:// closed meeting of the Defense Programs elibrary.ferc.gov/idmws/search/ Advisory Committee (DPAC). The fercgensearch.asp) by querying the Federal Advisory Committee Act DEPARTMENT OF ENERGY docket number. requires that public notice of meetings Any person desiring to intervene or be announced in the Federal Register. Federal Energy Regulatory protest in any of the above proceedings Due to national security considerations, Commission must file in accordance with Rules 211 under, the meeting will be closed to the Combined Notice of Filings and 214 of the Commission’s public and matters to be discussed are Regulations (18 CFR 385.211 and exempt from public disclosure under Take notice that the Commission has 385.214) on or before 5:00 p.m. Eastern Executive Order 13526, and the Atomic received the following Natural Gas time on the specified comment date. Energy Act of 1954. Pipeline Rate and Refund Report filings: Protests may be considered, but

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intervention is necessary to become a to the merits of a contested proceeding, decisional record of the proceeding, party to the proceeding. to deliver to the Secretary of the unless the communication was with a eFiling is encouraged. More detailed Commission, a copy of the cooperating agency as described by 40 information relating to filing communication, if written, or a CFR 1501.6, made under 18 CFR requirements, interventions, protests, summary of the substance of any oral 385.2201(e)(1)(v). service, and qualifying facilities filings communication. can be found at: http://www.ferc.gov/ Prohibited communications are The following is a list of off-the- docs-filing/efiling/filing-req.pdf. For included in a public, non-decisional file record communications recently other information, call (866) 208–3676 associated with, but not a part of, the received by the Secretary of the (toll free). For TTY, call (202) 502–8659. decisional record of the proceeding. Commission. The communications listed are grouped by docket numbers in Dated: August 4, 2020. Unless the Commission determines that ascending order. In addition to Nathaniel J. Davis, Sr., the prohibited communication and any responses thereto should become a part publishing the full text of this document Deputy Secretary. of the decisional record, the prohibited in the Federal Register, the Commission [FR Doc. 2020–17383 Filed 8–7–20; 8:45 am] off-the-record communication will not provides all interested persons an BILLING CODE 6717–01–P be considered by the Commission in opportunity to view and/or print the reaching its decision. Parties to a contents of this document via the proceeding may seek the opportunity to DEPARTMENT OF ENERGY internet through the Commission’s respond to any facts or contentions Home Page (http://ferc.gov) using the Federal Energy Regulatory made in a prohibited off-the-record ‘‘eLibrary’’ link. Enter the docket Commission communication and may request that number excluding the last three digits in the Commission place the prohibited [Docket No. RM98–1–000] the docket number field to access the communication and responses thereto document. At this time, the Commission in the decisional record. The Records Governing Off-the-Record has suspended access to the Commission will grant such a request Communications; Public Notice Commission’s Public Reference Room, only when it determines that fairness so due to the proclamation declaring a This constitutes notice, in accordance requires. Any person identified below as National Emergency concerning the with 18 CFR 385.2201(b), of the receipt having made a prohibited off-the-record of prohibited and exempt off-the-record communication shall serve the Novel Coronavirus Disease (COVID–19), communications. document on all parties listed on the issued by the President on March 13, Order No. 607 (64 FR 51222, official service list for the applicable 2020. For assistance, contact the Federal September 22, 1999) requires proceeding in accordance with Rule Energy Regulatory Commission at Commission decisional employees, who 2010, 18 CFR 385.2010. [email protected] or toll make or receive a prohibited or exempt Exempt off-the-record free at (866) 208–3676, or for TTY, off-the-record communication relevant communications are included in the contact (202) 502–8659.

Docket nos. File date Presenter or requester

Prohibited: 1. ER20–2308–000 ...... 7–22–2020 FERC Staff.1 2. ER20–2046–000 ...... 7–22–2020 FERC Staff.2 Exempt: 1. ER20–2308–000 ...... 7–22–2020 FERC Staff.3 2. ER20–2046–000 ...... 7–23–2020 FERC Staff.4 3. CP20–48–000 ...... 7–29–2020 U.S Fish and Wildlife Service. 4. CP16–10–000 ...... 7–29–2020 U.S. Senator Tim Kaine. 1 Memo dated 07/22/2020 providing the opening statement filed by FirstEnergy on 6/30/2020. 2 Memo dated 07/22/2020 providing the opening statement filed by FirstEnergy on 6/30/2020. 3 Memo dated 07/22/2020 providing the opening statement filed by the Public Utilities Commission of Ohio on 7/2/2020. 4 Memo dated 07/22/2020 providing the opening statement filed by the Public Utilities Commission of Ohio on 7/2/2020.

Dated: August 4, 2020. Applicants: Nobles 2 Power Partners, Accession Number: 20200803–5259. Nathaniel J. Davis, Sr., LLC. Comments Due: 5 p.m. ET 8/24/20. Deputy Secretary. Description: Notice of Self- Docket Numbers: ER10–3115–006. [FR Doc. 2020–17382 Filed 8–7–20; 8:45 am] Certification of Exempt Wholesale Applicants: Waterside Power, LLC. BILLING CODE 6717–01–P Generator Status of Nobles 2 Power Description: Second Supplement to Partners, LLC. April 20, 2020 Triennial Market Power Filed Date: 8/3/20. Update for the Northeast Region of DEPARTMENT OF ENERGY Accession Number: 20200803–5208. Waterside Power, LLC. Comments Due: 5 p.m. ET 8/24/20. Filed Date: 8/4/20. Federal Energy Regulatory Take notice that the Commission Accession Number: 20200804–5197. Commission received the following electric rate Comments Due: 5 p.m. ET 8/25/20. filings: Docket Numbers: ER10–3117–008. Combined Notice of Filings #1 Docket Numbers: ER10–2645–003. Applicants: Lea Power Partners, LLC. Applicants: Baconton Power LLC. Description: Second Supplement to Take notice that the Commission Description: Notice of Non-Material April 20, 2020 Triennial Market Power received the following exempt Change in Status of Baconton Power Update for the Southwest Power Pool wholesale generator filings: LLC. Region of Lea Power Partners, LLC. Docket Numbers: EG20–224–000. Filed Date: 8/3/20. Filed Date: 8/4/20.

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Accession Number: 20200804–5199. Description: § 205(d) Rate Filing: DEF- 0138.12, Office of Management and Comments Due: 5 p.m. ET 8/25/20. Duette Solar E&P Agreement RS No. 298 Budget (OMB) Control No. 2040–0088) Docket Numbers: ER15–705–006. to be effective 8/5/2020. to the Office of Management and Budget Applicants: Pacific Gas and Electric Filed Date: 8/4/20. (OMB) for review and approval in Company. Accession Number: 20200804–5221. accordance with the Paperwork Description: Compliance filing: Comments Due: 5 p.m. ET 8/25/20. Reduction Act (PRA). Before doing so, Compliance filing CCSF IA and TFAs Take notice that the Commission EPA is soliciting public comment on Following Order on Rehearing (TO SA received the following qualifying specific aspects of the proposed 284) to be effective 7/23/2015. facility filings: information collection as described Filed Date: 8/4/20. Docket Numbers: QF20–1229–000. below. This is a ‘‘proposed extension of Accession Number: 20200804–5045. Applicants: YCI Methanol One, LLC. the Information Collection Request Comments Due: 5 p.m. ET 8/25/20. Description: Form 556 of YCI (ICR), which is currently approved Docket Numbers: ER15–705–007. Methanol One, LLC. through April 30, 2021.’’ An Agency Applicants: Pacific Gas and Electric Filed Date: 8/3/20. may not conduct or sponsor and a Company. Accession Number: 20200803–5275. person is not required to respond to a Description: Compliance filing: Comments Due: Non-Applicable. collection of information unless it Compliance filing CCSF IA and TFAs displays a currently valid OMB control The filings are accessible in the number. Following Order on Rehearing (TO SA Commission’s eLibrary system (https:// DATES: 284) to be effective 7/1/2015. elibrary.ferc.gov/idmws/search/ Comments must be submitted on Filed Date: 8/4/20. fercgensearch.asp) by querying the or before October 9, 2020. Accession Number: 20200804–5047. docket number. ADDRESSES: Comments Due: 5 p.m. ET 8/25/20. Any person desiring to intervene or You may send comments, identified Docket Numbers: ER20–2517–000. protest in any of the above proceedings by Docket ID No. EPA–HQ–2003–0033, Applicants: Northern Colorado by any of the following methods: must file in accordance with Rules 211 • Interconnect, LLC. and 214 of the Commission’s Federal eRulemaking Portal: Description: Supplement to July 28, Regulations (18 CFR 385.211 and https://www.regulations.gov/ (our 2020 Northern Colorado Interconnect, 385.214) on or before 5:00 p.m. Eastern preferred method). Follow the online LLC tariff filing and Request for Waiver instructions for submitting comments. time on the specified comment date. • of the 60-day Advance Notice Protests may be considered, but Email: [email protected]. Requirement. intervention is necessary to become a Include Docket ID No. EPA–HQ–2003– Filed Date: 8/4/20. party to the proceeding. 0033. • Mail: U.S. Environmental Accession Number: 20200804–5225. eFiling is encouraged. More detailed Protection Agency, EPA Docket Center, Comments Due: 5 p.m. ET 8/18/20. information relating to filing Office of Water Docket, Mail Code Docket Numbers: ER20–2603–000. requirements, interventions, protests, 28221T, 1200 Pennsylvania Avenue Applicants: Skeleton Creek Wind, service, and qualifying facilities filings NW, Washington, DC 20460. LLC. can be found at: http://www.ferc.gov/ Instructions: All submissions received Description: Baseline eTariff Filing: docs-filing/efiling/filing-req.pdf. For must include the Docket ID No. for this Skeleton Creek Wind, LLC Application other information, call (866) 208–3676 ICR. Comments received may be posted for MBR Authority to be effective 10/3/ (toll free). For TTY, call (202) 502–8659. without change to https:// 2020. Dated: August 4, 2020. www.regulations.gov/, including any Filed Date: 8/3/20. Nathaniel J. Davis, Sr., personal information provided. For Accession Number: 20200803–5192. Deputy Secretary. detailed instructions on sending Comments Due: 5 p.m. ET 8/24/20. [FR Doc. 2020–17384 Filed 8–7–20; 8:45 am] comments and additional information Docket Numbers: ER20–2604–000. BILLING CODE 6717–01–P on the ICR process, see the ‘‘Public Applicants: California Independent Participation’’ heading of the System Operator Corporation. SUPPLEMENTARY INFORMATION section of Description: Petition for Approval of this document. Out of an abundance of Disposition of Penalty Assessment ENVIRONMENTAL PROTECTION AGENCY caution for members of the public and Proceeds and non-Refundable our staff, the EPA Docket Center and Interconnection Financial Security of [EPA–HQ -OW–2003–0033; FRL—10013–32– Reading Room are closed to the public, the California Independent System OW] with limited exceptions, to reduce the Operator Corporation. risk of transmitting COVID–19. Our Filed Date: 8/3/20. Proposed Information Collection Docket Center staff will continue to Accession Number: 20200803–5263. Request; Comment Request; provide remote customer service via Comments Due: 5 p.m. ET 8/24/20. Modification of Secondary Treatment email, phone, and webform. We Docket Numbers: ER20–2605–000. Requirements for Discharges Into encourage the public to submit Applicants: Southwest Power Pool, Marine Waters (Renewal) comments via https:// Inc. AGENCY: Environmental Protection www.regulations.gov/ or email, as there Description: § 205(d) Rate Filing: Agency (EPA). may be a delay in processing mail. Hand 3590R2 King Plains Wind Project GIA to deliveries and couriers may be received ACTION: Notice. be effective 7/30/2020. by scheduled appointment only. For Filed Date: 8/4/20. SUMMARY: The Environmental Protection further information on EPA Docket Accession Number: 20200804–5178. Agency (EPA) is planning to submit an Center services and the current status, Comments Due: 5 p.m. ET 8/25/20. information collection request (ICR), please visit us online at https:// Docket Numbers: ER20–2606–000. ‘‘Modification of Secondary Treatment www.epa.gov/dockets. Applicants: Duke Energy Florida, Requirements for Discharges into FOR FURTHER INFORMATION CONTACT: LLC. Marine Waters (Renewal)’’ (EPA ICR No. Virginia Fox-Norse, Oceans, Wetlands

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and Communities Division, Office of viewed online at www.regulations.gov. There are four situations where Water, (4504T), Environmental The telephone number for the Docket information will be required under the Protection Agency, 1200 Pennsylvania Center is 202–566–1744. For additional CWA section 301(h) program: Ave. NW, Washington, DC 20460; information about EPA’s public docket, (1) A POTW reapplying for a CWA telephone number: 202–566–1266; fax visit http://www.epa.gov/dockets. section 301(h) waiver. As the permits number: 202–566–1147; email address: Pursuant to section 3506(c)(2)(A) of with section 301(h) waivers reach their [email protected]. the Paperwork Reduction Act, EPA is expiration dates, EPA must have SUPPLEMENTARY INFORMATION: soliciting comments and information to updated information on the discharge to enable it to: (i) Evaluate whether the determine whether the CWA section Public Participation proposed collection of information is 301(h) criteria are still being met and A. Written Comments necessary for the proper performance of whether the CWA section 301(h) waiver the functions of the Agency, including should be reissued. Under 40 CFR Submit your comments, identified by whether the information will have 125.59(f), each CWA section 301(h) Docket ID No. EPA–HQ–2003–0033, at practical utility; (ii) evaluate the permittee is required to submit an https://www.regulations.gov (our accuracy of the Agency’s estimate of the application for a new section 301(h) preferred method), or the other methods burden of the proposed collection of modified permit within 180 days of the identified in the ADDRESSES section. information, including the validity of existing permit’s expiration date. 40 Once submitted, comments cannot be the methodology and assumptions used; CFR 125.59(c) lists the information edited or removed from the docket. EPA (iii) enhance the quality, utility, and required for a modified permit. The may publish any comment received to clarity of the information to be information that EPA needs to its public docket. Do not submit to collected; and (iv) minimize the burden determine whether the POTW’s EPA’s docket at https:// of the collection of information on those reapplication meets the CWA section www.regulations.gov any information who are to respond, including through 301(h) criteria is outlined in the you consider to be Confidential the use of appropriate automated questionnaire attached to 40 CFR part Business Information (CBI) or other electronic, mechanical, or other 125, subpart G. information whose disclosure is technological collection techniques or (2) Monitoring and toxic control restricted by statute. Multimedia other forms of information technology, program information: Once a waiver has submissions (audio, video, etc.) must be e.g., permitting electronic submission of been granted, EPA must continue to accompanied by a written comment. responses. EPA will consider the assess whether the discharge is meeting The written comment is considered the comments received and amend the ICR CWA section 301(h) criteria, and that official comment and should include as appropriate. The final ICR package the receiving water quality, biological discussion of all points you wish to will then be submitted to OMB for habitats, and beneficial uses of the make. EPA will generally not consider review and approval. At that time, EPA receiving waters are protected. To do comments or comment contents located will issue another Federal Register this, EPA needs monitoring information outside of the primary submission (i.e., notice to announce the submission of furnished by the permittee. According on the web, cloud, or other file sharing the ICR to OMB and the opportunity to to 40 CFR 125.68(d), any permit issued system). For additional submission submit additional comments to OMB. with a section 301(h) waiver must methods, the full EPA public comment Abstract: Regulations implementing contain the monitoring requirements of policy, information about CBI or section 301(h) of the Clean Water Act 40 CFR 125.63(b), (c), and (d) for multimedia submissions, and general (CWA) are found at 40 CFR part 125, biomonitoring, water quality criteria guidance on making effective subpart G. The CWA section 301(h) and standards monitoring, and effluent comments, please visit https:// program involves collecting information monitoring, respectively. In addition, 40 www.epa.gov/dockets/commenting-epa- from two sources: (1) the municipal CFR 125.68(d) requires reporting at the dockets. wastewater treatment facility, frequency specified in the monitoring EPA is temporarily suspending its commonly called a publicly owned program. In addition to monitoring Docket Center and Reading Room for treatment works (POTW), and (2) the information, EPA needs information on public visitors, with limited exceptions, state in which the POTW is located. the toxics control program required by to reduce the risk of transmitting Municipalities had the opportunity to 40 CFR 125.66 to ensure that the COVID–19. Our Docket Center staff will apply for a waiver from secondary permittee is effectively minimizing continue to provide remote customer treatment requirements, but that industrial and nonindustrial toxic service via email, phone, and webform. opportunity closed in December of pollutant and pesticide discharges into We encourage the public to submit 1982. A POTW holding a current waiver the treatment works. comments via https:// or reapplying for a waiver provides (3) Application revision information: www.regulations.gov/ as there may be a application, monitoring, and toxic 40 CFR 125.59(d) allows a POTW to delay in processing mail and faxes. For control program information. The state revise its application one time only, further information and updates on EPA provides information on its following a tentative decision by EPA to Docket Center services, please visit us determination whether the discharge deny the waiver request. In its online at https://www.epa.gov/dockets. under the proposed conditions of the application revision, the POTW usually EPA continues to carefully and waiver ensures the protection of water corrects deficiencies and changes continuously monitor information from quality, biological habitats, and proposed treatment levels as well as the Centers for Disease Control and beneficial uses of receiving waters and outfall and diffuser locations. The Prevention (CDC), local area health whether the discharge will result in application revision is a voluntary departments, and our Federal partners additional treatment, pollution control, submission for the applicant, and a so that we can respond rapidly as or any other requirement for any other letter of intent to revise the application conditions change regarding COVID–19. point or nonpoint sources. The state must be submitted within 45 days of Supporting documents which explain also provides information to certify that EPA’s tentative decision (40 CFR in detail the information that EPA will the discharge will meet all applicable 125.59(f)). EPA needs this information be collecting are available in the public state laws and that the state accepts all to evaluate revised applications to docket for this ICR. The docket can be permit conditions. determine whether the modified

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discharge will ensure protection of to changes in respondent universe, use own motion, this determination shall water quality, biological habitats, and of technology, etc. become final and effective on September 9, 2020 and no further public notice will beneficial uses of receiving waters. John Goodin, be issued. (4) State determination and state Director, Office of Wetlands, Oceans and certification information: For revised or Watersheds. ADDRESSES: All documents relating to renewal applications for CWA section [FR Doc. 2020–17419 Filed 8–7–20; 8:45 am] this determination are available for inspection at the following offices 301(h) waivers, EPA needs a state BILLING CODE 6560–50–P determination. The state determines between the hours of 9 a.m. and 4 p.m., whether all state laws (including water Monday through Friday, except for quality standards) are satisfied. This ENVIRONMENTAL PROTECTION official holidays and unless the offices helps ensure that water quality, AGENCY are inaccessible due to COVID–19: Ohio biological habitats, and beneficial uses Environmental Protection Agency, [FRL–10012–82–Region 5] Division of Drinking and Ground of receiving waters are protected. Waters, 50 West Town Street, Suite 700, Additionally, the state must determine Public Water System Supervision Program Approval for the State of Ohio Columbus, Ohio 43215; and the U.S. if the applicant’s discharge will result in Environmental Protection Agency additional treatment, pollution control, AGENCY: Environmental Protection Region 5, Ground Water and Drinking or any other requirement for any other Agency (EPA). Water Branch (WG–15J), 77 W. Jackson point or nonpoint sources. This process ACTION: Notice of tentative approval. Blvd., Chicago, Illinois 60604. allows the state’s views to be taken into Requestors can email Wendy Drake, account when EPA reviews the CWA SUMMARY: Notice is hereby given that [email protected], to receive section 301(h) application and develops the Environmental Protection Agency documents related to this determination permit conditions. For revised and (EPA) has tentatively approved a if offices are inaccessible. revision to the State of Ohio’s Public renewed CWA section 301(h) waiver FOR FURTHER INFORMATION CONTACT: Water System Supervision Program applications, EPA also needs the CWA Wendy Drake, EPA Region 5, Ground under the federal Safe Drinking Water section 401(a)(1) certification Water and Drinking Water Branch, at Act (SDWA) by adopting the Arsenic information to ensure that all state water the address given above, by telephone at Rule. The EPA has determined this quality laws are met by any permit it (312) 886–6705, or at drake.wendy@ revision is no less stringent than the issues with a CWA section 301(h) epa.gov. modification, and the state accepts all corresponding federal regulation. Therefore, EPA intends to approve this Authority: Section 1413 of the Safe the permit conditions. This information Drinking Water Act, 42 U.S.C. 300g–2, and is the means by which the state can revision to the State of Ohio’s Public Water System Supervision Program, the federal regulations implementing Section exercise its authority to concur with or 1413 of the Act set forth at 40 CFR part 142. thereby giving the Ohio Environmental deny a CWA section 301(h) decision Protection Agency primary enforcement Dated: August 4, 2020. made by the EPA regional office. responsibility for this regulation. Kurt Thiede, Form Numbers: ‘‘None.’’ DATES: Any interested party may request Regional Administrator, Region 5. Respondents/affected entities: Entities a public hearing on this determination. [FR Doc. 2020–17413 Filed 8–7–20; 8:45 am] potentially affected by this action are A request for a public hearing must be BILLING CODE 6560–50–P those municipalities that currently have submitted by September 9, 2020. The CWA section 301(h) waivers from EPA Region 5 Administrator may deny secondary treatment or have applied for frivolous or insubstantial requests for a ENVIRONMENTAL PROTECTION a renewal of a CWA section 301(h) hearing. However, if a substantial AGENCY waiver, and the states within which request for a public hearing is made by these municipalities are located. September 9, 2020, EPA Region 5 will [EPA–HQ–ORD–2015–0765; FRL–10013–23– hold a public hearing, and a notice of ORD] Respondent’s obligation to respond: such hearing will be published in the Voluntary, required to obtain or retain a Federal Register and a newspaper of Board of Scientific Counselors (BOSC) benefit. general circulation. Any request for a Homeland Security Subcommittee Estimated number of respondents: 34 public hearing shall include the Meeting—August 2020 (total). following information: The name, AGENCY: Environmental Protection address, and telephone number of the Frequency of response: From once Agency (EPA). individual, organization, or other entity every five years, to varies case-by-case, ACTION: Notice of public meeting. depending on the category of requesting a hearing; a brief statement of the requesting person’s interest in the information. SUMMARY: Regional Administrator’s determination The Environmental Protection Total estimated burden: 40,040 hours and a brief statement of the information Agency (EPA), Office of Research and (per year). Burden is defined at 5 CFR that the requesting person intends to Development (ORD), gives notice of a 1320.03(b) submit at such hearing; and the virtual meeting of the Board of Scientific Counselors (BOSC) Homeland Total estimated cost: $1.1 million (per signature of the individual making the request, or, if the request is made on Security (HS) Subcommittee to review year), includes $0 annualized capital or the initial progress on implementation operation & maintenance costs. behalf of an organization or other entity, the signature of a responsible official of of the FY 19–22 HS Strategic Research Changes in Estimates: A decrease of the organization or other entity. Action Plan (StRAP). hours in the total estimated respondent If EPA Region 5 does not receive a DATES: 1. The initial meeting will be burden is expected compared with the timely and appropriate request for a held over two days via videoconference: ICR currently approved by OMB. EPA hearing and the Regional Administrator a. Thursday, August 20, 2020, from expects the numbers will decrease due does not elect to hold a hearing on his 12:00 p.m. to 5:00 p.m. (EDT); and

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b. Friday, August 21, 2020, from 12:00 FOR FURTHER INFORMATION CONTACT: The ADDRESSES: The Meeting will be held p.m. to 5:00 p.m. (EDT). Attendees must Designated Federal Officer (DFO), Tom via conference call and available to the register by August 19, 2020. Tracy, via phone/voicemail at: (202) public via WebEx at http://www.fcc.gov/ 2. A BOSC deliberation will be held 564–6518; or via email at: tracy.tom@ live. on Wednesday, September 9, 2020, from epa.gov. Any member of the public FOR FURTHER INFORMATION CONTACT: 2:00 p.m. to 5:00 p.m. (EDT). Attendees interested in receiving a draft agenda, Suzon Cameron, Designated Federal must register by September 8, 2020. attending the meeting, or making a Officer, (202) 418–1916 (voice) or 3. A final summary teleconference presentation at the meeting should [email protected] (email); or, Kurian Jacob, will be held on Thursday, September contact Tom Tracy no later than August Deputy Designated Federal Officer, 24, 2020, from 2:00 p.m. to 5:00 p.m. 19, 2020. (202) 418–2040 (voice) or CSRIC@ (EDT). Attendees must register by SUPPLEMENTARY INFORMATION: The Board fcc.gov (email). September 23, 2020. Meeting times are of Scientific Counselors (BOSC) is a SUPPLEMENTARY INFORMATION: subject to change. These series of The Federal advisory committee that meetings are open to the public. meeting on September 16, 2020, from provides advice and recommendations Comments must be received by August 2:00 p.m. EDT to 5:00 p.m. EDT will be to EPA’s Office of Research and 19, 2020 to be considered by the held electronically only and may be Development on technical and subcommittee. Requests for the draft viewed live, by the public, at http:// management issues of its research agenda or making a presentation at the www.fcc.gov/live. Any questions that programs. The meeting agenda and meeting will be accepted until August arise during the meeting should be sent materials will be posted to https:// 19, 2020. to [email protected] and will be answered www.epa.gov/bosc. at a later date. The meeting is being held ADDRESSES: Instructions on how to Proposed agenda items for the in a wholly electronic format in light of connect to the videoconference will be meeting include, but are not limited to, travel and gathering restrictions related provided upon registration at https:// the following: Water Security & to COVID–19 in place in Washington, epa-bosc-homeland-security- Resilience, Oil Response, and Progress DC, and the larger U.S. which affects subcommittee.eventbrite.com. of StRAP Implementation. members of the CSRIC and the FCC. Submit your comments to Docket ID Information on Services Available: The CSRIC is a Federal Advisory No. EPA–HQ–ORD–2015–0765 by one For information on translation services, Committee that will provide of the following methods: access, or services for individuals with • www.regulations.gov: Follow the recommendations to the FCC to improve disabilities, please contact Tom Tracy at online instructions for submitting the security, reliability, and (202) 564–6518 or [email protected]. comments. interoperability of communications D Note: comments submitted to the To request accommodation of a systems. On March 15, 2019, the FCC, www.regulations.gov website are disability, please contact Tom Tracy at pursuant to the Federal Advisory anonymous unless identifying least ten days prior to the meeting to Committee Act, renewed the charter for information is included in the body of give the EPA adequate time to process CSRIC VII for a period of two years the comment. your request. through March 14, 2021. The meeting • Email: Send comments by Authority: Pub. L. 92–463, 1, Oct. 6, 1972, on September 16, 2020, will be the sixth electronic mail (email) to: ORD.Docket@ 86 Stat. 770. meeting of CSRIC VII under the current charter. epa.gov, Attention Docket ID No. EPA– Dated: July 29, 2020. The Commission will provide audio HQ–ORD–2015–0765. Mary Ross, D Note: comments submitted via email and/or video coverage of the meeting Director, Office of Science Advisor, Policy, over the internet from the FCC’s web are not anonymous. The sender’s email and Engagement. will be included in the body of the page at http://www.fcc.gov/live. The [FR Doc. 2020–17420 Filed 8–7–20; 8:45 am] comment and placed in the public public may submit written comments docket which is made available on the BILLING CODE 6560–50–P before the meeting to Suzon Cameron, internet. CSRIC Designated Federal Officer, by Instructions: All comments received, email [email protected] or U.S. Postal including any personal information FEDERAL COMMUNICATIONS Service Mail to Suzon Cameron, Senior provided, will be included in the public COMMISSION Attorney, Cybersecurity and Communications Reliability Division, docket without change and may be [FRS 16986] made available online at Public Safety and Homeland Security www.regulations.gov. Information Federal Advisory Committee Act; Bureau, Federal Communications claimed to be Confidential Business Communications Security, Reliability, Commission, 445 12th Street SW, Room Information (CBI) or other information and Interoperability Council 7–B458, Washington, DC 20554. Open whose disclosure is restricted by statute captioning will be provided for this will not be included in the public AGENCY: Federal Communications event. Other reasonable docket, and should not be submitted Commission. accommodations for people with through www.regulations.gov or email. ACTION: Notice of public meeting. disabilities are available upon request. For additional information about the Requests for such accommodations EPA’s public docket visit the EPA SUMMARY: In accordance with the should be submitted via email to Docket Center homepage at http:// Federal Advisory Committee Act, this [email protected] or by calling the www.epa.gov/dockets/. notice advises interested persons that Consumer & Governmental Affairs Public Docket: Publicly available the Federal Communications Bureau at (202) 418–0530 (voice), (202) docket materials may be accessed Commission’s (FCC or Commission) 418–0432 (tty). Such requests should Online at www.regulations.gov. Communications Security, Reliability, include a detailed description of the Copyrighted materials in the docket and Interoperability Council (CSRIC) VII accommodation needed. In addition, are only available via hard copy. The will hold its sixth meeting via live please include a way the FCC can telephone number for the ORD Docket internet link. contact you if it needs more Center is (202) 566–1752. DATES: September 16, 2020. information. Please allow at least five

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days’ advance notice; last-minute SUPPLEMENTARY INFORMATION: The FCC application, see Sec. 73.3511(b), may be requests will be accepted but may be may not conduct or sponsor a collection filed with the FCC in Washington, DC, impossible to fill. of information unless it displays a Attention: Audio Division (radio) or Federal Communications Commission. currently valid Office of Management Video Division (television), Media Marlene Dortch, and Budget (OMB) control number. No Bureau, to cover the following changes: (1) A correction of the routing Secretary. person shall be subject to any penalty for failing to comply with a collection instructions and description of an AM [FR Doc. 2020–17429 Filed 8–7–20; 8:45 am] of information subject to the PRA that station directional antenna system field BILLING CODE 6712–01–P does not display a valid OMB control monitoring point, when the point itself number. As part of its continuing effort is not changed. (2) A change in the type of AM station FEDERAL COMMUNICATIONS to reduce paperwork burdens, and as directional antenna monitor. See Sec. COMMISSION required by the PRA of 1995 (44 U.S.C. 3501–3520), the FCC invites the general 73.69. [OMB 3060–0190, OMB 3060–0340, OMB public and other Federal agencies to (3) A change in the location of the 3060–0633, OMB 3060–0727 and OMB 3060– take this opportunity to comment on the station main studio when prior 1154; FRS 16987] following information collections. authority to move the main studio location is not required. Information Collections Being Comments are requested concerning: (4) The location of a remote control Reviewed by the Federal Whether the proposed collection of point of an AM or FM station when Communications Commission Under information is necessary for the proper prior authority to operate by remote Delegated Authority performance of the functions of the Commission, including whether the control is not required. AGENCY: Federal Communications information shall have practical utility; Also, information collection Commission. the accuracy of the Commission’s requirements are contained in 47 CFR ACTION: Notice and request for burden estimate; ways to enhance the 73.3544(c) which requires a change in comments. quality, utility, and clarity of the the name of the licensee where no information collected; ways to minimize change in ownership or control is SUMMARY: As part of its continuing effort the burden of the collection of involved may be accomplished by to reduce paperwork burdens, and as information on the respondents, written notification by the licensee to required by the Paperwork Reduction including the use of automated the Commission. Act (PRA), the Federal Communications collection techniques or other forms of OMB Control Number: 3060–0340. Commission (FCC or Commission) information technology; and ways to Title: Section 73.51, Determining invites the general public and other further reduce the information Operating Power. Federal agencies to take this collection burden on small business Form Number: N/A. opportunity to comment on the concerns with fewer than 25 employees. Type of Review: Extension of a following information collections. OMB Control Number: 3060–0190. currently approved collection. Comments are requested concerning: Title: Section 73.3544, Application To Respondents: Business or other for- Whether the proposed collection of Obtain a Modified Station License. profit entities. information is necessary for the proper Form Number: N/A. Number of Respondents and performance of the functions of the Type of Review: Extension of a Responses: 750 respondents; 834 Commission, including whether the currently approved collection. responses. information shall have practical utility; Respondents: Business or other for- Estimated Time per Response: 0.25 to the accuracy of the Commission’s profit entities; Not-for-profit 3.0 hours. burden estimate; ways to enhance the institutions. Frequency of Response: quality, utility, and clarity of the Number of Respondents and Recordkeeping requirement. information collected; ways to minimize Responses: 325 respondents and 325 Obligation to Respond: Required to the burden of the collection of responses. obtain or retain benefits. The statutory information on the respondents, Estimated Time per Response: 0.25–1 authority for this collection of including the use of automated hour. information is contained in Section collection techniques or other forms of Frequency of Response: On occasion 154(i) of the Communications Act of information technology; and ways to reporting requirement. 1934, as amended. further reduce the information Obligation to Respond: Required to Total Annual Burden: 440 hours. collection burden on small business obtain or retain benefits. Statutory Total Annual Cost: None. concerns with fewer than 25 employees. authority for this information collection Privacy Impact Assessment(s): No impact(s). DATES: Written comments should be is contained in 47 Section 154(i) of the Nature and Extent of Confidentiality: submitted on or before October 9, 2020. Communications Act of 1934, as There is no need for confidentiality and If you anticipate that you will be amended. respondents are not being asked to submitting comments, but find it Total Annual Burden: 306 hours. submit confidential information to the difficult to do so within the period of Total Annual Cost: $75,000. Privacy Impact Assessment(s): No Commission. time allowed by this notice, you should impact(s). Needs and Uses: When it is not advise the contacts below as soon as Nature and Extent of Confidentiality: possible to use the direct method of possible. There is no need for confidentiality and power determination due to technical ADDRESSES: Direct all PRA comments to respondents are not being asked to reasons, the indirect method of Cathy Williams, FCC, via email PRA@ submit confidential information to the determining antenna input power might fcc.gov and to [email protected]. Commission. be used on a temporary basis. 47 CFR FOR FURTHER INFORMATION CONTACT: For Needs and Uses: The information 73.51(d) requires that a notation be additional information about the collection requirements contained in made in the station log indicating the information collection, contact Cathy this collection are covered in 47 CFR dates of commencement and Williams at (202) 418–2918. 73.3544(b) requires an informal termination of measurement using the

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indirect method of power that the license of a remote pickup Needs and Uses: The information determination. 47 CFR 73.51(e) requires broadcast/low power auxiliary station collection requirement contained in 47 that AM stations determining the shall be retained in the licensee’s files, CFR 73.213 requires licensees of antenna input power by the indirect posted at the transmitter, or posted at grandfathered short-spaced FM stations method must determine the value F the control point of the station. These seeking to modify or relocate their (efficiency factor) applicable to each sections also require the licensee to stations to provide a showing mode of operation and must maintain a forward the station license to the FCC in demonstrating that there is no increase record thereof with a notation of its the case of permanent discontinuance of in either the total predicted interference derivation. FCC staff use this the station. area or the associated population information in field investigations to 47 CFR 74.564 (aural broadcast (caused or received) with respect to all monitor licensees’ compliance with the auxiliary stations) requires that the grandfathered stations or increase the FCC’s technical rules and to ensure that station license and any other instrument interference caused to any individual licensee is operating in accordance with of authorization be posted in the room stations. Applicants must demonstrate its station authorization. Station where the transmitter is located, or if that any new area predicted to lose personnel use the value F (efficiency operated by remote control, at the service as a result of interference has factor) in the event that measurement by operating position. adequate service remaining. In addition, the indirect method of power is 47 CFR 74.664 (television broadcast licensees are required to serve a copy of necessary. auxiliary stations) requires that the any application for co-channel or first- OMB Control Number: 3060–0633. station license and any other instrument adjacent channel stations proposing Title: Sections 73.1230, 74.165, of authorization be posted in the room predicted interference caused in any 74.432, 74.564, 74.664, 74.765, 74.832, where the transmitter is located. area where interference is not currently 74.1265 Posting or Filing of Station 47 CFR Sections 74.765 (low power predicted to be caused upon the Licenses. TV, TV translator and TV booster) and licensee(s) of the affected short-spaced Form Number: N/A. 47 CFR 74.1265 (FM translator stations station(s). Commission staff uses the Type of Review: Extension of a and FM booster stations) require that the data to determine if the public interest station license and any other instrument currently approved collection. will be served and that existing levels of of authorization be retained in the Respondents: Business or other for- interference will not be increased to station’s files. In addition, the call sign profit entities, Not-for-profit other licensed stations. Providing copies of the station, together with the name, institutions, Federal Government and of application(s) to affected licensee(s) address and telephone number of the State, local or Tribal Government. will enable potentially affected parties licensee or the local representative of Number of Respondents and to examine the proposals and provide the licensee, and the name and address Responses: 2,584 respondents and 2,584 them an opportunity to file informal of the person and place where the responses. objections against such applications. station records are maintained, shall be Estimated Hours per Response: 0.083 OMB Control Number: 3060–1154. hours. displayed at the transmitter site on the Title: Commercial Advertisement Frequency of Response: On occasion structure supporting the transmitting Loudness Mitigation (‘‘CALM’’) Act; reporting requirement, recordkeeping antenna. General Waiver Requests. 47 CFR 74.832(j) (low power auxiliary requirement and third party disclosure Form Number: Not applicable. requirement. stations) requires that the license shall Type of Review: Extension of a Obligation to Responds: Required to be retained in the licensee’s files at the currently approved collection. obtain or retain benefits. The statutory address shown on the authorization, Respondents: Business or other for- authority for this collection of posted at the transmitter, or posted at profit entities. information is contained in Section the control point of the station. Number of Respondents and 154(i) of the Communications Act of OMB Control Number: 3060–0727. Responses: 20 respondents and 20 Title: Section 73.213, Grandfathered 1934, as amended. responses. Total Annual Burden: 214 hours. Short-Spaced Stations. Frequency of Response: On occasion Total Annual Cost: $24,860. Form Number(s): Not applicable. Type of Review: Extension of a reporting requirement. Nature and Extent of Confidentiality: Estimated Time per Response: 20 There is no need for confidentiality with currently approved collection. Respondents: Business or other for- hours. this collection of information. profit entities. Total Annual Burden: 400 hours. Privacy Impact Assessment: No Number of Respondents and Total Annual Cost: $12,000. impact(s). Responses: 15 respondents; 15 Obligation to Respond: Required to Needs and Uses: The information responses. obtain benefits. The statutory authority collection requirements contained in Estimated Time per Response: 0.5 for this collection of information is this collection are as follows: hours-0.83 hours. contained in 47 U.S.C. 151, 152, 154(i), 47 CFR 73.1230 requires that the Frequency of Response: On occasion 303(r)and 621. station license and any other instrument reporting requirement; Third party Nature and Extent of Confidentiality: of station authorization for an AM, FM disclosure requirement. There is no assurance of confidentiality or TV station be posted in a Obligation to Respond: Required to provided to respondents, but, in conspicuous place at the place the obtain or retain benefits. Statutory accordance with the Commission’s licensee considers to be the principal authority for this information collection rules, 47 CFR 0.459, a station/MVPD control point of the transmitter. is contained in 47 Section 154(i), may request confidential treatment for 47 CFR 74.165 requires that the 55(c)(1), 302 and 303 of the financial information supplied with its instrument of authorization for an Communications Act of 1934, as waiver request. experimental broadcast station be amended. Privacy Impact Assessment: No available at the transmitter site. Total Annual Burden: 20 hours. impact(s). 47 CFR 74.432(j) (remote pickup Total Annual Costs: $3,750. Needs and Uses: TV stations and broadcast station) and 47 CFR 74.832(j) Privacy Impact Assessment(s): No multiple video programming (low power auxiliary station) require impact(s). distributors (MVPDs) may file general

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waiver requests to request waiver of the information collection, contact Cathy authority for this collection of rules implementing the CALM Act for Williams at (202) 418–2918. information is contained in Sections good cause. The information obtained SUPPLEMENTARY INFORMATION: The FCC 4(i), 4(j), 303(r), 338, 340, 614, 615, 616, by general waiver requests will be used may not conduct or sponsor a collection 623, 628 and 653 of the by Commission staff to evaluate whether of information unless it displays a Communications Act of 1934, as grant of a waiver would be in the public currently valid Office of Management amended; 47 U.S.C. 154(i) and (j), interest. and Budget (OMB) control number. No 303(r), 338, 340, 534, 535, 536, 543, 548 Federal Communications Commission. person shall be subject to any penalty and 573. Total Annual Burden: 34,816 hours. Marlene Dortch, for failing to comply with a collection of information subject to the PRA that Total Annual Cost: $3,690,180. Secretary, Office of the Secretary. Privacy Act Impact Assessment: No does not display a valid OMB control [FR Doc. 2020–17426 Filed 8–7–20; 8:45 am] impact(s). number. BILLING CODE 6712–01–P Nature and Extent of Confidentiality: As part of its continuing effort to A party that wishes to have reduce paperwork burdens, and as confidentiality for proprietary FEDERAL COMMUNICATIONS required by the PRA of 1995 (44 U.S.C. information with respect to a COMMISSION 3501–3520), the FCC invites the general submission it is making to the public and other Federal agencies to Commission must file a petition [OMB 3060–0888; FRS 16989] take this opportunity to comment on the pursuant to the pleading requirements following information collections. Information Collection Being Reviewed in Section 76.7 and use the method Comments are requested concerning: described in Sections 0.459 and 76.9 to by the Federal Communications whether the proposed collection of Commission demonstrate that confidentiality is information is necessary for the proper warranted. AGENCY: Federal Communications performance of the functions of the Needs and Uses: Commission rules Commission. Commission, including whether the specify pleading and other procedural information shall have practical utility; ACTION: Notice and request for requirements for parties filing petitions the accuracy of the Commission’s comments. or complaints under Part 76 of the burden estimate; ways to enhance the Commission’s rules, including petitions SUMMARY: As part of its continuing effort quality, utility, and clarity of the for special relief, cable carriage to reduce paperwork burdens, and as information collected; ways to minimize complaints, program access complaints, required by the Paperwork Reduction the burden of the collection of and program carriage complaints. Act (PRA), the Federal Communications information on the respondents, 47 CFR 1.221(h) requires that, in a Commission (FCC or Commission) including the use of automated program carriage complaint proceeding invites the general public and other collection techniques or other forms of filed pursuant to § 76.1302 that the Federal agencies to take this information technology; and ways to Chief, Media Bureau refers to an opportunity to comment on the further reduce the information administrative law judge for an initial following information collections. collection burden on small business decision, each party, in person or by Comments are requested concerning: concerns with fewer than 25 employees. attorney, shall file a written appearance Whether the proposed collection of OMB Control Number: 3060–0888. within five calendar days after the party information is necessary for the proper Title: Section 1.221, Notice of hearing; informs the Chief Administrative Law performance of the functions of the appearances; Section 1.229 Motions to Judge that it elects not to pursue Commission, including whether the enlarge, change, or delete issues; alternative dispute resolution pursuant information shall have practical utility; Section 1.248 Prehearing conferences; to § 76.7(g)(2) or, if the parties have the accuracy of the Commission’s hearing conferences; Section 76.7, mutually elected to pursue alternative burden estimate; ways to enhance the Petition Procedures; Section 76.9, dispute resolution pursuant to quality, utility, and clarity of the Confidentiality of Proprietary § 76.7(g)(2), within five calendar days information collected; ways to minimize Information; Section 76.61, Dispute after the parties inform the Chief the burden of the collection of Concerning Carriage; Section 76.914, Administrative Law Judge that they information on the respondents, Revocation of Certification; Section have failed to resolve their dispute including the use of automated 76.1001, Unfair Practices; Section through alternative dispute resolution. collection techniques or other forms of 76.1003, Program Access Proceedings; The written appearance shall state that information technology; and ways to Section 76.1302, Carriage Agreement the party will appear on the date fixed further reduce the information Proceedings; Section 76.1513, Open for hearing and present evidence on the collection burden on small business Video Dispute Resolution. issues specified in the hearing concerns with fewer than 25 employees. Form Number: Not applicable. designation order. 47 CFR 1.229(b)(2) requires that, in a DATES: Written comments should be Type of Review: Extension of a submitted on or before October 9, 2020. currently approved collection. program carriage complaint proceeding If you anticipate that you will be Respondents: Businesses or other for- filed pursuant to § 76.1302 that the submitting comments, but find it profit entities. Chief, Media Bureau refers to an difficult to do so within the period of Number of Respondents and administrative law judge for an initial time allowed by this notice, you should Responses: 684 respondents; 684 decision, a motion to enlarge, change, or advise the contacts below as soon as responses. delete issues shall be filed within 15 possible. Estimated Time per Response: 6.4 to calendar days after the deadline for 95.4 hours. submitting written appearances ADDRESSES: Direct all PRA comments to Frequency of Response: On occasion pursuant to § 1.221(h), except that Cathy Williams, FCC, via email PRA@ reporting requirement; Third party persons not named as parties to the fcc.gov and to [email protected]. disclosure requirement. proceeding in the designation order may FOR FURTHER INFORMATION CONTACT: For Obligation to Respond: Required to file such motions with their petitions to additional information about the obtain or retain benefits. The statutory intervene up to 30 days after publication

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of the full text or a summary of the writing to the Commission and the Chief description of the reception and over- designation order in the Federal Administrative Law Judge. the-air signal processing equipment Register. 47 CFR 76.9. A party that wishes to used, including sketches such as block 47 CFR 1.229(b)(3) provides that any have confidentiality for proprietary diagrams and a description of the person desiring to file a motion to information with respect to a methodology used for processing the modify the issues after the expiration of submission it is making to the FCC must signal at issue, in its response. periods specified in paragraphs (a), file a petition pursuant to the pleading 47 CFR 76.914(c) permits a cable (b)(1), and (b)(2) of § 1.229, shall set requirements in Section 76.7 and use operator seeking revocation of a forth the reason why it was not possible the method described in Sections 0.459 franchising authority’s certification to to file the motion within the prescribed and 76.9 to demonstrate that file a petition with the FCC in period. confidentiality is warranted. The accordance with the procedures set 47 CFR 1.248(a) provides that the petitions filed pursuant to this provision forth in Section 76.7. initial prehearing conference as directed are contained in the existing 47 CFR 76.1003(a) permits any by the Commission shall be scheduled information collection requirement and multichannel video programming 30 days after the effective date of the are not changed by the rule changes. distributor (MVPD) aggrieved by order designating a case for hearing, 47 CFR 76.61(a) permits a local conduct that it believes constitute a unless good cause is shown for commercial television station or violation of the FCC’s competitive scheduling such conference at a later qualified low power television station access to cable programming rules to date, except that for program carriage that is denied carriage or channel commence an adjudicatory proceeding complaints filed pursuant to § 76.1302 positioning or repositioning in at the FCC to obtain enforcement of the that the Chief, Media Bureau refers to an accordance with the must-carry rules by rules through the filing of a complaint, administrative law judge for an initial a cable operator to file a complaint with which must be filed and responded to decision, the initial prehearing the FCC in accordance with the in accordance with the procedures conference shall be held no later than 10 procedures set forth in Section 76.7. specified in Section 76.7, except to the calendar days after the deadline for Section 76.61(b) permits a qualified extent such procedures are modified by submitting written appearances local noncommercial educational Section 76.1003. pursuant to § 1.221(h) or within such television station that believes a cable 47 CFR 76.1001(b)(2) permits any shorter or longer period as the operator has failed to comply with the multichannel video programming Commission may allow on motion or FCC’s signal carriage or channel distributor to commence an notice consistent with the public positioning requirements (Sections adjudicatory proceeding by filing a interest. 76.56 through 76.57) to file a complaint complaint with the Commission alleging 47 CFR 1.248(b) provides that the with the FCC in accordance with the that a cable operator, a satellite cable initial prehearing conference as directed procedures set forth in Section 76.7. programming vendor in which a cable by the presiding officer shall be 47 CFR 76.61(a)(1) states that operator has an attributable interest, or scheduled 30 days after the effective whenever a local commercial television a satellite broadcast programming date of the order designating a case for station or a qualified low power vendor, has engaged in an unfair act hearing, unless good cause is shown for television station believes that a cable involving terrestrially delivered, cable- scheduling such conference at a later operator has failed to meet its carriage affiliated programming, which must be date, except that for program carriage or channel positioning obligations, filed and responded to in accordance complaints filed pursuant to § 76.1302 pursuant to Sections 76.56 and 76.57, with the procedures specified in § 76.7, that the Chief, Media Bureau refers to an such station shall notify the operator, in except to the extent such procedures are administrative law judge for an initial writing, of the alleged failure and modified by §§ 76.1001(b)(2) and decision, the initial prehearing identify its reasons for believing that the 76.1003. In program access cases conference shall be held no later than 10 cable operator is obligated to carry the involving terrestrially delivered, cable- calendar days after the deadline for signal of such station or position such affiliated programming, the defendant submitting written appearances signal on a particular channel. has 45 days from the date of service of pursuant to § 1.221(h) or within such 47 CFR 76.61(a)(2) states that the the complaint to file an answer, unless shorter or longer period as the presiding cable operator shall, within 30 days of otherwise directed by the Commission. officer may allow on motion or notice receipt of such written notification, A complainant shall have the burden of consistent with the public interest. respond in writing to such notification proof that the defendant’s alleged 47 CFR 76.7. Pleadings seeking to and either commence to carry the signal conduct has the purpose or effect of initiate FCC action must adhere to the of such station in accordance with the hindering significantly or preventing the requirements of Section 76.6 (general terms requested or state its reasons for complainant from providing satellite pleading requirements) and Section 76.7 believing that it is not obligated to carry cable programming or satellite broadcast (initiating pleading requirements). such signal or is in compliance with the programming to subscribers or Section 76.7 is used for numerous types channel positioning and repositioning consumers; an answer to such a of petitions and special relief petitions, and other requirements of the must- complaint shall set forth the defendant’s including general petitions seeking carry rules. If a refusal for carriage is reasons to support a finding that the special relief, waivers, enforcement, based on the station’s distance from the complainant has not carried this show cause, forfeiture and declaratory cable system’s principal headend, the burden. In addition, a complainant ruling procedures. operator’s response shall include the alleging that a terrestrial cable 47 CFR 76.7(g)(2) provides that, in a location of such headend. If a cable programming vendor has engaged in proceeding initiated pursuant to § 76.7 operator denies carriage on the basis of discrimination shall have the burden of that is referred to an administrative law the failure of the station to deliver a proof that the terrestrial cable judge, the parties may elect to resolve good quality signal at the cable system’s programming vendor is wholly owned the dispute through alternative dispute principal headend, the cable operator by, controlled by, or under common resolution procedures, or may proceed must provide a list of equipment used control with a cable operator or cable with an adjudicatory hearing, provided to make the measurements, the point of operators, satellite cable programming that the election shall be submitted in measurement and a list and detailed vendor or vendors in which a cable

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operator has an attributable interest, or complaint, provided that the answer to a program access complaint may satellite broadcast programming vendor shall be filed within forty-five (45) days serve requests for discovery directly on or vendors; an answer to such a of service of the complaint if the opposing parties, and file a copy of the complaint shall set forth the defendant’s complaint alleges a violation of Section request with the Commission. The reasons to support a finding that the 628(b) of the Communications Act of respondent shall have the opportunity complainant has not carried this 1934, as amended, or Section to object to any request for documents burden. 76.1001(a). that are not in its control or relevant to 47 CFR 76.1003(b) requires any 47 CFR 76.1003(e)(2) requires an the dispute. Such request shall be heard, aggrieved MVPD intending to file a answer to an exclusivity complaint to and determination made, by the complaint under this section to first provide the defendant’s reasons for Commission. Until the objection is ruled notify the potential defendant cable refusing to sell the subject programming upon, the obligation to produce the operator, and/or the potential defendant to the complainant. In addition, the disputed material is suspended. Any satellite cable programming vendor or defendant may submit its programming party who fails to timely provide satellite broadcast programming vendor, contracts covering the area specified in discovery requested by the opposing that it intends to file a complaint with the complaint with its answer to refute party to which it has not raised an the Commission based on actions allegations concerning the existence of objection as described above, or who alleged to violate one or more of the an impermissible exclusive contract. If fails to respond to a Commission order provisions contained in Sections there are no contracts governing the for discovery material, may be deemed 76.1001 or 76.1002 of this part. The specified area, the defendant shall so in default and an order may be entered notice must be sufficiently detailed so certify in its answer. Any contracts in accordance with the allegations that its recipient(s) can determine the submitted pursuant to this provision contained in the complaint, or the nature of the potential complaint. The may be protected as proprietary complaint may be dismissed with potential complainant must allow a pursuant to Section 76.9 of this part. prejudice. minimum of ten (10) days for the 47 CFR 76.1003(e)(3) requires an 47 CFR 76.1003(l) permits a program potential defendant(s) to respond before answer to a discrimination complaint to access complainant seeking renewal of state the reasons for any differential in filing a complaint with the Commission. an existing programming contract to file 47 CFR 76.1003(c) describes the prices, terms or conditions between the a petition along with its complaint required contents of a program access complainant and its competitor, and to requesting a temporary standstill of the complaint, in addition to the specify the particular justification set price, terms, and other conditions of the requirements of Section 76.7 of this forth in Section 76.1002(b) of this part existing programming contract pending part. relied upon in support of the resolution of the complaint, to which 47 CFR 76.1003(c)(3) requires a differential. the defendant will have the opportunity program access complaint to contain 47 CFR 76.1003(e)(4) requires an to respond within 10 days of service of evidence that the complainant competes answer to a complaint alleging an the petition, unless otherwise directed with the defendant cable operator, or unreasonable refusal to sell by the Commission. with a multichannel video programming programming to state the defendant’s distributor that is a customer of the reasons for refusing to sell to the 47 CFR 76.1302(a) states that any defendant satellite cable programming complainant, or for refusing to sell to video programming vendor or or satellite broadcast programming the complainant on the same terms and multichannel video programming vendor or a terrestrial cable conditions as complainant’s competitor, distributor aggrieved by conduct that it programming vendor alleged to have and to specify why the defendant’s believes constitute a violation of the engaged in conduct described in actions are not discriminatory. regulations set forth in this subpart may § 76.1001(b)(1). 47 CFR 76.1003(f) provides that, commence an adjudicatory proceeding 47 CFR 76.1003(d) states that, in a within fifteen (15) days after service of at the Commission to obtain case where recovery of damages is an answer, unless otherwise directed by enforcement of the rules through the sought, the complaint shall contain a the Commission, the complainant may filing of a complaint. The complaint clear and unequivocal request for file and serve a reply which shall be shall be filed and responded to in damages and appropriate allegations in responsive to matters contained in the accordance with the procedures support of such claim. answer and shall not contain new specified in Section 76.7, except to the 47 CFR 76.1003(e)(1) requires cable matters. extent such procedures are modified by operators, satellite cable programming 47 CFR 76.1003(g) states that any Section 76.1302. vendors, or satellite broadcast complaint filed pursuant to this 47 CFR 76.1302(b) states that any programming vendors whom expressly subsection must be filed within one year aggrieved video programming vendor or reference and rely upon a document in of the date on which one of three multichannel video programming asserting a defense to a program access specified events occurs. distributor intending to file a complaint complaint filed or in responding to a 47 CFR 76.1003(h) sets forth the under this section must first notify the material allegation in a program access remedies that are available for violations potential defendant multichannel video complaint filed pursuant to Section of the program access rules, which programming distributor that it intends 76.1003, to include such document or include the imposition of damages, and/ to file a complaint with the Commission documents, such as contracts for or the establishment of prices, terms, based on actions alleged to violate one carriage of programming referenced and and conditions for the sale of or more of the provisions contained in relied on, as part of the answer. Except programming to the aggrieved Section 76.1301 of this part. The notice as otherwise provided or directed by the multichannel video programming must be sufficiently detailed so that its Commission, any cable operator, distributor, as well as sanctions recipient(s) can determine the specific satellite cable programming vendor or available under title V or any other nature of the potential complaint. The satellite broadcast programming vendor provision of the Communications Act. potential complainant must allow a upon which a program access complaint 47 CFR 76.1003(j) states in addition to minimum of ten (10) days for the is served under this section shall answer the general pleading and discovery rules potential defendant(s) to respond before within twenty (20) days of service of the contained in § 76.7 of this part, parties filing a complaint with the Commission.

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47 CFR 76.1302(c) specifies the 47 CFR 76.1302(k) permits a program serve a reply which shall be responsive content of carriage agreement carriage complainant seeking renewal of to matters contained in the answer and complaints, in addition to the an existing programming contract to file shall not contain new matters. requirements of Section 76.7 of this a petition along with its complaint 47 CFR 76.1513(g) requires that any part. requesting a temporary standstill of the complaint filed pursuant to this 47 CFR 76.1302(c)(1) provides that a price, terms, and other conditions of the subsection must be filed within one year program carriage complaint filed existing programming contract pending of the date on which one of three events pursuant to § 76.1302 must contain the resolution of the complaint, to which occurs. following: Whether the complainant is a the defendant will have the opportunity 47 CFR 76.1513(h) states that upon multichannel video programming to respond within 10 days of service of completion of the adjudicatory distributor or video programming the petition, unless otherwise directed proceeding, the Commission shall order vendor, and, in the case of a by the Commission. To allow for appropriate remedies, including, if multichannel video programming sufficient time to consider the petition necessary, the requiring carriage, distributor, identify the type of for temporary standstill prior to the awarding damages to any person denied multichannel video programming expiration of the existing programming carriage, or any combination of such distributor, the address and telephone contract, the petition for temporary sanctions. Such order shall set forth a number of the complainant, what type standstill and complaint shall be filed timetable for compliance, and shall of multichannel video programming no later than thirty (30) days prior to the become effective upon release. distributor the defendant is, and the expiration of the existing programming Federal Communication Commission. address and telephone number of each contract. Marlene Dortch, defendant. 47 CFR 76.1513(a) permits any party aggrieved by conduct that it believes Secretary,Office of the Secretary. 47 CFR 76.1302(d) sets forth the [FR Doc. 2020–17427 Filed 8–7–20; 8:45 am] evidence that a program carriage constitute a violation of the FCC’s BILLING CODE 6712–01–P complaint filed pursuant to § 76.1302 regulations or in section 653 of the must contain in order to establish a Communications Act (47 U.S.C. 573) to prima facie case of a violation of commence an adjudicatory proceeding at the Commission to obtain FEDERAL COMMUNICATIONS § 76.1301. COMMISSION 47 CFR 76.1302(e)(1) provides that a enforcement of the rules through the multichannel video programming filing of a complaint, which must be [OMB 3060–0703; FRS 16978] filed and responded to in accordance distributor upon whom a program with the procedures specified in Section Information Collection Being carriage complaint filed pursuant to 76.7, except to the extent such Submitted for Review and Approval to § 76.1302 is served shall answer within procedures are modified by Section Office of Management and Budget sixty (60) days of service of the 76.1513. AGENCY: Federal Communications complaint, unless otherwise directed by 47 CFR 76.1513(b) provides that an Commission. the Commission. open video system operator may not 47 CFR 76.1302(e)(2) states that an provide in its carriage contracts with ACTION: Notice and request for answer to a program carriage complaint programming providers that any dispute comments. shall address the relief requested in the must be submitted to arbitration, SUMMARY: As part of its continuing effort complaint, including legal and mediation, or any other alternative documentary support, for such to reduce paperwork burdens, as method for dispute resolution prior to required by the Paperwork Reduction response, and may include an submission of a complaint to the alternative relief proposal without any Act (PRA) of 1995, the Federal Commission. Communications Commission (FCC or prejudice to any denials or defenses 47 CFR 76.1513(c) requires that any raised. the Commission) invites the general aggrieved party intending to file a public and other Federal Agencies to 47 CFR 76.1302(f) states that within complaint under this section must first twenty (20) days after service of an take this opportunity to comment on the notify the potential defendant open following information collection. answer, unless otherwise directed by video system operator that it intends to the Commission, the complainant may Pursuant to the Small Business file a complaint with the Commission Paperwork Relief Act of 2002, the FCC file and serve a reply which shall be based on actions alleged to violate one responsive to matters contained in the seeks specific comment on how it can or more of the provisions contained in further reduce the information answer and shall not contain new this part or in Section 653 of the matters. collection burden for small business Communications Act. The notice must concerns with fewer than 25 employees. 47 CFR 76.1302(h) states that any be in writing and must be sufficiently DATES: Written comments and complaint filed pursuant to this detailed so that its recipient(s) can recommendations for the proposed subsection must be filed within one year determine the specific nature of the information collection should be of the date on which one of three events potential complaint. The potential submitted on or before September 9, occurs. complainant must allow a minimum of 2020. 47 CFR 76.1302(j)(1) states that upon ten (10) days for the potential completion of such adjudicatory defendant(s) to respond before filing a ADDRESSES: Comments should be sent to proceeding, the Commission shall order complaint with the Commission. www.reginfo.gov/public/do/PRAMain. appropriate remedies, including, if 47 CFR 76.1513(d) describes the Find this particular information necessary, mandatory carriage of a video contents of an open video system collection by selecting ‘‘Currently under programming vendor’s programming on complaint. 30-day Review—Open for Public defendant’s video distribution system, 47 CFR 76.1513(e) addresses answers Comments’’ or by using the search or the establishment of prices, terms, to open video system complaints. function. Your comment must be and conditions for the carriage of a 47 CFR 76.1513(f) states within submitted into www.reginfo.gov per the video programming vendor’s twenty (20) days after service of an above instructions for it to be programming. answer, the complainant may file and considered. In addition to submitting in

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www.reginfo.gov also send a copy of reduce the information collection SUMMARY: As part of its continuing effort your comment on the proposed burden for small business concerns with to reduce paperwork burdens, and as information collection to Cathy fewer than 25 employees.’’ required by the Paperwork Reduction Williams, FCC, via email to PRA@ OMB Control Number: 3060–0703. Act (PRA), the Federal Communications fcc.gov and to [email protected]. Title: Determining Costs of Regulated Commission (FCC or Commission) Include in the comments the OMB Cable Equipment and Installation, FCC invites the general public and other control number as shown in the Form 1205. Federal agencies to take this SUPPLEMENTARY INFORMATION below. Form Number: FCC Form 1205. opportunity to comment on the FOR FURTHER INFORMATION CONTACT: For Type of Review: Extension of a following information collections. additional information or copies of the currently approved collection. Comments are requested concerning: information collection, contact Cathy Respondents: Business or other for- Whether the proposed collection of Williams at (202) 418–2918. To view a profit entities. information is necessary for the proper copy of this information collection Number of Respondents and performance of the functions of the request (ICR) submitted to OMB: (1) Go Responses: 4,000 respondents; 6,000 Commission, including whether the to the web page http://www.reginfo.gov/ responses. information shall have practical utility; Estimated Time per Response: 4–12 public/do/PRAMain, (2) look for the the accuracy of the Commission’s hours. section of the web page called burden estimate; ways to enhance the Frequency of Response: ‘‘Currently Under Review,’’ (3) click on quality, utility, and clarity of the Recordkeeping requirement, Annual the downward-pointing arrow in the information collected; ways to minimize reporting requirement, Third party ‘‘Select Agency’’ box below the the burden of the collection of disclosure requirement. ‘‘Currently Under Review’’ heading, (4) information on the respondents, Obligation to Respond: Required to including the use of automated select ‘‘Federal Communications obtain or retain benefits. The statutory Commission’’ from the list of agencies collection techniques or other forms of authority for this collection of information technology; and ways to presented in the ‘‘Select Agency’’ box, information is contained in Section (5) click the ‘‘Submit’’ button to the further reduce the information 301(j) of the Telecommunications Act of collection burden on small business right of the ‘‘Select Agency’’ box, (6) 1996 and 623(a)(7) of the when the list of FCC ICRs currently concerns with fewer than 25 employees. Communications Act of 1934, as DATES: Written comments should be under review appears, look for the Title amended. of this ICR and then click on the ICR submitted on or before October 9, 2020. Total Annual Burden: 52,000 hours. If you anticipate that you will be Reference Number. A copy of the FCC Total Annual Cost: $1,800,000. submission to OMB will be displayed. submitting comments, but find it Privacy Act Impact Assessment: No difficult to do so within the period of SUPPLEMENTARY INFORMATION: The impact(s). time allowed by this notice, you should Commission may not conduct or Nature and Extent of Confidentiality: advise the contacts below as soon as sponsor a collection of information There is no need for confidentiality with possible. unless it displays a currently valid this collection of information. Office of Management and Budget Needs and Uses: Information derived ADDRESSES: Direct all PRA comments to (OMB) control number. No person shall from FCC Form 1205 filings is used to Cathy Williams, FCC, via email PRA@ be subject to any penalty for failing to facilitate the review of equipment and fcc.gov and to [email protected]. comply with a collection of information installation rates. This information is FOR FURTHER INFORMATION CONTACT: For subject to the PRA that does not display then reviewed by each cable system’s additional information about the a valid OMB control number. respective local franchising authority. information collection, contact Cathy As part of its continuing effort to Section 76.923 records are kept by cable Williams at (202) 418–2918. reduce paperwork burdens, as required operators in order to demonstrate that SUPPLEMENTARY INFORMATION: The FCC by the Paperwork Reduction Act (PRA) charges for the sale and lease of may not conduct or sponsor a collection of 1995 (44 U.S.C. 3501–3520), the FCC equipment for installation have been of information unless it displays a invited the general public and other developed in accordance with the currently valid Office of Management Federal Agencies to take this Commission’s rules. and Budget (OMB) control number. No opportunity to comment on the Federal Communications Commission. person shall be subject to any penalty following information collection. for failing to comply with a collection Marlene Dortch, Comments are requested concerning: (a) of information subject to the PRA that Whether the proposed collection of Secretary, Office of the Secretary. does not display a valid OMB control information is necessary for the proper [FR Doc. 2020–17336 Filed 8–7–20; 8:45 am] number. As part of its continuing effort performance of the functions of the BILLING CODE 6712–01–P to reduce paperwork burdens, and as Commission, including whether the required by the PRA of 1995 (44 U.S.C. information shall have practical utility; 3501–3520), the FCC invites the general (b) the accuracy of the Commission’s FEDERAL COMMUNICATIONS public and other Federal agencies to burden estimates; (c) ways to enhance COMMISSION take this opportunity to comment on the the quality, utility, and clarity of the [OMB 3060–0249, OMB 3060–0573; FRS following information collections. information collected; and (d) ways to 16988] Comments are requested concerning: minimize the burden of the collection of Whether the proposed collection of information on the respondents, Information Collections Being information is necessary for the proper including the use of automated Reviewed by the Federal performance of the functions of the collection techniques or other forms of Communications Commission Commission, including whether the information technology. Pursuant to the AGENCY: Federal Communications information shall have practical utility; Small Business Paperwork Relief Act of Commission. the accuracy of the Commission’s 2002, Public Law 107–198, see 44 U.S.C. burden estimate; ways to enhance the ACTION: Notice and request for 3506(c)(4), the FCC seeks specific quality, utility, and clarity of the comments. comment on how it might ‘‘further information collected; ways to minimize

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the burden of the collection of licensee of the primary station may be (c) For all stations, the results and information on the respondents, kept at the same place where the dates of the frequency measurements including the use of automated primary station records are kept. The made pursuant to § 78.113 and the name collection techniques or other forms of name of the person keeping station of the person or persons making the information technology; and ways to records, together with the address of the measurements; further reduce the information place where the records are kept, shall (d) For all stations, when service or collection burden on small business be posted in accordance with § 74.765(c) maintenance duties are performed, concerns with fewer than 25 employees. of the rules. The station records shall be which may affect a station’s proper OMB Control Number: 3060–0249. made available upon request to any operation, the responsible operator shall Title: Sections 74.781, 74.1281 and authorized representative of the sign and date an entry in the station’s 78.69, Station Records. Commission. records, giving: Form Number: N/A. (d) Station logs and records shall be (1) Pertinent details of all transmitter Type of Review: Extension of a retained for a period of two years. adjustments performed by the operator currently approved collection. 47 CFR 74.1281 information or under the operator’s supervision. Respondents: Business and other for- collection requirements include the (e) When a station in this service has profit entities; not-for-profit institutions; following: (a) The licensee of a station an antenna structure which is required State, Federal or Tribal Governments. authorized under this Subpart shall to be illuminated, appropriate entries Number of Respondents and maintain adequate station records, shall be made as follows: Responses: 13,811 respondents; 20,724 including the current instrument of (1) The time the tower lights are responses. authorization, official correspondence turned on and off each day, if manually Estimated Time per Response: .375 with the FCC, maintenance records, controlled. hour-1 hour. contracts, permission for rebroadcasts, (2) The time the daily check of proper Frequency of Response: and other pertinent documents. operation of the tower lights was made, Recordkeeping requirement. (b) Entries required by § 17.49 of this if an automatic alarm system is not Total Annual Burden: 11,726 hours. chapter concerning any observed or employed. Total Annual Cost: $8,295,600. (3) In the event of any observed or Obligation to Respond: Required to otherwise known extinguishment or improper functioning of a tower light: otherwise known failure of a tower obtain or retain benefits. The statutory light: authority for this collection of (1) The nature of such extinguishment or improper functioning. (i) Nature of such failure. information is contained in Section (ii) Date and time the failure was (2) The date and time the 154(i) of the Communications Act of observed or otherwise noted. 1934, as amended. extinguishment of improper operation (iii) Date, time, and nature of the Nature and Extent of Confidentiality: was observed or otherwise noted. adjustments, repairs, or replacements There is no need for confidentiality with (3) The date, time and nature of made. this collection of information. adjustments, repairs or replacements (iv) Identification of Flight Service Privacy Impact Assessment(s): No made. Station (Federal Aviation impact(s). (c) The station records shall be Administration) notified of the failure of Needs and Uses: The information maintained for inspection at a any code or rotating beacon light not collection requirements contained in residence, office, or public building, corrected within 30 minutes, and the this collection are as follows: place of business, or other suitable date and time such notice was given. 47 CFR 74.781 information collection place, in one of the communities of (v) Date and time notice was given to requirements include the following: (a) license of the translator or booster, the Flight Service Station (Federal The licensee of a low power TV, TV except that the station records of a Aviation Administration) that the translator, or TV booster station shall booster or translator licensed to the required illumination was resumed. maintain adequate station records, licensee of the primary station may be (4) Upon completion of the 3-month including the current instrument of kept at the same place where the periodic inspection required by authorization, official correspondence primary station records are kept. The § 78.63(c): with the FCC, contracts, permission for name of the person keeping station (i) The date of the inspection and the rebroadcasts, and other pertinent records, together with the address of the condition of all tower lights and documents. place where the records are kept, shall associated tower lighting control (b) Entries required by § 17.49 of this be posted in accordance with devices, indicators, and alarm systems. Chapter concerning any observed or § 74.1265(b) of the rules. The station (ii) Any adjustments, replacements, or otherwise known extinguishment or records shall be made available upon repairs made to insure compliance with improper functioning of a tower light: request to any authorized representative the lighting requirements and the date (1) The nature of such extinguishment of the Commission. such adjustments, replacements, or or improper functioning. (2) The date (d) Station logs and records shall be repairs were made. and time the extinguishment or retained for a period of two years. (f) For all stations, station record improper operation was observed or 47 CFR 78.69 requires each licensee of entries shall be made in an orderly and otherwise noted. (3) The date, time and a CARS station shall maintain records legible manner by the person or persons nature of adjustments, repairs or showing the following: competent to do so, having actual replacements made. (a) For all attended or remotely knowledge of the facts required, who (c) The station records shall be controlled stations, the date and time of shall sign the station record when maintained for inspection at a the beginning and end of each period of starting duty and again when going off residence, office, or public building, transmission of each channel; duty. place of business, or other suitable (b) For all stations, the date and time (g) For all stations, no station record place, in one of the communities of of any unscheduled interruptions to the or portion thereof shall be erased, license of the translator or booster, transmissions of the station, the obliterated, or willfully destroyed except that the station records of a duration of such interruptions, and the within the period of retention required booster or translator licensed to the causes thereof; by rule. Any necessary correction may

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be made only by the person who made FEDERAL COMMUNICATIONS to the web page http://www.reginfo.gov/ the original entry who shall strike out COMMISSION public/do/PRAMain, (2) look for the the erroneous portion, initial the section of the web page called [OMB 3060–XXX, OMB 3060–1204; FRS correction made, and show the date the 16985] ‘‘Currently Under Review,’’ (3) click on correction was made. the downward-pointing arrow in the (h) For all stations, station records Information Collections Being ‘‘Select Agency’’ box below the ‘‘Currently Under Review’’ heading, (4) shall be retained for a period of not less Submitted for Review and Approval to select ‘‘Federal Communications than 2 years. The Commission reserves Office of Management and Budget Commission’’ from the list of agencies the right to order retention of station AGENCY: Federal Communications presented in the ‘‘Select Agency’’ box, records for a longer period of time. In Commission. (5) click the ‘‘Submit’’ button to the cases where the licensee or permittee ACTION: Notice and request for right of the ‘‘Select Agency’’ box, (6) has notice of any claim or complaint, comments. when the list of FCC ICRs currently the station record shall be retained until under review appears, look for the Title SUMMARY: As part of its continuing effort such claim or complaint has been fully of this ICR and then click on the ICR satisfied or until the same has been to reduce paperwork burdens, as required by the Paperwork Reduction Reference Number. A copy of the FCC barred by statute limiting the time for submission to OMB will be displayed. filing of suits upon such claims. Act (PRA) of 1995, the Federal Communications Commission (FCC or SUPPLEMENTARY INFORMATION: As part of OMB Control Number: 3060–0573. the Commission) invites the general its continuing effort to reduce Title: Application for Franchise public and other Federal Agencies to paperwork burdens, as required by the Authority Consent to Assignment or take this opportunity to comment on the Paperwork Reduction Act (PRA) of 1995 Transfer of Control of Cable Television following information collection. (44 U.S.C. 3501–3520), the FCC invited Franchise, FCC Form 394. Pursuant to the Small Business the general public and other Federal Agencies to take this opportunity to Form Number: FCC Form 394. Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might comment on the following information Type of Review: Extension of a ‘‘further reduce the information collection. Comments are requested currently approved collection. collection burden for small business concerning: (a) Whether the proposed Respondents: Business of other for- concerns with fewer than 25 collection of information is necessary profit entities; State, Local or Tribal employees.’’ The Commission may not for the proper performance of the Government. conduct or sponsor a collection of functions of the Commission, including whether the information shall have Number of Respondents and information unless it displays a currently valid Office of Management practical utility; (b) the accuracy of the Responses: 2,000 respondents; 1,000 Commission’s burden estimates; (c) responses. and Budget (OMB) control number. No person shall be subject to any penalty ways to enhance the quality, utility, and Estimated Time per Response: 1–5 for failing to comply with a collection clarity of the information collected; and hours. of information subject to the PRA that (d) ways to minimize the burden of the Frequency of Response: Third Party does not display a valid OMB control collection of information on the Disclosure Requirement. number. respondents, including the use of automated collection techniques or DATES: Total Annual Burden: 7,000 hours. Written comments and other forms of information technology. Total Annual Costs: $750,000. recommendations for the proposed Pursuant to the Small Business information collection should be Paperwork Relief Act of 2002, Public Privacy Impact Assessment(s): No submitted on or before September 9, impact(s). Law 107–198, see 44 U.S.C. 3506(c)(4), 2020. the FCC seeks specific comment on how Needs and Uses: FCC Form 394 is a ADDRESSES: Comments should be sent to it might ‘‘further reduce the information standardized form that is completed by www.reginfo.gov/public/do/PRAMain. collection burden for small business cable operators in connection with the Find this particular information concerns with fewer than 25 assignment and transfer of control of collection by selecting ‘‘Currently under employees.’’ cable television systems. On July 23, 30-day Review—Open for Public OMB Control Number: 3060–XXXX. 1993, the Commission released a Report Comments’’ or by using the search Title: Alaska Plan End of Term and Order and Further Notice of function. Your comment must be Commitments. Proposed Rulemaking in MM Docket submitted into www.reginfo.gov per the Form Number: N/A. No. 92–264, FCC 93–332, above instructions for it to be Type of Review: New information Implementation of Sections 11 and 13 of considered. In addition to submitting in collection. Respondents: Business or the Cable Television Consumer www.reginfo.gov also send a copy of other for-profit entities. Protection and Competition Act of 1992, your comment on the proposed Number of Respondents and Horizontal and Vertical Ownership information collection to Nicole Ongele, Responses: 21 respondents; 21 Limits, Cross-Ownership Limitations FCC, via email to [email protected] and to responses. and Anti-Trafficking Provisions. Among [email protected]. Include in the Estimated Time per Response: 10 other things, this Report and Order comments the OMB control number as hours. established procedures for use of the shown in the SUPPLEMENTARY Frequency of Response: One-time FCC Form 394. INFORMATION below. reporting requirement. Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For Obligation to Respond: Required to additional information or copies of the retain benefits. Statutory authority for Marlene Dortch, information collection, contact Nicole this information collection is contained Secretary, Office of the Secretary. Ongele at (202) 418–2991. To view a in 47 U.S.C. 151, 152, 154(i), 155, 201– [FR Doc. 2020–17428 Filed 8–7–20; 8:45 am] copy of this information collection 206, 214, 218–220, 251, 252, 254, 256, BILLING CODE 6712–01–P request (ICR) submitted to OMB: (1) Go 303(r), 332, 403, and 1302.

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Total Annual Burden: 210 hours. Needs and Uses: Deployment of Text- month implementation period in Total Annual Cost: No Cost. Privacy to-911. In a Second Report and Order furtherance of the Commission’s core Act Impact Assessment: No impact(s). released on August 13, 2014, FCC 14– mission to ensure the public’s safety. Nature and Extent of Confidentiality: 118, published at 79 FR 55367, Real Time Text. In a Report and Order For this information request, parties September 16, 2014, the Commission and Further Notice of Proposed may submit confidential information. adopted final rules—containing Rulemaking, released on December 16, Requests for confidentiality may be information collection requirements—to 2016, in CG Docket No. 16–145 and GN submitted to the Commission to be enable the Commission to implement Docket No. 15–178, the Commission withheld from public inspection under text-to-911 service. The text-to-911 rules amended its rules to facilitate a 47 C FR 0.459 of the FCC’s rules. provide enhanced access to emergency transition from text telephone (TTY) Needs and Uses: The Commission is services for people with disabilities and technology to RTT as a reliable and requesting the Office of Management fulfilling a crucial role as an alternative interoperable universal text solution and Budget (OMB) approval for this new means of emergency communication for over wireless internet protocol (IP) information collection. On August 23, the general public in situations where enabled networks for people who are 2016, the Commission adopted the sending a text message to 911 as deaf, hard of hearing, deaf-blind, or Alaska Plan Order. See Connect opposed to placing a voice call could be have a speech disability. Section 9.10(c) America Fund et al., WC Docket Nos. vital to the caller’s safety. The Second of the rules requires Commercial Mobile 10–90, 16–271, WT Docket No. 10–208, Report and Order adopted rules to Radio Service (CMRS) providers to be Report and Order and Further Notice of ‘‘capable of transmitting 911 calls from Proposed Rulemaking, 31 FCC Rcd commence the implementation of text- individuals with speech or hearing 10139 (2016) (Alaska Plan Order). In to-911 service with an initial deadline of disabilities through means other than that order, the Commission adopted a December 31, 2014 for all covered text mobile radio handsets, e.g., through the plan for providing Alaskan rate-of- providers to be capable of supporting use of [TTY devices].’’ Additionally, return carriers and competitive Eligible text-to-911 service. The Second Report ‘‘CMRS providers that provide voice Telecommunications Carriers (ETCs) the and Order also provided that covered communications over IP facilities are option to obtain a fixed level of funding text providers would then have a six- not required to support 911 access via for a defined term in exchange for month implementation period. They TTYs if they provide 911 access via committing to deployment obligations must begin routing all 911 text messages [RTT] communications, in accordance that are tailored to each Alaskan to a Public Safety Answering Point carrier’s circumstances. A requirement (PSAP) by June 30, 2015 or within six with 47 CFR part 67, except that RTT adopted in the Alaska Plan Order months of a valid PSAP request for text- support is not required to the extent that requires that participating carriers to-911 service, whichever is later. To it is not achievable for a particular update their end-of-term commitments implement these requirements, the manufacturer to support RTT on the no later than the end of the fourth year Commission seeks to collect information provider’s network.’’ Section 9.10(c). of support, i.e., by December 31, 2020. primarily for a database in which PSAPs The Commission’s Report and Order The purpose of this information voluntarily register that they are provides that once a PSAP is so capable, collection is to collect from the technically ready to receive text the requested service provider must participating carriers their updated end- messages to 911. As PSAPs become text- begin delivering RTT communications of-term commitments and addresses the ready, they may either register in the in an RTT format within six months burdens associated with that PSAP database (or submit a notification after a valid request is made—to the requirement. to PS Docket Nos. 10–255 and 11–153), extent the provider has selected RTT as OMB Control Number: 3060–1204. or provide other written notification its accessible text communication Title: Deployment of Text-to-911. reasonably acceptable to a covered text method. Form Number: N/A. messaging provider. Either measure Dispatchable Location. Section 506 of Type of Review: Revision of a taken by the PSAP constitutes sufficient RAY BAUM’S Act requires the currently approved collection. notification pursuant to the rules in the Commission to ‘‘consider adopting rules Respondents: Business or other-for Second Report and Order. PSAPs and to ensure that the dispatchable location profit, State, Local, or Tribal covered text providers may also agree to is conveyed with a 9-1-1 call, regardless government. an alternative implementation of the technological platform used Number of Respondents and timeframe (other than six months). [. . .].’’ In a Report and Order released Responses: 3,882 respondents; 52,963 Covered text providers must notify the on August 2019, in PS Docket Nos. 18– responses. FCC of the dates and terms of any such 261 and 17–239 and GN Docket No. 11– Estimated Time per Response: 1–8 alternate timeframe within 30 days of 117, the Commission amended its rules hours. the parties’ agreement. Additionally, the to implement Kari’s Law and Section Frequency of Response: One-time; rules adopted by the Second Report and 506 of RAY BAUM’S Act. Specifically, annual reporting requirements and Order include other information for mobile text, the Commission third-party disclosure requirement. adopted Section 9.10(q)(10)(v) to Obligation to Respond: Required to collections for third party notifications provide that no later than January 6, obtain or retain benefits. Statutory necessary for the implementation of authority for these collections is text-to-911, including notifications to 2022, covered text providers must contained in 47 U.S.C. 151, 152, 154(i), consumers, covered text providers, and provide the following location 154(j), 154(o), 251(e), 303(b), 303(g), the Commission. These notifications are information with all 911 text messages 303(r), 316, and 403. essential to ensure that all affected routed to a PSAP: Total Annual Burden: 76,766 hours. parties are aware of the limitations, Automated dispatchable location, if Total Annual Cost: No Cost. capabilities, and status of text-to-911 technically feasible; otherwise, either Privacy Act Impact Assessment: No services. These information collections end-user manual provision of location impact(s). enable the Commission to meet the information, or enhanced location Nature and Extent of Confidentiality: objectives for implementation of text-to- information, which may be coordinate- There is no need for confidentiality with 911 service and for compliance by based, consisting of the best available this collection of information. covered text providers with the six- location that can be obtained from any

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available technology or combination of Dated: August 4, 2020. Heidi M. Fassett and Jonathon E. technologies at reasonable cost. Rachel Dickon, Fassett, both of Selah, Washington; as a 47 CFR 20.18 renumbered as 47 CFR Secretary. group acting in concert to retain voting 9.10. Additionally, the Commission [FR Doc. 2020–17342 Filed 8–7–20; 8:45 am] shares of Pacific Crest Bancorp, Inc., renumbered Section 20.18 as new BILLING CODE 6730–02–P and thereby, indirectly retain voting Section 9.10. Accordingly, we update shares of Pacific Crest Savings Bank, the references to Section 20.18 with both of Lynnwood, Washington. Section 9.10 in this supporting FEDERAL RESERVE SYSTEM Board of Governors of the Federal Reserve statement. System, August 5, 2020. Federal Communications Commission. Change in Bank Control Notices; Yao-Chin Chao, Marlene Dortch, Acquisitions of Shares of a Bank or Assistant Secretary of the Board. Bank Holding Company Secretary, Office of the Secretary. [FR Doc. 2020–17411 Filed 8–7–20; 8:45 am] [FR Doc. 2020–17425 Filed 8–7–20; 8:45 am] The notificants listed below have BILLING CODE P BILLING CODE 6712–01–P 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 DEPARTMENT OF HEALTH AND CFR 225.41) to acquire shares of a bank HUMAN SERVICES FEDERAL MARITIME COMMISSION or bank holding company. The factors that are considered in acting on the Centers for Medicare & Medicaid Notice of Agreements Filed applications are set forth in paragraph 7 Services of the Act (12 U.S.C. 1817(j)(7)). [Document Identifier CMS–10156, CMS– The Commission hereby gives notice The public portions of the 10170, CMS–10110 and CMS–10488] of the filing of the following agreements applications listed below, as well as under the Shipping Act of 1984. other related filings required by the Agency Information Collection Interested parties may submit Board, if any, are available for Activities: Submission for OMB comments, relevant information, or immediate inspection at the Federal Review; Comment Request documents regarding the agreements to Reserve Bank(s) indicated below and at the Secretary by email at Secretary@ AGENCY: Centers for Medicare & the offices of the Board of Governors. Medicaid Services, HHS. fmc.gov, or by mail, Federal Maritime This information may also be obtained ACTION: Notice. Commission, Washington, DC 20573. on an expedited basis, upon request, by Comments will be most helpful to the contacting the appropriate Federal SUMMARY: The Centers for Medicare & Commission if received within 12 days Reserve Bank and from the Board’s Medicaid Services (CMS) is announcing of the date this notice appears in the Freedom of Information Office at an opportunity for the public to Federal Register. Copies of agreements https://www.federalreserve.gov/foia/ comment on CMS’ intention to collect are available through the Commission’s request.htm. Interested persons may information from the public. Under the website (www.fmc.gov) or by contacting express their views in writing on the Paperwork Reduction Act of 1995 the Office of Agreements at (202)-523– standards enumerated in paragraph 7 of (PRA), federal agencies are required to 5793 or [email protected]. the Act. publish notice in the Federal Register Agreement No.: 011962–016. Comments regarding each of these concerning each proposed collection of Agreement Name: Consolidated applications must be received at the information, including each proposed Chassis Management Pool Agreement. Reserve Bank indicated or the offices of extension or reinstatement of an existing Parties: Maersk A/S and Hamburg the Board of Governors, Ann E. collection of information, and to allow Sud (acting as a single party); CMA Misback, Secretary of the Board, 20th a second opportunity for public CGM S.A., APL Co. Pte. Ltd.; and Street and Constitution Avenue NW, comment on the notice. Interested American President Lines, Ltd. (acting Washington DC 20551–0001, not later persons are invited to send comments as a single party); COSCO SHIPPING than August 24, 2020. regarding the burden estimate or any Lines Co., Ltd.; Evergreen Line Joint A. Federal Reserve Bank of Atlanta other aspect of this collection of Service Agreement; Ocean Network (Kathryn Haney, Assistant Vice information, including the necessity and Express Pte. Ltd.; Hapag Lloyd AG and President) 1000 Peachtree Street NE, utility of the proposed information Hapag Lloyd USA (acting as a single Atlanta, Georgia 30309. Comments can collection for the proper performance of party); HMM Co., Ltd.; OOCL (USA) also be sent electronically to the agency’s functions, the accuracy of Inc.; MSC Mediterranean Shipping Co., [email protected]: the estimated burden, ways to enhance S.A.; Zim Integrated Shipping Services 1. The Vanguard Group, Inc., and its the quality, utility, and clarity of the Ltd.; Matson Navigation Company; subsidiaries and affiliates, Malvern, information to be collected, and the use Westwood Shipping Lines; and Yang Pennsylvania; to acquire additional of automated collection techniques or Ming Marine Transport Corp. voting shares of Raymond James other forms of information technology to Financial, Inc., and thereby, indirectly Filing Party: Jeffrey Lawrence and minimize the information collection acquire additional voting shares of Donald Kassilke; Cozen O’Connor. burden. Raymond James Bank, NA, both of St. Synopsis: The Amendment reflects Petersburg, Florida. DATES: Comments on the collection(s) of changes to the name of Maersk Line A/ B. Federal Reserve Bank of San information must be received by the S; Mediterranean Shipping Company Francisco (Sebastian Astrada, Director, OMB desk officer by September 9, 2020. S.A.; and Hyundai Merchant Marine Applications) 101 Market Street, San ADDRESSES: Written comments and Co., Ltd. Francisco, California 94105–1579: recommendations for the proposed Proposed Effective Date: 7/28/2020. 1. Kerry J. Fairchild, Tulalip, information collection should be sent Location: https://www2.fmc.gov/ Washington; Fairchild Marital Trust and within 30 days of publication of this FMC.Agreements.Web/Public/ Fairchild WA Exemption Trust, Kerry J. notice to www.reginfo.gov/public/do/ AgreementHistory/454. Fairchild, trustee for both trusts; and PRAMain . Find this particular

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information collection by selecting analyzes the information on the Total Annual Hours: 115,392. (For ‘‘Currently under 30-day Review—Open application and the retiree list, policy questions regarding this for Public Comments’’ or by using the notification will be sent to the plan collection contact Ivan Iveljic at 410) search function. sponsor about its eligibility to 786–3312.) To obtain copies of a supporting participate in the Retiree Drug Subsidy 3. Type of Information Collection statement and any related forms for the (RDS) Program. Request: Revision with change of a proposed collection(s) summarized in CMS has contracted with an outside currently approved collection; Title of this notice, you may make your request vendor to assist in the administration of Information Collection: Manufacturer using one of following: the RDS program; this effort is called the Submission of Average Sales Price 1. Access CMS’ website address at RDS Center. Plan Sponsors will apply (ASP) Data for Medicare Part B Drugs website address at https://www.cms.gov/ on-line for the retiree drug subsidy by and Biologicals; Use: Section 1847A of Regulations-and-Guidance/Legislation/ logging on to the RDS Secure website. the Act requires that the Medicare Part PaperworkReductionActof1995/PRA- 42 CFR 423.844 describes the B payment amounts for covered drugs Listing.html. requirement for qualified retiree and biologicals not paid on a cost or 1. Email your request, including your prescription drug plans who want to prospective payment basis be based address, phone number, OMB number, receive the retiree drug subsidy. Once upon manufacturers’ average sales price and CMS document identifier, to the Plan Sponsor submits the RDS data submitted quarterly to the Centers [email protected]. application via the RDS Secure website for Medicare & Medicaid Services 2. Call the Reports Clearance Office at (and a valid initial retiree list) CMS, (CMS). The reporting requirements are (410) 786–1326. through the use of its contractor, will specified in 42 CFR part 414 Subpart J. FOR FURTHER INFORMATION CONTACT: analyze the application to determine The Division of Ambulatory Services William Parham at (410) 786–4669. whether the Plan Sponsor qualifies for (DAS), will utilize the ASP data (ASP the RDS. To qualify for the subsidy, the and number of units sold as specific in SUPPLEMENTARY INFORMATION: Under the Plan Sponsor must show that its section 1847A of the Act) to determine Paperwork Reduction Act of 1995 (PRA) coverage is as generous as, or more the Medicare Part B drug payment (44 U.S.C. 3501–3520), federal agencies generous than, the defined standard amounts for CY 2005 and beyond. The must obtain approval from the Office of coverage under the Medicare Part D manufacturers submit their ASP data for Management and Budget (OMB) for each prescription drug benefit. Form all of their NDCs for Part B drugs. DAS collection of information they conduct Number: CMS–10156 (OMB control compiles the data, analyzes the data and or sponsor. The term ‘‘collection of number: 0938–0957); Frequency: Yearly; runs the data through software to information’’ is defined in 44 U.S.C. Affected Public: Private Sector, Business calculate the volume-weighted ASP for 3502(3) and 5 CFR 1320.3(c) and or other for-profits, Not-for-profits all of the NDCs that are grouped within includes agency requests or institutions; Number of Respondents: a given HCPCS code. The formula to requirements that members of the public 1,803; Total Annual Responses: 1,803; calculate the volume-weighted ASP is submit reports, keep records, or provide Total Annual Hours: 115,392. (For the Sum (ASP * units) for all NDCs/Sum information to a third party. Section policy questions regarding this (units * bill units per pkg) for all NDCs. 3506(c)(2)(A) of the PRA (44 U.S.C. collection contact Ivan Iveljic at 410– DAS provides ASP payment amounts 3506(c)(2)(A)) requires federal agencies 786–3312.) for several components within CMS that to publish a 30-day notice in the 2. Type of Information Collection utilize 1847(A) payment methodologies Federal Register concerning each Request: Reinstatement without change to implement various payment policies proposed collection of information, of a currently approved collection; Title including, but not limited to, ESRD, including each proposed extension or of Information Collection: Retiree Drug OPPS, OTP and payment models. The reinstatement of an existing collection Subsidy Payment Request and Department of Health and Human of information, before submitting the Instructions; Use: Under the Medicare Services’ Office of the Inspector General collection to OMB for approval. To Prescription Drug, Improvement, and also uses the ASP data in conducting comply with this requirement, CMS is Modernization Act of 2003 and statutorily mandated studies. Form publishing this notice that summarizes implementing regulations at 42 CFR part Number: CMS–10110 (OMB control the following proposed collection(s) of 423 subpart R plan sponsors (e.g., number: 0938–0921); Frequency: information for public comment: employers, unions) who offer Quarterly; Affected Public: State, Local, 1. Type of Information Collection prescription drug coverage to their or Tribal Governments; Number of Request: Reinstatement without change qualified covered retirees are eligible to Respondents: 300; Total Annual of a currently approved collection; Title receive a 28% subsidy for allowable Responses: 1,200; Total Annual Hours: of Information Collection: Retiree Drug drug costs. In order to qualify, plan 15,600. (For policy questions regarding Subsidy (RDS) Application and sponsors must submit a complete this collection contact Felicia Eggleston Instructions; Use: Under the Medicare application to the Centers for Medicare at 410 786–9287.) Prescription Drug, Improvement, and & Medicaid Services (CMS) with a list 4. Type of Information Collection Modernization Act of 2003 and of retirees for whom it intends to collect Request: Extension of a currently implementing regulations at 42 CFR part the subsidy. Once CMS reviews and approved collection; Title of 423 subpart R plan sponsors (e.g., analyzes the information on the Information Collection: Consumer employers, unions) who offer application and the retiree list, Experience Survey Data Collection; Use: prescription drug coverage to their notification will be sent to the plan Section 1311(c)(4) of the Affordable qualified covered retirees are eligible to sponsor about its eligibility to Care Act requires the Department of receive a 28% subsidy for allowable participate in the Retiree Drug Subsidy Health and Human Services (HHS) to drug costs. In order to qualify, plan (RDS) Program. Form Number: CMS– develop an enrollee satisfaction survey sponsors must submit a complete 10170 (OMB control number: 0938– system that assesses consumer application to the Centers for Medicare 0977); Frequency: Yearly; Affected experience with qualified health plans & Medicaid Services (CMS) with a list Public: State, Local, or Tribal (QHPs) offered through an Exchange. It of retirees for whom it intends to collect Governments; Number of Respondents: also requires public display of enrollee the subsidy. Once CMS reviews and 1,803; Total Annual Responses: 1,803; satisfaction information by the

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Exchange to allow individuals to easily this collection contact Nidhi Singh Shah time, or that do not include a completed compare enrollee satisfaction levels at 301–492–5110. form CMS–20017 are considered late or between comparable plans. HHS Dated: August 5, 2020. incomplete, and cannot be included on established the QHP Enrollee William N. Parham, III, the agenda. In commenting, refer to file code CMS–1755–N. Experience Survey (QHP Enrollee Director, Paperwork Reduction Staff, Office Survey) to assess consumer experience of Strategic Operations and Regulatory Meeting Registration Timeframe: All with the QHPs offered through the Affairs. presentation or comment letter speakers, including any alternates, with items on Marketplaces. The survey includes [FR Doc. 2020–17417 Filed 8–7–20; 8:45 am] the agenda must register electronically topics to assess consumer experience BILLING CODE 4120–01–P with the health care system such as to our Panel mailbox, APCPanel@ communication skills of providers and cms.hhs.gov no later than 5pm EDT, ease of access to health care services. DEPARTMENT OF HEALTH AND Friday, August 14, 2020. CMS developed the survey using the HUMAN SERVICES The subject of the email should state Consumer Assessment of Health ‘‘Agenda Speaker Registration for HOP Providers and Systems (CAHPS®) Centers for Medicare & Medicaid Panel Meeting.’’ In the email, all of the principles (https://www.ahrq.gov/ Services following information must be cahps/about-cahps/principles/ submitted when registering: [CMS–1755–N] • Speaker name. index.html) and established an • application and approval process for Medicare Program; Announcement of Speaker’s organization or company name. survey vendors who want to participate the Advisory Panel on Hospital • in collecting QHP enrollee experience Outpatient Payment Meeting Company or organization that the data. speaker is representing that submitted a AGENCY: Centers for Medicare & presentation or comment letter that is The QHP Enrollee Survey, which is Medicaid Services (CMS), HHS. on the agenda. based on the CAHPS® Health Plan • ACTION: Notice of meeting. Email addresses to which materials Survey, will be used to (1) help regarding meeting registration and consumers choose among competing SUMMARY: This notice announces a instructions on connecting to the health plans, (2) provide actionable virtual meeting of the Advisory Panel on meeting should be sent. information that the QHPs can use to Hospital Outpatient Payment (the Panel) • Registration details may not be improve performance, (3) provide for 2020. In addition, this notice revised once they are submitted. If information that regulatory and announces four new membership registration details require changes, a accreditation organizations can use to appointments to the Panel. The purpose new registration entry must be regulate and accredit plans, and (4) of the Panel is to advise the Secretary of submitted by August 14, 2020. In provide a longitudinal database for the Department of Health and Human addition, registration information must consumer research. Based on the Services and the Administrator of the reflect individual-level content and not requirements for the QHP Enrollee Centers for Medicare & Medicaid reflect an organization entry. Also, each Survey, CMS developed this survey to Services concerning the clinical individual may only register one person capture information about enrollees’ integrity of the Ambulatory Payment at a time. That is, one individual may experience with QHPs offered through Classification groups and their not register multiple individuals at the an Exchange. CMS conducted in-depth associated weights, and supervision of same time. formative research including: a hospital outpatient therapeutic services. • A confirmation email will be sent comprehensive literature review, review The advice provided by the Panel will upon receipt of the registration. The of existing CMS survey instruments, be considered as we prepare the annual email will provide information to the consumer focus groups, stakeholder updates for the hospital outpatient speaker in preparation for the meeting. discussions, and input from a Technical prospective payment system. • Registration is only required for Expert Panel (TEP). CMS performed a DATES: Meeting date: The virtual agenda speakers and alternates and psychometric test and beta test in 2014 meeting of the Panel is scheduled for must be submitted by the deadline and 2015, respectively. CMS began Monday, August 31, 2020, from 9:30 specified above. We note that no fielding the QHP Enrollee Survey a.m. to 5 p.m. Eastern Daylight Time registration is required for participants nationwide in 2016 and this request is (EDT). The times listed in this notice are who plan to view the Panel meeting via to continue nationwide collection and EDT and are approximate times. webinar or listen via teleconference. administration of the statutorily- Consequently, the meetings may last ADDRESSES: Meeting location and required survey in 2021 through 2023. longer or be shorter than the times listed webinar: The meeting will be held These activities are necessary to ensure in this notice, but will not begin before virtually. The public may participate in that CMS fulfills legislative mandates the posted times: this meeting via webinar, or listen-only established by section 1311(c)(4) of the Deadline for presentations and via teleconference. Closed captioning Affordable Care Act to develop an comment letters: Presentations or will be available on the webinar. ‘‘enrollee satisfaction survey system’’ comment letters, and form CMS–20017 Teleconference dial-in and webinar and provide such information on (located at http://www.cms.gov/ information will appear on the final Exchange websites. Form Number: Medicare/CMS-Forms/CMS-Forms/ meeting agenda, which will be posted CMS–10488 (0938–1221): Frequency: downloads/cms20017.pdf), must be on our website when available at: Annually: Affected Public: Public sector received by 5 p.m. EDT, Friday, August https://www.cms.gov/Regulations-and- (Individuals and Households), Private 14, 2020. Guidance/Guidance/FACA/ sector (Business or other for-profits and Please note that form CMS–20017 AdvisoryPanelonAmbulatory Not-for-profit institutions): Number of must accompany each presentation or PaymentClassificationGroups. Respondents: 285; Total Annual comment letter submission. News media: Press inquiries are Responses: 82,510; Total Annual Hours: Presentations and comment letters that handled through the CMS Press Office 16,517. For policy questions regarding are not received by the due date and at (202) 690–6145.

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Advisory committees information the cost of those items and services on Human Services and CMS in conducting line: The telephone number for the APC group structure and payment. its review. We recommend Advisory Panel on Hospital Outpatient Removing procedures from the inpatient organizations submit data for CMS staff Payment Committee Hotline is (410) list for payment under the OPPS. and the Panel’s review. 786–3985. • Using claims and cost report data All presentations are limited to 5 Websites: For additional information for Centers for Medicare & Medicaid minutes, regardless of the number of on the Panel, including the Panel Services (CMS) determination of APC individuals or organizations represented charter, and updates to the Panel’s group costs. by a single presentation. Presenters may activities, we refer readers to view our • Addressing other technical issues use their 5 minutes to represent either website at: https://www.cms.gov/ concerning APC group structure. one or more agenda items. Regulations-and-Guidance/Guidance/ • Evaluating the required level of FACA/AdvisoryPanelon supervision for hospital outpatient Section 508 Compliance AmbulatoryPayment services. • For this meeting, we are aiming to ClassificationGroups. Information about OPPS APC rates for covered have all presentations and comment the Panel and its membership in the Ambulatory Surgical Center (ASC) letters available on our website. Federal Advisory Committee Act procedures. Materials on our website must be database are also located at: https:// The Agenda will be posted on our Section 508 compliant to ensure access www.facadatabase.gov. website at: https://www.cms.gov/ to federal employees and members of Regulations-and-Guidance/Guidance/ FOR FURTHER INFORMATION CONTACT: the public with and without disabilities. FACA/AdvisoryPanelon We encourage presenters and Elise Barringer, Designated Federal AmbulatoryPaymentClassification Official (DFO) (410) 786–9222, email at commenters to reference the guidance Groups.html approximately 1 week on making documents section 508 [email protected]. Centers for before the meeting. Medicare & Medicaid Services, 7500 compliant as they draft their Security Boulevard, Mail Stop: C4–04– Meeting Information Updates submissions, and, whenever possible, to 25, Baltimore, MD 21244–1850. The actual meeting hours and days submit their presentations and comment letters in a 508 compliant form. Such SUPPLEMENTARY INFORMATION: will be posted in the agenda. As information and updates regarding this guidance is available at: http:// I. Background webinar and listen-only teleconference, www.cms.gov/Research-Statistics-Data- The Secretary of the Department of including the agenda, become available, and-Systems/CMS-Information- Health and Human Services (the they will be posted to our website at: Technology/Section508/508-Compliant- Secretary) is required by section https://www.cms.gov/Regulations-and- doc.html. We will review presentations 1833(t)(9)(A) of the Social Security Act Guidance/Guidance/FACA/ and comment letters for 508 compliance and is allowed by section 222 of the AdvisoryPanelonAmbulatoryPayment and place compliant materials on our Public Health Service Act to consult ClassificationGroups. website. As resources permit, we will with an expert outside panel, such as also convert non-compliant submissions III. Presentations and Comment Letters the Advisory Panel on Hospital to 508 compliant forms and offer Outpatient Payment (the Panel), The subject matter of any presentation assistance to submitters who are making regarding the clinical integrity of the and comment letter must be within the their submissions 508 compliant. All Ambulatory Payment Classification scope of the Panel designated in the 508 compliant presentations and (APC) groups and relative payment Charter. Any presentations or comments comment letters will be made available weights. The Panel is governed by the outside of the scope of the Panel will be on the CMS website. If difficulties are provisions of the Federal Advisory returned or requested for amendment. encountered accessing the materials, Committee Act (Pub. L. 92–463), as Unrelated topics include, but are not please contact the Designated Federal amended (5 U.S.C. Appendix 2), to set limited to; the conversion factor, charge Official (DFO) (the DFO’s address, forth standards for the formation and compression, revisions to the cost email, and phone number are provided use of advisory panels. We consider the report, pass-through payments, correct in the FOR FURTHER INFORMATION technical advice provided by the Panel coding, new technology applications CONTACT section of this notice). as we prepare the proposed and final (including supporting information/ In order to consider presentations rules to update the Hospital Outpatient documentation), provider payment and/or comment letters, we will need to Prospective Payment System (OPPS) for adjustments, supervision of hospital receive the following: the following calendar year. outpatient diagnostic services, and the 1. An email copy of the presentation types of practitioners that are permitted or comment letters sent to the DFO II. Meeting Agenda to supervise hospital outpatient mailbox, [email protected]. The agenda for the August 31, 2020 services. The Panel may not recommend 2. Form CMS–20017 with complete Panel meeting will provide for that services be designated as contact information that includes name, discussion and comment on the nonsurgical extended duration address, phone number, and email following topics as designated in the therapeutic services. Presentations or addresses for all presenters, comment Panel’s Charter: Comment Letters that address OPPS letters, and a contact person who can • Addressing whether procedures APC rates as they relate to covered ASC answer any questions, and provide within an APC group are similar both procedures are within the scope of the revisions that are requested, for the clinically and in terms of resource use. panel, however, ASC payment rates, presentation or comment letter. • Reconfiguring APCs. ASC payment indicators, the ASC Presenters and commenter letters must • Evaluating APC group weights. covered procedures list, or other ASC clearly explain the actions that they are • Reviewing packaging the cost of payment system matters will be requesting CMS to take in the items and services, including drugs and considered out of scope. appropriate section of the form. A devices, into procedures and services, The Panel may use data collected or presenter or commenter’s relationship including the methodology for developed by entities and organizations with the organization that they packaging and the impact of packaging other than Department of Health and represent must also be clearly listed.

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• The form is available through the Calendar Year (CY) 2020 and end in CY that is, reporting, recordkeeping, or CMS Forms website at: https:// 2024. The Secretary rechartered the third-party disclosure requirements. www.cms.gov/Medicare/CMS-Forms/ Panel in 2018 for a 2-year period Consequently, there is no need for CMS-Forms/downloads/cms20017.pdf. effective through November 20, 2020. review by the Office of Management and • We encourage submitters to make The current charter is available on the Budget under the authority of the efforts to ensure that their presentations CMS website at: https://www.cms.gov/ Paperwork Reduction Act of 1995 (44 and comment letters are 508 compliant. Regulations-and-Guidance/Guidance/ U.S.C. 3501 et seq.). FACA/Downloads/2018-HOP-Panel- IV. Formal Presentations The Administrator of the Centers for Charter.pdf. The Panel presently Medicare & Medicaid Services (CMS), In addition to formal presentations consists of members and a Chair named Seema Verma, having reviewed and (limited to 5 minutes total per below. The panel members whose approved this document, authorizes presentation), there will be an names are annotated with a single Lynette Wilson, who is the Federal opportunity during the meeting for asterisk (*) are members that had terms Register Liaison, to electronically sign public comments as time permits that otherwise would have expired but this document for purposes of (limited to 1 minute for each individual are continuing to serve temporarily in publication in the Federal Register. and a total of 3 minutes per accordance with the charter while we Dated: August 4, 2020. organization). search for new members. The panel members whose names are annotated Lynette Wilson, V. Panel Recommendations and Federal Register Liaison, Department of Discussions with a double asterisk (**) are new members and have a 4 year term Health and Human Services. The Panel’s recommendations at any beginning on July 16, 2020 and [FR Doc. 2020–17398 Filed 8–5–20; 4:15 pm] Panel meeting generally are not final continuing through July 15, 2024. BILLING CODE 4120–01–P until they have been reviewed and • E.L. Hambrick, M.D., J.D., CMS approved by the Panel on the last day Chairperson of the meeting, before the final • Terry Bohlke, C.P.A., C.M.A, M.H.A., DEPARTMENT OF HEALTH AND adjournment. These recommendations C.A.S.C HUMAN SERVICES will be posted to our website after the • Carmen Cooper-Oguz, P.T., D.P.T, Food and Drug Administration meeting. M.B.A, C.W.S, W.C.C • VI. Membership Appointments to the Paul Courtney, M.D. [Docket No. FDA–2020–D–1480] • Peter Duffy, M.D. Advisory Panel on Hospital Outpatient • Shelly Dunham, R.N. (*) Drug-Drug Interaction Assessment for Payment • Lisa Gangarosa, M.D. Therapeutic Proteins; Draft Guidance The Panel Charter provides that the • Erika Hardy, R.H.I.A., C.D.I.P, C.C.S. for Industry; Availability Panel shall meet up to 3 times annually. (*) We consider the technical advice • Michael Kuettel, M.D., M.B.A, Ph.D. AGENCY: Food and Drug Administration, provided by the Panel as we prepare the • Karen A. Lambert (*) Health and Human Services (HHS). • proposed and final rules to update the Scott Manaker, M.D., Ph.D.** ACTION: Notice of availability. • Brian Nester, D.O., M.B.A. ** OPPS for the following calendar year. • The Panel shall consist of a chair and Bo Gately, M.B.A. ** SUMMARY: The Food and Drug • Matthew Wheatley, M.D., F.A.C.E.P. up to 15 members who are full-time Administration (FDA or Agency) is ** employees of hospitals, hospital announcing the availability of a draft systems, or other Medicare providers VII. Provisions of the Notice guidance for industry entitled ‘‘Drug- Drug Interaction Assessment for that are subject to the OPPS. The panel We published a notice in the Federal may also include a representative of the Therapeutic Proteins.’’ The purpose of Register on January 26, 2018, entitled this guidance is to provide a systematic, provider with ASC expertise, who shall ‘‘Medicare Program; Request for advise CMS only on OPPS APC rates, as risk-based approach to help sponsors of Nominations to the Advisory Panel on investigational new drug applications appropriate, impacting ASC covered Hospital Outpatient Payment’’ (83 FR procedures within the context and (INDs) and applicants of biologic license 3715). The notice solicited nominations applications (BLAs) determine the need purview of the panel’s scope. The for the Panel members on a continuous Secretary or a designee selects the Panel for drug-drug interaction (DDI) studies basis to fill the vacancies on the Panel. for a therapeutic protein (TP). membership based upon either self- As published in this notice, CMS is nominations or nominations submitted accepting nominations on a continuous DATES: Submit either electronic or by Medicare providers and other basis and encourages additional written comments on the draft guidance interested organizations of candidates submissions. Any interested person or by November 9, 2020 to ensure that the determined to have the required organization may nominate qualified Agency considers your comment on this expertise. For supervision deliberations, individuals. Self-nominations from draft guidance before it begins work on the Panel shall also include members qualified individuals are also accepted. the final version of the guidance. that represent the interests of Critical Additional information including ADDRESSES: You may submit comments Access Hospitals, who advice CMS only criteria for nominees as well as on any guidance at any time as follows: regarding the level of supervision for submission requirements are available Electronic Submissions hospital outpatient therapeutic services. in the notice, which is accessible from New appointments are made in a the CMS website at: https:// Submit electronic comments in the manner that ensures a balanced www.govinfo.gov/content/pkg/FR-2018- following way: membership under the Federal Advisory 01-26/pdf/2018-01474.pdf. • Federal eRulemaking Portal: Committee Act guidelines. https://www.regulations.gov. Follow the This notice also announces four new VIII. Collection of Information instructions for submitting comments. membership appointments to the Panel. Requirements Comments submitted electronically, The four new members will each serve This document does not impose including attachments, to https:// a 4-year period, with terms that begin in information collection requirements, www.regulations.gov will be posted to

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the docket unchanged. Because your both copies to the Dockets Management continued market growth and increased comment will be made public, you are Staff. If you do not wish your name and clinical use of TPs, it is important to solely responsible for ensuring that your contact information to be made publicly understand the nature of and the comment does not include any available, you can provide this potential for DDIs with these products. confidential information that you or a information on the cover sheet and not This guidance supplements the final third party may not wish to be posted, in the body of your comments and you FDA guidances for industry entitled ‘‘In such as medical information, your or must identify this information as Vitro Drug Interaction Studies— anyone else’s Social Security number, or ‘‘confidential.’’ Any information marked Cytochrome P450 Enzyme- and confidential business information, such as ‘‘confidential’’ will not be disclosed Transporter-Mediated Drug as a manufacturing process. Please note except in accordance with 21 CFR 10.20 Interactions’’ and ‘‘Clinical Drug that if you include your name, contact and other applicable disclosure law. For Interaction Studies—Cytochrome P450 information, or other information that more information about FDA’s posting Enzyme- and Transporter-Mediated identifies you in the body of your of comments to public dockets, see 80 Drug Interactions’’ (January 2020) by comments, that information will be FR 56469, September 18, 2015, or access providing a systematic, risk-based posted on https://www.regulations.gov. the information at: https:// • approach to determining the need for If you want to submit a comment www.govinfo.gov/content/pkg/FR-2015- DDI studies for TPs. This guidance with confidential information that you 09-18/pdf/2015-23389.pdf. discusses considerations for assessing do not wish to be made available to the Docket: For access to the docket to DDIs for TPs, including situations where public, submit the comment as a read background documents or the determining the DDI potential of a TP is written/paper submission and in the electronic and written/paper comments warranted. The guidance also discusses manner detailed (see ‘‘Written/Paper received, go to https:// various types of DDI assessments, Submissions’’ and ‘‘Instructions’’). www.regulations.gov and insert the considerations for study design, and Written/Paper Submissions docket number, found in brackets in the recommendations for labeling. heading of this document, into the Submit written/paper submissions as ‘‘Search’’ box and follow the prompts This draft guidance is being issued follows: and/or go to the Dockets Management consistent with FDA’s good guidance • Mail/Hand delivery/Courier (for Staff, 5630 Fishers Lane, Rm. 1061, practices regulation (21 CFR 10.115). written/paper submissions): Dockets Rockville, MD 20852. 240–402–7500. The draft guidance, when finalized, will Management Staff (HFA–305), Food and You may submit comments on any represent the current thinking of FDA Drug Administration, 5630 Fishers guidance at any time (see 21 CFR on ‘‘Drug-Drug Interaction Assessment Lane, Rm. 1061, Rockville, MD 20852. for Therapeutic Proteins.’’ It does not • 10.115(g)(5)). For written/paper comments establish any rights for any person and submitted to the Dockets Management Submit written requests for single copies of the draft guidance to the is not binding on FDA or the public. Staff, FDA will post your comment, as You can use an alternative approach if well as any attachments, except for Division of Drug Information, Center for Drug Evaluation and Research, Food it satisfies the requirements of the information submitted, marked and applicable statutes and regulations. identified, as confidential, if submitted and Drug Administration, 10001 New as detailed in ‘‘Instructions.’’ Hampshire Ave., Hillandale Building, II. Paperwork Reduction Act of 1995 Instructions: All submissions received 4th Floor, Silver Spring, MD 20993– must include the Docket No. FDA– 0002 or the Office of Communication, This draft guidance refers to 2020–D–1480 for ‘‘Drug-Drug Outreach, and Development, Center for previously approved FDA collections of Interaction Assessment for Therapeutic Biologics Evaluation and Research, information. These collections of Proteins.’’ Received comments will be Food and Drug Administration, 10903 information are subject to review by the placed in the docket and, except for New Hampshire Ave., Bldg. 71, Rm. Office of Management and Budget those submitted as ‘‘Confidential 3128, Silver Spring, MD 20993–0002. (OMB) under the Paperwork Reduction Submissions,’’ publicly viewable at Send one self-addressed adhesive label Act of 1995 (44 U.S.C. 3501–3521). The https://www.regulations.gov or at the to assist that office in processing your collections of information for Dockets Management Staff between 9 requests. See the SUPPLEMENTARY submissions of investigational new drug a.m. and 4 p.m., Monday through INFORMATION section for electronic applications, new drug applications, Friday. 240–420–7500. access to the draft guidance document. and biologic license applications in 21 • Confidential Submissions—To FOR FURTHER INFORMATION CONTACT: CFR parts 312, 314, and 601 have been submit a comment with confidential Elimika Pfuma Fletcher, Center for Drug approved under OMB control numbers information that you do not wish to be Evaluation and Research, Food and 0910–0014, 0910–0001, and 0910–0338, made publicly available, submit your Drug Administration, 10903 New respectively. In addition, the comments only as a written/paper Hampshire Ave., Bldg. 51, Rm. 2162, submission of prescription drug labeling submission. You should submit two Silver Spring, MD 20993, 301–796– under 21 CFR 201.56 and 201.57 has copies total. One copy will include the 3473; or Stephen Ripley, Center for been approved under OMB control information you claim to be confidential Biologics Evaluation and Research, number 0910–0572. with a heading or cover note that states Food and Drug Administration, 10903 III. Electronic Access ‘‘THIS DOCUMENT CONTAINS New Hampshire Ave., Bldg. 71, Rm. CONFIDENTIAL INFORMATION.’’ The 7301, Silver Spring, MD 20993–0002, Persons with access to the internet Agency will review this copy, including 240–402–7911. may obtain the draft guidance at either the claimed confidential information, in SUPPLEMENTARY INFORMATION: https://www.fda.gov/drugs/guidance- its consideration of comments. The compliance-regulatory-information/ second copy, which will have the I. Background guidances-drugs, https://www.fda.gov/ claimed confidential information FDA is announcing the availability of vaccines-blood-biologics/guidance- redacted/blacked out, will be available a draft guidance for industry entitled compliance-regulatory-information- for public viewing and posted on ‘‘Drug-Drug Interaction Assessment for biologics/biologics-guidances, or https:// https://www.regulations.gov. Submit Therapeutic Proteins.’’ With the www.regulations.gov.

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Dated: August 4, 2020. manner; (3) is the estimate of burden on plan approval, to ensure operations Lowell J. Schiller, accurate; (4) how might BOEM enhance are conducted according to all Principal Associate Commissioner for Policy. the quality, utility, and clarity of the applicable regulations and plan [FR Doc. 2020–17412 Filed 8–7–20; 8:45 am] information to be collected; and (5) how conditions of approval, and to inform BILLING CODE 4164–01–P might BOEM minimize the burden of State and regional planning this collection on the respondents, organizations’ modeling efforts. including minimizing the burden BOEM prepares an Emissions Inventory every three years to help DEPARTMENT OF THE INTERIOR through the use of information technology? ensure that its regulations comply with Bureau of Ocean Energy Management Comments that you submit in section 5(a)(8) of OCS Lands Act, 43 response to this notice are a matter of U.S.C. 1334(a)(8), and to implement the [OMB Control Number 1010–0057; Docket public record. BOEM will include or requirement at 30 CFR 550.303(k) and ID: BOEM–2017–0016] summarize each comment in our request 550.304(g). BOEM begins this effort by to Office of Management and Budget issuing an NTL with instructions about Agency Information Collection (OMB) for approval of this ICR. Before how lessees can submit basic Activities; Pollution Prevention and including your address, phone number, information about their operations that Control email address, or other personally are subject to sec. 5(a)(8) regulations, AGENCY: Bureau of Ocean Energy identifiable information in your from which BOEM’s software calculates Management, Interior comment, you should be aware that emissions information. BOEM is ACTION: Notice of Information your entire comment—including your planning to issue the next such Collection; request for comment. personally identifiable information— guidance in the Fall for a collection may be made publicly available at any period in calendar year 2021. These SUMMARY: In accordance with the time. In order for BOEM to withhold emission inventories provide BOEM Paperwork Reduction Act of 1995, the from disclosure your personally with the essential input needed to Bureau of Ocean Energy Management identifiable information, you must assess offshore OCS oil and gas activity (BOEM) is proposing to renew an identify any information contained in impacts to the states as mandated by the information collection with revisions. the submittal of your comments that, if OCSLA. They also provide the states the DATES: Interested persons are invited to released, would constitute a clearly essential tools needed to perform their submit comments on or before October unwarranted invasion of your personal State Implementation Plan 9, 2020. privacy. You must also briefly describe demonstrations to the U.S. ADDRESSES: Send your comments on any possible harmful consequences of Environmental Protection Agency this information collection request (ICR) the disclosure of information, such as (USEPA), and they provide the to the BOEM Information Collection embarrassment, injury, or other harm. operators essential data for their Clearance Officer, Anna Atkinson, While you can ask us in your comment mandatory reporting of greenhouse Bureau of Ocean Energy Management, to withhold your personally identifiable gases to the USEPA. 45600 Woodland Road, VAM–DIR, information from public review, we BOEM is developing and planning to Sterling, Virginia 20166 (mail); or by cannot guarantee that we will be able to implement a web-based solution that email to [email protected]. do so. will allow operators to submit their Please reference OMB Control Number Abstract: Section 5(a) of the Outer platform and non-platform activity data 1010–0057 in the subject line of your Continental Shelf (OCS) Lands Act, as electronically, instantaneously calculate comments. amended (43 U.S.C. 1334(a)), authorizes monthly and annual emissions, quality the Secretary of the Interior (Secretary) assure and control data, and generate FOR FURTHER INFORMATION CONTACT: To to prescribe rules and regulations to reports, such as emission inventory request additional information about manage the mineral resources of the reports, and data graphics to the this ICR, contact Anna Atkinson, 703– OCS. Such rules and regulations apply operators and to BOEM. To collect the 787–1205, or by email at to all operations conducted under a necessary emissions data from [email protected]. lease, right-of-use and easement, and companies, BOEM currently uses the SUPPLEMENTARY INFORMATION: In pipeline right-of-way. Gulfwide Offshore Activity Data System accordance with the Paperwork Section 5(a)(8) of the OCS Lands Act (GOADS) software. This software is out Reduction Act of 1995, we provide the (43 U.S.C. 1334(a)(8)) requires that of date and resides on a platform that general public and other Federal regulations prescribed by the Secretary BOEM is no longer able to utilize agencies with an opportunity to include provisions ‘‘for compliance satisfactorily. Therefore, BOEM plans to comment on new, proposed, revised, with the national ambient air quality implement a new web-based solution and continuing collections of standards pursuant to the Clean Air Act that would allow users to input their information. This helps us assess the (42 U.S.C. 7401 et seq.), to the extent information directly into the system, impact of our information collection that activities authorized under this which in turn will allow BOEM to requirements and minimize the public’s subchapter significantly affect the air access the data and create reports reporting burden. It also helps the quality of any State.’’ This information needed to assess oil and gas source public understand our information collection renewal with revisions impacts to States. Unlike the existing collection requirements and provide the concerns information that is submitted tool, the new solution will make it easy requested data in the desired format. in response to regulatory requirements, for users to enter activity data, calculate BOEM is soliciting comments on the such as the regulations at 30 CFR part emissions data in real-time for users, proposed ICR that is described below. 550, subpart C, Pollution Prevention and leverage built-in validation features BOEM is especially interested in public and Control that implement section to quality check the calculations prior to comment addressing the following 5(a)(8) and related Notices to Lessees submission. issues: (1) Is the collection necessary to and Operators (NTLs) that clarify and BOEM protects proprietary the proper functions of BOEM; (2) what provide additional guidance on some information according to the Freedom of can BOEM do to ensure this information aspects of these regulations. BOEM uses Information Act (FOIA) (5 U.S.C. 552) will be processed and used in a timely the information to inform its decisions and the Department of the Interior’s

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implementing FOIA regulations (43 CFR Type of Review: Revision of a Total Estimated Annual Non-hour part 2) and under regulations at 30 CFR currently approved collection. Burden Cost: None. 550.197, ‘‘Data and information to be Respondents/Affected Public: Estimated Reporting and Potential respondents comprise Federal made available to the public or for Recordkeeping Hour Burden: We limited inspection,’’ promulgated OCS oil and gas or sulphur lessees and estimate the annual burden for this pursuant to sec. 26 of OCSLA (43 U.S.C. States. collection to be 35,200 hours, which are 1352(c).’’ Total Estimated Number of Annual Title of Collection: 30 CFR Part 550, Respondents: 807. the same hours estimated in past reports Subpart C, Pollution Prevention and Respondent’s Obligation: Mandatory accepted by OMB. The following table Control. or Required to Obtain or Retain a details the individual BOEM OMB Control Number: 1010–0057. Benefit. components and respective hour burden Form Number: None. Frequency: Every three years. estimates of this ICR.

BURDEN TABLE

Average Citation 30 CFR 550 subpart Reporting and recordkeeping number Annual C and related NTL(s) requirement Hour burden of annual burden responses hours

Facilities described in new or revised EP or DPP

303; 304(a), (f) ...... Submit, modify, or revise Ex- Burden covered under 1010–0151 (30 CFR 0 ploration Plans and Devel- Part 550, Subpart B). opment and Production Plans; submit information required under 30 CFR Part 550, Subpart B.

303(k); 304(a), (g); NTL ...... Collect and report (in manner 44 hrs per facility ...... 794 facilities 34,936 specified) air quality emis- sions related data (such as facility, equipment, fuel usage, and other activity in- formation) during each specified calendar year for input into BOEM’s impacts assessments, and State and regional planning orga- nizations’ modeling through specified software. (NTL OCS Emissions Inventory). 303(l); 304(h) ...... Collect and submit (in manner 8 ...... 1 submission 8 specified) meteorological data (not routinely col- lected); emission data for existing facilities to a State.

Subtotal ...... 795 34,944

Existing Facilities

304(a), (f) ...... Affected State may submit re- 16 ...... 5 requests 80 quest with required informa- tion to BOEM for basic emission data from existing facilities to update State’s emission inventory. 304(e)(2) ...... Submit compliance schedule 40 ...... 1 schedule 40 for application of best avail- able control technology (BACT).

304(e)(2) ...... Apply for suspension of oper- Burden covered under BSEE 1014–0022 (30 0 ations. CFR 250.174)

304(f) ...... Submit information to dem- 16 ...... 1 submission 16 onstrate that exempt facility is not significantly affecting air quality of onshore area of a State. Submit addi- tional information, as re- quired.

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BURDEN TABLE—Continued

Average Citation 30 CFR 550 subpart Reporting and recordkeeping number Annual C and related NTL(s) requirement Hour burden of annual burden responses hours

Subtotal ...... 7 136

General

303–304 ...... Departure and alternative 24 ...... 5 requests 120 compliance requests not specifically covered else- where in subpart C regula- tions.

Subtotal ...... 5 120

Total Burden ...... 807 35,200

An agency may not conduct or patent’’); U.S. Patent No. 6,950,469 (‘‘the (1) Pursuant to subsection (b) of sponsor, and a person is not required to ’469 patent’’); U.S. Patent No. 7,724,818 section 337 of the Tariff Act of 1930, as respond to, a collection of information (‘‘the ’818 patent’’); and U.S. Patent No. amended, an investigation be instituted unless it displays a currently valid OMB 8,583,706 (‘‘the ’706 patent’’). The to determine whether there is a control number. complaint further alleges that an violation of subsection (a)(1)(B) of The authority for this action is the industry in the United States exists as section 337 in the importation into the Paperwork Reduction Act of 1995 (44 required by the applicable Federal United States, the sale for importation, U.S.C. 3501 et seq.). Statute. The complainants request that or the sale within the United States after Deanna Meyer-Pietruszka, the Commission institute an importation of certain products investigation and, after the identified in paragraph (2) by reason of Chief, Office of Policy, Regulations, and Analysis. investigation, issue a limited exclusion infringement of one or more of claims 1, order and cease and desist orders. 2, 5–7, 9–13, 15, 16, 18, 21–23, 25–29, [FR Doc. 2020–17405 Filed 8–7–20; 8:45 am] 31, 32, 35–37, 39–47, 49, 52–54, and 56– BILLING CODE 4310–MR–P ADDRESSES: The complaint, except for any confidential information contained 62 of the ’764 patent; claims 1–4, 6, 7, therein, may be viewed on the 9–13, 15–18, 20–30, 32–41, 43–49, 51– Commission’s electronic docket (EDIS) 60, and 62–65 of the ’808 patent; claims INTERNATIONAL TRADE 1–7, 9, 15, 16, 18, 20–25, 27–30, and 50 COMMISSION at https://edis.usitc.gov. For help accessing EDIS, please email of the ’469 patent; claims 1–15 and 20– [Investigation No. 337–TA–1208] [email protected]. Hearing impaired 23 of the ’818 patent; and claims 1–16 individuals are advised that information of the ’706 patent; and whether an Certain Electronic Devices, Including on this matter can be obtained by industry in the United States exists as Computers, Tablet Computers, and contacting the Commission’s TDD required by subsection (a)(2) of section Components and Modules Thereof; terminal on (202) 205–1810. Persons 337; Notice of Institution with mobility impairments who will (2) Pursuant to section 210.10(b)(1) of AGENCY: U.S. International Trade need special assistance in gaining access the Commission’s Rules of Practice and Commission. to the Commission should contact the Procedure, 19 CFR 210.10(b)(1), the plain language description of the ACTION: Notice. Office of the Secretary at (202) 205– 2000. General information concerning accused products or category of accused SUMMARY: Notice is hereby given that a the Commission may also be obtained products, which defines the scope of the complaint was filed with the U.S. by accessing its internet server at investigation, is ‘‘laptop computers, International Trade Commission on July https://www.usitc.gov. notebook computers, desktop 2, 2020, under section 337 of the Tariff computers, tablets, smart home devices, FOR FURTHER INFORMATION CONTACT: Act of 1930, as amended, on behalf of and servers.’’; Pathenia M. Proctor, The Office of Nokia Technologies Oy of Finland and (3) Pursuant to Commission Rule Unfair Import Investigations, U.S. Nokia Corporation of Finland. 210.50(b)(1), 19 CFR 210.50(b)(1), the International Trade Commission, Supplements to the complaint were presiding administrative law judge shall telephone (202) 205–2560. filed on July 17, 20, and 22, 2020. The take evidence or other information and complaint alleges violations of section SUPPLEMENTARY INFORMATION: The hear arguments from the parties or other 337 based upon the importation into the authority for institution of this interested persons with respect to the United States, the sale for importation, investigation is contained in section 337 public interest in this investigation, as and the sale within the United States of the Tariff Act of 1930, as amended, appropriate, and provide the after importation of certain electronic 19 U.S.C. 1337, and in section 210.10 of Commission with findings of fact and a devices, including computers, tablet the Commission’s Rules of Practice and recommended determination on this computers, and components and Procedure, 19 CFR 210.10 (2020). issue, which shall be limited to the modules thereof by reason of Scope of Investigation: Having statutory public interest factors set forth infringement of certain claims of U.S. considered the complaint, the U.S. in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1); Patent No. 8,144,764 (‘‘the ’764 patent’’); International Trade Commission, on (4) For the purpose of the U.S. Patent No. 7,532,808 (‘‘the ’808 August 4, 2020, ordered that— investigation so instituted, the following

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are hereby named as parties upon which be granted unless good cause therefor is investigation and, after the this notice of investigation shall be shown. investigation, issue a limited exclusion served: Failure of a respondent to file a timely order and a cease and desist order. (a) The complainants are: response to each allegation in the ADDRESSES: The complaint, except for Nokia Technologies Oy, Karakaari 7A, complaint and in this notice may be any confidential information contained FIN–02610, Espoo, Finland. deemed to constitute a waiver of the therein, may be viewed on the Nokia Corporation, Karakaari 7A, FIN– right to appear and contest the Commission’s electronic docket (EDIS) 02610, Espoo, Finland. allegations of the complaint and this at https://edis.usitc.gov. For help (b) The respondents are the following notice, and to authorize the accessing EDIS, please email entities alleged to be in violation of administrative law judge and the [email protected]. Hearing impaired section 337, and are the parties upon Commission, without further notice to individuals are advised that information which the complaint is to be served: the respondent, to find the facts to be as on this matter can be obtained by Lenovo (United States), Inc., 8001 alleged in the complaint and this notice contacting the Commission’s TDD Development Drive, Morrisville, NC and to enter an initial determination terminal on (202) 205–1810. Persons 27560. and a final determination containing with mobility impairments who will Lenovo Group Limited, Lincoln House, such findings, and may result in the need special assistance in gaining access 23rd Floor, Taikoo Place, 979 King’s issuance of an exclusion order or a cease to the Commission should contact the Road, Quarry Bay, Hong Kong. and desist order or both directed against Office of the Secretary at (202) 205– Lenovo (Beijing) Limited, 6 Chuangye the respondent. 2000. General information concerning Rd., Shangdi Haidian District, 100085 By order of the Commission. the Commission may also be obtained Beijing, China. Issued: August 4, 2020. by accessing its internet server at https://www.usitc.gov. Lenovo (Shanghai) Electronics Lisa Barton, FOR FURTHER INFORMATION CONTACT: Technology Co. Ltd., No. 696 Songtao Secretary to the Commission. Katherine Hiner, Office of Docket Road, 200000 Shanghai, China. [FR Doc. 2020–17360 Filed 8–7–20; 8:45 am] Lenovo PC HK Limited, Lincoln House, Services, U.S. International Trade BILLING CODE 7020–02–P 23rd Floor, Taikoo Place, 979 King’s Commission, telephone (202) 205–1802. Road, Quarry Bay, Hong Kong. SUPPLEMENTARY INFORMATION: The Lenovo Information Products Shenzhen INTERNATIONAL TRADE authority for institution of this Co. Ltd., No. 30 Tao Hua Road, Free COMMISSION investigation is contained in section 337 Trade Zone, FuTian District, of the Tariff Act of 1930, as amended, Shenzhen City, Guangdong Province, [Investigation No. 337–TA–1209] 19 U.S.C. 1337, and in section 210.10 of 518038 Shenzhen, China. the Commission’s Rules of Practice and Certain Movable Barrier Operator Lenovo Mobile Communication, No. 19, Procedure, 19 CFR 210.10 (2020). Systems and Components Thereof; Gaoxin 4th Road, East Lake New SCOPE OF INVESTIGATION: Notice of Institution Having Technology Development Zone, considered the complaint, the U.S. Hubei, 430079 Wuhan, China. AGENCY: U.S. International Trade International Trade Commission, on Lenovo Corporation, No. 2088 Pangjin Commission. August 4, 2020, ordered that— Road, Wujiang City, Jiangsu, 215217 ACTION: Notice. (1) Pursuant to subsection (b) of Wujiang, China. section 337 of the Tariff Act of 1930, as Lenovo Centro Tecnologico S. de RL CV, SUMMARY: Notice is hereby given that a amended, an investigation be instituted Blvd. Escobedo No. 316, Parque complaint was filed with the U.S. to determine whether there is a Industrial Technology, 66600 International Trade Commission on July violation of subsection (a)(1)(B) of Apodaca, Nuevo Leon, Mexico. 6, 2020, under section 337 of the Tariff section 337 in the importation into the (c) The Office of Unfair Import Act of 1930, as amended, on behalf of United States, the sale for importation, Investigations, U.S. International Trade Overhead Door Corporation of or the sale within the United States after Commission, 500 E Street SW, Suite Lewisville, Texas and GMI Holdings importation of certain products 401, Washington, DC 20436; and Inc. of Mount Hope, Ohio. A identified in paragraph (2) by reason of (5) For the investigation so instituted, supplement to the complaint was filed infringement of one or more of claims 1, the Chief Administrative Law Judge, on July 22, 2020. The complaint alleges 2, 16, and 17 of the ’345 patent; claims U.S. International Trade Commission, violations of section 337 based upon the 1, 4, 16, and 19 of the ’935 patent; shall designate the presiding importation into the United States, the claims 10–12, 14–16, and 18 of the ’516 Administrative Law Judge. sale for importation, and the sale within patent; claims 1–3, 7, and 8 of the ’260 Responses to the complaint and the the United States after importation of patent; claims 18 and 24 of the ’718 notice of investigation must be certain movable barrier operator systems patent; and claim 17 of the ’895 patent, submitted by the named respondents in and components thereof by reason of and whether an industry in the United accordance with section 210.13 of the infringement of U.S. Patent No. States exists as required by subsection Commission’s Rules of Practice and 8,970,345 (‘‘the ’345 Patent’’); U.S. (a)(2) of section 337; Procedure, 19 CFR 210.13. Pursuant to Patent No. 9,483,935 (’’the ’935 Patent’’); (2) Pursuant to section 210.10(b)(1) of 19 CFR 201.16(e) and 210.13(a), as U.S. Patent No. 7,173,516 (‘‘the ’516 the Commission’s Rules of Practice and amended in 85 FR 15798 (March 19, Patent’’); U.S. Patent No. 7,180,260 (‘‘the Procedure, 19 CFR 210.10(b)(1), the 2020), such responses will be ’260 Patent’’); U.S. Patent No. 7,956,718 plain language description of the considered by the Commission if (‘‘the ’718 Patent’’); and U.S. Patent No. accused products or category of accused received not later than 20 days after the 8,410,895 (‘‘the ’895 Patent’’). The products, which defines the scope of the date of service by the complainants of complaint further alleges that an investigation, is ‘‘garage door systems the complaint and the notice of industry in the United States exists as and components thereof, remote investigation. Extensions of time for required by the applicable Federal controls, wireless transmitters, and submitting responses to the complaint Statute. The complainants request that software for operating the garage door and the notice of investigation will not the Commission institute an systems’’;

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(3) For the purpose of the DEPARTMENT OF JUSTICE Based Upon Respondent’s Untimely investigation so instituted, the following Hearing Request, dated Aug. 15, 2019, are hereby named as parties upon which Drug Enforcement Administration filed In re Tommy L. Louisville, M.D., this notice of investigation shall be DEA Docket No. 2019–36 (hereinafter, served: Tommy L. Louisville, M.D.; Decision Government Submission), Attachment 3 and Order (a) The complainants are: (hereinafter, TDDI Declaration), at 2. When Registrant was not at his Overhead Door Corporation, 2501 South On June 28, 2019, the Assistant Administrator, Diversion Control residence, she reached him by State Highway 121, Bus., Suite 200, telephone, explained that she had the Lewisville, TX 75067. Division, Drug Enforcement Administration (hereinafter, DEA or OSC to deliver to him, and learned that GMI Holdings Inc., One Door Drive, he was in Miami. Id. at 3. When Mount Hope, OH 44660. Government), issued an Order to Show Cause (hereinafter, OSC) to Tommy L. Registrant asked if DEA could serve the (b) The respondent is the following Louisville, M.D. (hereinafter, Registrant) OSC on his attorney, TDDI responded entity alleged to be in violation of of Lakeland, Florida. OSC, at 1. The that ‘‘this was a permissible section 337, and is the party upon OSC proposed the revocation of arrangement if that was his preference.’’ which the complaint is to be served: Id. According to the TDDI Declaration, Registrant’s Certificate of Registration Registrant ‘‘reiterated’’ that service on The Chamberlain Group, Inc., 300 No. AL9587330. Id. It alleged that his attorney was his preference. Id. Windsor Drive, Oak Brook, IL 60523. Registrant does ‘‘not have authority to TDDI stated that she informed MDDI of (4) For the investigation so instituted, handle controlled substances in Florida, the Chief Administrative Law Judge, Registrant’s preference. Id. the state in which . . . [he is] registered In a sworn Declaration, dated August U.S. International Trade Commission, with the DEA.’’ Id. (citing 21 U.S.C. 13, 2019, MDDI stated that he left the shall designate the presiding 823(f) and 824(a)(3)). OSC with Registrant’s attorney on July Administrative Law Judge. Specifically, the OSC alleged that, 8, 2019. Government Submission, The Office of Unfair Import ‘‘effective May 31, 2019, the [State of Attachment 4 (hereinafter, MDDI Investigations will not participate as a Florida] Board [of Medicine, (hereinafter Declaration), at 2–3. MDDI stated that party in this investigation. FBM)] issued its Final Order whereby later the same day, the attorney sent him Responses to the complaint and the . . . [Registrant’s] license to practice written confirmation of receipt of the notice of investigation must be medicine (License No. ME0037525) was OSC and of the forwarding of the OSC submitted by the named respondent in suspended for a period of two years.’’ to Registrant. Id. at 3; see also accordance with section 210.13 of the OSC, at 1–2. The OSC further alleged Government Submission, Attachment 2, Commission’s Rules of Practice and that ‘‘[a]s of the date of this . . . [OSC], at 1 (attorney’s written confirmation). Procedure, 19 CFR 210.13. Pursuant to the suspension of . . . [Registrant’s] I agree with Administrative Law Judge 19 CFR 201.16(e) and 210.13(a), as Florida medical license has not been Charles Wm. Dorman (hereinafter, ALJ) amended in 85 FR 15798 (March 19, lifted’’ and ‘‘[a]s a result, . . . [he] that service of the OSC was proper. 2020), such responses will be currently lack[s] authority to handle Order Terminating Proceedings, dated considered by the Commission if controlled substances in Florida.’’ Id. at Sept. 10, 2019 (hereinafter, OTP), at 6. received not later than 20 days after the 2 (citing 21 U.S.C. 802(21), 823(f), and Hearing Request date of service by the complainant of the 824(a)(3)). The OSC concluded that complaint and the notice of ‘‘DEA must revoke . . . [Registrant’s By letter, dated August 8, 2019, the investigation. Extensions of time for registration] based upon . . . [his] lack same attorney who accepted service of submitting responses to the complaint of authority to handle controlled the OSC for Registrant transmitted a and the notice of investigation will not substances in the State of Florida.’’ OSC, hearing request (hereinafter, Hearing be granted unless good cause therefor is at 2. Request) to the Office of Administrative shown. The OSC notified Registrant of the Law Judges (hereinafter, OALJ).1 The Failure of the respondent to file a right to request a hearing on the Hearing Request was emailed and timely response to each allegation in the allegations or to submit a written received on August 8, 2019. It was also complaint and in this notice may be statement, while waiving the right to a sent Federal Express and stamped deemed to constitute a waiver of the hearing, the procedures for electing each ‘‘received’’ by OALJ on August 13, 2019. right to appear and contest the option, and the consequences for failing Hearing Request, at 1. According to the nine-page Hearing allegations of the complaint and this to elect either option. Id. (citing 21 CFR Request, Registrant acknowledged the notice, and to authorize the 1301.43). The OSC also notified suspension of his Florida medical administrative law judge and the Registrant of the opportunity to submit license, advised that he appealed it, and Commission, without further notice to a corrective action plan. OSC, at 3 stated that he ‘‘is in the process of filing the respondent, to find the facts to be as (citing 21 U.S.C. 824(c)(2)(C)). a Motion to Stay the . . . [FBM] Final alleged in the complaint and this notice Adequacy of Service Order.’’ Id. ‘‘Accordingly,’’ the Hearing and to enter an initial determination Request concludes, ‘‘DEA acted and a final determination containing In a sworn Declaration, dated August 13, 2019, a DEA Diversion Investigator prematurely in issuing an Order to such findings, and may result in the Show Cause in this matter.’’ Id. ‘‘We issuance of an exclusion order or a cease assigned to the Tampa District Office of the Miami Division (hereinafter, TDDI) and desist order or both directed against 1 Among the nine pages comprising the Hearing the respondent. stated that she attempted personal service of the OSC on Registrant at the Request is Form DEA–12 signed by Registrant’s By order of the Commission. attorney showing his receipt of the OSC ‘‘on behalf request of a DI assigned to the Miami of’’ Registrant on July 8, 2019. Hearing Request, at Issued: August 4, 2020. Division (hereinafter, MDDI). 7. Lisa Barton, Government’s Submission Regarding The Hearing Request states that ‘‘[a]ll notices to Secretary to the Commission. Service of Order to Show Cause Upon be sent pursuant to the proceeding in this matter should be addressed to’’ the attorney and, under [FR Doc. 2020–17358 Filed 8–7–20; 8:45 am] Legal Counsel of Respondent and ‘‘Contact Information for Proceeding,’’ provides a BILLING CODE 7020–02–P Motion for Termination of Proceedings physical address. Id. at 2.

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hope this information will be helpful to Docket No. 2019–36, Attachment 2 defined the term ‘‘practitioner’’ to mean you in making your decision,’’ the last (Final FBM Order on License No. ‘‘a physician . . . or other person paragraph of the Hearing Request states, ME0037525), at 2–3. The FBM’s action licensed, registered, or otherwise ‘‘and we look forward to a swift was effective May 31, 2019. Id. at 1, 3. permitted, by . . . the jurisdiction in resolution of this issue.’’ Id. at 3. The FBM Final Order also permanently which he practices ..., to distribute, I agree with the ALJ that the Hearing prohibited Registrant from certifying dispense, . . . [or] administer . . . a Request was not timely filed. OTP, at 7; patients for medical marijuana and from controlled substance in the course of see also 21 CFR 1301.43 (instructing practicing telemedicine. Id. at 2. professional practice.’’ 21 U.S.C. that a hearing request shall be filed According to Florida’s online records, 802(21). Second, in setting the within 30 days after receipt of the OSC). of which I take official notice, requirements for obtaining a I note that the Hearing Request did not Registrant’s medical license remains practitioner’s registration, Congress acknowledge its untimeliness, let alone suspended.3 Florida Department of directed that ‘‘[t]he Attorney General provide good cause for it. Accordingly, Health MQA Search Services, Health shall register practitioners . . . if the I conclude that the ALJ acted properly Care Providers, https:// applicant is authorized to dispense . . . in terminating the proceeding. appsmqa.doh.state.fl.us/ controlled substances under the laws of The Government forwarded its MQASearchServices/ the State in which he practices.’’ 21 Request for Final Agency Action HealthCareProviders (last visited July U.S.C. 823(f). Because Congress has (hereinafter, RFAA), along with the 21, 2020). As such, I find that clearly mandated that a practitioner evidentiary record, to my office on Registrant’s Florida medical license is possess state authority in order to be January 8, 2020. In its RFAA, the suspended. deemed a practitioner under the CSA, Government represented that Discussion DEA has held repeatedly that revocation ‘‘[a]ccording to the most recent of a practitioner’s registration is the Pursuant to 21 U.S.C. 824(a)(3), the information obtained by DEA, appropriate sanction whenever he is no Attorney General is authorized to [Registrant’s Florida medical license] longer authorized to dispense controlled suspend or revoke a registration issued suspension remains in place and has not substances under the laws of the state in under section 823 of the CSA ‘‘upon a been lifted.’’ RFAA, at 5. Accordingly, which he practices. See, e.g., James L. finding that the registrant . . . has had the Government requested that Hooper, M.D., 76 FR at 71371–72; his State license or registration Registrant’s registration be revoked. Id. Sheran Arden Yeates, M.D., 71 FR suspended . . . [or] revoked . . . by I issue this Decision and Order based 39130, 39131 (2006); Dominick A. Ricci, competent State authority and is no on the record submitted by the M.D., 58 FR 51104, 51105 (1993); Bobby longer authorized by State law to engage Government in its RFAA and on the Watts, M.D., 53 FR 11919, 11920 (1988); in the . . . dispensing of controlled content of Docket No. 2019–36, which Frederick Marsh Blanton, M.D., 43 FR at substances.’’ With respect to a 27617. constitute the entire record before me. practitioner, DEA has also long held that 21 CFR 1301.43(e). According to Florida statute, ‘‘A the possession of authority to dispense practitioner, in good faith and in the Findings of Fact controlled substances under the laws of course of his or her professional practice the state in which a practitioner engages Registrant’s DEA Registration only, may prescribe, administer, [or] in professional practice is a dispense . . . a controlled substance.’’ Registrant is the holder of DEA fundamental condition for obtaining Fla. Stat. Ann. § 893.05(1)(a) (West, Certificate of Registration No. and maintaining a practitioner’s current with chapters from the 2020 AL9587330 at the registered address of registration. See, e.g., James L. Hooper, Second Regular Session of the 26th 1801 Crystal Lake Dr., Lakeland, FL M.D., 76 FR 71371 (2011), pet. for rev. Legislature in effect through May 18, 33801. RFAA, EX 2 (Facsimile of DEA denied, 481 F. App’x 826 (4th Cir. 2020). Further, ‘‘practitioner,’’ as Certificate of Registration Number 2012); Frederick Marsh Blanton, M.D., defined by Florida statute, includes ‘‘a AL9587330), at 1. Pursuant to this 43 FR 27616, 27617 (1978). physician licensed under chapter registration, Registrant is authorized to This rule derives from the text of two 458.’’ 4 Fla. Stat. Ann. § 893.02(23) dispense controlled substances in provisions of the CSA. First, Congress (West, current with chapters from the schedules II through V as a practitioner. 3 2020 Second Regular Session of the 26th Id. Registrant’s registration expired on Under the Administrative Procedure Act, an Legislature in effect through May 18, 2 agency ‘‘may take official notice of facts at any stage March 31, 2020. Id. in a proceeding—even in the final decision.’’ 2020). The Status of Registrant’s State License United States Department of Justice, Attorney Here, the undisputed evidence in the General’s Manual on the Administrative Procedure and Registration record is that Registrant’s license to Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint practice medicine is currently The Government submitted evidence 1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an agency decision rests on official notice of a material suspended. As such, he is not a that the FBM reprimanded Registrant fact not appearing in the evidence in the record, a ‘‘practitioner’’ as that term is defined by and suspended his medical license for party is entitled, on timely request, to an Florida law. Further, as already two years on May 30, 2019. opportunity to show the contrary.’’ Accordingly, discussed, a physician must be a Government’s Motion for Summary Applicant may dispute my finding by filing a properly supported motion for reconsideration of practitioner to dispense a controlled Disposition and Argument in Support of finding of fact within fifteen calendar days of the substance in Florida. Thus, since Finding that Respondent Lacks State date of this Order. Any such motion shall be filed Registrant lacks authority to practice Authorization to Handle Controlled with the Office of the Administrator and a copy medicine in Florida, he is also not Substances, dated Aug. 23, 2019, filed shall be served on the Government. In the event Applicant files a motion, the Government shall authorized to handle controlled In re Tommy L. Louisville, M.D., DEA have fifteen calendar days to file a response. Any substances in Florida. Accordingly, I such motion and response shall be filed and served will order that Registrant’s DEA 2 The fact that a Registrant’s registration expires by email on the other party at the email address the 5 during the pendency of an OSC does not impact my party submitted for receipt of communications registration be revoked. jurisdiction or prerogative under the Controlled related to this administrative proceeding, and on Substances Act (hereinafter, CSA) to adjudicate the the Office of the Administrator, Drug Enforcement 4 Chapter 458 regulates medical practice. OSC to finality. Jeffrey D. Olsen, M.D., 84 FR 68874 Administration at dea.addo.attorneys@ 5 I note the Hearing Request’s assertion that (2019). dea.usdoj.gov. Registrant appealed the FBM suspension of his

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Order —Evaluate the accuracy of the agency’s Square, 145 N Street NE, Suite 3E.405B, Pursuant to 28 CFR 0.100(b) and the estimate of the burden of the Washington, DC 20530. authority vested in me by 21 U.S.C. proposed collection of information, Dated: August 5, 2020. 824(a), I hereby revoke DEA Certificate including the validity of the Melody Braswell, methodology and assumptions used; of Registration No. AL9587330 issued to Department Clearance Officer for PRA, U.S. Tommy L. Louisville, M.D. This Order —Evaluate whether and if so how the Department of Justice. quality, utility, and clarity of the is effective September 9, 2020. [FR Doc. 2020–17377 Filed 8–7–20; 8:45 am] information proposed to be collected Timothy J. Shea, can be enhanced; and BILLING CODE 4410–09–P Acting Administrator. —Minimize the burden of the collection [FR Doc. 2020–17373 Filed 8–7–20; 8:45 am] of information on those who are to DEPARTMENT OF JUSTICE BILLING CODE 4410–09–P respond, including through the use of appropriate automated, electronic, [OMB Number 1117–0004] mechanical, or other forms of DEPARTMENT OF JUSTICE information technology, e.g., Agency Information Collection [OMB Number 1117–0009] permitting electronic submission of Activities; Proposed eCollection, responses. eComments Requested; Extension Agency Information Collection Without Change of a Previously Activities; Proposed eCollection, Overview of This Information Approved Collection; Application for eComments Requested; Extension Collection Permit To Export Controlled Without Change of a Previously 1. Type of Information Collection: Substances, Application for Permit To Approved Collection; Controlled Extension of a currently approved Export Controlled Substances for Substances Import/Export Declaration; collection. Subsequent Re-Export; DEA Forms DEA Form 236 2. Title of the Form/Collection: 161, 161R, 161R–EEA Controlled Substances Import/Export AGENCY: Drug Enforcement AGENCY: Drug Enforcement Declaration. Administration, Department of Justice. Administration, Department of Justice. 3. The agency form number, if any, ACTION: 30-Day Notice. and the applicable component of the ACTION: 30-Day notice. SUMMARY: The Department of Justice Department sponsoring the collection: SUMMARY: The Department of Justice (DOJ), Drug Enforcement Form Number: DEA Form 236. The (DOJ), Drug Enforcement Administration (DEA), will be Department of Justice component is the Administration (DEA), will be submitting the following information Drug Enforcement Administration, submitting the following information collection request to the Office of Office of Diversion Control. collection request to the Office of Management and Budget (OMB) for 4. Affected public who will be asked Management and Budget (OMB) for review and approval in accordance with or required to respond, as well as a brief review and approval in accordance with the Paperwork Reduction Act of 1995. abstract: the Paperwork Reduction Act of 1995. Affected public (Primary): Business or DATES: Comments are encouraged and DATES: Comments are encouraged and other for-profit. will be accepted for 30 days until will be accepted for additional 30 days Affected public (Other): None. September 9, 2020. until September 9, 2020. ADDRESSES: Written comments and Abstract: DEA Form 236 enables DEA ADDRESSES: Written comments and recommendations for the proposed to monitor and control the importation and exportation of controlled recommendations for the proposed information collection should be sent information collection should be sent within 30 days of publication of this substances. Analysis of these documents provides DEA with important within 30 days of publication of this notice to www.reginfo.gov/public/do/ notice to www.reginfo.gov/public/do/ PRAMain. Find this particular intelligence regarding the international PRAMain. Find this particular information collection by selecting commerce in controlled substances and information collection by selecting ‘‘Currently under 30-day Review—Open assists in the identification of suspected ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the points of diversion. for Public Comments’’ or by using the search function. 5. An estimate of the total number of search function. SUPPLEMENTARY INFORMATION: Written respondents and the amount of time SUPPLEMENTARY INFORMATION: comments and suggestions from the estimated for an average respondent to Written public and affected agencies concerning respond: DEA estimates that there are comments and suggestions from the the proposed collection of information 323 total respondents for this public and affected agencies concerning are encouraged. Your comments should information collection. In total, 323 the proposed collection of information address one or more of the following respondents submit 8154 responses, are encouraged. Your comments should four points: with each response taking 15 minutes to address one or more of the following four points: —Evaluate whether the proposed complete. collection of information is necessary 6. An estimate of the total public —Evaluate whether the proposed for the proper performance of the burden (in hours) associated with the collection of information is necessary functions of the agency, including proposed collection: The DEA estimates for the proper performance of the whether the information will have that this collection takes 2,039 annual functions of the agency, including practical utility; burden hours. whether the information will have If additional information is required practical utility; medical license. The pendency of such an appeal, please contact: Melody Braswell, —Evaluate the accuracy of the agency’s however, is irrelevant to my decision. See, e.g., Department Clearance Officer, United estimate of the burden of the James Alvin Chaney, M.D., 80 FR 57391, 57392 States Department of Justice, Justice proposed collection of information, (2015) (calling the fact that a state’s suspension order remains subject to challenge ‘‘of no Management Division, Policy and including the validity of the consequence’’ to the Agency’s decision to revoke). Planning Staff, Two Constitution methodology and assumptions used;

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—Evaluate whether and if so how the Department Clearance Officer, United whether the information will have quality, utility, and clarity of the States Department of Justice, Justice practical utility; information proposed to be collected Management Division, Policy and —Evaluate the accuracy of the agency’s can be enhanced; and Planning Staff, Two Constitution estimate of the burden of the —Minimize the burden of the collection Square, 145 N Street NE, Suite 3E.405B, proposed collection of information, of information on those who are to Washington, DC 20530. including the validity of the respond, including through the use of Dated: August 5, 2020. methodology and assumptions used; appropriate automated, electronic, Melody Braswell, —Evaluate whether and if so how the mechanical, or other forms of quality, utility, and clarity of the information technology, e.g., Department Clearance Officer for PRA, U.S. Department of Justice. information proposed to be collected permitting electronic submission of can be enhanced; and [FR Doc. 2020–17379 Filed 8–7–20; 8:45 am] responses. —Minimize the burden of the collection BILLING CODE 4410–09–P Overview of This Information of information on those who are to Collection respond, including through the use of DEPARTMENT OF JUSTICE appropriate automated, electronic, 1. Type of Information Collection: mechanical, or other forms of Extension of a currently approved [OMB Number 1117–0024] information technology, e.g., collection. permitting electronic submission of 2. Title of the Form/Collection: Agency Information Collection responses. Application for Permit to Export Activities; Proposed eCollection, Controlled Substances; Application for eComments Requested; Extension Overview of This Information Permit to Export Controlled Substances Without Change of a Previously Collection for Subsequent Re-export. Approved Collection; Reports of Loss 1. Type of Information Collection: 3. The agency form number, if any, or Disappearance of Listed Chemicals Extension of a currently approved and the applicable component of the and Regulated Transactions in collection. Department sponsoring the collection: Tableting/Encapsulating Machines; 2. Title of the Form/Collection: DEA Forms: 161, 161R, 161R–EEA. The DEA Forms 107 and 452 Reports of Loss or Disappearance of applicable component within the Listed Chemicals and Regulated Department of Justice is the Drug AGENCY: Drug Enforcement Transactions in Tableting/Encapsulating Enforcement Administration, Diversion Administration, Department of Justice. Machines. Control Division. ACTION: 30-Day notice. 3. The agency form number, if any, 4. Affected public who will be asked and the applicable component of the or required to respond, as well as a brief SUMMARY: The Department of Justice Department sponsoring the collection: abstract: (DOJ), Drug Enforcement DEA Forms 107 and 452. The applicable Affected public (Primary): Business or Administration (DEA), will be component within the Department of other for-profit. submitting the following information Justice is the Drug Enforcement Affected public (Other): Not-for-profit collection request to the Office of Administration, Diversion Control institutions; Federal, State, local, and Management and Budget (OMB) for Division. tribal governments. review and approval in accordance with 4. Affected public who will be asked Abstract: Title 21, Code of Federal the Paperwork Reduction Act of 1995. or required to respond, as well as a brief Regulations (21 CFR), Sections 1312.21 This proposed information collection abstract: and 1312.22 require that any person was previously published in the Federal Affected public (Primary): Business or who desires to export or re-export Register on June 03, 2020, allowing for other for-profit. controlled substances listed in a 60 day comment period. schedules I or II, any narcotic substance Affected public (Other): Not-for-profit DATES: Comments are encouraged and listed in schedules III or IV, or any non- institutions; Federal, State, local, and will be accepted for an additional 30 tribal governments. narcotic substance in schedule III which days until September 9, 2020. the Administrator has specifically Abstract: Each regulated person is designated by regulation in § 1312.30, or ADDRESSES: Written comments and required to report any unusual or any non-narcotic substance in schedules recommendations for the proposed excessive loss or disappearance of a IV or V which is also listed in schedule information collection should be sent listed chemical, and any regulated I or II of the Convention on within 30 days of publication of this transaction in a tableting or Psychotropic Substances, must have an notice to www.reginfo.gov/public/do/ encapsulating machine, to include any export permit. PRAMain. Find this particular domestic regulated transaction in a 5. An estimate of the total number of information collection by selecting tableting or encapsulating machine and respondents and the amount of time ‘‘Currently under 30-day Review—Open any import or export of a tableting or estimated for an average respondent to for Public Comments’’ or by using the encapsulating machine. 21 U.S.C. 830 respond: The DEA estimates that 127 search function. (b)(1)(A), (C) and (D); 21 CFR respondents, with 7,282 responses SUPPLEMENTARY INFORMATION: Written 1310.05(a)(1), (3)–(4); 21 CFR annually to this collection. The DEA comments and suggestions from the 1310.05(c). estimates that it takes .52719 hour to public and affected agencies concerning Regulated persons include complete the form. the proposed collection of information manufacturers, distributors, importers, 6. An estimate of the total public are encouraged. Your comments should and exporters of listed chemicals, burden (in hours) associated with the address one or more of the following tableting machines, or encapsulating proposed collection: The DEA estimates four points: machines, or persons who serve as that this collection takes 3,839 annual —Evaluate whether the proposed brokers or traders for international burden hours. collection of information is necessary transactions involving a listed chemical, If additional information is required for the proper performance of the tableting machine, or encapsulating please contact: Melody Braswell, functions of the agency, including machine. 21 CFR 1300.02(b).

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5. An estimate of the total number of DATES: Comments are encouraged and 3. The agency form number, if any, respondents and the amount of time will be accepted for 30 days until and the applicable component of the estimated for an average respondent to September 9, 2020. Department sponsoring the collection: respond: DEA estimates that 2,331 ADDRESSES: Written comments and DEA Forms: 486, 486A. The applicable persons respond as needed to this recommendations for the proposed component within the Department of collection. Responses take 20 minutes. information collection should be sent Justice is the Drug Enforcement 6. An estimate of the total public within 30 days of publication of this Administration, Diversion Control burden (in hours) associated with the notice to www.reginfo.gov/public/do/ Division. proposed collection: DEA estimates that PRAMain. Find this particular 4. Affected public who will be asked this collection takes 1,276 annual information collection by selecting or required to respond, as well as a brief burden hours. ‘‘Currently under 30-day Review—Open abstract: If additional information is required for Public Comments’’ or by using the Affected public (Primary): Business or please contact: Melody Braswell, search function. other for-profit. Affected public (Other): Not-for-profit Department Clearance Officer, United SUPPLEMENTARY INFORMATION: Written States Department of Justice, Justice comments and suggestions from the institutions; Federal, State, local, and Management Division, Policy and public and affected agencies concerning tribal governments. Planning Staff, Two Constitution the proposed collection of information Abstract: Section 1018 of the Square, 145 N Street NE, Suite 3E.405B, are encouraged. Your comments should Controlled Substances Import and Washington, DC 20530. address one or more of the following Export Act (CSIEA) (21 U.S.C. 971) and four points: Title 21 Code of Federal Regulations (21 Dated: August 5, 2020. CFR) part 1313 require any persons who —Evaluate whether the proposed Melody Braswell, import, export, or conduct international collection of information is necessary Department Clearance Officer for PRA, U.S. transactions involving list I and list II for the proper performance of the Department of Justice. chemicals are required to establish a functions of the agency, including [FR Doc. 2020–17376 Filed 8–7–20; 8:45 am] system of recordkeeping and report whether the information will have BILLING CODE 4410&ndash09–P certain information regarding those practical utility; —Evaluate the accuracy of the agency’s transactions to DEA. The chemicals subject to control are used in the DEPARTMENT OF JUSTICE estimate of the burden of the proposed collection of information, clandestine manufacture of controlled including the validity of the substances. The reports of domestic, [OMB Number 1117–0023] methodology and assumptions used; import, and export regulated —Evaluate whether and if so how the transactions in listed chemicals are Agency Information Collection quality, utility, and clarity of the submitted electronically through the Activities; Proposed eCollection, information proposed to be collected Diversion Control Division secure eComments Requested; Extension can be enhanced; and network application. Any person who Without Change of a Previously —Minimize the burden of the collection desires to import non-narcotic Approved Collection; Import/Export of information on those who are to substances in schedules III, IV, and V Declaration for List I and List II respond, including through the use of must electronically file their return Chemicals; DEA Forms 486, 486A appropriate automated, electronic, information. Any person who desires to mechanical, or other forms of export non-narcotic substances in AGENCY: Drug Enforcement schedules III and IV and any other Administration, Department of Justice. information technology, e.g., permitting electronic submission of substance in schedule V is also required ACTION: 30-Day notice. responses. to electronically file a controlled substances import declaration/ SUMMARY: The Department of Justice Overview of This Information controlled substance export invoice. (DOJ), Drug Enforcement Collection 5. An estimate of the total number of Administration (DEA), will be 1. Type of Information Collection: respondents and the amount of time submitting the following information Extension of a currently approved estimated for an average respondent to collection request to the Office of collection. respond: The below table presents Management and Budget (OMB) for 2. Title of the Form/Collection: information regarding the number of review and approval in accordance with Import/Export Declaration for List I and respondents, responses and associated the Paperwork Reduction Act of 1995. List II Chemicals. burden hours.

Number of Number of annual annual Average time per response Total annual respondents responses (hours) hours

DEA–486—Import ...... 132 2,153 0.33 (20 minutes) ...... 718 DEA–486—Export ...... 227 13,142 0.28 (17 minutes) ...... 3,724 DEA–486—International ...... 20 424 0.28 (17 minutes) ...... 120 DEA–486A—Import ...... 38 697 0.40 (24 minutes) ...... 279

Total ...... 417 16,416 ...... 4,840

6. An estimate of the total public this collection takes 4,840 annual Department Clearance Officer, United burden (in hours) associated with the burden hours. States Department of Justice, Justice proposed collection: DEA estimates that If additional information is required Management Division, Policy and please contact: Melody Braswell, Planning Staff, Two Constitution

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Square, 145 N Street NE, Suite 3E.405B, information proposed to be collected with this collection: 497 annual burden Washington, DC 20530. can be enhanced; and hours. Dated: August 5, 2020. —Minimize the burden of the collection If additional information is required of information on those who are to Melody Braswell, please contact: Melody Braswell, respond, including through the use of Department Clearance Officer, United Department Clearance Officer for PRA, U.S. appropriate automated, electronic, Department of Justice. States Department of Justice, Justice mechanical, or other forms of Management Division, Policy and [FR Doc. 2020–17375 Filed 8–7–20; 8:45 am] information technology, e.g., Planning Staff, Two Constitution BILLING CODE 4410–09–P permitting electronic submission of Square, 145 N Street NE, Suite 3E.405B, responses. Washington, DC 20530. DEPARTMENT OF JUSTICE Overview of This Information Dated: August 5, 2020. [OMB Number 1117–0013] Collection Melody Braswell, 1. Type of Information Collection: Department Clearance Officer for PRA, U.S. Agency Information Collection Extension of a currently approved Department of Justice. Activities; Proposed eCollection, collection. [FR Doc. 2020–17378 Filed 8–7–20; 8:45 am] eComments Requested; Extension 2. Title of the Form/Collection: BILLING CODE 4410–09–P Without Change of a Previously Application for Permit to Import Approved Collection; Application for Controlled Substances for Domestic Permit To Import Controlled and/or Scientific Purposes Pursuant to DEPARTMENT OF LABOR Substances for Domestic and/or 21 U.S.C. 952. Scientific Purposes Pursuant to 21 3. The agency form number, if any, Office of the Secretary U.S.C. 952; DEA Form 357 and the applicable component of the Department sponsoring the collection: Agency Information Collection AGENCY: Drug Enforcement DEA Form: 357. The applicable Activities; Submission for OMB Administration, Department of Justice. component within the Department of Review; Comment Request; ACTION: 30-Day notice. Justice is the Drug Enforcement Certification of Funeral Expenses Administration, Diversion Control SUMMARY: The Department of Justice ACTION: Notice of availability; request Division. (DOJ), Drug Enforcement for comments. Administration (DEA), will be 4. Affected public who will be asked submitting the following information or required to respond, as well as a brief SUMMARY: The Department of Labor collection request to the Office of abstract: (DOL) is submitting this Office of Management and Budget (OMB) for Affected public (Primary): Business or Workers’ Compensation Program review and approval in accordance with other for-profit. (OWCP)-sponsored information Affected public (Other): None. the Paperwork Reduction Act of 1995. collection request (ICR) to the Office of Abstract: Section 1002 of the Management and Budget (OMB) for DATES: Comments are encouraged and Controlled Substances Import and review and approval in accordance with will be accepted for 30 days until Export Act (CSIEA) (21 U.S.C. 952) and the Paperwork Reduction Act of 1995 September 9, 2020. Title 21, Code of Federal Regulations (PRA). Public comments on the ICR are ADDRESSES: Written comments and (21 CFR), Sections 1312.11, 1312.12 and invited. recommendations for the proposed 1312.13 requires any person who information collection should be sent desires to import controlled substances DATES: The OMB will consider all within 30 days of publication of this listed in schedules I or II, any narcotic written comments that agency receives notice to www.reginfo.gov/public/do/ substance listed in schedules III or IV, on or before September 9, 2020. PRAMain. Find this particular or any non-narcotic substance in ADDRESSES: Written comments and information collection by selecting schedule III which the Administrator recommendations for the proposed ‘‘Currently under 30-day Review—Open has specifically designated by regulation information collection should be sent for Public Comments’’ or by using the in § 1312.30, or any nonnarcotic within 30 days of publication of this search function. substance in schedule IV or V which is notice to www.reginfo.gov/public/do/ SUPPLEMENTARY INFORMATION: Written also listed in schedule I or II of the PRAMain. Find this particular comments and suggestions from the Convention on Psychotropic information collection by selecting public and affected agencies concerning Substances, must have an import ‘‘Currently under 30-day Review—Open the proposed collection of information permit. To obtain the permit to import for Public Comments’’ or by using the are encouraged. Your comments should controlled substances for domestic and search function. address one or more of the following or scientific purposes, an application for Comments are invited on: (1) Whether four points: the permit must be made to DEA on the collection of information is —Evaluate whether the proposed DEA Form 357. necessary for the proper performance of collection of information is necessary 5. An estimate of the total number of the functions of the Department, for the proper performance of the respondents and the amount of time including whether the information will functions of the agency, including estimated for an average respondent to have practical utility; (2) if the whether the information will have respond: DEA estimates that 171 information will be processed and used practical utility; registrants participate in this in a timely manner; (3) the accuracy of —Evaluate the accuracy of the agency’s information collection, taking an the agency’s estimates of the burden and estimate of the burden of the estimated 0.26 hours per registrant cost of the collection of information, proposed collection of information, annually. including the validity of the including the validity of the 6. An estimate of the total public methodology and assumptions used; (4) methodology and assumptions used; burden (in hours) associated with the ways to enhance the quality, utility and —Evaluate whether and if so how the proposed collection: DEA estimates the clarity of the information collection; and quality, utility, and clarity of the total public burden (in hours) associated (5) ways to minimize the burden of the

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collection of information on those who ACTION: Meeting notice. DEPARTMENT OF LABOR are to respond, including the use of automated collection techniques or SUMMARY: Notice of a Labor Advisory Office of the Secretary other forms of information technology. Committee for Trade Negotiations and Agency Information Collection FOR FURTHER INFORMATION CONTACT: Trade Policy meeting. Activities; Submission for OMB Crystal Rennie by telephone at 202– DATES: Review; Comment Request; 693–0456, or by email at DOL_PRA_ August 21, 2020, 11:00 a.m. to 12:30 p.m.; Virtual. Disclosures to Workers Under the [email protected]. Migrant and Seasonal Agricultural SUPPLEMENTARY INFORMATION: Form LS– FOR FURTHER INFORMATION CONTACT: Worker Protection Act 265 is used to report funeral expenses Anne M. Zollner, Designated Federal payable under the Longshore and Official and Division Chief, Trade ACTION: Notice of availability; request Harbor Workers’ Compensation Act. For Policy and Negotiations, Office of Trade for comments. additional substantive information and Labor Affairs, Bureau of SUMMARY: The Department of Labor about this ICR, see the related notice International Labor Affairs, Department published in the Federal Register on (DOL) is submitting this Wage and Hour of Labor, Frances Perkins Building, Division (WHD)-sponsored information April 9, 2020 (85 FR 19962). Room S–5317, 200 Constitution Ave. This information collection is subject collection request (ICR) to the Office of NW, Washington, DC 20210, telephone Management and Budget (OMB) for to the PRA. A Federal agency generally (202) 693–4890, [email protected]. cannot conduct or sponsor a collection review and approval in accordance with of information, and the public is SUPPLEMENTARY INFORMATION: The Labor the Paperwork Reduction Act of 1995 generally not required to respond to an Advisory Committee for Trade (PRA). Public comments on the ICR are information collection, unless the OMB Negotiations and Trade Policy consults invited. approves it and displays a currently with and makes recommendations to the DATES: The OMB will consider all valid OMB Control Number. In addition, Secretary of Labor and the United States written comments that agency receives notwithstanding any other provisions of Trade Representative on general policy on or before September 9, 2020. law, no person shall generally be subject matters concerning labor and trade ADDRESSES: Written comments and to penalty for failing to comply with a negotiations, operations of any trade recommendations for the proposed collection of information that does not agreement once entered into, and other information collection should be sent within 30 days of publication of this display a valid OMB Control Number. matters arising in connection with the notice to www.reginfo.gov/public/do/ See 5 CFR 1320.5(a) and 1320.6. administration of the trade policy of the PRAMain. Find this particular DOL seeks PRA authorization for this United States. information collection for three (3) information collection by selecting years. OMB authorization for an ICR During the meeting, the Committee ‘‘Currently under 30-day Review—Open cannot be for more than three (3) years will review and discuss current issues for Public Comments’’ or by using the without renewal. The DOL notes that that influence U.S. trade policy. The search function. information collection requirements Committee will also discuss potential FOR FURTHER INFORMATION CONTACT: submitted to the OMB for existing ICRs U.S. negotiating objectives and Anthony May by telephone at 202–693– receive a month-to-month extension bargaining positions in current and 4129 (this is not a toll-free number) or while they undergo review. anticipated trade negotiations. Pursuant by email at [email protected]. Agency: DOL–OWCP. to 19 U.S.C. 2155(f)(2)(A), the meeting SUPPLEMENTARY INFORMATION: Comments Title of Collection: Certification of will be concern matters the disclosure of are invited on: (1) Whether the Funereal Expenses. which would seriously compromise the collection of information is necessary OMB Control Number: 1240–0040. Government’s negotiating objectives or for the proper performance of the Affected Public: Private Sector— bargaining positions. Therefore, the functions of the Department, including Businesses or other for-profits. meeting is exempt from the whether the information will have Total Estimated Number of requirements of subsections (a) and (b) practical utility; (2) if the information Respondents: 75. of sections 10 and 11 of the Federal will be processed and used in a timely Total Estimated Number of Advisory Committee Act (relating to manner; (3) the accuracy of the agency’s Responses: 75. estimates of the burden and cost of the Total Estimated Annual Time Burden: open meetings, public notice, public participation, and public availability of collection of information, including the 19 hours. validity of the methodology and Total Estimated Annual Other Costs documents). 5 U.S.C. app. Accordingly, the meeting will be closed to the public. assumptions used; (4) ways to enhance Burden: $22. the quality, utility and clarity of the Authority: 44 U.S.C. 3507(a)(1)(D). Grant B. Lebens, information collection; and (5) ways to minimize the burden of the collection of Crystal Rennie, Chief of Staff, Bureau of International Labor Affairs. information on those who are to Acting Departmental Clearance Officer. [FR Doc. 2020–17367 Filed 8–7–20; 8:45 am] respond, including the use of automated [FR Doc. 2020–17368 Filed 8–7–20; 8:45 am] BILLING CODE 4510–28–P collection techniques or other forms of BILLING CODE 4510–CF–P information technology. The Migrant and Seasonal Agricultural Worker Protection Act DEPARTMENT OF LABOR (MSPA) safeguards migrant and Meeting of the Labor Advisory seasonal agricultural workers in their Committee for Trade Negotiations and interactions with Farm Labor Trade Policy Contractors, Agricultural Employers and Agricultural Associations, and providers AGENCY: Bureau of International Labor of migrant farm worker housing. See Affairs, Labor. Public Law 97–470. The MSPA requires

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Farm Labor Contractors, Agricultural information collection, unless the OMB Week of August 31, 2020—Tentative Employers, and Agricultural approves it and displays a currently There are no meetings scheduled for Associations, who recruit, solicit, hire, valid OMB Control Number. In addition, the week of August 31, 2020. employ, furnish, transport, or house notwithstanding any other provisions of agricultural workers, as well as law, no person shall generally be subject Week of September 7, 2020—Tentative providers of migrant housing, to meet to penalty for failing to comply with a There are no meetings scheduled for certain minimum requirements in their collection of information that does not the week of September 7, 2020. dealings with migrant and seasonal display a valid OMB Control Number. agricultural workers. Various sections of See 5 CFR 1320.5(a) and 1320.6. Week of September 14, 2020—Tentative the MSPA require respondents (e.g., DOL seeks PRA authorization for this Tuesday, September 15, 2020 Farm Labor Contractors, Agricultural information collection for three (3) 10:00 a.m. Agency’s Response to the Employers, and Agricultural years. OMB authorization for an ICR COVID–19 Public Health Associations) to disclose terms and cannot be for more than three (3) years Emergency (Public Meeting) conditions in writing to their workers. without renewal. The DOL notes that (Contact: Luis Betancourt: 301–415– MSPA § 201(g) and § 301(f) requires that information collection requirements 6146) the DOL make forms available to submitted to the OMB for existing ICRs This meeting will be webcast live at provide such information. The DOL receive a month-to-month extension the Web address—https://www.nrc. prints and makes optional-use form while they undergo review. gov/. WH–516, Worker Information—Terms Agency: DOL–WHD. Thursday, September 17, 2020 Title of Collection: Disclosures to and Conditions of Employment. 10:00 a.m. Transformation at the NRC— MSPA § 201(d) and § 301(c)—29 Workers Under the Migrant and Milestones and Results (Public U.S.C. 1821(d), 1831(c) and regulations Seasonal Agricultural Worker Protection Meeting) 29 CFR 500.80(a), require each Farm Act. (Contact: Maria Arribas-Colon: 301– Labor Contractor, Agricultural OMB Control Number: 1235–0002. 415–6026) Employer, and Agricultural Association Affected Public: Private Sector: that employs a migrant or seasonal Businesses or other for-profits and This meeting will be webcast live at worker to make, keep, and preserve farms. the Web address—https://www.nrc. records for three years for each such Total Estimated Number of gov/. worker concerning the: (1) Basis on Respondents: 94,729. Week of September 21, 2020—Tentative which wages are paid; (2) number of Total Estimated Number of piece work units earned, if paid on a Responses: 71,338,888. There are no meetings scheduled for piece work basis; (3) number of hours Total Estimated Annual Time Burden: the week of September 21, 2020. worked; (4) total pay period earnings; 1,202,228 hours. Week of September 28, 2020—Tentative (5) specific sums withheld and the Total Estimated Annual Other Costs purpose of each sum withheld; (6) net Burden: $2,853,555. Wednesday, September 30, 2020 9:00 a.m. Strategic Programmatic pay. Respondents are also required to (Authority: 44 U.S.C. 3507(a)(1)(D)) Overview of the Operating Reactors provide an itemized written statement Dated: August 4, 2020. of this information to each migrant and and New Reactors Business Lines Anthony May, seasonal agricultural worker each pay and Results of the Agency Action period. See 29 U.S.C. 1821(d), 1831(c), Management and Program Analyst. Review Meeting (Public Meeting) and 29 CFR 500.1–.80(d). Additionally, [FR Doc. 2020–17369 Filed 8–7–20; 8:45 am] (Contact: Candace de Messieres: 301– MSPA § 201(e) and § 301(d) require each BILLING CODE 4510–27–P 415–8395) Farm Labor Contractor provide copies of This meeting will be webcast live at all the records noted above for the the Web address—https://www.nrc. migrant and seasonal agricultural NUCLEAR REGULATORY gov/. COMMISSION workers the contractor has furnished to Week of October 5, 2020—Tentative other Farm Labor Contractors, [NRC–2020–0001] Agricultural Employers, or Agricultural Thursday, October 8, 2020 Associations who use the workers. Sunshine Act Meetings 10:00 a.m. Meeting with the Respondents must also make and keep Organization of Agreement States certain records. § 201(c) of the MSPA TIME AND DATE: Weeks of August 10, 17, and the Conference of Radiation requires all Farm Labor Contractors, 24, 31, September 7, 14, 21, 28, October Control Program Directors (Public Agricultural Employers, and 5, 12, 19, 2020. Meeting) Agricultural Associations providing PLACE: Commissioners’ Conference (Contact: Celimar Valentin-Rodriquez: housing to a migrant agricultural worker Room, 11555 Rockville Pike, Rockville, 301–415–7124) to post in a conspicuous place at the site Maryland. This meeting will be webcast live at of the housing, or present to the migrant STATUS: Public. the Web address—https://www.nrc. worker, a written statement of any gov/. housing occupancy terms and Week of August 10, 2020 Week of October 12, 2020—Tentative conditions. For additional substantive There are no meetings scheduled for information about this ICR, see the the week of August 10, 2020. There are no meetings scheduled for related notice published in the Federal the week of October 12, 2020. Register on January 16, 2020 (85 FR Week of August 17, 2020—Tentative Week of October 19, 2020—Tentative 2760). There are no meetings scheduled for This information collection is subject the week of August 17, 2020. Wednesday, October 21, 2020 to the PRA. A Federal agency generally 10:00 a.m. Briefing on Human Capital cannot conduct or sponsor a collection Week of August 24, 2020—Tentative and Equal Employment of information, and the public is There are no meetings scheduled for Opportunity (Public Meeting) generally not required to respond to an the week of August 24, 2020. (Contact: Randi Neff: 301–287–0583)

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This meeting will be webcast live at on the development of a National Balkcum, OSTP at PNTresearch@ the Web address—https://www.nrc. Research and Development Plan for ostp.eop.govor 202–456–4444. gov/. Positioning, Navigation, and Timing SUPPLEMENTARY INFORMATION: PNT has 1:00 p.m. All Employees Meeting with (PNT) Resilience. The plan will focus on become an ‘‘invisible utility’’ that is the Commissioners (Public Meeting) the research and development (R&D) integral to and enables a wide array of CONTACT PERSON FOR MORE INFORMATION: and pilot testing needed to develop additional PNT systems and services applications such as financial For more information or to verify the transactions, synchronization of power status of meetings, contact Denise that are resilient to interference and manipulation and that are not networks, and the precision landing McGovern at 301–415–0681 or via email approaches of aircraft. PNT services are at [email protected]. The dependent upon global navigation currently provided or augmented by a schedule for Commission meetings is satellite systems (GNSS). The plan will number of terrestrial and space-based subject to change on short notice. also include approaches to integrate and systems, with the most notable and The NRC Commission Meeting use multiple PNT services for enhancing widely used being the Global Schedule can be found on the internet resilience. The input received on these Positioning System (GPS). Satellite at: https://www.nrc.gov/public-involve/ topics will assist the Subcommittee in platforms, such as GPS, provide global public-meetings/schedule.html. developing recommendations for The NRC provides reasonable prioritization of R&D activities. coverage but at great distances and with low signal intensity, which can be more accommodation to individuals with DATES: Interested persons are invited to disabilities where appropriate. If you submit comments on or before 11:59 easily interfered with at the local level need a reasonable accommodation to p.m. ET on September 9, 2020. by natural phenomena and by participate in these public meetings or Comments received after this date may technological means (both intentional need this meeting notice or the not be considered. and unintentional). On February 12, 2020, President Trump signed Executive transcript or other information from the ADDRESSES: Responses should be Order (E.O.) 13905, ‘‘Strengthening public meetings in another format (e.g., submitted via email to PNTresearch@ National Resilience Through braille, large print), please notify Anne ostp.eop.gov and include ‘‘RFI Responsible Use of Positioning, Silk, NRC Disability Program Specialist, Response: PNT Resilience’’ in the Navigation, and Timing Services,’’ with at 301–287–0745, by videophone at subject line of the message. 240–428–3217, or by email at Instructions: Response to this RFI is the goal of ensuring that the Nation’s [email protected]. Determinations on voluntary. Respondents need not reply critical infrastructure can withstand requests for reasonable accommodation to all questions listed. For all disruption or manipulation of PNT will be made on a case-by-case basis. submissions, clearly indicate which services. E.O. 13905 directs the Members of the public may request to questions are being answered. Each development of a national plan for the receive this information electronically. individual or organization is requested R&D and pilot testing of additional, If you would like to be added to the to submit only one response. robust, and secure PNT services that are distribution, please contact the Nuclear Submissions should include the name(s) not dependent on GNSS. These Regulatory Commission, Office of the of the person(s) or organization(s) filing additional services may consist of Secretary, Washington, DC 20555 (301– the comment. No other personally multiple systems with varying 415–1969), or by email at identifiable information, business functional specifications to satisfy one [email protected] or Tyesha.Bush@ proprietary information, or copyrighted or more applications with differing nrc.gov. information should be included. requirements. To further enhance The NRC is holding the meetings Submissions should not exceed 10 infrastructure resilience, the plan will under the authority of the Government pages in length using 12 point or larger also consider approaches to integrate in the Sunshine Act, 5 U.S.C. 552b. font and should be in plain text, and use multiple PNT services including GNSS services. Dated: August 6, 2020. Microsoft Word, or Adobe PDF format. For the Nuclear Regulatory Commission. Submissions that cite references, Questions To Inform R&D Plan Denise L. McGovern studies, research, and other empirical Development data that are not widely published Policy Coordinator, Office of the Secretary. should include copies of, or electronic The SRST seeks a better [FR Doc. 2020–17526 Filed 8–6–20; 4:15 pm] links to, the referenced materials. understanding of current PNT efforts BILLING CODE 7590–01–P In accordance with Federal and challenges, how PNT services may Acquisition Regulation 15.201(e), ‘‘RFIs be used in the future, and what R&D may be used when the Government does activities could be beneficial for OFFICE OF SCIENCE AND not presently intend to award a contract, improving overall system resilience. In TECHNOLOGY POLICY but wants to obtain price, delivery, responding to the questions below, other market information, or capabilities please consider the priority PNT R&D Notice of Request for Information on for planning purposes. Responses to needs specifically directed towards Positioning, Navigation, and Timing these notices are not offers and cannot developing resilient, non-GNSS Resilience be accepted by the Government to form dependent services and equipment, and AGENCY: Office of Science & Technology a binding contract.’’ Additionally, the the role of the Federal government in Policy (OSTP). Federal Government will not pay for executing or encouraging the response preparation or the use of any ACTION: Notice of request for appropriate R&D activities. Resilience is information (RFI). information contained in the response. desired in the overall system, which Submissions are subject to Freedom of includes sources of PNT, distribution SUMMARY: On behalf of the National Information Act (FOIA) disclosure and means, augmentation methods, and user Science and Technology Council’s may be posted, without change, on a equipment. Resilient systems have (NSTC) Subcommittee on Resilience Federal website. protections, mitigations, and responses Science and Technology (SRST), OSTP FOR FURTHER INFORMATION CONTACT: that allow for continued proper system requests input from all interested parties Please direct questions to Adam functioning or recovery within an

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acceptable time period during major (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Makers); Options 2, Section 5 (Market disruptions. notice is hereby given that on July 23, Maker Quotations); Options 3, Section 5 1. (a) How will PNT services be used 2020, Nasdaq BX, Inc. (‘‘BX’’ or (Entry and Display of Orders); Options over the next ten years? (b) What values ‘‘Exchange’’) filed with the Securities 3, Section 7 (Types of Orders and Quote for precision and integrity for non-GNSS and Exchange Commission Protocols); Options 3, Section 10 (Order dependent systems over the same (‘‘Commission’’) the proposed rule Book Allocation); Options 3, Section 13 timeframe will support assured PNT change as described in Items I and II (Price Improvement Auction services and why? (c) Similarly, what below, which Items have been prepared (‘‘PRISM’’)); Options 3, Section 22 level of synchronization to Coordinated by the Exchange. The Commission is (Limitations on Order Entry); and Universal Time (UTC) is anticipated to publishing this notice to solicit Options 3, Section 23 (Data Feeds and be needed? comments on the proposed rule change Trade Information) and adopt a new 2. What may affect or prevent the from interested persons. Options 3, Section 12 titled ‘‘Crossing Orders’’ in connection with a adoption, integration, and operation of I. Self-Regulatory Organization’s technology migration to an enhanced resilient PNT services and equipment? Statement of the Terms of Substance of Nasdaq, Inc. (‘‘Nasdaq’’) functionality 3. (a) What system architectures or the Proposed Rule Change concepts could be conducive for PNT which results in higher performance, system resilience? (b) What features or The Exchange proposes to amend scalability, and more robust capabilities in equipment or systems Options 1, Section 1 (Definitions); architecture. With this system could provide effective protections or Options 2, Section 4 (Obligations of migration, the Exchange intends to mitigations against interference or Market Makers and Lead Market adopt certain trading functionality manipulation? (c) Which principles of Makers); Options 2, Section 5 (Market currently utilized at Nasdaq Exchanges. cybersecurity may be leveraged to Maker Quotations); Options 3, Section 5 The Exchange intends to begin achieve this? (d) What challenges may (Entry and Display of Orders); Options implementation of the proposed rule occur in integrating and using multiple 3, Section 7 (Types of Orders and Quote change prior to October 30, 2020. The PNT services within user equipment? Protocols); Options 3, Section 10 (Order Exchange will issue an Options Trader 4. What R&D activities are currently Book Allocation); Options 3, Section 13 Alert to Participants to provide being conducted, or planned, to develop (Price Improvement Auction notification of the symbols that will non-GNSS dependent PNT services or (‘‘PRISM’’)); Options 3, Section 22 migrate, the relevant dates and operative equipment, or to improve the resilience (Limitations on Order Entry); and dates for specific functionalities. Options 3, Section 23 (Data Feeds and of PNT services or equipment? Trade Information). The Exchange also Options 1, Section 1 5. (a) What knowledge or capability proposes to adopt a new Options 3, gaps currently exist that, if filled, could The Exchange proposes to amend the Section 12 titled ‘‘Crossing Orders.’’ contribute to improving resilience? (b) definition of ‘‘Public Customer’’ to The text of the proposed rule change conform to Nasdaq PHLX LLC’s What R&D activities are best suited to is available on the Exchange’s website at help fill these gaps? (c) What role does (‘‘Phlx’’) definition at Options 1, Section https://listingcenter.nasdaq.com/ 1(b)(46). The Exchange believes that the Federal government have to rulebook/bx/rules, at the principal office encourage and collaborate on these making clear that a Public Customer of the Exchange, and at the could be a person or entity and stating activities? Commission’s Public Reference Room. 6. What additional information or that a Public Customer is not a II. Self-Regulatory Organization’s Professional, as defined within Options suggestions could help inform the 3 development of the R&D plan? Statement of the Purpose of, and 1, Section 1(a)(48), will make clear Thank you for taking the time to Statutory Basis for, the Proposed Rule what it meant by that term. Today, a respond to this Request for Information. Change Public Customer is not a Professional. We appreciate your input. The term ‘‘Professional’’ is separately In its filing with the Commission, the defined, within BX Options 1, Section Exchange included statements Dated: August 3, 2020. 1(a)(48). In order to properly represent concerning the purpose of and basis for Sean Bonyun, orders entered on the Exchange, the proposed rule change and discussed Chief of Staff, The White House Office of Participants are required to indicate any comments it received on the Science and Technology Policy. whether orders are ‘‘Professional proposed rule change. The text of these [FR Doc. 2020–17399 Filed 8–7–20; 8:45 am] Orders.’’ To comply with this statements may be examined at the BILLING CODE 3270–F0–P requirement, Participants are required to places specified in Item IV below. The review their Public Customers’ activity Exchange has prepared summaries, set on at least a quarterly basis to determine forth in sections A, B, and C below, of whether orders, that are not for the SECURITIES AND EXCHANGE the most significant aspects of such account of a broker-dealer, should be COMMISSION statements. represented as Public Customer Orders [Release No. 34–89476; File No. SR–BX– A. Self-Regulatory Organization’s or Professional Orders.4 A Public 2020–017] Statement of the Purpose of, and Statutory Basis for, the Proposed Rule 3 BX Options 1, Section 1(a)(48) provides that, Self-Regulatory Organizations; Nasdaq Change ‘‘The term ‘‘Professional’’ means any person or BX, Inc.; Notice of Filing and entity that (i) is not a broker or dealer in securities, Immediate Effectiveness of Proposed 1. Purpose and (ii) places more than 390 orders in listed options per day on average during a calendar month Rule Change To Amend Various BX The Exchange proposes to amend for its own beneficial account(s). A Participant or Rules in Connection With a Options 1, Section 1 (Definitions); a Public Customer may, without limitation, be a Technology Migration Options 2, Section 4 (Obligations of Professional. All Professional orders shall be Market Makers and Lead Market appropriately marked by Participants.’’ August 4, 2020. 4 Participants conduct a quarterly review and make any appropriate changes to the way in which Pursuant to Section 19(b)(1) of the 1 15 U.S.C. 78s(b)(1). they are representing orders within five days after Securities Exchange Act of 1934 2 17 CFR 240.19b–4. the end of each calendar quarter. While Participants

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Customer may be a Professional, The Exchange proposes to amend BX Today, Options 2, Section 4(f)(5) provided they meet the requirements Options 2, Section 5(d)(2) to add the indicates that Exchange may establish specified within BX Options 1, Section words ‘‘Intra-Day’’ before the title ‘‘Bid/ other quote differences. Options 2, 1(a)(48). If the Professional definition is ask Differentials (Quote Spread Section 4(f)(6) explains the manner in not met, the order is treated as a Public Parameters)’’ to make clear that these which such quote differences may be Customer order. requirements are intra-day. Additionally established by the Exchange. BX The Exchange also proposes to the Exchange is deleting the words proposes to amend BX’s Lead Market remove a sentence within Options 1, ‘‘including before and during the Maker quoting requirements by Section 1(a)(48) which provides, ‘‘A opening.’’ The bid/ask differentials, conforming the rule to proposed BX Participant or a Public Customers may, within BX Options 2, Section 5(d)(2), Options 2, Section 5(d)(2), which without limitation, be a Professional.’’ will apply intra-day only. The bid/ask applies to BX Market Makers. This sentence is confusing, unnecessary, differentials applicable to the opening Specifically, the Exchange proposes to and adds no information to this defined are noted within current Options 3, replace Options 2, Section 4(f)(4)–(6) term. Phlx Options 1, Section 1(b)(46) Section 8(a)(6).5 It is not necessary to with the same rule text proposed, does not contain a similar sentence. BX discuss the opening bid/ask differentials within BX Options 2, Section 5(d)(2), in proposes removing this sentence. within Options 2, Section 5, as those order that BX Market Makers and Lead The Exchange also proposes to differentials are set forth within current Market Makers have the same standards remove sentences, within Options 3, Options 3, Section 8(a)(6).6 The bid/ask apply to their intra-day quotes. Sections 10(a)(1)(C)(1)(a) and 10(a)(2)(i), differentials, within BX Options 2, With this change, BX would continue Options 3, Section 13, in the Section 5(d)(2), will apply intra-day to require Lead Market Makers to quote introductory paragraph, and Options 3, only. with a difference not to exceed $5 Sections 13(ii)(E)(1) and (F)(1), which The Exchange also proposes to amend between the bid and offer regardless of allocation and PRISM rules, BX Rules at Options 2, Section 4(f)(4)– the price of the bid. However, instead of respectively, provide that a Public (6) (Obligations of Market Makers and requiring Lead Market Makers to quote Customer does not include a Lead Market Makers), which specify a price differential for any in-the-money Professional. Today, the definition of a quoting requirements for Lead Market option series identical to those in the Public Customer does not explicitly Makers. Today, BX’s Rules at Options 2, underlying security market, in the event exclude a Professional. The language Section 4(f)(4)–(6) provides, the bid/ask differential in the that the Exchange proposes to delete (4) Options traded on the Trading System underlying security is greater than the currently indicates that Professionals may be quoted with a difference not to bid/ask differential set forth in would not be treated the same as a exceed $5 between the bid and offer subsections (f)(4) and (5), the Exchange Public Customer in terms of priority regardless of the price of the bid. would now permit the bid/ask (5) BX Regulation may establish quote differential to be as wide as the spread and, therefore, would not receive the width differences other than as provided in same allocation that is reserved for subparagraph (iv) for one or more options between the national best bid and offer Public Customer orders. Since BX is series. in the underlying security when the amending the definition of a Public (6) In the event the bid/ask differential in market for the underlying security is Customer to explicitly exclude the underlying security is greater than the wider than $5, as is the case today for Professionals, the language in the bid/ask differential set forth in subsections BX Market Makers. This amendment PRISM and allocation rules are no (f)(4) and (5), the permissible price would permit Lead Market Makers to differential for any in-the-money option longer necessary to distinguish these quote as wide as Market Makers on BX series may be identical to those in the quote today.7 Further, the Exchange two types of market participants. underlying security market. In the case of the would have discretion, as on other Bid/Ask Differentials at-the-money and out-of-the-money series, BX Regulation may waive the requirements options markets, to widen the bid/ask Currently, BX Market Maker intra-day of subsections (f)(4) and (5) on a case-by-case differential.8 quoting requirements, within Options 2, basis when the bid/ask differential for the Section 5(d)(2), provide, underlying security is greater than .50. In 7 Phlx Options 2, Section 4(c)(1) describes bid/ask such instances, the bid/ask differentials for differential requirements for Market Makers and Bid/ask Differentials (Quote Spread the at-the-money series and the out-of-the- Lead Market Makers on Phlx. Phlx’s standards are Parameters). Options on equities (including money series may be half as wide as the bid/ similar to the standards proposed for BX Lead Exchange-Traded Fund Shares), and on index ask differential in the underlying security in Market Makers. Phlx Options 2, Section 4(c)(1) options must be quoted with a difference not the primary market. Exemptions from provides, ‘‘Options on equities (including Exchange-Traded Fund Shares), index options and to exceed $5 between the bid and offer subsections (f)(4) and (5) are subject to regardless of the price of the bid, including options on U.S. dollar-settled FCOs may be quoted Exchange review. BX Regulation must file a electronically with a difference not to exceed $5 before and during the opening. However, report with BX operations setting forth the between the bid and offer regardless of the price of respecting in-the-money series where the time and duration of such exemptive relief the bid, provided that the foregoing bid/ask market for the underlying security is wider and the reasons therefore. differentials shall not apply to in-the-money series than $5, the bid/ask differential may be as where the market for the underlying security is wide as the spread between the national best 5 Current BX Options 3, Section 8(a)(6) provides, wider than the differentials set forth above. For bid and offer in the underlying security. The ‘‘Valid Width National Best Bid or Offer’’ or ‘‘Valid such series, the bid/ask differentials may be as wide Exchange may establish differences other Width NBBO’’ shall mean the combination of all as the spread between the national best bid and than the above for one or more series or away market quotes and any combination of BX offer in the underlying security, or its decimal equivalent rounded down to the nearest minimum classes of options. Options-registered Market Maker orders and quotes received over the SQF Protocols within a specified increment. The Exchange may establish differences bid/ask differential as established and published by other than the above for one or more series or only will be required to review their accounts on the Exchange. The Valid Width NBBO will be classes of options.’’ a quarterly basis, if during a quarter the Exchange configurable by underlying, and tables with valid 8 Today, all options exchanges grant relief to identifies a customer for which orders are being width differentials will be posted by BX on its market making participants, based on current represented as Public Customer Orders but that has website. Away markets that are crossed will void market conditions, to enable those participants to averaged more than 390 orders per day during a all Valid Width NBBO calculations. If any Market provide liquidity in the marketplace without the month, the Exchange will notify the Participant and Maker orders or quotes on BX Options are crossed need to constantly refresh their quotes to balance the Participant will be required to change the internally, then all such orders and quotes will be their risk in markets where stock prices are manner in which it is representing the customer’s excluded from the Valid Width NBBO calculation.’’ unstable. See https://www.miaxoptions.com/alerts; orders within five days. 6 Id. Continued

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As proposed, the Exchange would Other options markets do not limit the to define an ‘‘internal BBO’’ within its remove the rule text which describes the quote relief they would grant their lead rules when describing re-priced orders additional allowance for at-the-money market makers in the same manner as that remain on the Order Book and are and out-of-the-money series, where BX BX limits quote relief for its Lead available at non-displayed prices, which Regulation may waive the requirements Market Makers. Today, BX limits its are resting on the Order Book. Lead Market Makers to quote relief of subsections (f)(4) and (5) on a case- Options 3, Section 7 by-case basis when the bid/ask which may not be greater than half as differential for the underlying security wide as the bid/ask differential.12 The Exchange proposes to amend the Cancel-Replacement Order, within is greater than .50. In these cases, Options 3, Section 5 pursuant to paragraph (f)(6), the bid/ask Options 3, Section 7(a)(1). By way of differentials for the at-the-money series The Exchange proposes to amend background with respect to cancelling and the out-of-the-money series may be Options 3, Section 5(c) to add additional and replacing an order, a Participant has half as wide as the bid/ask differential rule text similar to Phlx Options 3, the option of either submitting a cancel in the underlying security in the Section 5(c). BX’s current Options 3, order and then separately submitting a primary market. Today, exemptions Section 5(c) states, ‘‘The System new order, which serves as a from subsections (f)(4) and (5) are automatically executes eligible orders replacement of the original order, in two subject to Exchange review.9 The using the Exchange’s displayed best bid separate messages, or submitting a additional allowance and exemptions an offer (‘‘BBO’’).’’ The Exchange single cancel and replace order in one are no longer necessary because the proposes to state, ‘‘The System message (‘‘Cancel-Replacement Order’’). Exchange proposes to add rule text, automatically executes eligible orders Submitting a cancel order and then similar to BX Options 2, Section 4(f)(5) using the Exchange’s displayed best bid separately submitting a new order will and BX Options 5, Section 5(d)(2), and offer (‘‘BBO’’) or the Exchange’s not retain the priority of the original which permits BX to establish non-displayed order book (‘‘internal order. Currently, the rule text for Cancel- differences other than the stated bid/ask BBO’’) if the best bid and/or offer on the Replacement Order provides, ‘‘Cancel- differentials, for one or more series or Exchange has been repriced pursuant to Replacement Order shall mean a single classes of options. The ability to subsection (d) below.’’ Today, BX re- message for the immediate cancellation establish differences, other than the prices certain orders to avoid locking of a previously received order and the stated bid/ask differentials, for one or and crossing away markets, consistent replacement of that order with a new more series or classes of options already with its Trade-Through Compliance and Locked or Crossed Markets order with new terms and conditions. If exists today for BX Lead Market Maker obligations.13 Orders which lock or the previously placed order is already quoting requirements, however this cross an away market will automatically filled partially or in its entirety, the discretion is limited by BX Options 2, re-price one minimum price replacement order is automatically Section 4(f)(6).10 The Exchange’s improvement inferior to the original canceled or reduced by the number of proposal would align the procedure BX away best bid/offer price to one contracts that were executed. The would follow with procedures of other minimum trading increment away from replacement order will not retain the Nasdaq options exchanges, which notify the new away best bid/offer price or its priority of the cancelled order except members in writing, via an Options original limit price.14 The re-priced when the replacement order reduces the Regulatory Alert, of any discretion that order is displayed on OPRA. The order size of the order and all other terms and is being granted by the Exchange. BX remains on BX’s Order Book and is conditions are retained.’’ The Exchange would no longer file a report with BX accessible at the non-displayed price. proposes to replace the words ‘‘shall operations. Today, no other Nasdaq For example, a limit order may be mean’’ with ‘‘is’’ and remove the final exchange files a report when it grants accessed on BX by a Participant if the sentence of the rule text.15 The exemptions, including exemptions for limit order is priced better than the Exchange proposes to add a new BX Market Makers. Decisions to grant NBBO. The Exchange believes that the sentence to the end of the rule which exemptions are made based on current addition of this rule text will allow BX provides, ‘‘The replacement order will market conditions. BX is required to retain the priority of the cancelled react swiftly when market conditions 12 See ISE and GEMX at Options 2, Section 5, order, if the order posts to the Order change dramatically and, thereby, may Miami International Securities Exchange LLC Rule Book, provided the price is not require BX to grant quoting relief. The 503(e)(2), BOX Exchange LLC Rule 8040 and NYSE amended, and the size is not increased.’’ additional steps that are currently American LLC Rule 925NY(b)(5) and (c). 13 BX Options 3, Section 5(d) provides, ‘‘An order Unlike the sentence proposed for required on BX are not conducive to will not be executed at a price that trades through deletion, the proposed sentence states in granting relief in fast changing markets. another market or displayed at a price that would the affirmative the conditions under In addition, the proposed quoting lock or cross another market. An order that is which the Cancel-Replacement Order requirements for BX Lead Market designated by the member as routable will be routed in compliance with applicable Trade- will retain priority. Price and size are Makers and Market Makers is consistent Through and Locked and Crossed Markets the terms that will determine if the with requirements on other Nasdaq restrictions. An order that is designated by a Cancel-Replacement Order retains its Affiliated Markets that have both Lead member as non-routable will be re-priced in order priority, as is the case today, other terms Market Makers and Market Makers.11 to comply with applicable Trade-Through and Locked and Crossed Markets restrictions. If, at the and conditions do not amend the time of entry, an order that the entering party has priority of the Cancel-Replacement http://markets.cboe.com/us/options/notices/ elected not to make eligible for routing would cause system/; https://boxoptions.com/system-alerts/ and Order. a locked or crossed market violation or would cause The Exchange is not amending the https://www.nyse.com/market-status/history. a trade-through violation, it will be re-priced to the 9 BX Regulation must file a report with BX current national best offer (for bids) or the current current System functionality of a operations setting forth the time and duration of national best bid (for offers) and displayed at one such exemptive relief and the reasons therefore. minimum price variance above (for offers) or below 15 The final sentence of current BX Options 3, 10 See BX Options 2, Section 4(f)(5). (for bids) the national best price.’’ Section 7(a)(1) provides, ‘‘The replacement order 11 See Phlx at Options 2, Section 4(c) and ISE, 14 See Options 5, Section 4 (Order Routing), will not retain the priority of the cancelled order GEMX and MRX Rules at Options 2, Section 4(b)(4). which describes the repricing of orders for both except when the replacement order reduces the size ISE, GEMX and MRX utilize the term Primary routable and non-routable orders within Options 5, of the order and all other terms and conditions are Market Maker instead of Lead Market Maker. Section 4(a)(iii)(A), (B) and (C). retained.’’

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Cancel-Replacement Order with respect within Options 3, Section 15. Those risk routed (depending on instructions from to the terms that will cause the order to protections apply throughout the the market participant) or cancelled if lose priority. Both today, and with the Rulebook, except where otherwise the Market Order is priced through the proposed change, if a Participant did noted. opening price. The Exchange would not change the size of the order, it The Exchange proposes to amend only cancel those Market Orders that would not trigger a loss in priority. ‘‘Directed Order,’’ within Options 3, remained on the Order Book once an Today the Exchange’s rule describes Section 7(a)(2). The Exchange proposes option series opened. The pre- changes to priority with respect to to remove the text, ‘‘Directed Order, The established period of time would reducing size. The proposed rule term’’ and replace ‘‘means’’ with ‘‘is.’’ commence once the intra-day trading describes changes to priority with These amendments are technical and session begins for that options series respect to increasing size. If the non-substantive. The Exchange is and the order would be cancelled back Participant does not change the size of otherwise not amending the Directed to the Participant, provided the the order, a consideration of loss in Order rule text. Participant elected to cancel back its priority is not relevant. The rule is The Exchange proposes to amend Market Orders. The Exchange proposes intended to provide transparency ‘‘Limit Order,’’ within Options 3, to make clear that while the opening is regarding changes to an a Cancel- Section 7(a)(3). The Exchange proposes on-going, and the intra-day trading Replacement Order which would trigger to style ‘‘Limit Orders’’ in the singular session has not commenced, the pre- a loss in priority. Today, and with the and change ‘‘are’’ to ‘‘is an’’ and established period of time would not proposal, the price of the order may not ‘‘orders’’ to ‘‘order.’’ A Limit Order on commence. Further, the Exchange be changed when submitting a Cancel- BX operates in the same manner as a proposes to note that ‘‘Market Orders on Replacement Order; that would be a Limit Order on ISE, GEMX and MRX. the Order Book would be immediately new order. The Exchange proposes to conform the cancelled if an options series halted, The Exchange further proposes to rule text of BX’s Limit Order to ISE, provided the Participant designated the provide, ‘‘If the replacement portion of GEMX and MRX Options 3, Section 7(b) cancellation of Market Orders.’’ Once an a Cancel-Replacement Order does not and add the sentence describing options series halts for trading, the satisfy the System’s price or other marketable limit orders. The Exchange Exchange conducts another Opening reasonability checks (e.g. Limit Order proposes to state, ‘‘A marketable limit Process. In the case where a Market Price Protection and Market Order order is a limit order to buy (sell) at or Order was resting on the Order Book, Spread Protection, within Options 3, above (below) the best offer (bid) on the and the Participant had designated the Section 15(a)(1) and (a)(2), respectively); Exchange.’’ The Exchange believes that cancellation of Market Orders, in the the existing order shall be cancelled and the rule amendment more aptly event of a halt, the Market Orders not replaced.’’ The Limit Order Price describes a marketable limit order as resting on the Order Book would Protection and Market Order Spread compared to the current rule text, which immediately cancel. The Exchange Protection are the only risk protections is confusing, but was intended to believes that this additional rule text within Options 3, Section 15 (Risk convey the substance of the proposed brings greater clarity to the Market Protections) that are applicable. Price or text. The new sentence does not Order type.17 other reasonability checks consider the substantively amend the current rule The Exchange proposes to amend current market at the time the Cancel- text. ‘‘Intermarket Sweep Order’’ or ‘‘ISO,’’ Replacement Order is entered. The The Exchange proposes to amend within Options 3, Section 7(a)(6). Exchange proposes to begin applying ‘‘Minimum Quantity Orders,’’ within Today, the rule text provides, price or other reasonability checks to all Options 3, Section 7(a)(4). The (6) ‘‘Intermarket Sweep Order’’ or ‘‘ISO’’ Cancel-Replacement Orders, similar to Exchange proposes to style ‘‘Minimum Nasdaq ISE, LLC (‘‘ISE’’), Nasdaq are limit orders that are designated as ISOs Quantity Orders’’ in the singular and in the manner prescribed by BX and are GEMX, LLC (‘‘GEMX’’) and Nasdaq change ‘‘are’’ to ‘‘is an’’ and ‘‘orders’’ to executed within the System by Participants MRX, LLC (‘‘MRX’’) to provide market ‘‘order.’’ These amendments are at multiple price levels without respect to participants with additional risk technical and non-substantive. The Protected Quotations of other Eligible protection checks with the re-entry of Exchange is otherwise not amending the Exchanges as defined in Options 5, Section the Cancel-Replacement Order. This Minimum Quantity Order rule text. 1. ISOs may have any time-in-force proposed rule is similar to ISE, GEMX The Exchange proposes to amend designation except WAIT, are handled within and MRX Rules at Options 3, Section 7 the System pursuant to Options 3, Section 10 ‘‘Market Orders,’’ within Options 3, and shall not be eligible for routing as set out at Supplementary Material .02, except Section 7(a)(5). The Exchange proposes in Options 3, Section 19. ISOs with a time- that ISE, GEMX and MRX discuss to style ‘‘Market Orders’’ in the singular in-force designation of GTC are treated as Reserve Orders, which are not available and change ‘‘are’’ to ‘‘is an’’ and having a time-in-force designation of Day. on BX.16 All risk protections are noted ‘‘orders’’ to ‘‘order.’’ These amendments (1) Simultaneously with the routing of an are technical and non-substantive. The ISO to the System, one or more additional 16 ISE, GEMX and MRX Options 3, Section 7 at Exchange also proposes to add a limit orders, as necessary, are routed by the Supplementary Material .02, provides, ‘‘Cancel and notation at the end of the rule to make entering party to execute against the full Replace Orders shall mean a single message for the displayed size of any protected bid or offer immediate cancellation of a previously received clear that ‘‘Participants can designate (as defined in Options 5, Section 1) in the order and the replacement of that order with a new that their Market Orders not executed case of a limit order to sell or buy with a order. If the previously placed order is already after a pre-established period of time, as price that is superior to the limit price of the filled partially or in its entirety, the replacement order is automatically canceled or reduced by the established by the Exchange, will be limit order identified as an intermarket number of contracts that were executed. The cancelled back to the Participant, once replacement order will retain the priority of the an option series has opened for 17 See The Nasdaq Options Market (‘‘NOM’’) cancelled order, if the order posts to the Order trading.’’ Market Orders submitted Rules at Options 3, Section 7(a)(4), which provides, Book, provided the price is not amended, size is not ‘‘Market Orders’’ are orders to buy or sell at the best increased, or in the case of Reserve Orders, size is during the opening may be executed, price available at the time of execution. Participants not changed. If the replacement portion of a Cancel can designate that their Market Orders not executed and Replace Order does not satisfy the System’s Supplementary Material .07 (a)(1)(A), (b) and (c)(1) after a pre-established period of time, as established price or other reasonability checks (e.g. Options 3, to Options 8, Section 14) the existing order shall be by the Exchange, will be cancelled back to the Section 15(b)(1)(A) and (b)(1)(B); and cancelled and not replaced.’’ Participant.’’

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sweep order (as defined in Options 5, Section designation of GTC are treated as having an IOC Order, ‘‘shall mean for orders so 1). These additional routed orders must be a time-in-force designation of Day.19 designated, that if after entry into the identified as ISOs. With this proposal, the Exchange would System a marketable order (or The Exchange proposes to replace the only continue to allow a time-in-force of unexecuted portion thereof) becomes current rule, within Options 3, Section IOC. The Exchange proposes to remove non-marketable, the order (or 7(a)(6), with the following text to the WAIT time-in-force within this unexecuted portion thereof) shall be describe an ISO Order, ‘‘is a Limit Order proposed rule change and, therefore, canceled and returned to the entering that meets the requirements of Options WAIT no longer needs to be cited. The participant. IOC Orders shall be 5, Section 1(8). Orders submitted to the Exchange is proposing a TIF designation available for entry from the time prior Exchange as ISO are not routable and of IOC for an ISO Order, which would to market open specified by the will ignore the ABBO and trade at cause an ISO Order to cancel in whole Exchange on its website until market allowable prices on the Exchange. ISOs or in part upon receipt, in the event that close and for potential execution from may be entered on the Order Book or the ISO Order does not execute or does 9:30 a.m. until market close. IOC Orders into the PRISM Mechanism pursuant to not entirely execute, because an ISO is entered between the time specified by Options 3, Section 13(ii)(K). ISOs must generally used when trying to sweep a the Exchange on its website and 9:30 have a time-in-force designation of price level across multiple exchanges in a.m. Eastern Time will be held within Immediate-or-Cancel. ISO Orders may an effort to post the balance of an order the System until 9:30 a.m. at which time not be submitted during the opening.’’ without locking an away market. ISO the System shall determine whether This rule text is identical to Phlx Orders have a limited purpose and such orders are marketable.’’ The Options 3, Section 7(b)(3), except that should be cancelled if they do not Exchange proposes to replace this BX Rules provide that an ISO must have execute or do not entirely execute. description with rule text similar to a time-in-force designation of The Exchange proposes to no longer Phlx Options 3, Section 7(c)(2) as these Immediate-or-Cancel, as proposed. offer the ‘‘One-Cancels-the-Other order types are identical. The Exchange The Phlx rules do not have this Order.’’ The Exchange will no longer proposes to state that an Immediate-or- restriction on ISO Orders.18 An ISO permit this order type with the Cancel Order or ‘‘IOC’’ Order is a Order is a Limit Order, as noted in the technology migration. This order type is Market Order or Limit Order to be current text and Options 5, Section 1 not in demand on BX. The Exchange executed in whole or in part upon continues to be referenced in the would file a rule change with the receipt. Any portion not so executed is proposed text. The Exchange continues Commission if it decides to offer this cancelled. Further, with respect to IOC to note that the orders are not routable. order type in the future. Orders, The additional text, ‘‘. . . will ignore The Exchange proposes to amend the (A) Orders entered with a TIF of IOC are the ABBO and trade at allowable prices ‘‘All-or-None Order,’’ within Options 3, not eligible for routing. on the Exchange’’ is more precise than Section 7(a)(8). The Exchange proposes (B) IOC orders may be entered through FIX the current rule text and describes to renumber this rule text as Options 3, or SQF, provided that an IOC Order entered current functionality. The Exchange Section 7(a)(7) The Exchange proposes by a Market Maker through SQF is not further proposes to state, ‘‘ISOs maybe to replace ‘‘shall mean’’ with ‘‘is’’ and subject to the Limit Order Price Protection or entered on the Order Book or into the change ‘‘opening cross’’ to simply the Market Order Spread Protection in PRISM Mechanism pursuant to Options ‘‘opening.’’ These proposed Options 3, Section 15(a)(1) and (a)(2), respectively; 3, Section 13(ii)(K).’’ That is also the amendments are technical and non- (C) Orders entered into the Price case today. The remainder of the current substantive. Improvement Auction (‘‘PRISM’’) Mechanism rule text is not necessary as Options 5, The Exchange proposes to add a are considered to have a TIF of IOC. By their Section 1 is cited. Removing the current ‘‘PRISM Order’’ to the list of order types terms, these orders will be: (1) Executed after rule text and replacing it with rule text at proposed Options 3, Section 7(a)(10). an exposure period, or (2) cancelled. similar to Phlx, is not proposed to The Exchange proposes to define this Options 5, Section 4(a) provides, that change the functionality of an ISO existing order type by cross-referencing IOC Orders will be cancelled Order. The proposed text merely Options 3, Section 13, which explains immediately if not executed, and will describes the ISO Order similar to Phlx. the order type. not be routed. The Exchange is The Exchange believes the proposed The Exchange proposes to add a proposing to memorialize this description provides a more succinct ‘‘Customer Cross Order’’ to the list of information within the description of an description. order types at proposed Options 3, IOC Order. The Exchange also proposes The Exchange does propose to amend Section 7(a)(11). The Exchange proposes to note that IOC Orders may be entered the current functionality of an ISO to define this existing order type by through FIX or SQF.20 The Exchange Order to require that ISOs have a time- cross-referencing Options 3, Section in-force designation of Immediate-or- 12(a), which explains the order type. 20 BX Options 3, Section 7(d)(1)(A) notes that Cancel (‘‘IOC’’) within Options 3, The Exchange proposes to amend orders may be entered through FIX and Options 3, Section 7(b)(2). Today, the rule provides Options 3, Section 7(b) to define ‘‘Time Section 7(d)(1)(B) specifies that ‘‘Immediate-or- that ISOs may have any time-in-force in Force’’ as ‘‘TIF’’. Cancel Orders may be entered through SQF. The Exchange proposes to amend an ‘‘Financial Information eXchange’’ or ‘‘FIX’’ is designation, except WAIT, and further described in Options 3, Section 7(d)(1)(A) as an requires that ISOs with a time-in-force ‘‘Immediate-Or-Cancel’’ Order or ‘‘IOC,’’ interface that allows Participants and their within Options 3, Section 7(b)(2) to add Sponsored Customers to connect, send, and receive 18 Phlx Options 3, Section 7(b)(3) provides, hyphens and make ‘‘Or’’ lowercase. The messages related to orders and auction orders and ‘‘Intermarket Sweep Order. An Intermarket Sweep Exchange proposes to remove the responses to and from the Exchange. Features Order (ISO) is a Limit Order that meets the include the following: (1) Execution messages; (2) requirements of Options 5, Section 1. Orders current description which provides that order messages; and (3) risk protection triggers and submitted to the Exchange as ISO are not routable cancel notifications. and will ignore the ABBO and trade at allowable 19 Today, BX’s System does not treat an ISO with ‘‘Specialized Quote Feed’’ or ‘‘SQF’’ is described prices on the Exchange. ISOs may be entered on the a time-in-force designation of GTC as having a time- in Options 3, Section 7(d)(1)(B) as an interface that regular order book or into PIXL pursuant to Options in-force designation of Day, as provided for within allows Market Makers to connect, send, and receive 3, Section 13 (b)(11). ISO Orders may not be BX’s current rule at Options 3, Section 7(a)(6). The messages related to quotes, Immediate-or-Cancel submitted during the Opening Process pursuant to Exchange’s proposed amendment would prevent Orders, and auction responses into and from the Options 3, Section 8.’’ ISOs from having any designation, other than IOC. Exchange. Features include the following: (1)

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also proposes to note that an IOC Order thereof) shall remain available for Exchange believes the proposed entered by a Market Maker through SQF potential display and/or execution until description is more succinct. is not subject to the Limit Order Price market close, unless canceled by the The Exchange proposes to no longer Protection or the Market Order Spread entering party, after which it shall be offer a TIF of ‘‘WAIT.’’ The Exchange Protection in Options 3, Section 15(a)(1) returned to the entering party. Day would remove the rule text at BX and (a)(2), respectively. The Order Price Orders shall be available for entry from Options 3, Section 7(b)(5). If the Protection and Market Order Spread the time prior to market open specified Exchange desires to offer this TIF in the Protection, while available for orders, by the Exchange on its website until future, it would file a proposed rule are not available on SQF. These market close and for potential execution change with the Commission pursuant exceptions are provided for within this from 9:30 a.m. until market close,’’ is to Section 19(b)(1) of the Act.24 proposed rule to ensure that this unnecessarily verbose and proposes to The Exchange proposes to note, information is available to market remove this rule text. The Exchange within BX Options 3, Section 7(c), the participants within the description of proposes to state, ‘‘Day’’ is an order various routing options which are IOC. entered with a TIF of ‘‘Day’’ that expires available. The Exchange proposes to add The Exchange proposes to add rule rule text which provides, ‘‘Routing text to the SQF protocol, within at the end of the day on which it was entered, if not executed. All orders by Strategies. Orders may be entered on the proposed Options 3, Section 7(e)(1)(B), Exchange with a routing strategy of their terms are Day Orders unless which provides, ‘‘Immediate-or-Cancel FIND, SRCH or Do-Not-Route (‘‘DNR’’) otherwise specified. Day Orders may be Orders entered into SQF are not subject as provided in Options 5, Section 4 entered through FIX. A Day Order on to the Limit Order Price Protection or through FIX only.’’ These routing the Market Order Spread Protection in Phlx functions in the same way as a Day strategies are consistent with a recent Options 3, Section 15(a)(1) and (a)(2), Order on BX. The Phlx rule text is more rule change filed to amend routing respectively.’’ Adding this exception to succinct in describing this order type. strategies.25 the SQF protocol as well as the TIF of The Exchange proposes to amend the Finally, the Exchange proposes to re- ‘‘IOC’’ will make clear that these order TIF of ‘‘Good Til Cancelled’’ or ‘‘GTC’’ letter current Options 3, Section 7(c) protections shall not apply to IOC at Options 5, Section 7(b)(4). The and (d). Orders entered through SQF. Exchange proposes to remove the words Also, the proposed rule would also Options 3, Section 10 ‘‘shall mean for orders’’ and add ‘‘is an specify that orders entered into the order.’’ The Exchange also proposes to The Exchange proposes to amend its PRISM Mechanism are considered to conform the rule text similar to Phlx Order Book allocation rule, within have a TIF of IOC. By their terms, these Options 3, Section 7(c)(4),23 and provide Options 3, Section 10, to amend the orders will be: (1) Executed after an manner in which rounding occurs. exposure period, or (2) cancelled.21 The that a ‘‘Good Til Cancelled’’ or ‘‘GTC’’ is ‘‘an order entered with a TIF of Today, BX rounds up or down to the Exchange believes that adding these nearest integer when it allocates and new details to the manner in which IOC ‘‘GTC’’ that, if not fully executed, will remain available for potential display any residual contract after rounding, if Orders are handled within the System rounding would result in an allocation will bring greater transparency to these and/or execution unless cancelled by the entering party, or until the option of less than one contract, would be order types. allocated to the Lead Market Maker. The The Exchange proposes to amend the expires, whichever comes first. GTC Exchange is amending the rounding TIF of ‘‘DAY’’ at Options 5, Section Orders shall be available for entry from methodology to round up to the nearest 7(b)(3) to remove the words ‘‘shall mean the time prior to market open specified integer. Options 3, Section 10 is being for orders’’ and add ‘‘is an order’’ to by the Exchange until market close.’’ amended to reflect the new conform the rule text to other text in The Exchange would remove the rule methodology. Each exchange has a this rule. The Exchange also proposes to text which provides, ‘‘that if after entry different rounding methodology.26 The conform the description of a TIF of into System, the order is not fully Exchange is opting to round up and not ‘‘DAY’’ similar to Phlx Options 3, executed, the order (or unexecuted down, uniformly for all Participants, Section 7(c)(1).22 The Exchange believes portion thereof) shall remain available and disclose that rounding methodology that the remainder of the description for for potential display and/or execution a Day Order, ‘‘if after entry into the directly within Options 3, Section 10, so unless cancelled by the entering party, that all Participants are aware of the System, the order is not fully executed, or until the option expires, whichever the order (or unexecuted portion rounding methodology that would be comes first. GTC Orders shall be utilized by the System. Today, rounding available for entry from the time prior is down, as specified in the Exchange’s Options symbol directory messages (e.g underlying to market open specified by the instruments); (2) system event messages (e.g., start Rules. In addition, if the result of an of trading hours messages and start of opening); (3) Exchange on its website until market allocation is not a whole number, it will trading action messages (e.g., halts and resumes); (4) close and for potential execution from now be rounded up to the nearest whole execution messages; (5) quote messages; (6) 9:30 a.m. until market close.’’ A GTC Immediate-or-Cancel Order messages; (7) risk number instead of down. Finally, with protection triggers and purge notifications; (8) Order on Phlx functions in the same respect to rounding, because it is opening imbalance messages; (9) auction way as a GTC Order on BX. The rounding up, the provisions which notifications; and (10) auction responses. The SQF Exchange is not proposing to amend the describe allocations for remainders of Purge Interface only receives and notifies of purge request from the Market Maker. Market Makers may functionality of a GTC Order, rather the only enter interest into SQF in their assigned 24 15 U.S.C. 78s(b)(1). options series. 23 Phlx Options 3, Section 7(c)(4) provides, ‘‘A 25 The Exchange separately filing to amend the 21 The TIF of IOC is applied to all PRISM Orders Good Til Cancelled (‘‘GTC’’) Order entered with a routing strategies and adopt ‘‘FIND’’. See SR–BX– today. TIF of GTC, if not fully executed, will remain 2020–7P. 22 Phlx Options 3, Section 7(c)(1) provides, ‘‘Day. available for potential display and/or execution 26 Phlx rounds down. See Options 3, Section 10. If not executed, an order entered with a TIF of unless cancelled by the entering party, or until the See also Securities Exchange Act Release No. 85876 ‘‘Day’’ expires at the end of the day on which it was option expires, whichever comes first. GTC Orders (May 16, 2019), 84 FR 23595 (May 22, 2019) (SR– entered. All orders by their terms are Day Orders shall be available for entry from the time prior to Phlx–2019–20) (Notice of Filing of Proposed Rule unless otherwise specified. Day orders may be market open specified by the Exchange until market Change Relating to the Allocation and Prioritization entered through FIX.’’ close.’’ of Automatically Executed Trades.

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less than one contract cannot occur and Today, ISE, GEMX and MRX permit In lieu of the procedures in paragraphs (i)– therefore this rule text is being removed, Customer Cross Orders as proposed (ii) above, an Initiating Participant may enter as such remainders would not be herein.29 The Exchange proposes to a PRISM Order for the account of a Public mathematically possible. The Exchange Customer paired with an order for the adopt Customer Cross Orders, within account of a Public Customer and such believes that rounding up uniformly is Options 3, Section 12(a), similar to ISE, paired orders will be automatically executed consistent with the Act because it GEMX and MRX Options 3, Section without a PRISM Auction, provided there is provides for the equitable allocation of 12(a) as follows: not currently another auction in progress in contracts among the Exchange’s market Public Customer-to-Public Customer Cross the same series, in which case the orders will participants. The Exchange proposes to Orders are automatically executed upon be cancelled. The execution price for such a provide market participants with entry provided that the execution is at or PRISM Order must be expressed in the transparency as to the number of between the best bid and offer on the quoting increment applicable to the affected contracts that they are entitled to Exchange and (i) is not at the same price as series. Such an execution may not trade a Public Customer Order on the Exchange’s through the NBBO or trade at the same price receive as the result of rounding. as any resting Public Customer order. Further, the Exchange believes that this limit order book and (ii) will not trade methodology produces an equitable through the NBBO. Public Customer-to- The Exchange is eliminating BX Options outcome during allocation that is Public Customer Cross Orders must be 3, Section 13(vi) because Public entered through FIX. Customer-to-Public Customer Cross consistent with the protection of (1) Public Customer-to-Public Customer investors and the public interest Orders would no longer be entered as Cross Orders will be rejected if they cannot PRISM Orders. With this proposal because all market participants are be executed. aware of the methodology that will be (2) Public Customer-to-Public Customer Public Customer-to-Public Customer utilized to calculate outcomes for Cross Orders may only be entered in the Cross Orders would be entered through allocation purposes. regular trading increments applicable to the FIX as a Customer Cross Order. The options class under Options 3, Section 3. prohibition expressed within current BX Options 3, Sections 12 and 22 (3) Options 3, Section 22(b)(1) applies to Options 3, Section 13(vi) provided for Today, the Exchange permits an the entry and execution of Customer Cross only one PRISM Auction to be Initiating Participant to enter a PRISM Orders. conducted at a time in any given series. Order for the account of a Public In particular, the Exchange proposes Today, to initiate the Auction, the Customer paired with an order for the to add a definition of a Customer Cross Initiating Participant must mark the account of a Public Customer and such Order specifying that a Customer Cross PRISM Order for Auction processing. paired orders will be automatically Order is comprised of a Public Customer With this proposal, Public Customer-to- executed without a PRISM Auction.27 Order to buy and a Public Customer Public Customer Cross Orders would The execution price for such a PRISM Order to sell at the same price and for not be tagged as a PRISM Auction. The Order must be expressed in the quoting the same quantity. The Exchange Public Customer-to-Public Customer increment applicable to the affected proposes to adopt Options 3, Section Cross Orders would be entered as a series. Such an execution may not trade 12(a) specifying that Public Customer- separate cross and therefore would not through the NBBO or trade at the same to-Public Customer Cross Orders are potentially cause more than one PRISM price as any resting Public Customer automatically executed upon entry Auction to occur in the same series. order.28 The Exchange proposes to provided that the execution is at or BX also proposes to add that Options remove the ability to enter Public between the best bid and offer on the 3, Section 22(a)(1),30 which is similar to Customer-to-Public Customer paired Exchange. Further, the execution would ISE Supplementary Material .01 to orders directly into PRISM for automatic not be at the same price as a Public Options 3, Section 22, applies to the execution and instead require them to Customer Order on the Exchange’s limit execution of Customer Cross Orders. In be entered through FIX, directly as order book, nor trade through the conjunction with this change, BX Customer Cross Orders. Today, a Public NBBO. Public Customer-to-Public proposes to add Customer Cross Order Customer-to-Public Customer paired Customer Cross Orders must be entered to Options 3, Section 22(a) and (c) as an order could only be entered into PRISM through FIX for execution pursuant to exception to the rules for limitations on to receive the treatment described proposed Options 3, Section 12(a). As principal transactions and solicitation within proposed Options 3, Section noted below in the PRISM discussion, a orders, which require Participants to 13(vi). With this proposal, the manner Public Customer-to-Public Customer expose trading interest to the market in which Public Customer-to-Public order submitted into PRISM directly before executing agency orders as Customer paired orders are being would be subject to execution pursuant principal or before executing agency processed by the System is changing. to Options 3, Section 13(i) and (ii). The With this proposal, Participants may Exchange is removing the current 30 BX Options 3, Section 22(a)(1) provides, ‘‘This Rule prevents Options Participants from executing enter Public Customer-to-Public provisions within Options 3, Section agency orders to increase its economic gain from Customer paired orders directly into FIX 13(vi) with this proposed rule change. trading against the order without first giving other and receive the same treatment that The proposed rule also specifies that trading interest on BX Options an opportunity to these orders receive today when entered Public Customer-to-Public Customer either trade with the agency order or to trade at the execution price when the Options Participant was into PRISM. The only difference to a Cross Orders will be rejected if they already bidding or offering on the book. However, Participant is the manner in which the cannot be executed and Public the Exchange recognizes that it may be possible for order must now be submitted, via FIX, Customer-to-Public Customer Cross an Options Participant to establish a relationship to post a Public Customer-to-Public Orders may only be entered in the with a customer or other person to deny agency orders the opportunity to interact on BX Options Customer Cross. regular trading increments applicable to and to realize similar economic benefits as it would The Exchange proposes to adopt the the options class under Options 3, achieve by executing agency orders as principal. It term ‘‘Crossing Orders’’ within Options Section 3. will be a violation of this Rule for an Options 3, Section 12, which is currently Current BX Options 3, Section 13(vi) Participant to be a party to any arrangement reserved, to describe this process. designed to circumvent this Rule by providing an provides, opportunity for a customer to regularly execute against agency orders handled by the Options 27 See Options 3, Section 13(vi). 29 See ISE, GEMX and MRX Options 3, Section Participant immediately upon their entry into BX 28 Id. 12(a). Options.’’

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orders against orders that were solicited allows the Participant to realize similar System operation, rather it more simply from other broker-dealers. economic benefits from the transaction states what that minimum increment is Options 3, Section 22(a)(1) contains as the Participant would achieve by today. The Exchange proposes a similar language similar to current BX Options executing agency orders as principal. change at Options 3, Section 13(ii)(A)(1) 3, Section 13(vi)(A) and, therefore, The Exchange would surveil Public by proposing to remove ‘‘one Minimum would continue to prevent a Participant Customer-to-Public Customer Cross Increment’’ and replace that text with from executing agency orders to Orders in the same fashion that it ‘‘$0.01.’’ Finally, the Exchange proposes increase its economic gain from trading already surveils for these orders on ISE, to amend Options 3, Section 13(ii)(A)(6) against the order without first giving GEMX and MRX. ISE Supplementary to replace a reference to ‘‘the minimum other trading interests on the Exchange Material .01 to Options 3, Section 22 on price improvement increment an opportunity to either trade with the ISE, GEMX and MRX and proposed BX established pursuant to subparagraph agency order or to trade at the execution Options 3, Section 22(a)(1) both prevent (i)(A) above’’ with ‘‘$0.01.’’ price when the Participant was already a executions of agency orders to The Exchange also proposes technical bidding or offering on the book. The increase its economic gain from trading amendments to capitalized the ‘‘if’’ Exchange proposes to add a sentence to against the order without first giving within Options 3, Section 13(i)(A) and the end of current BX Options 3, Section other trading interests on the exchange add an ‘‘If’’ before Options 3, Section 22(a)(1), which currently exists within an opportunity to either trade with the 13(i)(B) to conform the rule text. BX Options 3, Section 13(vi)(A).31 agency order or to trade at the execution The final amendment proposed to Specifically, the Exchange proposes to price when a market participant was Options 3, Section 13(ii)(A)(1) is to add ‘‘Further, it would be a violation of already bidding or offering on the book. amend the System functionality with this Rule for an Options Participant to Options 3, Section 13 respect to Surrender. Today, a circumvent this Rule by providing an Surrender feature is available on BX, opportunity for (A) a Public Customer The Exchange proposes to amend which permits the Initiating Participant affiliated with the Participant, or (B) a Options 3, Section 13, which describes to forfeit completely its priority and Public Customer with whom the the Price Improvement Auction or trade allocation privileges. The text Participant has an arrangement that ‘‘PRISM.’’ related to Surrender, within Options 3, allows the Participant to realize similar Similar to ISE, GEMX and MRX Section 13(ii)(A)(1), currently provides, economic benefits from the transaction Options 3, Section 13, the Exchange When starting an Auction, the Initiating as the Participant would achieve by proposes to amend its System functionality to better any limit order or Participant may submit the Initiating Order executing agency orders as principal, to with a designation of ‘‘surrender’’ to the regularly execute against agency orders quote on the limit order book on the other PRISM Participants (‘‘Surrender’’), handled by the firm immediately upon same side of the market as the PRISM which will result in the Initiating Participant their entry as Public Customer-to-Public Order, within Options 3, Section forfeiting the priority and trade allocation Customer immediate crosses.’’ The 13(i)(A) and (B). Today, Options 3, privileges which he is otherwise entitled to addition of this sentence to BX Options Section 13 only considers orders. With as per Section 9(ii)(E)(2)(a) and Section 3, Section 22(a)(1) will continue to make the technology migration, the Exchange 9(ii)(F)(2)(a). If Surrender is specified the clear the type of behavior that is proposes, similar to ISE, GEMX and Initiating Order will only trade if there is not prohibited when executing Public MRX’s rules at Options 3, Section 13, to enough interest available to fully execute the PRISM Order at prices which are equal to or Customer-to-Public Customer Cross consider quotes as well. The Exchange is proposing to add ‘‘or quote,’’ within improve upon the stop price. The Surrender Orders. Specifically, the Exchange notes function will never result in more than the that Options 3, Section 22 may not be Options 3, Sections 13(i) and (A) and (B) maximum allowable allocation percentage to circumvented by providing an and (ii)(A)(1). The addition of ‘‘quotes,’’ the Initiating Participant than that which the opportunity for (A) a Public Customer similar to ISE, GEMX and MRX at Initiating Participant would have otherwise affiliated with the Participant, or (B) a Options 3, Section 13, will enable the received in accordance with the allocation Public Customer with whom the Exchange to consider additional interest procedures set forth in this Rule. Surrender Participant has an arrangement that on the Order Book at time a PRISM will not be applied if both the Initiating Auction is initiated. The Exchange Order and PRISM Order are Public Customer 31 Current Options 3, Section 13(vi)(A) provides, believes expanding its consideration to orders. Surrender information will not be ‘‘Options 3, Section 22 prevents a Participant from both quotes and orders will consider a available to other market participants and executing agency orders to increase its economic greater amount of interest present on may not be modified. gain from trading against the order without first giving other trading interests on the Exchange an BX’s Order Book when initiating a The Exchange proposes to amend the opportunity to either trade with the agency order PRISM. first sentence of the above-referenced or to trade at the execution price when the In various places, within Options 3, paragraph to describe ‘‘Surrender.’’ The Participant was already bidding or offering on the Section 13, where the Exchange cites to Exchange proposes to state, ‘‘For book. However, the Exchange recognizes that it may be possible for a Participant to establish a the minimum increment rule at Options purposes of this Rule, Surrender shall relationship with a Public Customer or other person 3, Section 3, the Exchange proposes to mean the target allocation percentage to deny agency orders the opportunity to interact instead simply state the minimum the contra-side requests to be allocated on the Exchange and to realize similar economic increment allowable directly within the from 0% to 39%. If the Participant benefits as it would achieve by executing agency orders as principal. It would be a violation of rule. For example, BX proposes to requests 40%, then the Participant Options 3, Section 22 for a Participant to amend Options 3, Section 13(i)(A) and would receive its full priority and trade circumvent Options 3, Section 22 by providing an (B) to remove the rule text which states, allocation provisions that it would be opportunity for (i) a Public Customer affiliated with ‘‘at one minimum price improvement entitled to pursuant to Section the Participant, or (ii) a Public Customer with whom the Participant has an arrangement that increment,’’ and ‘‘at least one minimum 13(ii)(E)(2)(a) and Section allows the Participant to realize similar economic trading increment specified in Options 13(ii)(F)(2)(a).’’ The Exchange believes benefits from the transaction as the Participant 3, Section 3 (‘‘Minimum Increment’’)’’ that this will make clear the manner in would achieve by executing agency orders as and ‘‘the Minimum Increment,’’ which the System will handle the principal, to regularly execute against agency orders handled by the firm immediately upon their entry respectively, and instead simply state percentage designation. The Exchange as PRISM Public Customer-to-Public Customer ‘‘$0.01’’ within the rule text. This then proposes to amend the next immediate crosses.’’ amendment does not amend the current sentence to provide, ‘‘When starting an

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Auction, the Initiating Participant may designation of up to forty percent (40%). improve upon the stop price.’’ The submit the Initiating Order with a If a surrender percentage designation of Exchange believes that explaining if no percentage designation (a percentage 40% is submitted, this would indicate percentage were elected for Surrender from 0% up to 40% as noted above) of no surrender.33 If a surrender percentage (0%) more clearly describes the ‘‘Surrender’’, which will result in the designation between 0–39% is elected, remainder of the sentence which Initiating Participant being allocated its this would indicate the Initiating provides the Initiating Order will only designated percentage pursuant to Participant has surrendered their full trade if there is not enough interest Section 13(ii)(E)(2)(a) and Section 40% allocation entitlement and would available to fully execute the PRISM 13(ii)(F)(2)(a).’’ This proposed text retain only a lesser percentage Order at prices which are equal to or would permit an Initiating Participant to designation that the Participant elected improve upon the stop price, in light of submit an Initiating Order with a (between 0% and 39%). In this instance, the ability to configure the Surrender percentage for ‘‘Surrender’’ up to 40%, the Initiating Participant will not be percentage with this proposal. although the percentage may be lower. eligible to receive the highest possible The Exchange proposes to amend Today, the System permits a Participant allocation of fifty percent (50%). The Options 3, Section 13(ii)(A)(2) to add to have either a Surrender of 0% or 50% allocation is possible if only one ‘‘price’’ as a detail which is specified 40%. Today, ISE, GEMX and MRX other quote, or PAN response matches today for a PRISM Auction Notification Options 3, Section 13(e)(5)(iii), related the stop price and the Initiating or ‘‘PAN.’’ Current Options 3, Section to PIM Complex Orders, has a Participant has not chosen to designate 13(ii)(A)(2) states, ‘‘When the Exchange configurable Surrender provision.32 The any percentage designation of receives a PRISM Order for Auction proposed text indicates that the ‘‘Surrender.’’ A designation of processing, a PAN detailing the side, percentage could be 40% or a lower Surrender will result in the Initiating size, and options series of the PRISM percentage for priority and allocation by Participant forfeiting all or a portion of Order will be sent over the BX Depth stating, ‘‘. . .which will result in the their 40% enhanced allocation carve out feed and the Exchange’s Specialized Initiating Participant being allocated its to the other PRISM Participants. The Quote Feed.’’ The Exchange is designated percentage pursuant to percentage that is being submitted amending the current functionality of Section 13(ii)(E)(2)(a) and Section represents the percentage of allocation PRISM to disseminate ‘‘price’’ in 13(ii)(F)(2)(a).’’ This text similarly being requested by the contra-side party. addition to side, size, and options series proposes to amend Section The Exchange proposes to amend the similar to ISE, GEMX and MRX.34 13(ii)(E)(2)(a) and Section 13(ii)(F)(2)(a) current rule text, within Options 3, Adding ‘‘price’’ to the list of details will which describe Surrender percentages. Section 13(ii)(A)(1), which provides, provide Participants with greater By way of example, an Initiating ‘‘. . .forfeiting the priority and trade transparency and could encourage more Participant may submit an Initiating allocation privileges which he is competition in PRISM and greater Order with a ‘‘Surrender’’ percentage otherwise entitled to as per. . .’’. This opportunity for potential price rule text is being removed in favor of improvement in PRISM. 32 See ISE, GEMX and MRX Options 3, Section simply citing directly to the allocation The Exchange proposes to amend 13(e)(5)(iii) which provides, ‘‘In the case where the provisions (Section 13(ii)(E)(2)(a) and Options 3, Section 13(ii)(A)(7), which Counter-Side Complex Order is at the same net Section 13(ii)(F)(2)(a)). Also, the current price as Professional interest on the Complex Order currently provides, ‘‘A PAN response Book in (ii) above, the Counter-Side Complex Order rule text, ‘‘with a designation of size at any given price point may not will be allocated the greater of one (1) contract or ‘‘surrender’’ to the other PRISM exceed the size of the PRISM Order. A forty percent (40%) (or such lower percentage Participants (‘‘Surrender’’)’’ is being PAN response with a size greater than requested by the Member) of the initial size of the removed because the proposed rule text Agency Complex Order before other Professional the size of the PRISM Order will be interest on the Complex Order Book are executed. defines ‘‘Surrender’’ as the percentage immediately cancelled.’’ The Exchange Upon entry of Counter-Side Complex Orders, designation, which the Exchange is amending this rule in conjunction Members can elect to automatically match the price believes more accurately defines and size of Complex Orders, Improvement Complex with the technology migration to ‘‘Surrender’’ within the rule text. conform the behavior of PAN responses Orders received on the Complex Order Book during The Exchange is revising the second the exposure period up to a specified limit net price to ISE, GEMX and MRX System or without specifying a limit net price. This election sentence of Options 3, Section behavior.35 As noted above, the will also automatically match the net price 13(ii)(A)(1), which currently provides, Exchange is amending the System to available from the ISE best bids and offers on the ‘‘If Surrender is specified the Initiating accept oversized responses. These individual legs for the full size of the order; Order will only trade if there is not provided that with notice to Members the Exchange responses will no longer cancel back, enough interest available to fully may determine whether to offer this option only for rather, PRISM will cap the response at Complex Options Orders, Stock-Option Orders, execute the PRISM Order at prices the size of the PRISM Order for and/or Stock Complex Orders. If a Member elects which are equal to or improve upon the purposes of allocation. Any remaining to auto-match, the Counter-Side Complex Order stop price.’’ The Exchange proposes to will be allocated its full size at each price point, or interest from responses not filled during instead provide, ‘‘If zero (0%) is at each price point within its limit net price if a the PRISM Order allocation, including specified, the Initiating Order will only limit is specified, until a price point is reached any response quantity in excess of the where the balance of the order can be fully trade if there is not enough interest PRISM Order quantity, will be cancelled executed. At such price point, the Counter-Side available to fully execute the PRISM Complex Order shall be allocated the greater of one back to the Participant at the conclusion Order at prices which are equal to or contract or forty percent (40%) (or such lower of the auction timer. percentage requested by the Member) of the original The Exchange proposes to amend size of the Agency Complex Order, but only after 33 Initiating Participants may submit a percentage Priority Customer Complex Orders and for Surrender into the System, prior to submitting Options 3, Section 13(ii)(A)(8) and (9) to Improvement Complex Orders at such price point paired orders into PRISM. If the Initiating replace the words ‘‘immediately are executed in full. Thereafter, all Professional Participant submitted a percentage of 40% into the cancelled’’ with ‘‘rejected.’’ These Complex Orders and Improvement Complex Orders System, the Participant would receive its full technical amendments are intended to at the price point will participate in the execution priority and trade allocation provisions that it of the Agency Complex Order based upon the would be entitled to pursuant to Section percentage of the total number of contracts available 13(ii)(E)(2)(a) and Section 13(ii)(F)(2)(a). Of note, if 34 See ISE, GEMX and MRX Options 3, Section at the price that is represented by the size of the the Initiating Participant does not select a 13(c). Professional Complex Order or Improvement percentage, the System will populate the field with 35 See ISE, GEMX and MRX Options 3, Section Complex Order on the Complex Order Book.’’ 40%, the default Surrender percentage. 13(c)(2).

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conform the text of the rule where a of the Initiating Participant on the initial contracts which remained after Public response would be sent back as size of the Initiating Order after Public Customer allocation of 600 contracts, for a unacceptable by the System by Customer interest is satisfied. The remainder of 160 contracts) uniformly noting the order would be proposed rule text, within Options 3, Proposed Rule: Public Customer allocated Section 13(ii)(E)(2)(a), would provide, 600 @1.20 and contra-side allocated 400 @ ‘‘rejected.’’ 1.20 (in this case contra-side allocated The Exchange proposes to amend ‘‘If the Initiating Participant selected the 40% of 1000 contracts (initial size of the 36 Options 3, Section 13(ii)(C) to replace single stop price option of the PRISM Initiating Order) which is 400 contracts) ‘‘the Minimum Increment,’’ with Auction, PRISM executions will occur ‘‘$0.01’’, which is the actual increment. at prices that improve the stop price, Additional example to illustrate ‘‘initial The Exchange proposes to amend and then at the stop price with up to size’’ allocation with step up utilizing Options 3, Section 13(ii)(E)(2)(a) to 40% (or such lower percentage size pro-rata allocation pursuant to amend the System allocation to the requested by the Initiating Participant) Options 3, Section 13(ii)(E): Initiating Participant after Public of the initial size of the PRISM Order The NBBO and BX BBO are both 1 x 1.50 Customer orders have been allocated. after Public Customer interest is PRISM to buy 1000 is submitted with an Today, the Exchange rule provides, satisfied being allocated to the Initiating Initiating Order to stop the PRISM Order at 1.20, and the Initiating Order step up price If the Initiating Participant selected the Participant at the stop price.’’ The Exchange states, ‘‘. . . or such lower of 1.19 single stop price option of the PRISM PRISM begins. During the PRISM Auction: Auction, PRISM executions will occur at percentage requested by the Initiating Public Customer PAN arrives to sell 200 @ prices that improve the stop price, and then Participant’’ because as stated 1.19 and 40% allocation elected at the stop price with up to 40% of the previously, the Surrender percentage Firm 1 PAN to sell 1000 @1.20 arrives remaining contracts after Public Customer can be a percentage up to 40%. The Firm 2 PAN to sell 1000 @1.20 arrives interest is satisfied being allocated to the caveat in the second sentence also Current Rule: Public Customer allocated 200 Initiating Participant at the stop price. accounts for Surrender. The proposed @1.19, contra-side allocated 200 @1.19, However, if only one other quote, order or second sentence provides, ‘‘However, if contra-side allocated 240 @1.20 (40% of PAN response matches the stop price, then only one other quote, order or PAN remaining 600), Firm 1 allocated 180 @ the Initiating Participant may be allocated up 1.20, Firm 2 allocated 180 @1.20 to 50% of the contracts executed at such response matches the stop price, then the Initiating Participant may be Proposed Rule: Public Customer allocated price. Remaining contracts shall be allocated, 200 @1.19, contra-side allocated 200 @1.19, pursuant to Options 3, Section 13(ii)(E)(3) allocated up to 50% of the contracts contra-side allocated 400 @1.20 (40% of through (5) below, among remaining quotes, executed at such price, provided the initial 1000), Firm 1 allocated 100 @1.20, orders and PAN responses at the stop price. Initiating Participant had not designated Firm 2 allocated 100 @1.20. Thereafter, remaining contracts, if any, shall a percentage designation of ‘‘Surrender’’ be allocated to the Initiating Participant. The when initiating the Auction.’’ The The Exchange proposes to amend allocation will account for Surrender, if Exchange proposes similar changes to rounding, within Options 3, Section applicable. Options 3, Section 13(ii)(E)(2)(b), 13(ii)(G). Today, BX PRISM rounds up The Exchange proposes, similar to ISE, Section 13(ii)(E)(2)(c)(ii), in two places, or down to the nearest integer when it GEMX and MRX Options 3, Section Section 13(ii)(F)(2)(a) and (b), and allocates. The Exchange is amending the 13(d)(3),37 to base the priority allocation Section 13(ii)(F)(2)(c)(ii), in two places. rounding methodology to round up to The proposed changes do not impact the the nearest integer. Options 3, Section 36 BX Options 3, Section 13(ii)(C) provides, ‘‘If the manner in which the Exchange allocates 13(ii)(G) is being amended to reflect the situations described in sub-paragraphs (B)(2) or (3) pursuant to price/time, size pro-rata and new methodology. As a result of above occur, the entire PRISM Order will be auto-match. In each of these places the changing the rounding methodology, executed at: (1) In the case of the BX BBO crossing residual odd lots will no longer exist. If the PRISM Order stop price, the best response Exchange is amending the rule text to price(s) or, if the stop price is the best price in the remove the phrase ‘‘contracts the result of an allocation is not a whole Auction, at the stop price, unless the best response remaining’’ and instead providing number, it will now be rounded up to price is equal to or better than the price of a limit ‘‘initial size of the PRISM Order.’’ By the nearest whole number instead of order resting on the Order Book on the same side down. Finally, with respect to rounding, of the market as the PRISM Order, in which case way of example, because it is rounding up, the the PRISM Order will be executed against that The NBBO and BX BBO are both 1 x 1.50 response, but at a price that is at least the Minimum provisions which describe allocations Increment better than the price of such limit order PRISM to buy 1000 is submitted with an Initiating Order to stop the PRISM Order at for remainders of less than one contract at the time of the conclusion of the Auction; or (2) cannot occur and, therefore, this rule in the case of a trading halt on the Exchange in the 1.20 affected series, the stop price, in which case the PRISM begins. During the PRISM Auction: text is being removed because such PRISM Order will be executed solely against the Public Customer PAN arrives to sell 600 @ remainders would not be possible. Initiating Order. Any unexecuted PAN responses 1.20 The Exchange proposes to amend will be cancelled.’’ Firm 1 PAN to sell 1000 @1.20 arrives Options 3, Section 13(ii)(H) to remove 37 ISE, GEMX and MRX Options 3, Section Firm 2 PAN to sell 1000 @1.20 arrives 13(d)(3), provides, ‘‘In the case where the Counter- the phrase ‘‘then-existing.’’ Current Current Rule: Public Customer allocated 600 Options 3, Section 13(ii)(H) provides, Side Order is at the same price as Professional @1.20, contra-side allocated 160 @1.20, Interest in (d)(2), the Counter-Side order will be Firm 1 and 2 each allocated 170 @1.20 (in ‘‘If there are PAN responses that cross allocated the greater of one (1) contract or forty the then-existing NBBO (provided such percent (40%) of the initial size of the Agency this case contra-side allocated 40% of 400 Order before Professional Interest is executed. Upon NBBO is not crossed), such PAN entry of Counter-Side orders, Members can elect to Agency Order, but only after Priority Customer responses will be executed, if possible, automatically match the price and size of orders, Interest at such price point are executed in full. at their limit price(s).’’ The Exchange is quotes and responses received during the exposure Thereafter, all Professional Interest at the price not amending the current operation of period up to a specified limit price or without point will participate in the execution of the specifying a limit price. In this case, the Counter- Agency Order based upon the percentage of the the System, rather the Exchange is Side order will be allocated its full size at each total number of contracts available at the price that amending its rules to more accurately price point, or at each price point within its limit is represented by the size of the Professional state, ‘‘If there are PAN responses that price if a limit is specified, until a price point is Interest. An election to automatically match better cross the NBBO at the time of execution reached where the balance of the order can be fully prices cannot be cancelled or altered during the executed. At such price point, the Counter-Side exposure period.’’ See also NYSE American Rule (provided such NBBO is not crossed), order shall be allocated the greater of one contract 971 1NY(c)(5)(B)(i)(b) (order allocation for single such PAN responses will be executed, if or forty percent (40%) of the original size of the stop price). possible, at their limit price(s).’’ The

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current text appeared to state that the transmitting the PRISM ISO to the Exchange in this proposal with respect to Public System was utilizing the NBBO upon has, simultaneously with the routing of the Customer-to-Public Customer orders. entry to check if the PAN responses PRISM ISO, routed one or more ISOs, as Public Customer-to-Public Customer crossed the NBBO, however, the System necessary, to execute against the full orders submitted into PRISM would be displayed size of any Protected Bid or utilizes the NBBO at the time of Protected Offer that is superior to the starting subject to the procedures, within execution to check if the PAN responses PRISM Auction price and has swept all Options 3, Section 12(a). cross the NBBO. The Exchange believes interest in the Exchange’s Order Book priced this revised text better expresses the better than the proposed auction starting Options 3, Section 23 manner in which the current System price. Any execution(s) resulting from such The Exchange proposes to amend sweeps shall accrue to the PRISM Order. operates. This change does not amend Options 3, Section 23, Data Feeds and the current System operation. Phlx similarly describes a Price Trade Information, to update its The Exchange proposes to amend Improvement XL Mechanism (‘‘PIXL’’) descriptions of the BX Depth of Market Options 3, Section 13(ii)(I), which ISO in its rule text at Options 3, Section (BX Depth) and BX Top of Market (BX currently provides: 38 13(b)(11). This text does not amend Top) data feeds. The Exchange proposes If the price of the PRISM Auction is the the current System functionality, rather to amend the BX Depth data feed at same as that of an order on the limit order it adds context to the current PRISM Options 3, Section 23(a)(1) to more book on the same side of the market as the rule in describing a PRISM ISO. BX also closely align with current System PRISM Order, the PRISM Order may only be proposes to amend the title of Options executed at a price that is at least one operation. The Exchange proposes a 3, Section 13(ii)(K) from ‘‘ISO Orders’’ technical amendment to the first minimum trading increment better than the to ‘‘PRISM ISO Orders.’’ The Exchange resting order’s limit price or, if such resting sentence to replace a comma with the order’s limit price is equal to or crosses the also proposes to utilize this proposed word ‘‘and.’’ The Exchange also stop price, then the entire PRISM Order will term within Options 3, Section 13(ii)(K). proposes to relocate rule text concerning trade at the stop price with all better priced The Exchange proposes to correct order imbalances to the end of the Options 3, Section 13(ii)(K) to clearly interest being considered for execution at the description. The Exchange proposes to stop price. describe the current System operation. amend the first sentence to state ‘‘BX The Exchange proposes to amend the The Exchange proposes to add some Depth of Market (BX Depth) is a data first sentence of current Options 3, context to the rule to better reflect the feed that provides full order and quote Section 13(ii)(K) to provide: current System operation. First, the depth information for individual orders Exchange purposes to add the word If a PRISM Auction is initiated for an order and quotes on the BX Options book, and ‘‘execution’’ in the first sentence of designated as a PRISM ISO Order, all last sale information for trades executed Options 3, Section 13(ii)(I). The executions which are at a price inferior to the on BX Options.’’ The Exchange would Initial NBBO (on the contra-side of the execution price of the PRISM Auction is amend and relocate the rule text that utilized to compare to the price of an PRISM Order) shall be allocated pursuant to the Size Pro-Rata execution algorithm, as provides, ‘‘and Order Imbalance order on the limit Order Book. The described in Options 3, Section Information as set forth in BX Options Exchange utilizes the execution price 10(a)(1)(C)(2), or Price/Time execution Rules Options 3, Section 8’’ to the end today on BX. Adding the word algorithm, as described in Options 3, Section of the first sentence. The Exchange ‘‘execution’’ makes clear to Participants 10 (a)(1)(C)(1), and the aforementioned proposes to add a sentence at the end of that the initial PRISM Order stop price priority in Options 3, Section 13(ii)(E) and the description which states, ‘‘The feed is not utilized to compare the same side (F) shall not apply, with the exception of also provides order imbalances on of the market transactions. If the allocating to the Initiating Participant which will be allocated in accordance with the opening/re-opening (size of matched potential execution price of the PRISM contracts and size of the imbalance), Order would be the same or better than priority as specified in Options 3, Section 13(ii)(E) and (F). auction and exposure notifications.’’ the price of an order on the limit Order This sentence makes clear that order Book on the same side of the market as The Exchange states ‘‘on the contra- side of the PRISM Order’’ to distinguish imbalance information is provided for the PRISM Order then, today, would be both an opening and re-opening process. executed at a price $0.01 better than the contra-side from the same side of the PRISM Order, which receives different Today, a re-opening process initiates such limit order, regardless of whether after a trading halt has occurred intra- such limit was a Public or Non-Public treatment in allocation. This proposed amendment is intended to clarify the day. Also, the proposed rule provides Customer Order. While ‘‘or better’’ is the specific information that would be not clearly specified, it is the case today current System operation, not amend the System. provided in the data feed, namely the and its inclusion is meant to capture size of matched contracts and size of the cases where PAN responses provide Finally, the Exchange proposes to renumber Options 3, Section 13(vi) to imbalance. Finally, auction 39 and price improvement for the PRISM Order exposure notifications 40 are also at prices that are crossed with the same ‘‘(v).’’ This reflects the deletion of section ‘‘vi’’ which was described above provided in the data feed. The Exchange side interest mentioned above. The believes that this additional context to remainder of the changes are 38 imbalance messages as well as also grammatical and technical in nature, to Phlx Options 3, Section 13(b)(11) states, ‘‘PIXL ISO Order. A PIXL ISO order (PIXL ISO) is the noting that auction and exposure the extent the Exchange is creating two transmission of two orders for crossing pursuant to notifications are provided will provide separate sentences. this Rule without regard for better priced Protected market participants with more complete The Exchange proposes to amend Bids/Offers (as defined in Options 5, Section 1) information about what is contained in Options 3, Section 13(ii)(K) to add the because the member transmitting the PIXL ISO to the Exchange has, simultaneously with the routing the data feed. This information is following introductory text which of the PIXL ISO, routed one or more ISOs, as available today and the rule text is being describes a PRISM ISO. necessary, to execute against the full displayed size A PRISM ISO Order is the transmission of of any Protected Bid/Offer that is superior to the starting PIXL Auction price and has swept all 39 Auctions notifications refer to PANs within two orders for crossing pursuant to this Rule interest in the Exchange’s book priced better than Options 3, Section 13. without regard for better priced Protected the proposed Auction starting price. Any 40 Exposure notifications refer to those messages Bids or Protected Offers (as defined in execution(s) resulting from such sweeps shall that are disseminated as part of routing within Options 5, Section 1) because the Participant accrue to the PIXL Order.’’ Options 5, Section 4.

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amended to make clear what to provide greater specificity regarding contain a similar sentence. BX proposes information is currently provided.41 what is meant by the term ‘‘Public removing this sentence because it does The Exchange also proposes to amend Customer.’’ Specifically, the Exchange not add useful information to the description of the BX Top data feed, proposes to provide that a ‘‘Public understanding who may qualify as a within Options 3, Section 23(a)(2). The Customer’’ could be a person or entity Professional. Exchange proposes to amend the first and is not a Professional as defined The Exchange’s proposal to remove sentence to provide that the BX Top within Options 1, Section 1(a)(48).45 sentences, within Options 3, Section ‘‘calculates and disseminates BX’s best Today, a Public Customer is not a 10(a)(1)(C)(1)(a), Options 3, Section bid and offer and last sale information Professional. The term ‘Professional’’ is 10(a)(2)(i), Options 3, Section 13, in the for trades executed on BX Options.’’ The separately defined, within BX Options introductory paragraph, and Options 3, current sentence provides that the BX 1, Section 1(a)(48). In order to properly Section 13(ii)(E)(1) and (F)(1), which Top, ‘‘is a data feed that provides the BX represent orders entered on the allocation and PRISM rules, Options Best Bid and Offer and last sale Exchange, Participants are required to respectively, provide that a Public information for trades executed on BX indicate whether orders are Customer does not include a Options.’’ The Exchange believes that ‘‘Professional Orders.’’ To comply with Professional, are consistent with the the amended description more clearly this requirement, Participants are Act. Today, the definition of a Public describes the BX Top data feed. Further, required to review their Public Customer does not explicitly exclude a the Exchange proposes to amend the Customers’ activity on at least a Professional. The language that the second sentence to provide, ‘‘The feed quarterly basis to determine whether Exchange proposes to delete, today, also provides last trade information and orders that are not for the account of a indicates that Professionals would not for each options series includes the broker-dealer should be represented as be treated the same as a Public symbols (series and underlying Public Customer Orders or Professional Customer in terms of priority and, security), put or call indicator, Orders.46 A Public Customer may be a therefore, would not receive the same expiration date, the strike price of the Professional if they meet the allocation that is reserved for Public series, and whether the option series is requirements specified within BX Customer orders. Because BX is available for trading on BX and Options 1, Section 1(a)(48). If the amending the definition of a Public identifies if the series is available for Professional definition is not met, the Customer to explicitly exclude closing transactions only.’’ The current order is treated as a Public Customer Professionals, the language in the second sentence provides, ‘‘The data order. The Exchange believes that it is PRISM and allocation rules are no provided for each options series consistent with the Act to state within longer necessary to distinguish these includes the symbols (series and the definition of ‘‘Public Customers’’ two types of market participants. underlying security), put or call that a Professional is not a Public Bid/Ask Differentials indicator, expiration date, the strike Customer. As noted above, there is a price of the series, and whether the process for determining if a market The Exchange’s proposal to amend BX option series is available for trading on participant qualifies as a ‘‘Professional.’’ Options 2, Section 5(d)(2) to add the BX and identifies if the series is This specificity will serve to protect words ‘‘Intra-Day’’ before the title ‘‘Bid/ available for closing transactions only.’’ investors and the public interest in that ask Differentials (Quote Spread The Exchange believes noting that the the terms ‘‘Public Customer’’ and Parameters)’’ and remove references to last trade information is provided will ‘‘Professional’’ are separate categories of the opening, will make clear for Market make clear to market participants the market participants, as defined. Also, Makers their intra-day requirements. data that is currently available on BX this definition conforms to Phlx’s The bid/ask differentials, within BX Top. This information is available today definition at Options 1, Section 1(b)(46). Options 2, Section 5(d)(2), will apply and the rule text is being amended to The Exchange’s proposal to remove a intra-day only. The bid/ask differentials make clear what information is sentence within Options 1, Section applicable to the opening are noted currently provided.42 1(a)(48) which provides, ‘‘A Participant within current BX Options 3, Section or a Public Customers may, without 8(a)(6).47 It is not necessary to discuss 2. Statutory Basis limitation, be a Professional,’’ is the opening bid/ask differentials within The Exchange believes that its consistent with the Act. This sentence is Options 2, Section 5. The bid/ask proposal is consistent with Section 6(b) confusing and not necessary. Phlx differentials, within BX Options 2, of the Act,43 in general, and furthers the Options 1, Section 1(b)(46) does not Section 5(d)(2), are not otherwise being objectives of Section 6(b)(5) of the Act,44 amended. This clarification is consistent in particular, in that it is designed to 45 BX Options 1, Section 1(a)(48) provides that, with the Act because it is designed to promote just and equitable principles of ‘‘The term ‘‘Professional’’ means any person or avoid any confusion for Market Makers trade, to remove impediments to and entity that (i) is not a broker or dealer in securities, as to their intra-day requirements versus and (ii) places more than 390 orders in listed perfect the mechanism of a free and options per day on average during a calendar month their opening requirements. open market and a national market for its own beneficial account(s). A Participant or The Exchange’s proposal to amend BX system, and, in general to protect a Public Customer may, without limitation, be a Rules at Options 2, Section 4(f)(4)–(6) investors and the public interest. Professional. All Professional orders shall be (Obligations of Market Makers and Lead appropriately marked by Participants.’’ Market Makers), which specifies quoting Options 1, Section 1 46 Participants conduct a quarterly review and make any appropriate changes to the way in which requirements for Lead Market Makers, to The Exchange’s proposal to amend they are representing orders within five days after conform the rule to proposed BX the definition of ‘‘Public Customer’’ to the end of each calendar quarter. While Participants Options 2, Section 5(d)(2), which conform to Phlx’s definition is intended only will be required to review their accounts on a quarterly basis, if during a quarter the Exchange applies to BX Market Makers, is identifies a customer for which orders are being consistent with the Act. The Exchange 41 Fees related to BX TOP are noted within BX represented as Public Customer Orders but that has believes it is consistent with the Act to Options 7, Section 3. averaged more than 390 orders per day during a permit Lead Market Makers to quote as 42 Fees related to BX Depth are noted within BX month, the Exchange will notify the Participant and Options 7, Section 3. the Participant will be required to change the wide as Market Makers on BX. 43 15 U.S.C. 78f(b) manner in which it is representing the customer’s 44 15 U.S.C. 78f(b)(5). orders within five days. 47 See note 5 above.

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Today, Lead Market Makers have proposes to add rule text, similar to BX which lock or cross an away market will higher quoting requirements and other Options 2, Section 4(f)(5) and BX automatically re-price one minimum obligations noted within Options 2, Options 5, Section 5(d)(2), which price improvement inferior to the Section 3, than Market Makers, which permits BX to establish differences other original away best bid/offer price to one accounts for their priority allocations, than the stated bid/ask differentials, for minimum trading increment away from within Options 3, Section 10.48 The one or more series or classes of options. the new away best bid/offer price or its Exchange is proposing to allow Lead The ability to establish differences, original limit price.54 The re-priced Market Makers to obtain similar quoting other than the stated bid/ask order is displayed on OPRA. The order relief as, today, may be provided to differentials, for one or more series or remains on BX’s Order Book and is Market Makers. There is no limitation classes of options already exists today accessible at the non-displayed price. on the quoting relief that may be for BX Lead Market Maker quoting For example, a limit order may be afforded to Market Makers today, the requirements, however this discretion is accessed on BX by a Participant if the Exchange is proposing to conform the limited by BX Options 2, Section limit order is priced better than the ability for the Exchange to grant quoting 4(f)(6).50 The Exchange’s proposal NBBO. The Exchange believes that the relief equally to Market Makers and would align the procedural BX would addition of this rule text will allow BX Lead Market Makers in the same option follow with other options exchanges, to define an ‘‘internal BBO’’ within its series. Today, while a Lead Market which notify members in writing of any rules when describing re-priced orders Maker has higher quoting obligations discretion that is being granted by the that remain on the Order Book and are they have less opportunity for quoting Exchange. BX would no longer file a available at non-displayed prices, which relief in a certain options series as report with BX operations. Today, no are resting on the Order Book. compared to a Market Maker who is other Nasdaq exchange files a report Options 3, Section 7 quoting in the same options series. In when it grants exemptions, including periods of market volatility, similar to exemptions for BX Market Makers. The Exchange’s proposal to amend those experienced in the first half of Decisions to grant exemptions are made the Cancel-Replacement Order, within 2020, BX’s ability to grant quote relief based on current market conditions. Options 3, Section 7(a)(1), is consistent was limited as compared to other Exchanges need to be able to react when with the Act. The Exchange’s proposal options markets. market conditions change dramatically to amend its System functionality for Replacing Options 2, Section 4(f)(4)— and require the Exchange to grant relief. Cancel-Replacement Orders that do not (6) with the rule text, within BX Options The additional steps that are currently meet price or other reasonability checks, 2, Section 5(d)(2), would continue to required on BX, are not conducive to which consider the current market at require Lead Market Makers to quote granting relief in fast changing markets. the time of the Cancel-Replacement with a difference not to exceed $5 In addition, the quoting requirements Order, is consistent with the Act, between the bid and offer regardless of for BX Lead Market Makers and Makers because, with this proposal, all Cancel- the price of the bid. However, instead of is consistent with requirements on other Replacement Orders would receive requiring Lead Market Makers to quote Nasdaq Affiliated Markets that have price or other reasonability checks as a a price differential for any in-the-money both Market Makers and Lead Market result of being viewed as new orders. option series identical to those in the Makers.51 Other options markets do not Price and size are the terms that will underlying security market, in the event limit their lead market makers to quote determine if the Cancel-Replacement the bid/ask differential in the relief as BX limits quote relief today for Order retains its priority, as is the case underlying security is greater than the its Lead Market Makers. Today, BX today, other terms and conditions do bid/ask differential set forth in limits its Lead Market Makers to quote not amend the priority of the Cancel- subsections (f)(4) and (5), the Exchange relief which may not be greater than half Replacement Order. The Exchange is would now permit the bid/ask as wide as the bid/ask differential.52 not amending the current System differential to be as wide as the spread functionality of a Cancel-Replacement Options 3, Section 5 between the national best bid and offer Order with respect to the terms that will in the underlying security when the The Exchange’s proposal to amend cause the order to lose priority. Today, market for the underlying security is Options 3, Section 5(c) to add additional the price of the order may not be wider than $5. Further, replacing the rule text similar to Phlx Options 3, changed when submitting a Cancel- exemptions from subsections (f)(4) and Section 5(c) is consistent with the Act. Replacement Order, that would be a (5) and permitting BX to establish quote Today, BX re-prices certain orders to new order. width differentials similar to BX Market avoid locking and crossing away If a Cancel-Replacement Order does Makers with this provision is consistent markets, consistent with its Trade- not pass a price or other reasonability with the Act, because it would align the Through Compliance and Locked or check, the order will cancel, but it will bid/ask differentials for BX Market Crossed Markets obligations.53 Orders not be replaced with a new order. The Makers and BX Lead Market Makers Limit Order Price Protection and Market with quoting requirements of other 50 See BX Options 2, Section 4(f)(5). Order Spread Protection are the only 51 Nasdaq Affiliated Markets that have See Phlx at Options 2, Section 4(c) and ISE, GEMX and MRX Rules at Options 2, Section 4(b)(4). member as non-routable will be re-priced in order both Market Makers and Lead Market ISE, GEMX and MRX utilize the term Primary to comply with applicable Trade-Through and 49 Makers. Further, the additional Market Maker instead of Lead Market Maker. Locked and Crossed Markets restrictions. If, at the allowance and exemptions are no longer 52 See ISE and GEMX at Options 2, Section 5, time of entry, an order that the entering party has necessary because the Exchange Miami International Securities Exchange LLC Rule elected not to make eligible for routing would cause 503(e)(2), BOX Exchange LLC Rule 8040 and NYSE a locked or crossed market violation or would cause American LLC Rule 925NY(b)(5) and (c). a trade-through violation, it will be re-priced to the 48 See BX Options 3, Section 10(a)(1)(C)(1)(b) and 53 BX Options 3, Section 5(d) provides, ‘‘An order current national best offer (for bids) or the current Section 10(a)(2)(ii) which describe Lead Market will not be executed at a price that trades through national best bid (for offers) and displayed at one Maker Priority. another market or displayed at a price that would minimum price variance above (for offers) or below 49 See Nasdaq Phlx LLC Rules at Options 2, lock or cross another market. An order that is (for bids) the national best price.’’ Section 4(c) and ISE, GEMX and MRX Rules at designated by the member as routable will be 54 See Options 5, Section 4 (Order Routing), Options 2, Section 4(b)(4). ISE, GEMX and MRX routed in compliance with applicable Trade- which describes the repricing of orders for both utilize the term Primary Market Maker instead of Through and Locked and Crossed Markets routable and non-routable orders within Options 5, Lead Market Maker. restrictions. An order that is designated by a Section 4(a)(iii)(A), (B) and (C).

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risk protections within Options 3, The Exchange’s proposal to amend functionality of an ISO Order to require Section 15 (Risk Protections) that are ‘‘Minimum Quantity Orders,’’ within that ISOs have a time-in-force applicable. Price or other reasonability Options 3, Section 7(a)(4), is non- designation of Immediate-or-Cancel. checks consider the current market at substantive and makes technical edits Today, ISOs may have any time-in-force the time the Cancel-Replacement Order that do not change the meaning of the designation except WAIT, except that is entered. The Exchange proposes to term. ISOs with a time-in-force designation of begin applying price or other The Exchange’s proposal to amend GTC are treated as having a time-in- reasonability checks to all Cancel- ‘‘Market Orders,’’ within Options 3, force designation of ‘‘Day.’’ With this Replacement Orders, similar to ISE, Section 7(a)(5), is consistent with the proposal, the Exchange would only GEMX and MRX, to provide market Act. The Exchange’s proposes to style continue to allow a time-in-force of IOC. participants with additional risk ‘‘Market Orders’’ in the singular and A TIF designation of IOC that would protection checks with the re-entry of change ‘‘are’’ to ‘‘is an’’ and ‘‘orders’’ to cause an ISO Order to cancel in whole the Cancel-Replacement Order. This ‘‘order’’ are technical and non- or in part upon receipt, in the event that proposed rule is similar to ISE, GEMX substantive amendments. The the ISO Order does not execute or does and MRX Rules at Options 3, Section 7 Exchange’s proposal to add a notation at not entirely execute, is consistent with at Supplementary Material .02, except the end of the rule to provide that the Act because an ISO is generally used that ISE, GEMX and MRX discuss ‘‘Participants can designate that their when trying to sweep a price level Reserve Orders, which are not available Market Orders not executed after a pre- across multiple exchanges in an effort to on BX.55 All risk protections are noted established period of time, as post the balance of an order without within Options 3, Section 15. Those risk established by the Exchange, will be locking an away market. protections apply throughout the cancelled back to the Participant, once The Exchange’s proposal to remove Rulebook, except where otherwise an option series has opened for trading’’ the ‘‘One-Cancels-the-Other Order’’ is noted. The Exchange believes that it is adds specificity regarding the opening. consistent with the Act because it will consistent with the Act to treat such Market Orders submitted during the remove an order type that is not in orders as new orders which will be opening may be executed, routed demand on BX and simply the offerings subject to price or other reasonability (depending on instructions from the provided by BX. The Exchange would checks. The Exchange believes that market participant) or cancelled if the file a proposed rule change with the conducting price or other reasonability Market Order is priced through the Commission pursuant to Section 19b1 of checks for all Cancel and Replace opening price. The Exchange would the Act,56 if it decides to offer this order Orders will protect investors and the only cancel those Market Orders that type in the future. It will provide notice public interest by validating the order remained on the Order Book once an to Participants that this order type will against the current market conditions option series opened. The pre- no longer be available. prior to proceeding with the request to established period of time would The Exchange’s amendment to ‘‘All- modify the order. commence once the intra-day trading or-None Order,’’ within Options 3, The Exchange’s proposal to amend session begins for that options series Section 7(a)(7), is non-substantive and ‘‘Directed Order,’’ within Options 3, and the order would be cancelled back does not change the meaning of the Section 7(a)(2), is non-substantive and to the Participant, provided the term. The amendment makes technical makes technical edits that do not change Participant elected to cancel back its changes and replaces the words the meaning of the term. Market Orders. The Exchange’s proposal ‘‘opening cross’’ with ‘‘opening’’. The Exchange’s proposal to amend differentiates when the opening is on- The Exchange’s proposal to include a ‘‘Limit Order,’’ within Options 3, going, and the intra-day trading session ‘‘PRISM Order’’ and ‘‘Customer Cross Section 7(a)(3), to add the sentence for has not commenced, the manner in Order’’ in the list of order types is marketable limit orders currently within which the pre-established period of time consistent with the Act because the ISE, GEMX and MRX Options 3, Section would commence. addition of these terms within the list of 7(b)(1) is consistent with the Act. The The proposal to note that ‘‘Market order types simply cross-references the Exchange believes that this description Orders on the Order Book would be existing order types and does not more aptly informs participants about a immediately cancelled if an options change the functionality of the order marketable limit order as compared to series halted, provided the Participant types. The Exchange’s proposal defines the current rule text, which may be designated the cancellation of Market this existing order type by cross- confusing. The new sentence does not Orders’’ specifically addresses trading referencing Options 3, Section 13 and substantively amend the manner in halts within the rule. Once an options Options 3, Section 12(a), respectively, which a Limit Order operates. series halts for trading, the Exchange which explains these existing order conducts another Opening Process. In types. The Exchange believes that 55 ISE, GEMX and MRX Options 3, Section 7 at the case where a Market Order was adding these order types, within Supplementary Material .02, provides, ‘‘Cancel and resting on the Order Book, and the Options 7, Section 3, will bring greater Replace Orders shall mean a single message for the immediate cancellation of a previously received Participant had designated the clarity to the list of order types available order and the replacement of that order with a new cancellation of Market Orders, in the on BX for the protection of investors order. If the previously placed order is already event of a halt, the Market Orders and the general public. filled partially or in its entirety, the replacement resting on the Order Book would The Exchange’s proposal to amend an order is automatically canceled or reduced by the number of contracts that were executed. The immediately cancel. The Exchange ‘‘Immediate-Or-Cancel’’ Order or ‘‘IOC,’’ replacement order will retain the priority of the believes that this text provides more within Options 3, Section 7(b)(2), is cancelled order, if the order posts to the Order detail for market participants to consistent with the Act. The Exchange’s Book, provided the price is not amended, size is not proposal replaces the current increased, or in the case of Reserve Orders, size is understand the manner in which the not changed. If the replacement portion of a Cancel System handles Market Orders. description with Phlx’s description at and Replace Order does not satisfy the System’s The Exchange’s proposal to amend Options 3, Section 7(c)(2) as these order price or other reasonability checks (e.g. Options 3, ‘‘Intermarket Sweep Order’’ or ‘‘ISO’’ types are identical. The Exchange’s Section 15(b)(1)(A) and (b)(1)(B); and Orders, within Options 3, Section Supplementary Material .07 (a)(1)(A), (b) and (c)(1) proposal to state that an Immediate-or- to Options 8, Section 14) the existing order shall be 7(a)(6), is consistent with the Act. The cancelled and not replaced.’’ Exchange is amending the current 56 15 U.S.C. 78s(b)(1).

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Cancel Order or ‘‘IOC’’ Order is a have a TIF of IOC; this is also true of pursuant to Section 19b1 of the Act,62 Market Order or Limit Order to be the PIXL Mechanism on Phlx.59 The if it decides to offer this order type in executed in whole or in part upon Exchange believes that adding these the future. It will provide notice to receipt will bring greater clarity to the new details to the manner in which IOC Participants that this order type will no rule. Further the Exchange’s proposal to Orders are handled within the System longer be available. add that any portion not so executed is will bring greater transparency to these The Exchange’s proposal to note, cancelled is consistent with the current order types and provide Participants within BX Options 3, Section 7(c), the description. The Exchange is adding with greater detail as to the manner in various routing options which are additional context, similar to Phlx, with which the System will handle a TIF of available is consistent with the Act. respect to routing, submission through IOC. These routing strategies are consistent FIX or SQF and the price protections The Exchange’s proposal to amend with a recent rule change filed by BX to that apply when utilizing SQF. The the TIF of ‘‘DAY’’ at Options 5, Section amend routing strategies.63 7(b)(3) to conform the description of a Exchange believes that this additional Options 3, Section 10 clarity will provide market participants TIF of ‘‘DAY’’ to Phlx Options 3, with greater information for the Section 7(c)(1) 60 is consistent with the The Exchange’s proposal to amend its protection of investors and the general Act. The Exchange believes the current Order Book allocation rule, within public. SQF is not subject to the Limit text describing BX’s Day TIF is Options 3, Section 10, to amend the Order Price Protection or the Market unnecessarily verbose and proposes to manner in which rounding occurs is Order Spread Protection in Options 3, remove this language. A DAY Order on consistent with the Act because the Section 15(a)(1) and (a)(2), respectively, Phlx functions in the same way as a Exchange is proposing to make because SQF is a quoting protocol. The DAY Order on BX. The proposal is not transparent the manner in which Order Price Protection and Market amending the System functionality of a rounding will occur once the technology Order Spread Protection, while DAY Order. migration occurs. Today, BX rounds up available for orders, are not available on The Exchange’s proposal to amend or down to the nearest integer. With this SQF. These exceptions within this rule the TIF of ‘‘Good Til Cancelled’’ or proposal, the Exchange would round up to make clear that this information is ‘‘GTC’’ at Options 5, Section 7(b)(4) is to the nearest integer. Also, available to market participants within consistent with the Act. The Exchange corresponding changes are being made, the description of IOC. Market Makers proposes to conform the rule text to within Options 3, Section 10, to update utilize IOC Orders to trade out of Phlx Options 3, Section 7(c)(4).61 The the rounding methodology. Removing accumulated positions and manage their Exchange is not amending the manner unnecessary language regarding risk when providing liquidity on the in which the System function with remainders is also consistent with the Exchange. Proper risk management, respect to GTC Orders. GTC Orders, if Act because remainders of less than one including using these IOC Orders to not fully executed, will remain available contract cannot occur with the new offload risk, is vital for Market Makers, for potential display and/or execution rounding method. and allows them to maintain tight unless cancelled by the entering party, The Exchange believes that rounding markets and meet their quoting and or until the option expires, whichever up uniformly is consistent with the Act other obligations to the market. The comes first. GTC Orders shall be because it provides for the equitable Exchange believes that allowing Market available for entry from the time prior allocation of contracts among the Makers to submit IOC Orders though to market open, as specified by the Exchange’s market participants. The their preferred protocol increases their Exchange, until market close, as is the Exchange proposes to provide market efficiency in submitting such orders and case today. Also, today, a GTC Order participants with transparency as to the thereby allow them to maintain quality may only be entered through FIX. A number of contracts that they are markets to the benefit of all market GTC Order on Phlx functions in the entitled to receive as the result of participants that trade on the Exchange. same way as a GTC Order on BX. The rounding. Further, the Exchange Further, unlike other market Exchange believes that the amended believes that this methodology produces participants, Market Makers provide rule text will bring greater transparency an equitable outcome during allocation liquidity to the market and have to its rules for the protection of that is consistent with the protection of obligations.57 The Exchange believes investors and the general public. investors and the public interest The Exchange’s proposal to no longer not offering Order Price Protection and because all market participants are offer a TIF of ‘‘WAIT’’ is consistent with Market Order Spread Protection for IOC aware of the methodology that will be the Act because it will remove an order Orders entered through SQF is utilized to calculate outcomes for type that is not in demand on BX and allocation purposes. consistent with the Act, because Market simply the offerings provided by BX. Makers have more sophisticated The Exchange would file a proposed Options 3, Section 12 and 22 infrastructures than other market rule change with the Commission The adoption of Customer Cross participants and are able to manage Orders is consistent with the Act their risk, particularly with respect to 59 See Phlx Options 3, Section 7(c)(2). because this proposal would permit quoting, using tools that are not 60 Phlx Options 3, Section 7(c)(1) provides, ‘‘Day. Participants to enter and execute paired available to other market participants.58 If not executed, an order entered with a TIF of Finally, orders entered into the ‘‘Day’’ expires at the end of the day on which it was Public Customer-to-Public Customer PRISM Mechanism are considered to entered. All orders by their terms are Day Orders Orders automatically outside of a unless otherwise specified. Day orders may be PRISM Auction, while also protecting entered through FIX.’’ Public Customer Orders on the book at 57 Market Makers have quoting obligations as 61 Phlx Options 3, Section 7(c)(4) provides, ‘‘A specified in Options 2, Section 5(d). Good Til Cancelled (‘‘GTC’’) Order entered with a the same price. Today, the Exchange 58 Market quotes are subject to various protections TIF of GTC, if not fully executed, will remain permits an Initiating Participant to enter listed in Options 3, Section 15(c). These additional available for potential display and/or execution a PRISM Order for the account of a quoting protections permit Market Makers to unless cancelled by the entering party, or until the Public Customer paired with an order manage their exposure at the Exchange. Other option expires, whichever comes first. GTC Orders market participants would not be subject to these shall be available for entry from the time prior to risk protections because they do not submit quotes market open specified by the Exchange until market 62 15 U.S.C. 78s(b)(1). or utilize SQF. close.’’ 63 See SR–BX–2020–7P.

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for the account of a Public Customer into FIX to initiate a Customer Cross consistent with the Act because and such paired orders will be Order. expanding its consideration to both automatically executed without a Further, the elimination of BX quotes and orders will consider a greater PRISM Auction.64 The Exchange’s Options 3, Section 13(vi) is consistent amount of interest present on BX’s proposal would continue to permit the with the Act because Public Customer- Order Book when initiating a PRISM. ability to enter Public Customer-to- to-Public Customer Cross Orders would The addition of ‘‘quotes,’’ similar to ISE, Public Customer paired orders to be no longer be entered as PRISM Orders. GEMX and MRX at Options 3, Section automatically executed, however, not With this proposal Public Customer-to- 13, will enable the Exchange to consider require these orders to be first entered Public Customer Cross Orders would be additional interest in determining into PRISM. A Public Customer-to- entered through FIX as Customer Cross eligibility for PRISM. Today, BX Public Customer order submitted into Order. The prohibition expressed within Options 3, Section 13 only considers PRISM directly would be subject to current BX Options 3, Section 13(vi) orders. With this System change, quotes execution pursuant to Options 3, provided for only one PRISM Auction to and orders would be considered in Section 13(i) and (ii). The Exchange is be conducted at a time in any given determining the execution price of the removing the current provisions within series. Today, to initiate the Auction, PRISM order. This change will not Options 3, Section (iv) with this the Initiating Participant must mark the impact the handling of orders and proposed rule change. Similar to ISE, PRISM Order for Auction processing. quotes and their respective priority on GEMX and MRX rules,65 BX would With this proposal, Public Customer-to- the limit order book. The Exchange is require Customer Crossing Orders to be Public Customer Cross Orders would proposing to add ‘‘or quote,’’ within entered into the Order Book. The not be tagged as a PRISM Auction. The proposed Options 3, Sections 13(i) and Exchange’s proposal would require Public Customer-to-Public Customer (A) and (B) and (ii)(A)(1). executions to be at or between the best Cross Orders would be entered as a The Exchange’s proposal to state the bid and offer on the Exchange and not separate order type and therefore would minimum increment allowable directly at the same price as a Public Customer not potentially cause more than one within the rule and not utilize Order on the Exchange’s Order Book. PRISM Auction to occur in the same references to Options 3, Section 3 is Finally, the execution may not be series. consistent with the Act because the through the NBBO. In conjunction with this change, BX Exchange will note the exact increment While the Exchange is limiting these proposes to add the Customer Cross within the rule. This amendment does orders to be entered through FIX, any Order to Options 3, Section 22(a) and (c) not amend the current System market participant may utilize FIX. The as an exception to the rules for operation, rather it more simply states Exchange believes that this proposal limitations on principal transactions what that minimum increment is today. would allow all Participants the ability and solicitation orders, which require The Exchange proposes similar changes to continue automatically execute Participants to expose trading interest to at Options 3, Section 13(ii)(A)(1), paired to enter Public Customer-to- the market before executing agency Options 3, Section 13(ii)(A)(6), Options Public Customer Orders as they do orders as principal or before executing 3, Section 13(ii)(C) and Options 3, today, without the need to utilize agency orders against orders that were Section 13(ii)(I). PRISM. Public Customer-to-Public solicited from other broker-dealers. The Exchange’s proposal to amend Customer Cross Orders will be rejected Options 3, Section 22 contains language the System functionality, within if they cannot be executed, as is the case similar to current BX Options 3, Section Options 3, Section 13(ii)(A)(1), for today. Finally, Public Customer-to- 13(vi)(A). The Exchange believes that its Surrender language is consistent with Public Customer Cross Orders may only proposal continue to protect customers the Act because an Initiating Participant be entered in the regular trading and the general public by affirming that will be able to submit an Initiating increments applicable to the options it is a violation of BX Options 3, Section Order with a configurable percentage class under Options 3, Section 3, as is 22(a)(1) for a Participant from executing designation of ‘‘Surrender’’ up to 40% the case today. Today, a Public agency orders to increase its economic or such lower percentage requested by Customer-to-Public Customer paired gain from trading against the order the Participant. Today, the System order could only be entered into PRISM without first giving other trading permits an Initiating Participant to elect to receive the treatment described interests on the Exchange an to receive either the full 40% allocation within proposed Options 3, Section opportunity to either trade with the entitlement or no allocation at all. The 13(vi). With this proposal, the manner agency order or to trade at the execution Exchange believes that the proposed in which Public Customer-to-Public price when the Participant was already feature will provide an Initiating Customer paired orders are being bidding or offering on the book.66 The Participant with more flexibility to processed by the System is changing. Exchange would surveil Public choose its priority allocation percentage, With this proposal, Participants may Customer-to-Public Customer Cross similar to functionality currently offered enter Public Customer-to-Public Orders in the same fashion that it on ISE, GEMX and MRX at Options 3, Customer paired orders directly into FIX already surveils for these orders on ISE, Section 13(e)(5)(iii). Any Initiating and receive the same treatment that GEMX and MRX. Participant may elect to use the PRISM Surrender feature. these orders receive today when entered Options 3, Section 13 into PRISM. The only difference to a The Exchange’s proposal to amend Participant is the manner in which the The Exchange’s proposal to amend Options 3, Section 13(ii)(A)(1) to order must now be submitted directly the System functionality, within remove the following rule text, ‘‘. . . Options 3, Section 13, similar to ISE, forfeiting the priority and trade 64 See Options 3, Section 13(vi). The execution GEMX and MRX Options 3, Section 13, allocation privileges which he is price for such a PRISM Order must be expressed in to better any limit order or quote on the otherwise entitled to as per. . .’’, is the quoting increment applicable to the affected limit order book on the same side of the consistent with the Act, because the series. Such an execution may not trade through the market as the PRISM Order, within proposed text defines ‘‘Surrender’’ as NBBO or trade at the same price as any resting Public Customer order. Options 3, Section 13(i)(A) and (B), is the percentage designation, which the 65 See ISE, GEMX and MRX Options 3, Section Exchange believes more accurately 12(a). 66 See Options 3, Section 22(a)(1). defines ‘‘Surrender.’’

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The Exchange’s proposal to amend the order and the rejection of the order. The Exchange’s proposal to amend the second sentence of Options 3, The Exchange believes this non- rounding, within Options 3, Section Section 13(ii)(A)(1) to instead provide, substantive change adds more clarity to 13(ii)(G), is consistent with the Act. ‘‘If zero (0%) is specified, the Initiating the rule text. Today, BX PRISM rounds up or down Order will only trade if there is not The Exchange’s proposal to amend to the nearest integer when it allocates. enough interest available to fully Options 3, Section 13(ii)(E)(2)(a) to The Exchange is amending the rounding execute the PRISM Order at prices provide the Initiating Participant with a methodology to round up to the nearest which are equal to or improve upon the priority allocation based on the initial integer. Options 3, Section 13(ii)(G) will stop price,’’ is consistent with the Act. size of the Initiating Order after Public reflect the new methodology and The proposed text makes clear that if no Customer interest has been satisfied is provide notice to Participants of this percentage were elected for Surrender consistent with the Act. Allocating change to the methodology. The (0%) then the Initiating Order will only based on the ‘‘initial size of the rounding methodology will be trade if there is not enough interest Initiating Order’’ provides an uniformly applied when allocating available to fully execute the PRISM expectation for Participants that PRISM Orders. Order at prices which are equal to or respond to PRISM Orders, whether that The Exchange’s proposal to amend improve upon the stop price. allocation is price/time,69 size pro- Options 3, Section 13(ii)(H) to remove The Exchange’s proposal to amend rata 70 or auto-match.71 the phrase ‘‘then-existing’’ and instead Options 3, Section 13(ii)(A)(2) to add With this proposed change, the note ‘‘at time of execution’’ to describe ‘‘price’’ to the PRISM Auction Exchange believes that Participants are the NBBO is consistent with the Act. Notification or ‘‘PAN,’’ as part of the better able to determine their allocation The Exchange is not amending the technology migration, is consistent with when responding with a PAN if the current operation of the System, rather the Act because adding ‘‘price’’ to the Initiating Participant’s allocation is the Exchange is amending its rules to list of details will provide Participants based on the initial size of the Initiating more accurately state, ‘‘If there are PAN with greater transparency with respect Order after Public Customer interest is responses that cross the NBBO at the to the PRISM and could encourage more satisfied, rather than the remaining time of execution (provided such NBBO competition in PRISM and greater contracts after Public Customer interest is not crossed), such PAN responses will opportunity for potential price is satisfied. The Exchange’s proposal be executed, if possible, at their limit improvement in PRISM. This rule provides greater transparency to market price(s).’’ The current text appeared to change is similar to the behavior of PAN participants in that when they respond state that the System was utilizing the responses on ISE, GEMX and MRX.67 to the PRISM, they are aware of the NBBO upon execution to check if the The Exchange’s proposal to amend initiating size, as compared to an PAN responses crossed the NBBO, Options 3, Section 13(ii)(A)(7) to undetermined remaining size which is however, the System utilizes the NBBO conform the behavior of PAN responses unknown as responses are not visible to at the time of arrival to check of the to ISE, GEMX and MRX System all market participants. The Exchange’s PAN responses cross the NBBO. This behavior 68 is consistent with the Act. proposal is similar to ISE, GEMX and amendment promotes just and equitable As noted above, the Exchange is MRX Options 3, Section 13(d)(3).72 principles of trade, because it will amending the System to accept ensure the execution price does not oversized responses. These responses 69 At the conclusion of the Auction, for option cross the Initial NBBO in accordance classes governed under BX’s Price/Time execution with linkage rules. This proposed will no longer cancel back, rather, algorithm, the PRISM Order will be allocated at the PRISM will cap the response at the size best price(s), pursuant to the priority set forth in clarification is not changing current of the Initiating Order for purposes of proposed Options 3, Section 13(ii)(F)(1) through (4). functionality, and this functionality allocation and then cancel any First, Public Customer orders would have time applies in the same manner to the priority at each price level. Next, the Initiating remaining quantity not allocated in the responses of all Participants. Participant would receive an allocation after Public The Exchange’s proposal to amend PRISM, including any quantity in excess Customer orders. Options 3, Section 13(ii)(I) is consistent of the original PRISM quantity, back to 70 At the conclusion of the Auction, for option the originator of the PAN response at classes governed under BX’s Size Pro-Rata with the Act, because the Exchange execution algorithm, the PRISM Order will be seeks to make clear the current text the end of the auction timer. Responses allocated at the best price(s), pursuant to the are a source of liquidity and potential contained in this section. The priority set forth in Options 3, Section 13(ii)(E)(1) Exchange’s proposal to add context to price improvement, the Exchange through (5). the rule to better reflect the current believes it is appropriate to accept these 71 If the Initiating Participant selected the auto- System operation is consistent with the responses and cap them at the size of match option, the Initiating Participant would be allocated a number of contracts equal to the Act because without the word the Initiating Order. aggregate size of all other quotes, orders, and PAN The Exchange’s proposal to amend responses at each price point until a price point is quotes and responses received during the exposure reached where the balance of the order can be fully Options 3, Section 13(ii)(A)(8) and (9) to period up to a specified limit price or without executed, except that the Initiating Participant replace the words ‘‘immediately specifying a limit price. In this case, the Counter- would be entitled to receive up to 40% (if there are Side order will be allocated its full size at each cancelled’’ with ‘‘rejected’’ is a non- multiple competing quotes, orders or PAN substantive technical amendment. Non- price point, or at each price point within its limit responses) or 50% (if there is only one competing price if a limit is specified, until a price point is eligible and non-compliant orders that quote, order or PAN response) of the contracts reached where the balance of the order can be fully are submitted into PRISM are rejected as remaining at the final price point (including executed. At such price point, the Counter-Side those orders are reviewed for situations where the stop price is the final price) order shall be allocated the greater of one contract after Public Customer interest has been satisfied but or forty percent (40%) of the original size of the compliance with Exchange Rules, these before remaining interest receives an allocation. Agency Order, but only after Priority Customer orders are not immediately cancelled, as 72 ISE, GEMX and MRX Options 3, Section Interest at such price point are executed in full. technically there is time, however 13(d)(3), provides, ‘‘In the case where the Counter- Thereafter, all Professional Interest at the price miniscule, between the submission of Side Order is at the same price as Professional point will participate in the execution of the Interest in (d)(2), the Counter-Side order will be Agency Order based upon the percentage of the allocated the greater of one (1) contract or forty total number of contracts available at the price that 67 See ISE, GEMX and MRX Options 3, Section percent (40%) of the initial size of the Agency is represented by the size of the Professional 13(c)(2). Order before Professional Interest is executed. Upon Interest. An election to automatically match better 68 See ISE, GEMX and MRX Options 3, Section entry of Counter-Side orders, Members can elect to prices cannot be cancelled or altered during the 13(c)(2). automatically match the price and size of orders, exposure period.’’

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‘‘execution’’ in this sentence, a the current System functionality, rather amended to make clear what comparison of the ‘‘price of the PRISM it adds context to the current PRISM information is currently provided. auction’’ does not clearly differentiate rule in describing a PRISM ISO. B. Self-Regulatory Organization’s the price in question as the execution The Exchange’s proposal to correct Statement on Burden on Competition price of the PRISM Auction or the Options 3, Section 13(ii)(K) to add ‘‘on original stop price of the PRISM Order. the contra-side of the PRISM Order’’ is The Exchange does not believe that Without this clear differentiation, consistent with the Act, because this the proposed rule change will impose current Options 3, Section 13(ii)(I) can rule text clearly describes the current any burden on competition not be interpreted to describe scenarios that System operation. The Exchange states necessary or appropriate in furtherance cannot happen. The Exchange’s ‘‘on the contra-side of the PRISM Order’’ of the purposes of the Act. proposed addition of the word to distinguish the contra-side from the Options 1, Section 1 ‘‘execution’’ in the first sentence of same side of the order, which receives The Exchange’s proposal to amend Options 3, Section 13(ii)(I) reflects different treatment in allocation. This the definition of ‘‘Public Customer’’ to current System handling. The execution proposed amendment is intended to conform to Phlx’s definition does not price of the PRISM Auction is utilized clarify the current System operation, not impose an undue burden on to compare to the price of an order on amend the System. competition because it will make clear the limit Order Book. Adding the word Finally, the Exchange’s proposal to that a Public Customer could be a ‘‘execution’’ makes clear to Participants renumber Options 3, Section 13(vii) to person or entity and clarifying that a that the initial PRISM stop price is not ‘‘(vi)’’ is a technical non-substantive Public Customer is not a Professional, as utilized to compare the same side of the amendment. market transactions. Also, if the defined within Options 1, Section potential execution price of the PRISM Options 3, Section 23 1(a)(48),74 will make clear what it meant by that term. Today, a Public Customer Order would be the same or better than The Exchange’s proposal to amend is not a Professional. The term the price of an order on the limit Order Options 3, Section 23, Data Feeds and ‘Professional’’ is separately defined, Book on the same side of the market as Trade Information, to update its within BX Options 1, Section 1(a)(48). the PRISM Order then, today, would be descriptions of the BX Depth of Market In order to properly represent orders executed at a price $0.01 better than (BX Depth) and BX Top of Market (BX entered on the Exchange, Participants such limit order, regardless of whether Top) data feeds is consistent with the are required to indicate whether orders such limit was a Public or Non-Public Act, because the updated descriptions Customer Order. While ‘‘or better’’ is are ‘‘Professional Orders.’’ will bring greater transparency to the Further, the Exchange’s proposal to not clearly specified, it is the case today Exchange’s rules. and its inclusion is meant to capture remove a sentence within Options 1, The Exchange’s proposal will make Section 1(a)(48) which provides, ‘‘A cases where PAN responses provide clear that order imbalance information price improvement for the PRISM Order Participant or a Public Customers may, is provided for both an opening and re- without limitation, be a Professional,’’ at prices that are crossed with the same opening process within BX Depth. side interest mentioned above. The does not impose an undue burden on Today, a re-opening process initiates competition. This sentence is confusing proposed wording is intended to after a trading halt has occurred intra- provide greater clarity to Participants for and not necessary. Phlx Options 1, day. Also, the Exchange’s proposal Section 1(b)(46) does not contain a System handling with respect to same notes the specific information that side of the market executions against the similar sentence. BX proposes removing would be provided in the data feed, this sentence because it does not add Order Book and is consistent with the namely the size of matched contracts Act and the protection of investors and useful information to understanding and size of the imbalance. Finally the who may qualify as a Professional. the general public. The proposed auction and exposure notifications are amendments reflect current System also provided in the data feed. The Bid/Ask Differentials handling are would not result in Exchange believes that this additional The Exchange’s proposal to amend changes to the System. The remaining context to imbalance messages as well amendments are technical in that the BX’s Lead Market Maker quotation rules as also noting that auction and exposure to conform to those of other BX Market change and non-substantive as the notifications are provided will provide change merely structures the paragraph Makers does not impose an undue market participants with more complete burden on competition. This proposal into two sentences. information about what is contained in The Exchange’s proposal to amend conforms the requirements for all the data feed. This information is Options 3, Section 13(ii)(K) to add Market Makers. Today, Lead Market available today within the data feed. introductory text which defines a Makers have higher quoting The proposed rule text is being PRISM ISO is consistent with the Act. requirements and other obligations amended to make clear what Phlx similarly describes a PIXL ISO in noted within Options 2, Section 3, than information is currently provided. its rule text at Options 3, Section Market Makers, which accounts for their 13(b)(11).73 This text does not amend With respect to the BX Top data feed, priority allocations, within Options 3, within Options 3, Section 23(a)(2), the Section 10.75 The Exchange is proposing 73 Phlx Options 3, Section 13(b)(11) states, ‘‘PIXL amended description more clearly ISO Order. A PIXL ISO order (PIXL ISO) is the describes the BX Top data feed. Further, 74 BX Options 1, Section 1(a)(48) provides that, transmission of two orders for crossing pursuant to the Exchange believes noting that the ‘‘The term ‘‘Professional’’ means any person or this Rule without regard for better priced Protected last trade information is provided will entity that (i) is not a broker or dealer in securities, Bids/Offers (as defined in Options 5, Section 1) and (ii) places more than 390 orders in listed because the member transmitting the PIXL ISO to make clear to market participants the options per day on average during a calendar month the Exchange has, simultaneously with the routing data that is currently available on BX for its own beneficial account(s). A Participant or of the PIXL ISO, routed one or more ISOs, as Top. This information is available in the a Public Customer may, without limitation, be a necessary, to execute against the full displayed size data feed today and the rule text is being Professional. All Professional orders shall be of any Protected Bid/Offer that is superior to the appropriately marked by Participants.’’ starting PIXL Auction price and has swept all 75 See BX Options 3, Section 10(a)(1)(C)(1)(b) and interest in the Exchange’s book priced better than execution(s) resulting from such sweeps shall Section 10(a)(2)(ii) which describe Lead Market the proposed Auction starting price. Any accrue to the PIXL Order.’’ Maker Priority.

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to allow Lead Market Makers to obtain dramatically and require the Exchange pass a price or other reasonability similar quoting relief as, today, may be to grant relief. check, the order will cancel, but it will provided to Market Makers. There is no not be replaced with a new order. The Options 3, Section 5 limitation on the quoting relief that may Limit Order Price Protection and Market be afforded to Market Makers today, the The Exchange’s proposal to amend Order Spread Protection are the only Exchange is proposing to conform the Options 3, Section 5(c) to add additional risk protections within Options 3, ability for the Exchange to grant quoting rule text similar to Phlx Options 3, Section 15 (Risk Protections) that are relief equally to Market Makers and Section 5(c) does not impose an undue applicable. Price or other reasonability Lead Market Makers in the same option burden on competition. Today, BX re- checks consider the current market at series. Today, while a Lead Market prices certain orders to avoid locking the time the Cancel-Replacement Order Maker has higher quoting obligations and crossing away markets, consistent is entered. The Exchange proposes to they have less opportunity for quoting with its Trade-Through Compliance and begin applying price or other relief in a certain options series as Locked or Crossed Markets reasonability checks to all Cancel- 77 compared to a Market Maker who is obligations. Orders which lock or Replacement Orders, similar to ISE, quoting in the same options series. cross an away market will automatically GEMX and MRX, to provide market re-price one minimum price participants with additional risk Replacing Options 2, Section 4(f)(4)– improvement inferior to the original protection checks with the re-entry of (6) with the rule text, within BX Options away best bid/offer price to one the Cancel-Replacement Order. This 2, Section 5(d)(2), would continue to minimum trading increment away from proposed rule is similar to ISE, GEMX require Lead Market Makers to quoted the new away best bid/offer price or its and MRX Rules at Options 3, Section 7 with a difference not to exceed $5 original limit price.78 The re-priced at Supplementary Material .02, except between the bid and offer regardless of order is displayed on OPRA. The order that ISE, GEMX and MRX discuss the price of the bid. However, instead of remains on BX’s Order Book and is Reserve Orders, which are not available requiring Lead Market Makers to quote accessible at the non-displayed price. on BX.79 All risk protections are noted a price differential for any in-the-money within Options 3, Section 15. Those risk option series identical to those in the Options 3, Section 7 protections apply throughout the underlying security market, in the event The Exchange’s proposal to amend Rulebook, except where otherwise the bid/ask differential in the the Cancel-Replacement Order, within noted. underlying security is greater than the Options 3, Section 7(a)(1), does not The Exchange’s proposal to amend bid/ask differential set forth in impose an undue burden on ‘‘Market Orders,’’ within Options 3, subsections (f)(4) and (5), the Exchange competition. Price and size are the Section 7(a)(5) does not amend the would now permit the bid/ask terms that will determine if the Cancel- manner in which a Market Order differential to be as wide as the spread Replacement Order retains its priority, operates today on BX. The Exchange’s between the national best bid and offer as is the case today, other terms and proposal to add a notation at the end of in the underlying security when the conditions do not amend the priority of the rule to provide that ‘‘Participants market for the underlying security is the Cancel-Replacement Order. The can designate that their Market Orders wider than $5. Exchange is not amending the current not executed after a pre-established Further, the additional allowance and System functionality of a Cancel- period of time, as established by the exemptions are no longer necessary Replacement Order with respect to the Exchange, will be cancelled back to the Participant, once an option series has because the Exchange proposes to add terms that will cause the order to lose opened for trading’’ adds specificity rule text, similar to BX Options 2, priority. Today, the price of the order regarding the opening. Market Orders Section 4(f)(5) and BX Options 5, may not be changed when submitting a submitted during the opening may be Section 5(d)(2), which permits BX to Cancel-Replacement Order, that would executed, routed (depending on establish differences other than the be a new order. With this proposal, all Cancel- instructions from the market stated bid/ask differentials, for one or Replacement Orders would receive participant) or cancelled if the Market more series or classes of options. The price or other reasonability checks as a Order is priced through the opening ability to establish differences, other result of being viewed as new orders. If price. The Exchange would only cancel than the stated bid/ask differentials, for a Cancel-Replacement Order does not those Market Orders that remained on one or more series or classes of options the Order Book once an option series already exists today for BX Lead Market 77 BX Options 3, Section 5(d) provides, ‘‘An order opened. The pre-established period of Maker quoting requirements, however will not be executed at a price that trades through time would commence once the intra- this discretion is limited by BX Options another market or displayed at a price that would 76 lock or cross another market. An order that is 2, Section 4(f)(6). The Exchange’s 79 designated by the member as routable will be ISE, GEMX and MRX Options 3, Section 7 at Supplementary Material .02, provides, ‘‘Cancel and proposal would align the procedural BX routed in compliance with applicable Trade- Replace Orders shall mean a single message for the would follow with other options Through and Locked and Crossed Markets immediate cancellation of a previously received restrictions. An order that is designated by a exchanges, which notify members in order and the replacement of that order with a new member as non-routable will be re-priced in order writing of any discretion that is being order. If the previously placed order is already to comply with applicable Trade-Through and filled partially or in its entirety, the replacement granted by the Exchange. BX would no Locked and Crossed Markets restrictions. If, at the longer file a report with BX operations. order is automatically canceled or reduced by the time of entry, an order that the entering party has number of contracts that were executed. The Today, no other Nasdaq exchange files elected not to make eligible for routing would cause replacement order will retain the priority of the a report when it grants exemptions, a locked or crossed market violation or would cause cancelled order, if the order posts to the Order including exemptions for BX Market a trade-through violation, it will be re-priced to the Book, provided the price is not amended, size is not current national best offer (for bids) or the current increased, or in the case of Reserve Orders, size is Makers. Decisions to grant exemptions national best bid (for offers) and displayed at one not changed. If the replacement portion of a Cancel are made based on current market minimum price variance above (for offers) or below and Replace Order does not satisfy the System’s conditions. Exchanges need to be able to (for bids) the national best price.’’ price or other reasonability checks (e.g. Options 3, react when market conditions change 78 See Options 5, Section 4 (Order Routing), Section 15(b)(1)(A) and (b)(1)(B); and which describes the repricing of orders for both Supplementary Material .07 (a)(1)(A), (b) and (c)(1) routable and non-routable orders within Options 5, to Options 8, Section 14) the existing order shall be 76 See BX Options 2, Section 4(f)(5). Section 4(a)(iii)(A), (B) and (C). cancelled and not replaced.’’

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day trading session begins for that will provide market participants with the same price. Today, the Exchange options series and the order would be greater information for the protection of permits an Initiating Participant to enter cancelled back to the Participant, investors and the general public. Market a PRISM Order for the account of a provided the Participant elected to Makers utilize IOC Orders to trade out Public Customer paired with an order cancel back its Market Orders. The of accumulated positions and manage for the account of a Public Customer Exchange’s proposal differentiates when their risk when providing liquidity on and such paired orders will be the opening is on-going, and the intra- the Exchange. Proper risk management, automatically executed without a day trading session has not commenced, including using these IOC Orders to PRISM Auction.82 While the Exchange the manner in which the pre-established offload risk, is vital for Market Makers, is limiting these orders to be entered period of time would commence. and allows them to maintain tight through FIX, any market participant The proposal to note that ‘‘Market markets and meet their quoting and may utilize FIX. The Exchange’s Orders on the Order Book would be other obligations to the market. The proposal would continue to permit the immediately cancelled if an options Exchange believes that allowing Market ability to enter Public Customer-to- series halted, provided the Participant Makers to submit IOC Orders though Public Customer paired orders to be designated the cancellation of Market their preferred protocol increases their automatically executed, however, not Orders’’ specifically addresses trading efficiency in submitting such orders and require these orders to be first entered halts within the rule. Once an options thereby allow them to maintain quality into PRISM. A Public Customer-to- series halts for trading, the Exchange markets to the benefit of all market Public Customer order submitted into conducts another Opening Process. In participants that trade on the Exchange. PRISM directly would be subject to the case where a Market Order was Further, unlike other market execution pursuant to Options 3, resting on the Order Book, and the participants, Market Makers provide Section 13(i) and (ii). With this Participant had designated the liquidity to the market place and have proposal, all Participants may enter cancellation of Market Orders, in the obligations.80 The Exchange believes Public Customer-to-Public Customer event of a halt, the Market Orders not offering Order Price Protection and paired orders into FIX and receive the resting on the Order Book would Market Order Spread Protection for IOC same treatment that these orders receive immediately cancel. Market Orders Orders entered through SQF does not today when entered into PRISM. The would apply uniformly to all market create a burden on competition because elimination of Options 3, Section 13(vi) participants. Market Makers have more sophisticated does not impose an undue burden on The Exchange’s proposal to amend infrastructures than other market competition because Public Customer- ‘‘Intermarket Sweep Order’’ Order or participants and are able to manage to-Public Customer Cross Orders would ‘‘ISO,’’ within Options 3, Section their risk, particularly with respect to be entered as a separate order type and 7(a)(6), does no impose an undue quoting, using tools that are not therefore would not potentially cause burden on competition. The Exchange is available to other market participants.81 more than one PRISM Auction to occur amending the current functionality of an The remainder of the amendments, in the same series. ISO Order to require that ISOs have a within Options 3, Section 7, are time-in-force designation of Immediate- Options 3, Section 13 technical in nature or non-substantive. or-Cancel. Today, ISOs with a time-in- The Exchange’s proposal to amend force designation of GTC are treated as Options 3, Section 10 the System functionality, within Options 3, Section 13, similar to ISE, having a time-in-force designation of The Exchange’s proposal to amend its GEMX and MRX Options 3, Section 13, Day. All ISO Orders would be treated in Order Book allocation rule, within to better any limit order or quote on the a uniform manner. Options 3, Section 10, to amend the The Exchange’s proposal to remove limit order book on the same side of the manner in which rounding occurs does the ‘‘One-Cancels-the-Other Order’’ and market as the PRISM Order, within not create a burden on competition ‘‘WAIT’’ TIF do not impose an undue Options 3, Section 13(i)(A) and (B), does because the Exchange is proposing to burden on competition. The Exchange not impose an undue burden on make transparent the manner in which will no longer permit this order type competition. The addition of ‘‘quotes,’’ rounding will occur once the technology and TIF for any market participant with similar to ISE, GEMX and MRX at migration occurs. All Participants will the technology migration. Further, it Options 3, Section 13, will enable the be subject to the rounding methodology will remove an order type that is not in Exchange to consider additional interest when PRISM Orders allocate. demand on BX and simply the offerings in determining eligibility for PRISM. provided by BX. Options 3, Section 12 and 22 The Exchange’s proposal to state the The Exchange’s proposal to include a minimum increment allowable directly The adoption of Customer Cross ‘‘PRISM Order’’ and ‘‘Customer Cross within the rule and not utilize Orders does not impose an undue Order’’ in the list of order types does not references to Options 3, Section 3 does burden on competition. This proposal impose an undue burden on not impose an undue burden on would continue to permit any competition because the addition of competition as these amendments Participant to enter and execute paired these terms within the list of order types merely restate the current increment. Public Customer-to-Public Customer simply cross-references the existing The Exchange’s proposal to amend Orders automatically outside of a order types and does not change the Options 3, Section 13(ii)(A)(1), for PRISM Auction, while also protecting functionality of the order types. Surrender language does not impose an The Exchange’s proposal to amend an Public Customer Orders on the book at undue burden on competition because, ‘‘Immediate-Or-Cancel’’ Order or ‘‘IOC,’’ with this proposal, all Participants will 80 Market Makers have quoting obligations as within Options 3, Section 7(b)(2), does specified in Options 2, Section 5(d). be able to submit an Initiating Order not impose an undue burden on 81 Market quotes are subject to various protections competition. The Exchange is adding listed in Options 3, Section 15(c). These additional 82 See BX Options 3, Section 13(vi). The additional context, similar to Phlx, with quoting protections permit Market Makers to execution price for such a PRISM Order must be manage their exposure at the Exchange. Other expressed in the quoting increment applicable to respect to routing, submission through market participants would not be subject to these the affected series. Such an execution may not trade FIX or SQF and the price protections risk protections because they do not submit quotes through the NBBO or trade at the same price as any that apply when utilizing SQF, which or utilize SQF. resting Public Customer order.

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with a configurable percentage replace the words ‘‘immediately Without this clear differentiation, designation of ‘‘Surrender’’ up to 40% cancelled’’ with ‘‘rejected’’ is a non- Options 3, Section 13(ii)(I) can be or such lower percentage requested by substantive technical amendment. interpreted to describe scenarios that the Participant. Today, the System The Exchange’s proposal to amend cannot happen. The Exchange’s permits a Participant to have either a Options 3, Section 13(ii)(E)(2)(a) to proposed addition of the word Surrender of 0% or 40%. The Exchange provide the Initiating Participant with a ‘‘execution’’ in the first sentence of believes that the proposed feature will priority allocation based on the initial Options 3, Section 13(ii)(I) reflects provide all Participants with more size of the Initiating Order after Public current System handling. The execution flexibility, similar to functionality Customer interest has been satisfied price of the PRISM Auction is utilized currently offered on ISE, GEMX and does not impose a burden on to compare to the price of an order on MRX at Options 3, Section 13(e)(5)(iii). competition. With this proposed the limit Order Book. Adding the word The Exchange’s proposal to amend amendment, all Participants would be ‘‘execution’’ makes clear to Participants Options 3, Section 13(ii)(A)(1) to allocated based on the initial size of the that the initial PRISM stop price is not remove the following rule text, Initiating Order after Public Customer utilized to compare the same side of the ‘‘. . .forfeiting the priority and trade interest has been satisfied. The market transactions. While ‘‘or better’’ is allocation privileges which he is Exchange’s proposal is similar to ISE, not clearly specified, it is the case today otherwise entitled to as per. . .’’, does GEMX and MRX Options 3, Section and its inclusion is meant to capture not impose a burden on competition 13(d)(3).84 cases where PAN responses provide because the proposed text defines The Exchange’s proposal to amend price improvement for the PRISM Order ‘‘Surrender’’ as the percentage rounding, within Options 3, Section at prices that are crossed with the same designation, which the Exchange 13(ii)(G), does not impose a burden on side interest mentioned above. The believes more accurately defines competition. The rounding methodology proposed wording is intended to ‘‘Surrender’’. will be uniformly applied when provide greater clarity to Participants for The Exchange’s proposal to amend allocating PRISM Orders. System handling with respect to same the second sentence of Options 3, The Exchange’s proposal to amend side of the market executions against the Section 13(ii)(A)(1) to instead provide, Options 3, Section 13(ii)(H) to remove Order Book. The proposed amendments ‘‘If zero (0%) is specified, the Initiating the phrase ‘‘then-existing’’ and instead Order will only trade if there is not reflect current System handling are note ‘‘at time of execution’’ to describe would not result in changes to the enough interest available to fully the NBBO does not impose a burden on execute the PRISM Order at prices System. The remaining amendments are competition. The Exchange is not technical and non-substantive. which are equal to or improve upon the amending the current operation of the stop price,’’ does not impose a burden System. The Exchange will uniformly The Exchange’s proposal to amend on competition. The proposed text check if the PAN responses crossed the Options 3, Section 13(ii)(K) to add makes clear that if no percentage were NBBO at the time of execution. introductory text which defines a elected for Surrender (0%) then the The Exchange’s proposal to amend PRISM ISO does not impose a burden Initiating Order will only trade if there Options 3, Section 13(ii)(I) does not on competition. Phlx similarly describes is not enough interest available to fully impose an undue burden on a PIXL ISO in its rule text at Options 3, execute the PRISM Order at prices competition. Without the word Section 13(b)(11).85 This text does not which are equal to or improve upon the ‘‘execution’’ in this sentence, a amend the current System functionality, stop price. comparison of the ‘‘price of the PRISM rather it adds context to the current The Exchange’s proposal to amend auction’’ does not clearly differentiate PRISM rule in describing a PRISM ISO. Options 3, Section 13(ii)(A)(2) to add the price in question as the execution The Exchange’s proposal to correct ‘‘price’’ as a detail, which is specified price of the PRISM Auction or the Options 3, Section 13(ii)(K) to add ‘‘on today for a PRISM Auction Notification original stop price of the PRISM Order. the contra-side of the PRISM Order’’ or ‘‘PAN,’’ does not impose a burden on does not impose a burden on competition because adding ‘‘price’’ to a 84 ISE, GEMX and MRX Options 3, Section competition because this rule text PAN will be greater transparency with 13(d)(3), provides, ‘‘In the case where the Counter- clearly describes the current System respect to the PRISM and could Side Order is at the same price as Professional Interest in (d)(2), the Counter-Side order will be operation. The Exchange provides that encourage more competition in PRISM allocated the greater of one (1) contract or forty ‘‘on the contra-side of the PRISM Order’’ and greater opportunity for potential percent (40%) of the initial size of the Agency to distinguish the contra-side from the price improvement in PRISM. Order before Professional Interest is executed. Upon same side of the order, which receives entry of Counter-Side orders, Members can elect to The Exchange’s proposal to amend different treatment in allocation. This Options 3, Section 13(ii)(A)(7) to automatically match the price and size of orders, quotes and responses received during the exposure proposed amendment is intended to conform the behavior of PAN responses period up to a specified limit price or without clarify the current System operation, not to ISE, GEMX and MRX System specifying a limit price. In this case, the Counter- amend the System. behavior 83 does not impose a burden on Side order will be allocated its full size at each competition. As noted above, the price point, or at each price point within its limit price if a limit is specified, until a price point is 85 Phlx Options 3, Section 13(b)(11) states, ‘‘PIXL Exchange is amending the System to reached where the balance of the order can be fully ISO Order. A PIXL ISO order (PIXL ISO) is the accept oversized responses. These executed. At such price point, the Counter-Side transmission of two orders for crossing pursuant to responses will no longer cancel back, order shall be allocated the greater of one contract this Rule without regard for better priced Protected rather, PRISM will cap the response at or forty percent (40%) of the original size of the Bids/Offers (as defined in Options 5, Section 1) Agency Order, but only after Priority Customer because the member transmitting the PIXL ISO to the size of the Initiating Order for Interest at such price point are executed in full. the Exchange has, simultaneously with the routing purposes of allocation for all Thereafter, all Professional Interest at the price of the PIXL ISO, routed one or more ISOs, as Participants. point will participate in the execution of the necessary, to execute against the full displayed size The Exchange’s proposal amend Agency Order based upon the percentage of the of any Protected Bid/Offer that is superior to the total number of contracts available at the price that starting PIXL Auction price and has swept all Options 3, Section 13(ii)(A)(8) and (9) to is represented by the size of the Professional interest in the Exchange’s book priced better than Interest. An election to automatically match better the proposed Auction starting price. Any 83 See ISE, GEMX and MRX Options 3, Section prices cannot be cancelled or altered during the execution(s) resulting from such sweeps shall 13(c)(2). exposure period.’’ accrue to the PIXL Order.’’

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Finally, the Exchange’s proposal to Electronic Comments SECURITIES AND EXCHANGE renumber Options 3, Section 13(vi) to • COMMISSION ‘‘(v)’’ is technical and non-substantive. Use the Commission’s internet comment form (http://www.sec.gov/ Options 3, Section 23 [Release No. 34–89465; File No. SR–LCH rules/sro.shtml); or SA–2020–003] The Exchange’s proposal to amend • Send an email to rule-comments@ Options 3, Section 23, Data Feeds and sec.gov. Please include File Number SR– Self-Regulatory Organizations; LCH Trade Information, to update its BX–2020–017 on the subject line. SA; Notice of Filing of Proposed Rule descriptions of the BX Depth of Market Change, as Modified by Amendment (BX Depth) and BX Top of Market (BX Paper Comments No. 1, Relating to LCH SA’s Top) data feeds does not impose an Governance Arrangements undue burden on competition because • Send paper comments in triplicate the updated descriptions will bring to Secretary, Securities and Exchange August 4, 2020. greater transparency to the Exchange’s Commission, 100 F Street NE, Pursuant to Section 19(b)(1) of the rules. Washington, DC 20549–1090. Securities Exchange Act of 1934 C. Self-Regulatory Organization’s All submissions should refer to File (‘‘Act’’),1 and Rule 19b–4,2 notice is Statement on Comments on the Number SR–BX–2020–017. This file hereby given that on July 23, 2020, Proposed Rule Change Received From number should be included on the Banque Centrale de Compensation, Members, Participants, or Others subject line if email is used. To help the which conducts business under the name LCH SA (‘‘LCH SA’’), filed with No written comments were either Commission process and review your the Securities and Exchange solicited or received. comments more efficiently, please use Commission (‘‘Commission’’) the only one method. The Commission will III. Date of Effectiveness of the proposed rule change (‘‘Proposed Rule post all comments on the Commission’s Proposed Rule Change and Timing for Change’’), as described in Items I, II and internet website (http://www.sec.gov/ Commission Action III below, which Items have been rules/sro.shtml). Copies of the prepared by the clearing agency. On July Because the foregoing proposed rule submission, all subsequent change does not: (i) Significantly affect 29, 2020, LCH SA filed Amendment No. amendments, all written statements 3 the protection of investors or the public 1 to the proposed rule change. The with respect to the proposed rule Commission is publishing this notice to interest; (ii) impose any significant change that are filed with the burden on competition; and (iii) become solicit comments on the proposed rule Commission, and all written operative for 30 days from the date on change, as modified by Amendment No. communications relating to the which it was filed, or such shorter time 1 (the ‘‘proposed rule change’’), from as the Commission may designate, it has proposed rule change between the interested persons. become effective pursuant to Section Commission and any person, other than those that may be withheld from the I. Clearing Agency’s Statement of the 19(b)(3)(A)(iii) of the Act 86 and Terms of Substance of the Proposed public in accordance with the subparagraph (f)(6) of Rule 19b–4 Rule Change thereunder.87 provisions of 5 U.S.C. 552, will be At any time within 60 days of the available for website viewing and LCH SA, a registered clearing agency filing of the proposed rule change, the printing in the Commission’s Public and self-regulatory organization, is a Commission summarily may Reference Room, 100 F Street NE, majority-owned subsidiary of LCH temporarily suspend such rule change if Washington, DC 20549, on official Group Holdings Limited (‘‘LCH it appears to the Commission that such business days between the hours of Group’’).4 LCH Group is indirectly action is necessary or appropriate in the 10:00 a.m. and 3:00 p.m. Copies of the majority-owned by London Stock public interest, for the protection of filing also will be available for Exchange Group PLC (‘‘LSEG’’). LCH SA investors, or otherwise in furtherance of inspection and copying at the principal is proposing to amend its governance the purposes of the Act. If the office of the Exchange. All comments documents (‘‘Governance Documents’’) Commission takes such action, the received will be posted without change. including: (i) The Terms of Reference Commission shall institute proceedings Persons submitting comments are (‘‘ToR’’) of the Board of Directors to determine whether the proposed rule cautioned that we do not redact or edit (‘‘Board’’); and (ii) the TOR of the current committees of the Board. The should be approved or disapproved. personal identifying information from Proposed Rule Change will also comment submissions. You should IV. Solicitation of Comments establish ToR of a Nominating Interested persons are invited to submit only information that you wish Committee for LCH SA. submit written data, views, and to make available publicly. All submissions should refer to File arguments concerning the foregoing, 1 15 U.S.C. 78s(b)(1). including whether the proposed rule Number SR–BX–2020–017 and should 2 17 CFR 240.19b–4. change is consistent with the Act. be submitted on or before August 31, 3 LCH SA filed Amendment No. 1 to correct the Comments may be submitted by any of 2020. Exhibit 5 to the original filing to reflect a change in Article 13 of the Terms of Reference of the Board the following methods: For the Commission, by the Division of of Directors of LCH SA, which is described below, Trading and Markets, pursuant to delegated and to correct an erroneous citation in Item II.A.2 86 15 U.S.C. 78s(b)(3)(A)(iii). authority.88 below. 87 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 4 LCH Group owns 88.9 percent of LCH SA; 4(f)(6) requires the Exchange to give the J. Matthew DeLesDernier, Euronext N.V. owns 11.1 percent of LCH SA. LCH Commission written notice of its intent to file the Assistant Secretary. Group is also the parent of LCH Limited, a central proposed rule change, along with a brief description [FR Doc. 2020–17355 Filed 8–7–20; 8:45 am] counterparty (‘‘CCP’’) authorized to offer services and text of the proposed rule change, at least five and activities in the European Union in accordance business days prior to the date of filing of the BILLING CODE 8011–01–P with the European Markets Infrastructure proposed rule change, or such shorter time as Regulation (‘‘EMIR’’) and registered with the designated by the Commission. The Exchange has Commodity Futures Trading Commission (‘‘CFTC’’) satisfied this requirement. 88 17 CFR 200.30–3(a)(12). as a derivatives clearing organization (‘‘DCO’’).

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II. Clearing Agency’s Statement of the of independent non-executive directors, in law of regulation and other Purpose of, and Statutory Basis for, the executive directors, User Directors,7 provisions are historic and no longer Proposed Rule Change exchanges (‘‘Venues’’) and LSEG relevant. Importantly, since 2013, LSEG In its filing with the Commission, representatives; (iii) provided that LCH has added to its shareholdings in LCH LCH SA included statements concerning Group would have a separate Audit Group and now owns approximately 83 the purpose of and basis for the Committee and Remuneration percent of LCH Group. Therefore, the Proposed Rule Change and discussed Committee independent of the parallel minority protection provisions noted any comments it received on the committees at each CCP; and (iv) above are no longer relevant as LSEG Proposed Rule Change. The text of these provided for a Nomination Committee, alone could approve such matters by statements may be examined at the which would be responsible for voting its shares. As explained below, places specified in Item IV below. LCH nominating independent non-executive however, certain protections in the SA has prepared summaries, set forth in directors, User Directors and Venue Relationship Agreement will be sections A, B, and C below, of the most Directors of the Board of Directors and incorporated into the revised ToR of the significant aspects of such statements. committee members at LCH Group and Board of Directors.9 each CCP. b. Proposed Amendments to the ToR A. Self-Regulatory Organization’s The Relationship Agreement also Statement of the Purpose of, and provided for certain minority protection As noted earlier, the Proposed Rule Statutory Basis for, the Proposed Rule reserved matters, which would require Change is being adopted in significant Change the approval of 80 percent of votes cast part to conform LCH SA’s Governance 1. Purpose on a resolution, including: (i) Altering Documents to actions taken by LCH the constitutional documents of LCH Group to simplify its governing The Proposed Rule Change is being Group; (ii) making material changes to arrangements. These changes will allow adopted in significant part to conform the Core Operating Principles; (iii) the LCH group as a whole to operate LCH SA’s Governance Documents to proposals to wind-up LCH Group or any more efficiently and effectively. actions taken by LCH Group to simplify material LCG Group company; and (iv) Importantly, there will be no change in its governing arrangements and to material amendments to the the proportion of independent eliminate provisions in LCH Group’s Relationship Agreement. directors 10 or the number of directors governance documents that they have In addition, the Relationship representing members and participants. determined are unnecessary and Agreement contained customary Therefore, the Board and the outdated. These changes will allow the consent rights for LSEG as a majority committees of the Board will continue LCH group as a whole to operate more shareholder, including: (i) Approval of to assure fair representation of its efficiently and effectively. Although business and budget plans; (ii) matters members and participants in the LCH SA’s Governance Documents will representing changes from the Core selection of its directors and the be revised to reflect the changes to the Operating Principles; (iii) material administration of its affairs as provided LCH Group’s governing arrangements changes to regulatory obligations and in section 17A(b)(3)(C) of the Act.11 described below, in practice, these risk profile; (iv) material acquisitions/ revisions will not result in any Terms of Reference of the Board of disposals; and (v) settlement of material substantive changes in LCH SA’s Directors litigation (collectively, ‘‘Consent current governance. Matters’’). The Relationship Agreement The ToR of the Board will be a. Background also reserved for LSEG the right to put amended as necessary to remove those provisions that are no longer required as In connection with its purchase of certain matters to shareholder vote where LCH Group either failed to a result of the termination of the approximately 58 percent of LCH Relationship Agreement and the Group 5 in 2013, LSEG entered into a consider the matter or considered it and voted it down (‘‘Push Matters’’).8 amendment of the LCH Group Articles Relationship Agreement with LCH of Association: Group for the purpose of (i) assuring As noted above, LCH Group has • determined to simplify its governing Article 2, Definitions, will be certain protections for minority LCH amended to remove those definitions Group shareholders, (ii) providing for arrangements and to eliminate provisions in LCH Group’s governance arising from the Relationship representation of stakeholders in the Agreement, including: (i) Core CCPs that comprise LCH Group, i.e., the documents that are unnecessary and outdated. In this regard, LCH Group and Operating Principles; (ii) Customer; (iii) clearing members of each CCP and the Customer Director; (iv) Group exchanges whose transactions were LSEG have decided to terminate the Relationship Agreement and to remove Nomination Committee (which is being cleared through LCH SA or LCH disbanded); (v) LSEG Audit Limited, and (iii) recognizing LSEG’s duplication in board decision-making between LCH Group and the CCP Representative; (vi) LSEG Consent requirements as majority shareholder for Matters; (vii) LSEG NomCom appropriate controls over LCH Group.6 Boards by making the LCH Group Board an internal only board, i.e., comprised Representative; (viii) Material Interest; To this end, among other provisions, the (ix) Minority Protection Reserved Relationship Agreement: (i) Set out only of representatives of LSEG and LCH Group. The LCH Group Articles of certain Core Operating Principles to be 9 Such protections include but are not limited to applied in managing the business of Association similarly will be revised to certain consent rights and the right to have a LCH Group; (ii) provided that the Board eliminate those provisions arising from representative on the Board of Directors of LCH SA of Directors of LCH Group and each CCP the Relationship Agreement. and LCH Limited, as well as the several committees of LCH SA and LCH Limited would be comprised of a prescribed mix The Relationship Agreement is no longer necessary because certain 10 The ToR of the LCH SA Board defines an independent director as a director who satisfies 5 LCH Group was then known as LCH.Clearnet contractual provisions are provided for applicable Regulatory Requirements, i.e., any Group Limited. regulation or requirement of applicable law or of 6 As appropriate, provisions of the Relationship 7 User Directors are individuals that are any applicable regulatory body, regarding Agreement were reflected in the LCH Group associated with or connected to clearing members independent directors, and who is appointed in Articles of Association and the ToR of the LCH that are also shareholders of LCH Group. accordance with the Nomination Committee ToR. Group Board of Directors. 8 LSEG never exercised this right. 11 15 U.S.C. 78q–1(b)(3)(C).

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Matters; (x) Push Matters: (xi) more than half of the Directors are Collateral Risk Policy; (iv) Investment Relationship Agreement; (xii) present, which clearly is not intended. Risk Policy; (v) Liquidity Risk Policy; Significant Interest; (xiii) Venue; (xiv) As proposed to be revised, this sentence (vi) Settlement, Payment & Custody Risk Venue Director. will confirm that the Board ‘‘may Policy; (vii) Counterparty Credit Risk • Article 3, Composition of the Board, validly deliberate only if at least half of Policy; (viii) Contract and Market will be amended (i) to remove the the Directors are present.’’ Acceptability Policy; (ix) Model requirement that the Chairman of LCH • Article 12, Powers of the Board, Governance, Validation & Review Group will be a non-executive director will be amended to remove references to Policy; (x) Operational Risk Policy; (xi) of the Board, (ii) to confirm that LSEG the Relationship Agreement, including and Procyclicality Policy and any is entitled to a representative on the the Core Operating Principles. However, significant changes to those policies Board unconditionally,12 (iii) to remove the amendments to Article 12 will also upon recommendations from the Risk the requirement for a Venue Director,13 confirm that the Board’s authority with Committee. Finally, Article 12 will be and (iv) to confirm that Euronext is respect to certain matters remains amended to confirm that, in appointing entitled to propose the appointment of subject to LSEG’s consent. These the Chairman of the Board and the LCH a representative to the Board as long as matters, previously included in the SA CEO, the Board will act in either the Cash Clearing Agreement or Relationship Agreement, include: (i) accordance with the ToR of the the Derivatives Clearing Agreement Approval of LCH SA’s annual operating Nomination Committee. between Euronext and LCH SA remains and capital expenditure budget; (ii) • Article 13, Company management in force.14 Article 3 will be further approval of any material changes to LCH (Chairman—CEO), will be amended to amended to provide that the Chief Risk SA’s budget; (iii) approval of the terms provide that certain actions, which Officer of LCH Group may, but is not and conditions of any merger agreement previously the CEO was authorized to required to, be one of the three between the LCH SA and a third party; take with the consent of the Board, may executive Directors of the Board. Article and (iv) approval of a decision of LCH be undertaken only after consultation 3 currently provides that the Chief Risk SA to issue new shares. LSEG’s consent with the board of LCH Group. These Officer of LCH Group, along with the will also be required with regard to any activities include: (i) Any type of joint CEO of LCH SA and the CEO of LCH matter that constitutes a material venture arrangement between LCH SA Group will be the executive Directors of increase in the risk profile of LCH SA’s and any third party; (ii) any acquisition the Board. Finally, Article 3 references investment policy or capital of a business with a valuation the new Nomination Committee, rather management policy that would result in representing five percent or more of than the Group Nomination Committee. a material decrease in LCH SA’s LCH SA’s net revenue stated in the last • Article 4, Rules applicable to available liquidity resources (subject to audited accounts published by LCH SA; Directors, will be amended to remove certain exceptions). In addition, LSEG’s (iii) any disposal of all or any material references to the Relationship consent will be required with respect to part of LCH SA’s business; (iv) any Agreement (and Consent Matters, (a) any recommended changes to the decision to cease to operate all or any Minority Protection Reserved Matters structure, size and composition of the material part of LCH SA’s business; (v) and Push Matters therein) and refer only Board that the Board, upon any acquisition or disposal of shares or to rights of consent that LSEG may have recommendations from the Nomination any interest in shares of LCH SA, any under this ToR. Committee, may recommend for significant investment in any third party • Article 6, Quorum, will be amended approval by a general meeting of the or the making of any takeover offer; and to make a technical correction to the shareholders, and (b) the ToR of any (vi) any material acquisitions and first sentence of the article. The Board committees and any changes disposals, including in relation to sentence currently provides that the thereto, to the extent provided for in the intellectual property and LCH SA’s Board ‘‘may validly deliberate only if ToR of the Board or the ToR of the various business segments and group half of the Directors are present.’’ This affected committee. undertakings.15 In addition, Article 13 sentence could be interpreted to mean Article 12 will also be amended to will be amended to authorize the CEO that the Board could not deliberate if reflect the existing group dividend or the CEO’s management team to policy including the factors to be taken provide to LSEG (subject to all laws and 12 Article 3 currently provides that LSEG is into account when determining the regulations (including antitrust laws entitled to a representative on the Board ‘‘for so dividend (as currently set out in the and regulations)), (a) sufficient financial long as LSEG is entitled to exercise or control the exercise of at least 5 percent of the votes able to be Relationship Agreement and the and other information that LSEG may cast on all or substantially all matters at general Euronext shareholders’ agreement). reasonably require to meet any meetings in LCH Group Holdings Limited’’. Dividends are subject to the vote of the applicable reporting requirements or 13 With the exception of Euronext, there have shareholders, having regard for: (i) standards and LSEG’s budgeting and been no Venue representatives on the LCH SA Board for some time. This is because a Venue must Applicable regulatory and regulatory forecasting processes; and (b) the also be a shareholder of LCH Group in order to capital requirements; (ii) restrictions in audited accounts for each financial year qualify for representation on the Board. Nasdaq was any finance documents; (iii) investment and monthly management reports, the last significant Venue on the LCH Group to support capital expenditure consistent with LSEG’s existing rights shareholder register but sold its stake in 2018. Since contemplated by the business plan and then, there has only been one entity that is a under the Relationship Agreement. combination of a User/Venue and that entity has budget from time to time, including Article 13 will also be amended to shown no interest in being represented on any LCH technology, taking into account future provide that, in line with LSEG’s board. Euronext was a shareholder of LCH Group, expected cash flows; and (iv) applicable consent rights in the Relationship but moved its ownership stake to LCH SA in 2017. laws. Agreement, LSEG will have the right to However, it is entitled to a Board representation through its contractual arrangements, i.e., the Cash Moreover, Article 12 will be amended consent with regard to the settlement of Clearing Agreement and Derivatives Clearing to clarify that the Board will approve at any litigation that could result in a Agreement. least annually the LCH Group Risk 14 In accordance with the terms of the agreement Governance Framework and LCH SA’s 15 For the purposes of this paragraph, an pursuant to which Euronext N.V. purchased 11.1 various policies, including LCH SA’s: (i) acquisition or disposal will be material if the value percent of the shares of LCH SA, Euronext is of the consideration or the assets that are the subject already entitled to propose a representative to the Financial Resource Adequacy Policy; of the transaction exceed an aggregate amount of Board. (ii) Default Management Policy; (iii) Ö10,000,000.

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payment to or by LCH SA in excess of to the consent of LSEG.16 In addition, Further, if LSEG informs the Board that Ö2,000,000 and with regard to any IT Article 18 confirms that a Director the proposed transaction constitutes a investments proposed to be made by representing LSEG will be a member of transaction (or other relevant matter) LCH SA if they exceed an aggregate the Nomination Committee. under Listing Rule 10 or 11, the annual amount of Ö 3,000,000. • Article 19, Remuneration transaction will not take place without • Committee, will be amended to remove the prior approval of LSEG. Article 14, Conflicts of Interest, will • be amended to provide that, the provision requiring the ToR to take New Article 27, Amendment, will notwithstanding the general prohibition into account the remuneration policies provide that the Board ToR may be on a Director nominated by a and principles of the LCH Group amended by the Board, provided that shareholder of LCH Group from sharing Remuneration Committee (which is any changes to LSEG’s rights or any information with the shareholder of being disbanded). However, the changes which would otherwise have a LCH Group without the consent of the requirement to take into account the detrimental effect on LSEG’s rights independent non-executive Directors of remuneration policies and principles pursuant to the ToR will be subject to the Board, information may be shared applied by LSEG for its executive LSEG’s consent. with LSEG, in its capacity as an indirect management remains. Any change in Terms of Reference of the Nomination shareholder of LCH SA, for legal, LSEG’s rights under the ToR is subject Committee to LSEG’s consent. Finally, Article 19 accounting, tax regulatory or disclosure As noted earlier, as a part of the LCH purposes. confirms that a Director representing LSEG will be a member of LCH SA’s Group governance changes, the • Article 15, Committees of the committees of the Board of LCH Group Board, will be amended to note (i) the Remuneration Committee. • Article 20, Technology, Security will be disbanded. Therefore, LCH SA addition of a new committee, the will establish its own Nomination and Resilience Committee, is a new Technology, Security and Resilience Committee. Although this ToR is article that recognizes the establishment Committee, and (ii) that the Group entirely new to LCH SA, it is based in of the Technology, Security and Nomination Committee is now the substantial part on the provisions of the Resilience Committee, and provides that Nomination Committee, i.e., a Group Nomination Committee its organization and functions will be committee of LCH SA. applicable to LCH SA. • set out in a ToR, which are reviewed The structure of the Board established Article 16, Audit Committee, will annually and subject to the approval of be amended to remove the requirement under the Nomination Committee ToR the Board. will be essentially the same as it is that the ToR of the Audit Committee • Article 25, Related party agreements must be substantially similar to the today. Specifically, Article 2, Purpose, between LCH SA and a manager, a will provide that the Nomination terms of reference of the Audit Director or a shareholder, will be Committee of LCH Group (as this will Committee will recommend: (i) An amended to provide that any contracts independent Chairman; (ii) up to four no longer exist) and to recognize that and agreements between LCH SA and changes in the ToR may be required by independent directors; (iii) up to two LSEG or any member of the LSEG User Directors; (iii) a director nominated LCH SA’s regulators (and not LCH 17 Group, will be subject to the prior by LSEG; and (iv) a director nominated Group’s regulators) or any applicable approval of a committee of the Board law or regulation. The ToR must be by Euronext.18 In addition, the Board consisting solely of the independent will have three Executive Directors: (a) reviewed annually by the Board, and (ii) non-executive directors of LCH SA. The are subject to the approval of the Board The CEO of LCH SA; (b) the CEO of LCH article further provides that approval Group; and (c) the chief risk officer of and to the consent of LSEG, in respect will be given provided that the contract of the rights of LSEG under the ToR. LCH Group, or ‘‘such other officer as or agreement is on bona fide arm’s may be proposed by the Group CEO’’. Finally, the amended Article 16 will length terms. The committee’s confirm that a Director representing As discussed above, under the determination will be final. Nomination Committee ToR, there will LSEG and a Director representing • New Article 26, Group Compliance, be no change in the proportion of Euronext will be a part of the Audit will provide that, in light of LSEG’s Committee. independent directors or the number of obligations under the Financial Conduct directors representing members and • Article 17, Risk Committee, will Authority’s Listing Rules, the Board will participants. It should be noted, confirm that a Director representing notify LSEG of any proposed transaction however, that the Group Nomination LSEG will be vice-chairman of the Risk in relation to LCH SA or of which the Committee ToR had provided for up to Committee. The ToR must be reviewed Board is otherwise aware that may two representatives of Venues. As annually by the Board, and (ii) are constitute for LSEG either (i) a explained earlier, with the exception of subject to the approval of the Board and significant transaction under Listing Euronext, there have been no Venue to the consent of LSEG, in respect of the Rule 10, or (ii) a related party representatives on the LCH SA Board for rights of LSEG under the ToR. transaction under Listing Rule 11. some time. Because Euronext is entitled • Article 18, Nomination Committee, to Board representation through its will be amended to remove any 16 Note that, under Article 18, LSEG’s consent is contractual arrangements, i.e., the Cash reference to the Group Nomination required for any amendment of the ToR of the Nomination Committee, not just amendments to Clearing Agreement and Derivatives Committee and the requirement that, in LSEG’s rights under the ToR. The reason for this the event LCH SA establishes its own slightly wider consent right (compared to other 18 Although both LSEG and Euronext are entitled Nomination Committee, its ToR must be ToRs) is that the LCH Group Nomination to recommend the candidate to serve as a Director substantially similar to the terms of Committee ToR required LSEG consent for any of the Board, the candidates are subject to amendment, and the Relationship Agreement consideration by the Nomination Committee and reference of the LCH Group Nomination required any CCP Nomination Committee to have may be rejected if the Nomination Committee Committee. As amended, Article 18 will substantially similar terms to the LCH Group determines the candidate is not appropriate. In provide that the ToR of the Nomination Nomination Committee ToR. considering the candidates, the Nomination Committee (i) must be reviewed 17 LSEG Group means London Stock Exchange Committee will take into account (i) the seniority, Group plc and its subsidiaries from time to time experience, skill and expertise of each candidate, annually by the Board, and (ii) are other than those entities comprising the LCH and (ii) the regulatory good standing of each subject to the approval of the Board and Group. candidate. ToR Articles 3 and 4.

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Clearing Agreement, LCH SA has Finally, in making recommendations In deciding whether to approve a determined that there is no reason to with regard to Independent Directors, candidate for appointment to the Board provide for additional Venue directors the committee will take into account (each, an ‘‘Approved Candidate’’), the in the LCH SA Nomination Committee that there should be among the committee will have regard for: (i) The ToR. Independent Directors: (i) A breadth of seniority, experience, skill and expertise Article 5, Executive Management industry expertise and experience and of each candidate; (ii) the regulatory Team, will provide that LCH SA’s CEO, product knowledge; (ii) particular good standing of each candidate; (iii) in consultation with the LCH Group expertise and experience in each of risk the desirability of having deep expertise CEO will be responsible for appointing management, audit, clearing services on a wide range of products, including the management team for LCH SA. This and financial services; and (iii) those which pose the greatest risk provision is intended to ensure diversity, including gender, age, challenges for LCH SA from time to independence at the CCP level. geographical provenance, and time; and (iv) the desirability of having Article 6, Duties and Powers of the educational and professional significant experience and expertise in Committee, will set out the duties and background. LCH SA’s principal markets; and (v) the powers of the Nomination Committee. The procedures for the appointment desirability of diversity on the Board, Among other duties, the committee of User Directors are set out in including gender, age, geographical must: (i) Be satisfied that candidates Appendix to Article 7 (‘‘Appendix’’). provenance, and educational and understand the responsibilities of Board Under these procedures, if a User professional background. membership and be able to devote to Director retires from the Board, the From the Approved Candidates, the necessary time to LCH SA matters; (ii) committee may invite an ‘‘Eligible committee selects a number of ensure that its recommended candidates User’’, as defined,21 to nominate a ‘‘Proposed Directors’’ that is equal to the are respected for their competence and candidate for appointment as a User number of User Directors that are are of good standing in their field of Director on the Board (a ‘‘Nominating retiring from the Board and presents the business; and (iii) keep itself informed User’’).22 In selecting Nominating Users, Proposed Directors to LSEG for of any changes in law or regulations the committee will consider those approval. If LSEG does not approve a applicable to the composition of the Eligible Users that the committee Proposed Director, the Nominating User Board and other matters for which the considers most likely to promote the may accept LSEG’s decision, in which committee is responsible.19 success of LCH SA, having regard for: (i) case, the committee may select another Article 7, Procedures of the The number of each Eligible User’s Proposed Director from among the Committee, will set out the procedures contracts or trades (as the case may be) Approved Candidates to be put to LSEG of the Nomination Committee. As they cleared by any member of LCH Group in for approval, or the Nominating User relate to the appointment of the the immediately preceding 12 months; may propose one or more alternative Chairman and the Independent (ii) any other contribution made to LCH candidates to be considered and, if Directors, Article 7 will provide that the approved, be put to LSEG for Group’s business by each Eligible User, 23 committee will maintain a short list of including without limitation assistance approval. Upon approval of a potential candidates and consult with provided to LCH Group in the Proposed Candidate by LSEG, the the CEO of LCH Group and the CEO and development of new projects and the committee will recommend the the Chairman of LSEG as to the introduction to LCH Group of new Proposed Director’s appointment to the suitability of the candidates. With clearing clients; (iii) the size of each Board. Article 8, Tenure of Directors, will regard to the appointment of a new Eligible User’s shareholding in LCH provide that each director (other than Chairman, the committee will also Group; and (iv) how recently (if at all) the Executive Directors and User consult with the Independent Directors. the relevant Eligible User has been Article 7 further provides that, in Directors) will have, in principle, a represented on any LCH Board, and the maximum tenure on the Board of three determining whether a candidate is fit desirability of achieving a reasonably for appointment as Chairman or as an three-year terms. However, the fair rotation of appointees among Committee may nominate an Independent Director, the committee Eligible Users. will consider whether there are Independent Director for such longer period as is necessary to ensure that not relationships or circumstances candidate’s independence, the committee must (including with LSEG or any member of specify why it believes the candidate is nonetheless all such Independent Directors’ LSEG Group) likely to affect such independent. appointments terminate at the same person’s judgment and whether the 21 As defined in the Appendix, an ‘‘Eligible User’’ time. All User Directors will have a candidate has a relationship that would is a User Shareholder, i.e., a clearing member that tenure on the Board of one three-year is also a shareholder of LCH Group, that is not term, unless otherwise agreed by the disqualify such person as a ‘‘public connected with an existing director (other than a director’’ within the meaning of CFTC director that is retiring or removed in accordance Board to ensure that not all such User rules in force from time to time or as an with the Appendix) and has not served notice Directors’ appointments terminate at the ‘‘independent director’’ under any terminating its clearing relationship with any same time. Article 8 further provides member of LCH Group. that the terms of appointment of each corporate governance standards 22 In addition to retiring voluntarily from the applicable from time to time, or which Board, a User Director must retire if the User User Director will provide that the User the Board otherwise determines should Director: (i) Retires or is removed as a result of the Director must retire from the Board if be complied with in the interests of best User Shareholder which nominated the User any of the circumstances set out in sub- practice corporate governance.20 Director ceasing to be an Eligible User; (ii) retires paragraphs 2(a) through 2(e) of the or is removed as a result of their ceasing to be 24 employed by, or for any other reason upon request Appendix occurs. 19 The Committee is also directed to consult by, the User Shareholder which nominated the User periodically with the nomination committee of LCH Director; (iii) retires or is removed following a 23 The committee is not required to select the Limited to ensure that there is a coordinated change of role within the User Shareholder, if such alternative candidate as a Proposed Candidate. process for the appointment of suitable directors to role change would result in the User Director 24 Paragraphs 2(a) through 2(e) of the Appendix the Board and the board of directors of LCH concerned no longer being able to maintain the provide that a User Director must retire if the User Limited. relevant skill and expertise; or (iv) is disqualified Director: (a) Retires of the User Director’s own 20 If a recommended candidate appears to have or removed in accordance with the LCH SA’s volition; (b) retires or is removed as a result of the any relationships that might call into question the articles of association. Continued

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Article 9, Membership of the will either explain if external advice or Agreement and refer, instead, to rights Nomination Committee, will provide search consultants have not been used LSEG or its representatives have under that the members of the Nomination or, if they have been used, identify them this ToR. Committee will be appointed by the and state whether they have a Article 1 will also been amended to Board and be comprised of four to six connection with LCH SA.25 Article 17 remove as unnecessary the provision directors, including the Chairman, at will further require the Committee that authorized LSEG to appoint the least two Independent Directors, one Chairman, or the Chairman’s designee, Vice Chairman of the committee only User Director and the LSEG Director. to make available to LCH SA’s Chief for so long as LSEG is entitled to The Chairman of the Board, or such Compliance Officer (the ‘‘Chief exercise or control the exercise of at other Independent Director as the Compliance Officer’’) such information least 40 percent of the votes able to be Independent Directors and LSEG may relating to the Committee’s work as is cast on all or substantially all matters at agree, will be the Chairman of the necessary for the Chief Compliance general meetings of LCH SA. Provided committee. Officer to draft and submit the annual such person has the skills and Articles 10 and 12 through 16 will compliance reports required by the experience commensurate with such a establish the Committee’s policies with CFTC Rules and other applicable role, LSEG will be entitled to appoint regard to the conduct of meetings. In regulations in force from time to time. the Vice Chairman of the committee this regard, these articles provide that: Article 18, Amendment, will provide without restriction.26 (i) LCH SA’s secretary will be the that the ToR may be amended with Article 20, Other, will be amended to secretary of the Committee (Article 10); approval of the Board, subject to LSEG’s provide that LSEG must consent to any (ii) notice of meetings will be provided consent. amendments to: (i) Paragraph 1.2.6, by the secretary or Committee Chairman Article 19, Confidentiality and recognizing the authority of LSEG’s in a timely manner, along with an Conflicts of Interest, will set out the Head of Financial Risk (or delegate) to agenda and supporting documents requirements with respect to attend meeting of the Risk Committee; (Article 12); (iii) the Committee will confidentiality and conflicts of interest (ii) paragraph 1.4, authorizing LSEG to meet at least twice each year and as and provides that all confidential appoint the Vice Chairman of the necessary to fulfill its duties (Article matters considered by the committee committee; (iii) paragraph 16.1, relating 13); (iv) Committee meetings may be and any confidential information to confidentiality and conflicts of held in person, by telephone, by video disclosed to members of the committee interest; and (iv) paragraph 20.6, conference or any combination thereof, in connection with their position as a recognizing the provisions of the ToR and decisions may be made by email member of the committee must remain requiring LSEG’s consent. Further, no circulation, provided approval is confidential, notwithstanding the provisions of ToR may be amended unanimous (Article 14); (v) one company to which that information without the approval of the Board. Independent Director, one User relates, nor whether the member is a Terms of Reference of the Audit Director, and the LSEG Director must be director of that company or not, except Committee in attendance to constitute a quorum of as required to be disclosed by law or No substantive changes are proposed the Committee, authorized to exercise regulation. Conflicts of interest relating to be made to the ToR of the Audit all authorities of the Committee (Article to committee members will be governed Committee. However, Article 2, 15); and the secretary will prepare by the relevant articles in LCH SA’s minutes of all Committee meetings, Structure and Membership, will be Articles of Association. revised to reference the criteria for which will be presented to the Article 20, Other, will provide that (i) independence set out in LCH SA’s Committee for approval at its next the Committee will have sufficient Nomination Committee ToR rather than meeting. resources to carry out its duties, (ii) in LCH Group’s Nomination Committee Article 11, Tenure of Nomination every member of the Committee will Committee Members, will provide that, ToR and, further, will be amended to receive a copy of the ToR, and (iii) every provide that one member of the Audit in the event a member of the Committee member of the Committee will receive ceases to be a director or LCH SA, the Committee will be a director appropriate and timely training, 27 member will automatically cease to be recommended or approved by LSEG. including access to external consultancy Article 3, Authority and a member of the Committee. support, when required. Article 17, Reporting and Reviews, Responsibilities, will be amended to will provide that the Committee will Terms of Reference of the Risk remove the requirement that LCH SA’s furnish to the Board for approval each Committee Audit Committee coordinate with the Audit Committee of LCH Group. year a summary of (i) its activities, (ii) No substantive changes are proposed the process used to make nominations, However, Article will be amended to to be made to the ToR of the Risk require the committee to coordinate (iii) a description of its policy on Committee. The ToR will be amended diversity (including gender), any with the Technology, Security and primarily to reflect the changes in the Resilience Committee.28 In addition, measurable objectives it has set for LCH Group governing arrangements. For implementing the policy and progress example, (i) Article 1, Composition, will 26 Article 17 of the ToR, Harmonization with LCH on achieving such objectives, and (iv) be revised to reference the criteria for Limited, will be amended to remove references to independence set out in LCH SA’s LCH LLC. LCH LLC is registered with the CFTC as User Shareholder that nominated the User Director Nomination Committee ToR rather than a DCO, although its registration is currently ceasing to be an Eligible User; (c) retires or is dormant. removed as a result of the User Director ceasing to in LCH Group’s Nomination Committee 27 Article 2 will also be amended to remove as be employed by, or for any other reason upon ToR, and (ii) Article 16, Confidentiality unnecessary references to the Relationship request by, the User Shareholder that nominated the and Conflicts of Interest, will be revised Agreement and the paragraph providing that LSEG User Director; (d) retires or is removed following a to remove reference to any rights LSEG will have the authority to appoint a member of the change of role within the User Shareholder, if such committee only for so long as LSEG is entitled to role change would result in the User Director may have in the Relationship exercise or control the exercise of at least 20 percent concerned no longer being able to maintain the of the votes able to be cast on all or substantially relevant skill and expertise; or (e) is disqualified or 25 Following approval of the Committee’s all matters at general meetings of LCH Group. removed in accordance with LCH SA’s Articles of summary, it will be included as a section in LCH 28 The Committee’s obligation to coordinate with Association. SA’s annual report. the LCH SA Risk Committee is unchanged.

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Article 3 will be amended to recognize Compliance Officer, and any other the approval of the Board and the that LCH SA has more than one External personnel designated by the Board from consent of LSEG. Auditor, and provide that, in making time to time.29 Further, the process by Article 12, Confidentiality and recommendations to the Board which the remuneration of the CEO or Conflicts of Interest, will be revised to concerning the appointment, evaluation any Specified Executive may be remove reference to any rights LSEG and termination of the engagement of submitted for approval by the Board may have in the Relationship the External Auditors for LCH SA, the and, subsequently, the LSEG Agreement and refer, instead, to rights Committee will take into account the remuneration committee will be LSEG or its representatives have under auditor appointed by LSEG in respect of simplified by removing the requirement this ToR. the wider LSEG Group. Article 3 will that the Committee consult with the Terms of Reference of the Technology, also be amended to provide that the Chief Executive Officer of LSEG when Security and Resilience Committee Committee will review the annual audit making any change in the remuneration plan prepared by LCH SA’s Internal (including salary, bonus and long term Unrelated to the changes in its Audit department after approval by the incentives) of the CEO or any Specified governance arrangements described LCH SA’s CEO and ahead of any Executive. It was determined that above, LCH SA has also established ToR submission of the plan to LCH SA’s requiring the Committee to consult with for a Technology, Security and regulator, if requested by the regulator. the Chief Executive Officer of LSEG at Resilience Committee of the Board. Finally, Article 3 will be amended to the start of the process with regard to Article 1, Purpose, will provide that remove the requirement that the any changes in the remuneration of the the purpose of the Committee is to Committee respond to any requests from LCH SA CEO or any Specified Executive ‘‘represent the interests of the Board in the LCH Group Audit Committee (which is unnecessary, since the approval of the the sound management of technology, is being disbanded) to vary LCH SA’s LSEG Remuneration Committee is security and operational resilience, internal audit program of work. required as a final step.30 Article 1 will including cyber security, to ensure that Article 5, Reporting, will be amended also be amended to require the technology security and operational to confirm that Committee secretary will Committee to review annually the resilience strategies, investments and present all minutes of the proceedings ongoing appropriateness of any outcomes support the mission, values, and resolutions of all Committee individual remuneration and to review and strategic goals’’ of LCH SA, and meetings to the Committee for approval for approval by the Board the design of determine whether management has put at the next following meeting. all incentive plans and performance in place adequate strategies that provide Current Article 8, Annual Evaluation related pay schemes, including reasonable assurance that LCH SA and Terms of Reference Review, which performance targets to be used, that are ‘‘operates within its risk appetite and provides that the Committee will designed by and received from the LSEG complies with regulatory requirements.’’ arrange for periodic reviews of its own remuneration committee. To this end, the Committee will assist performance and, at least annually, the Board in fulfilling its arrange for independent internal review Article 2, Composition of the responsibilities relating to, inter alia: (i) of its constitution and these Terms of Committee, will be revised to remove as Review of LCH SA’s Operations and Reference, will be removed. This review unnecessary the provision that LSEG is Technology Strategy; (ii) review of is conducted, instead, by the Board and entitled to appoint a representative to significant investments in support of executive management. the committee only for so long LSEG is Article 8, Amendments, will be entitled to exercise or control the this strategy including application and added, which will specify those exercise of at least five percent of the infrastructure architecture; (iii) review provisions of the ToR that may be votes able to be cast on all or of the frameworks, policies and approved solely by the Board and those substantially all matters at general strategies that set the internal control provisions that will also require LSEG’s meetings in Group.31 LSEG will be environment in relation to technology, consent. entitled to appoint a representative to security and operational resilience; (iv) the committee at all times. Article 2 will review of the Operational Risk Terms of Reference of the Remuneration also authorize the LCH Group CEO to Management Framework; (v) review of Committee attend committee meetings as an LCH SA’s Strategy for Cyber Security The ToR of the Remuneration observer. and Information Security and for delivery of supporting programs; (vi) Committee will be amended to reflect Article 10. Amendment, will be review of the integration of Digital and some minor changes in the amended to confirm those paragraphs of Physical Security and their alignment remuneration process. For example, the ToR that may only be amended with Article 1, Duties and Powers of the with Business Continuity Plans; and (vii) providing regulatory attestations or Committee will be revised to provide 29 ‘‘Specified Executives’’ also include any declarations as may be required from that the remuneration policies will personnel with an annual remuneration package of apply to ‘‘Specified Executives’’ rather more than Ö1,000,000 or equivalent, and the time to time in relation to technology, than ‘‘Executive Management’’. This is a Chairman of the Board. security and operational resilience. technical change to confirm that the 30 With regard to the remuneration of directors, Article 2, Structure and Membership, Article I will be amended to provide that the will provide that the Committee will be remuneration policies will apply only to committee will consult from time to time with the those executives identified in the ToR or remuneration committee of LSEG and the comprised of at least four directors of otherwise specified by the Board and remuneration committee of LCH Limited to ensure the Board. At least two members of the will not apply to other LCH SA that there is a coordinated approach to the Committee will be Independent remuneration of directors on the Board and the Directors, one of whom will be executives who otherwise might be board of directors of LCH Limited. deemed to fall within the category of 31 Article 14, Other, will also be amended to appointed by the Chairman of the ‘‘Executive Management’’ for other remove the general provision that the rights of Committee. Both Independent Directors purposes. As defined, ‘‘Specified LSEG set out in the ToR will cease automatically must satisfy the criteria for if LSEG ceases to be entitled to exercise or control independence set out in the ToR of the Executives’’ means, with respect to LCH the exercise of at least five percent of the votes able SA, the Executive Directors, the CEO, to be cast on all or substantially all matters at Nomination Committee. One member of the Chief Risk Officer, the Chief general meetings of LCH Group. the Committee must also be a member

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of the Audit Committee.32 All management regarding LCH SA’s participants in the selection of its Committee members will be appointed Business Continuity Management directors and the administration of its by the Board in consultation with the planning; (ix) receiving reports, as affairs. Committee Chairman. appropriate, from the Audit Committee As noted above, the Proposed Rule Article 2 will further provide that he regarding the results of reviews and Change will not lead to any change in Committee will meet as frequently as it assessments of LCH SA’s operations and the proportion of independent directors determines necessary but must meet no technology functions; and (x) reviewing or the number of directors representing less frequently than three times a year. reports, as appropriate, on operations members and participants. Therefore, Two members of the committee will and agreed metrics in conjunction with the Board and the committees of the constitute a quorum, provided at least the Audit Committee. Board will continue to assure fair one member is an independent director. Article 5, Provisions for Access, will representation of its members and Remuneration of the Committee confirm that the Committee (i) will have participants in the selection of its members will be determined by the full and unrestricted access to directors and the administration of its Board, and no member of the Committee management and employees of LCH SA affairs as provided in section may receive any consulting, and other members of the LCH Group, 17A(b)(3)(C) of the Act.35 performance, advisory or other (ii) may obtain independent Further, Section 17A(b)(3)(F) of the compensatory fee from LCH SA other professional advice and the assistance of Act 36 provides that the rules of a than fees paid in member’s capacity as relevant experts outside of LCH SA, and clearing agency must be designed to a member of the Board or as a member (iii) will have full and unrestricted assure the safeguarding of securities and of a Committee of the Board. access to any systems, records, facilities funds which are in the custody or Article 3, Reports to the Committee, or other data from LCH SA or other control of the clearing agency. In this will provide that the Committee will member of LCH Group that it requires regard, the Proposed Rule Change will receive and review periodic to carry out its functions. make no substantive changes to the risk management information for relevant Article 6, Reporting, will provide that management policies of LCH SA or, operations and technology metrics and the Committee Chairman will report the except as explained immediately below, will align its meeting schedule with the Committee’s discussions, decisions and to the obligations of the Board with requirements of the Board. recommendations to the Board, which respect to risk management. Article 4, Authority and will decide on an appropriate policy The Proposed Rule Change will Responsibilities, will describe the response.33 Further, the Committee amend Article 12 of the Board of specific functions of the Committee, Chairman, or the Chairman’s designee, Directors ToR to clarify that the Board including: (i) Reviewing LCH SA’s will make available to LCH SA’s Chief must approve at least annually the LCH operations and technology strategy and Compliance Officer such information Group Risk Governance Framework and policies including application and relating to the Committee’s work as is LCH SA’s various policies, including infrastructure architecture; (ii) necessary for the Chief Compliance LCH SA’s: (i) Financial Resource reviewing and, as appropriate, making Officer to draft and submit the annual Adequacy Policy; (ii) Default recommendations to the Board compliance reports required by Management Policy; (iii) Collateral Risk regarding significant technology applicable regulations in force from Policy; (iv) Investment Risk Policy; (v) investments in support of LCH SA’s time to time. Liquidity Risk Policy; (vi) Settlement, technology strategy; (iii) reviewing and, Article 7, Confidentiality and Payment & Custody Risk Policy; (vii) as appropriate, making Conflicts of Interest, will set out the Counterparty Credit Risk Policy; (viii) recommendations to the Board requirements with respect to Contract and Market Acceptability regarding the resources and delivery of confidentiality and conflicts of interest Policy; (ix) Model Governance, LCH SA’s technology programs; (iv) and provides that all confidential Validation & Review Policy; (x) reviewing any information technology matters considered by the Committee Operational Risk Policy; (xi) and resilience, cyber and information and any confidential information Procyclicality Policy and any significant security programs, tracking progress in disclosed to members of the Committee changes to those policies upon relation to such programs and providing in connection with their position as a recommendations from the Risk reports to the Board as appropriate; (vi) member of the Committee must remain Committee. reviewing any significant operations confidential, notwithstanding the By making no substantive changes to and technology risk exposures of LCH company to which that information the risk management policies of LCH SA SA, including any detailed operational relates, nor whether the member is a or to the obligations of the Board with risk assessments with significant director of that company or not, except respect to risk management and by information technology elements and as required to Committee members will clarifying the obligation of LCH SA’s information security and cyber security be governed by the relevant articles in Board to approve the above policies risks, together with the steps LCH SA’s Articles of Association. annually, which policies collectively management has taken to monitor and assure the safeguarding of securities and control such exposures; (vii) reviewing 2. Statutory Basis funds which are in the custody or LCH SA’s integrated security and LCH SA has determined that control of LCH SA, the Proposed Rule resilience, including review of any new Proposed Rule Change is consistent Change is consistent with the or novel approaches to information with the requirements of Section 17A of requirements of Section 17A(b)(3)(F) of technology including security and the Act 34 and regulations thereunder the Act. resilience; (viii) reviewing reports from applicable to it. In particular, Section Commission Rule 17Ad–22(e)(2) 17A(b)(3)(C) of the Act provides that the requires each registered clearing agency 32 The Committee as a whole should have a rules of a clearing agency must assure to ‘‘establish, implement, maintain and breadth of experience to enable alignment with fair representation of its members and enforce written policies and procedures financial risk management, regulatory requirements reasonably designed to provide for and audit. Ideally, members of the Committee will also have significant, recent and relevant 33 The Committee will have no executive powers experience of the operations of LCH SA and its with respect to its findings and recommendations. 35 15 U.S.C. 78q–1(b)(3)(C). dependence on technology. 34 Id. 36 15 U.S.C. 78q–1(b)(3)(F).

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governance arrangements that: (i) Are operates an open access model, and the submission, or advance notice that are clear and transparent; (ii) support the Proposed Rule Change will have no filed with the Commission, and all public interest requirements in Section effect on this model. written communications relating to the 17A of the Act applicable to clearing proposed rule change, security-based C. Clearing Agency’s Statement on agencies, and the objectives of owners swap submission, or advance notice Comments on the Proposed Rule and participants; (iii) specify clear and between the Commission and any direct lines of responsibility; and (vi) Change Received From Members, person, other than those that may be consider the interests of participants’ Participants or Others withheld from the public in accordance customers . . . and other relevant Written comments relating to the with the provisions of 5 U.S.C. 552, will stakeholders of the covered clearing Proposed Rule Change have not been be available for website viewing and agency.37 solicited or received. LCH SA will printing in the Commission’s Public As discussed above, the Proposed notify the Commission of any written Reference Room, 100 F Street NE, Rule Change is being adopted in comments received by LCH SA. Washington, DC 20549 on official significant part to conform LCH SA’s business days between the hours of III. Date of Effectiveness of the Governance Documents to actions taken 10:00 a.m. and 3:00 p.m. Copies of the Proposed Rule Change by LCH Group to simplify its governing filing also will be available for arrangements and to eliminate Within 45 days of the date of inspection and copying at the principal provisions in LCH Group’s governance publication of this notice in the Federal office of LCH SA and on LCH SA’s documents that are unnecessary and Register or within such longer period website at: https://www.lch.com/ outdated. Importantly, LCH Group and up to 90 days (i) as the Commission may resources/rules-and-regulations/ LSEG have decided to terminate the designate if it finds such longer period proposed-rule-changes-0. All comments Relationship Agreement between them to be appropriate and publishes its received will be posted without change. and remove duplication in board reasons for so finding or (ii) as to which Persons submitting comments are decision-making between LCH Group the self-regulatory organization cautioned that we do not redact or edit and the CCP Boards by making the LCH consents, the Commission will: (A) By personal identifying information from Group Board an internal only board and order approve or disapprove such comment submissions. You should disbanding all LCH Group committees. proposed rule change, or (B) institute submit only information that you wish By simplifying its governance proceedings to determine whether the to make available publicly. All arrangements and eliminating proposed rule change should be submissions should refer to File provisions in LCH Group’s governance disapproved. Number SR–LCH SA–2020–003 and documents that are unnecessary and should be submitted on or before IV. Solicitation of Comments outdated; by vesting in LCH SA’s CEO August 31, 2020. Interested persons are invited to responsibility for appointing LCH SA’s For the Commission, by the Division of management team; and by confirming submit written data, views and Trading and Markets, pursuant to delegated that the Proposed Rule Change will not arguments concerning the foregoing, authority.39 lead to any change in the proportion of including whether the proposed rule J. Matthew DeLesDernier, independent directors or the number of change, security-based swap Assistant Secretary. directors representing members and submission, or advance notice is [FR Doc. 2020–17346 Filed 8–7–20; 8:45 am] participants, the Proposed Rule Change consistent with the Act. Comments may enhances LCH SA’s governance be submitted by any of the following BILLING CODE 8011–01–P arrangements and assures that they (i) methods: remain clear and transparent (ii) Electronic Comments SECURITIES AND EXCHANGE continue to fulfill the public interest • COMMISSION requirements in Section 17A of the Act Use the Commission’s internet applicable to clearing agencies by comment form (http://www.sec.gov/ [Release No. 34–89468; File No. SR– assuring fair representation of its rules/sro.shtml); or NYSECHX–2020–24] • Send an email to rule-comments@ members and participants in the Self-Regulatory Organizations; NYSE selection of its directors and the sec.gov. Please include File Number LCH SA–2020–003 on the subject line. Chicago, Inc.; Notice of Filing and administration of its affairs, (iii) support Immediate Effectiveness of Proposed the objectives of members and Paper Comments Rule Change Governing Liability of participants, (iv) specify clear and direct • Send paper comments in triplicate Directors and of the Exchange lines of responsibility; and (v) consider to Secretary, Securities and Exchange the interests of participants’ customers August 4, 2020. Commission, 100 F Street NE, . . . and other relevant stakeholders of Pursuant to Section 19(b)(1) 1 of the Washington, DC 20549. the covered clearing agency, within the Securities Exchange Act of 1934 (the meaning of SEC Rule 17Ad–22(e)(2).38 All submissions should refer to File ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Number SR–LCH SA–2020–003. This notice is hereby given that, on July 30, B. Clearing Agency’s Statement on file number should be included on the 2020, the NYSE Chicago, Inc. (‘‘NYSE Burden on Competition subject line if email is used. To help the Chicago’’ or the ‘‘Exchange’’) filed with LCH SA does not believe the Commission process and review your the Securities and Exchange Proposed Rule Change would have any comments more efficiently, please use Commission (the ‘‘Commission’’) the impact, or impose any burden, on only one method. The Commission will proposed rule change as described in competition. The Proposed Rule Change post all comments on the Commission’s Items I and II below, which Items have does not address any competitive issue internet website (http://www.sec.gov/ been prepared by the self-regulatory or have any impact on the competition rules/sro.shtml). Copies of the among central counterparties. LCH SA submission, all subsequent 39 17 CFR 200.30–3(a)(12). amendments, all written statements 1 15 U.S.C. 78s(b)(1). 37 17 CFR 240.17Ad–22(e)(2). with respect to the proposed rule 2 15 U.S.C. 78a. 38 17 CFR 240.17Ad–22(e)(2). change, security-based swap 3 17 CFR 240.19b–4.

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organization. The Commission is ‘‘ETP Holders,’’ ‘‘OTP Holders’’ or ‘‘OTP with Participants for any loss arising out publishing this notice to solicit Firms,’’ which terms are not used on the of the use of the facilities, systems, comments on the proposed rule change Exchange.5 The Exchange also proposes services or equipment provided by the from interested persons. to delete Article 3, Rule 19, which is the Exchange or for any loss associated with Exchange’s current rule related to I. Self-Regulatory Organization’s an interruption in, or in a failure or Statement of the Terms of Substance of liability of the Exchange. unavailability of any such facilities, the Proposed Rule Change In July 2018, the Exchange and its systems, services or equipment, whether direct parent company were acquired by or not the loss resulted from negligence The Exchange proposes to rules NYSE Group, Inc. (‘‘Transaction’’).6 As or other unintentional errors omissions governing liability of directors and of a result of the Transaction, the Exchange or from any other cause within or the Exchange, including the limits on became part of a corporate family without the Exchange’s control.10 The liability for specified circumstances, including five separate registered rule also states that the Exchange makes that would harmonize such rules with national securities exchanges.7 no warranty as to results that might be those of the Exchange’s affiliates NYSE Following the Transaction, the obtained by persons using the Arca, Inc. (‘‘NYSE Arca’’) and NYSE Exchange continued to operate as a Exchange’s facilities or services or any National, Inc. (‘‘NYSE National’’). The separate self-regulatory organization and data transmitted by or on behalf of the proposed rule change is available on the with rules, membership rosters and Exchange.11 Further, the rule bars a Exchange’s website at www.nyse.com, at listings distinct from the rules, Participant from instituting a legal the principal office of the Exchange, and membership rosters and listings of the proceeding against the Exchange, its at the Commission’s Public Reference other NYSE Exchanges. affiliates or their directors, officer, Room. Following the Transaction, the committee members, officials, II. Self-Regulatory Organization’s Exchange established a rule numbering employees, contractors or agents for Statement of the Purpose of, and framework in connection with the actions taken or omitted in connection Statutory Basis for, the Proposed Rule migration of the Exchange to the NYSE with the official business of the Change Pillar platform 8 and has aligned its Exchange, except to the extent that such In its filing with the Commission, the trading rules with the rules of its actions or omissions constitute self-regulatory organization included affiliated NYSE Exchanges in order to violations of the Federal securities laws statements concerning the purpose of, provide consistent standards while for which a private right of action 9 and basis for, the proposed rule change operating on the Pillar platform. As exists.12 Finally, the rule provides that and discussed any comments it received part of this effort, the proposal set forth any Participant who fails to prevail in on the proposed rule change. The text below further harmonizes the a lawsuit or administrative adjudicative of those statements may be examined at Exchange’s rules governing liability of proceeding against the Exchange or any the places specified in Item IV below. directors and of the Exchange, including of its officers, directors, committee The Exchange has prepared summaries, liability caps and related reimbursement members, employees or agents, shall set forth in sections A, B, and C below, requirements, with those of NYSE Arca pay to the Exchange all reasonable of the most significant parts of such and NYSE National in order to provide expenses, including attorneys’ fees, statements. uniform standards and requirements. incurred by the Exchange in the defense Currently, Article 3, Rule 19 of such proceeding if such expenses A. Self-Regulatory Organization’s (Limitation of Liability), generally states exceed $50,000.00.13 Statement of the Purpose of, and the that neither the Exchange, nor its The Exchange now proposes to Statutory Basis for, the Proposed Rule affiliates, nor any of the directors, replace Article 3, Rule 19 with Rules Change officers, committee members, officials, 13.1 through 13.4 to add rules related to employees, contractors or agents of the 1. Purpose liability of directors and of the Exchange or its affiliates would be liable The purpose of this proposed rule Exchange, including the liability caps to Participants or persons associated change is to change the rules governing and reimbursement requirements that are based on the rules of NYSE Arca and liability of directors and of the Firm, but unless the context requires otherwise, the 14 Exchange, including the limits on term Participant shall refer to an individual NYSE National. liability for specified circumstances. Participant and/or a Participant Firm. Proposed Rule 13.1 would provide 5 Specifically, the Exchange proposes to See NYSE Arca Rules 14.1 through 14.4 and that any provision of the Certificate of replace Article 3, Rule 19 with new NYSE National Rules 13.1 through 13.4. 6 See Securities Exchange Act Release No. 83635 Incorporation, Bylaws or the Rules of Rules 13.1 (Liability of Directors), 13.2 (July 13, 2018), 83 FR 34182 (July 19, 2018) (SR– the Exchange that provides or purports (Liability of Exchange), 13.3 (Legal CHX–2018–004); see also Securities Exchange Act to provide that the members of the Proceedings Against Exchange Release No. 83303 (May 22, 2018), 83 FR 24517 Board of Directors shall not be liable to (May 29, 2018) (SR–CHX–2018–004). Directors, Officers, Employees or the Exchange or its Participants for Agents) and 13.4 (Exchange’s Costs of 7 In addition to NYSE Arca and NYSE National, the Exchange has two other registered national monetary damages for breach of Defending Legal Proceedings). Proposed securities exchange affiliates: New York Stock fiduciary duty as a Manager shall not be Rules 13.1 through 13.4 are based on the Exchange LLC (‘‘NYSE’’) and NYSE American LLC applied in any instance in which such rules set forth in NYSE Arca Rule 14 (‘‘NYSE American’’) (collectively, the Exchange, liability arises directly or indirectly as a and NYSE National Rule 13, with non- NYSE, NYSE Arca, NYSE National, and NYSE American, the ‘‘NYSE Exchanges’’). result of a violation of federal securities substantive differences to use the term 8 See Securities Exchange Act Release No. 85297 laws.15 The Exchange does not currently 4 ‘‘Participant’’ rather than the terms (March 12, 2019), 84 FR 9854 (March 18, 2019) (SR– NYSECHX–2019–03) (Notice of filing and 10 See Article 3, Rule 19(a). 4 The term ‘‘Participant’’ is defined in Article 1, immediate effectiveness of proposed rule change to 11 See Article 3, Rule 19(b). Rule 1(s) to mean, among other things, any establish a rule numbering framework). 12 Participant Firm that holds a valid Trading Permit 9 See Securities Exchange Act Release No. 87264 See Article 3, Rule 19(c). and that a Participant shall be considered a (October 9, 2019), 84 FR 55345 (October 16, 2019) 13 See Article 3, Rule 19(e). ‘‘member’’ of the Exchange for purposes of the Act. (SR–NYSECHX–2019–08) (Approval Order of 14 See note 5, supra. If a Participant is not a natural person, the proposal to add rules to support the transition of 15 Proposed Rule 13.1 is substantively identical to Participant may also be referred to as a Participant trading to the Pillar Trading Platform). NYSE Arca Rule 14.1 and NYSE National 13.1.

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have a rule that is analogous to or through the Exchange’s order routing objectives of Section 6(b)(5),21 in proposed Rule 13.1. systems, electronic book or automatic particular, because it is designed to Proposed Rule 13.2(a) 16 would executions systems or to any other prevent fraudulent and manipulative provide that except as otherwise automated facility of the Exchange. acts and practices, to promote just and expressly provided in the Exchange’s Under proposed Rule 13.2(b)(1), the equitable principles of trade, to foster rules, neither the Exchange nor its Exchange would cap its liability to all cooperation and coordination with Directors, officers, committee members, Participants at the greater of $500,000 or persons engaged in facilitating employees or agents shall be liable to the amount recovered under any transactions in securities, to remove the Participants of the Exchange, or applicable insurance policy in a single impediments to, and perfect the successors, representatives or customers calendar month. The Exchange does not mechanism of, a free and open market thereof, or to persons associated currently have a rule that is analogous and a national market system and, in therewith for any loss, expense, to proposed Rule 13.2(b). general, to protect investors and the damages or claims that arise out of the Proposed Rule 13.2(c) 18 would public interest. use or enjoyment of the facilities or provide that that to the extent that all The Exchange believes that proposed services afforded by the Exchange, any claims arising out of the use or Rule 13 would remove impediments to interruption in or failure or enjoyment of the facilities afforded by and perfect the mechanism of a free and unavailability of any such facilities or the Exchange cannot be fully satisfied open market and a national market services, or any action taken or omitted because in the aggregate they exceed the system by harmonizing the Exchange’s to be taken in respect to the business of applicable maximum amount of liability rules governing liability of directors, the Exchange except to the extent such provided for, then the Exchange would liability of exchange, legal proceedings loss, expense, damages or claims are allocate the maximum amount among against Exchange directors, officers, attributable to the willful misconduct, all such claims arising during a single employees, or agents, and Exchange’s gross negligence, bad faith or fraudulent calendar month based on the proportion costs of defending legal proceedings or criminal acts of the Exchange or its that each such claim bears to the sum with the approved rules of its affiliated officers, employees or agents acting of all such claims. The Exchange does exchanges, NYSE Arca and NYSE within the scope of their authority. The not currently have a rule that is National. The Exchange believes that limitation of liability set forth in analogous to proposed Rule 13.2(c). the proposed rules would further proposed Rule 13.2(a) would not apply Proposed Rule 13.2(d) 19 would promote just and equitable principles of to violations of federal securities laws. provide that in order for a Participant to trade by providing for consistent Proposed Rule 13.2(a) would further be eligible to receive compensation, methodology relating to liability for provide that subject to certain claims must be made in writing and trading on affiliated exchanges that use exceptions, the Exchange would have must be submitted no later than 12 p.m. the same trading platform. The no liability to any person for any loss, Eastern Time on the next business day proposed rule change would therefore expense, damages or claims that result following the day on which the use or promote consistency among the from any error, omission or delay in enjoyment of the Exchange’s facilities Exchange and its affiliates and make its calculating or disseminating any current gave rise to such claims. The Exchange rules easier to navigate for the public, or closing index value, or any reports of does not currently have a rule that is the Commission, and Participants. transactions in or quotations for analogous to proposed Rule 13.2(d). The proposed rule change is also securities traded on the Exchange. The Proposed Rule 13.3 would establish intended to align the liability caps and first two paragraphs of proposed Rule requirements relating to legal compensation claims requirements with 13.2(a) replace Article 3, Rule 19(a) and proceedings against directors, officers, the caps and requirements currently are based on the first two paragraphs of employees, agents, or other officials of provided by the Exchange’s affiliates, NYSE Arca Rule 14.2(a) and NYSE the Exchange. This proposed rule NYSE Arca and NYSE National, and National Rule 13.2(a) without any replaces Article 3, Rule 19(c), and is would therefore provide consistent rules substantive differences. Additionally, based on NYSE Arca Rule 14.3 and across those exchanges.22 Consistent proposed Rule 13.2(a) would provide NYSE National Rule 13.3 without any rules, in turn, would simplify the that the Exchange makes no warranty as substantive differences. regulatory requirements for Participants to results that might be obtained by any Proposed Rule 13.4 would establish of the Exchange that are also members person or entity from the use of any data the circumstances regarding who is on those affiliated exchanges. The transmitted to disseminated by or on responsible for the Exchange’s costs in Exchange believes that the proposed behalf of the Exchange or any reporting defending a legal proceeding brought rule change would provide greater authority designated by the Exchange. against the Exchange. This proposed harmonization among similar rules of This paragraph of proposed Rule 13.2(a) rule replaces Article 3, Rule 19(e), and NYSE Arca and NYSE National, replaces Article 3, Rule 19(b), and is is based on NYSE Arca Rule 14.3 and resulting in greater uniformity and more based on the third paragraph of NYSE NYSE National Rule 13.3 without any efficient regulatory compliance. As Arca Rule 14.2(a) and NYSE National substantive differences. such, the proposed rule change would Rule 13.2(a) without any substantive foster cooperation and coordination 2. Statutory Basis differences. with persons engaged in facilitating Proposed Rule 13.2(b) 17 would The proposed rule change is transactions in securities and would provide that the Exchange would consistent with Section 6(b) of the remove impediments to and perfect the compensate Participants for losses Securities Exchange Act of 1934 (the mechanism of a free and open market whenever custody of an unexecuted ‘‘Act’’),20 in general, and furthers the and a national market system. order is transmitted by a Participant to Lastly, the Exchange notes that the 18 Proposed Rule 13.2(c) is substantively identical proposal to adopt provisions governing 16 Proposed Rule 13.2(a) is substantively identical to NYSE Arca Rule 14.2(c) and NYSE National Rule liability of directors, liability of to NYSE Arca Rule 14.2(a) and NYSE National Rule 13.2(c). 13.2(a). 19 Proposed Rule 13.2(d) is substantively identical exchange, legal proceedings against 17 Proposed Rule 13.2(b) is substantively identical to NYSE Arca Rule 14.2(d) and NYSE National Rule to NYSE Arca Rule 14.2(b) and NYSE National Rule 13.2(d). 21 15 U.S.C. 78f(b)(5). 13.2(b). 20 15 U.S.C. 78f(b). 22 See note 5, supra.

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Exchange directors, officers, employees, proposed rule change does not: (i) with respect to the proposed rule or agents, and Exchange’s costs of Significantly affect the protection of change that are filed with the defending legal proceedings are similar investors or the public interest; (ii) Commission, and all written to those approved by the Commission impose any significant burden on communications relating to the for a number of self-regulatory competition; and (iii) become operative proposed rule change between the organizations. More specifically, the prior to 30 days from the date on which Commission and any person, other than Commission recently approved the it was filed, or such shorter time as the those that may be withheld from the Members Exchange Form 1 application Commission may designate, if public in accordance with the which includes Rule 11.14 (Limitation consistent with the protection of provisions of 5 U.S.C. 552, will be of Liability),23 the Long-Term Stock investors and the public interest, the available for website viewing and Exchange Form 1 application which proposed rule change has become printing in the Commission’s Public includes Rule 11.260 (Limitation of effective pursuant to Section 19(b)(3)(A) Reference Room, 100 F Street NE, Liability),24 and the Investors Exchange of the Act and Rule 19b–4(f)(6)(iii) Washington, DC 20549 on official Form 1 application which includes Rule thereunder. business days between the hours of 11.260 (Limitation of Liability).25 At any time within 60 days of the 10:00 a.m. and 3:00 p.m. Copies of the filing of such proposed rule change, the filing also will be available for B. Self-Regulatory Organization’s Commission summarily may Statement on Burden on Competition inspection and copying at the principal temporarily suspend such rule change if office of the Exchange. All comments The Exchange does not believe that it appears to the Commission that such received will be posted without change. the proposed rule change will impose action is necessary or appropriate in the Persons submitting comments are any burden on competition not public interest, for the protection of cautioned that we do not redact or edit necessary or appropriate in furtherance investors, or otherwise in furtherance of personal identifying information from of the purposes of the Act because all the purposes of the Act. If the comment submissions. You should Participants would be subject to the Commission takes such action, the submit only information that you wish same limits on liability, liability caps Commission shall institute proceedings to make available publicly. All 28 and reimbursement requirements. The under Section 19(b)(2)(B) of the Act to submissions should refer to File proposed rule change is designed to determine whether the proposed rule Number SR–NYSECHX–2020–24, and provide greater harmonization among change should be approved or should be submitted on or before similar rules across the Exchange’s disapproved. August 31, 2020. affiliates, NYSE Arca and NYSE IV. Solicitation of Comments National, resulting in more efficient For the Commission, by the Division of Interested persons are invited to Trading and Markets, pursuant to delegated regulatory compliance for common authority.29 members. submit written data, views, and arguments concerning the foregoing, J. Matthew DeLesDernier, C. Self-Regulatory Organization’s including whether the proposed rule Assistant Secretary. Statement on Comments on the change is consistent with the Act. [FR Doc. 2020–17349 Filed 8–7–20; 8:45 am] Proposed Rule Change Received From Comments may be submitted by any of BILLING CODE 8011–01–P Members, Participants, or Others the following methods: No written comments were solicited Electronic Comments or received with respect to the proposed SECURITIES AND EXCHANGE • rule change. Use the Commission’s internet COMMISSION comment form (http://www.sec.gov/ III. Date of Effectiveness of the rules/sro.shtml); or Proposed Rule Change and Timing for • [Release No. 34–89469; File No. SR–CBOE– Send an email to rule-comments@ 2020–069] Commission Action sec.gov. Please include File Number SR– The Exchange has filed the proposed NYSECHX–2020–24 on the subject line. Self-Regulatory Organizations; Cboe rule change pursuant to Section Paper Comments Exchange, Inc.; Notice of Filing and 26 19(b)(3)(A)(iii) of the Act and Rule • Immediate Effectiveness of a Proposed 19b–4(f)(6) thereunder.27 Because the Send paper comments in triplicate Rule Change To Amend the Options to Secretary, Securities and Exchange Regulatory Fee 23 See Securities Exchange Act Release No. 88806 Commission, 100 F Street NE, (May 4, 2020), 85 FR 27451 (May 8, 2020) (In the Washington, DC 20549–1090. August 4, 2020. Matter of the Application of MEMX LLC for All submissions should refer to File Pursuant to Section 19(b)(1) of the Registration as a National Securities Exchange; Number SR–NYSECHX–2020–24. This Findings, Opinion, and Order of the Commission). Securities Exchange Act of 1934 (the 24 See Securities Exchange Act Release No. 85828 file number should be included on the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 (May 10, 2019), 84 FR 21841 (May 15, 2019) (In the subject line if email is used. To help the notice is hereby given that on July 21, Matter of the Application of Long-Term Stock Commission process and review your 2020, Cboe Exchange, Inc. (the Exchange, Inc.; for Registration as a National comments more efficiently, please use Securities Exchange; Findings, Opinion, and Order ‘‘Exchange’’ or ‘‘Cboe Options’’) filed of the Commission). only one method. The Commission will with the Securities and Exchange 25 See Securities Exchange Act Release No. 78101 post all comments on the Commission’s Commission (the ‘‘Commission’’) the (June 17, 2016), 81 FR 41142 (June 23, 2016) (In the internet website (http://www.sec.gov/ proposed rule change as described in Matter of the Application of: Investors’ Exchange, rules/sro.shtml). Copies of the Items I, II, and III below, which Items LLC for Registration as a National Securities submission, all subsequent Exchange; Findings, Opinion, and Order of the have been prepared by the Exchange. Commission). amendments, all written statements The Commission is publishing this 26 15 U.S.C. 78s(b)(3)(A)(iii). notice to solicit comments on the 27 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– at least five business days prior to the date of filing 4(f)(6)(iii) requires a self-regulatory organization to of the proposed rule change, or such shorter time give the Commission written notice of its intent to as designated by the Commission. The Exchange 29 17 CFR 200.30–3(a)(12). file the proposed rule change, along with a brief has satisfied this requirement. 1 15 U.S.C. 78s(b)(1). description and text of the proposed rule change, 28 15 U.S.C. 78s(b)(2)(B). 2 17 CFR 240.19b–4.

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proposed rule change from interested (‘‘CTPH’’) or non-CTPH that ultimately balanced with recent options volumes, persons. clears the transaction. With respect to which has significantly increased. For linkage transactions, Cboe Options example, total options contract volume I. Self-Regulatory Organization’s reimburses its routing broker providing in June 2020 was 82.2% higher than the Statement of the Terms of Substance of Routing Services pursuant to Cboe total options contract volume in June the Proposed Rule Change Options Rule 5.36 for options regulatory 2019.5 In fact, June 2020 was the highest Cboe Exchange, Inc. (the ‘‘Exchange’’ fees it incurs in connection with the options volume month in the history of or ‘‘Cboe Options’’) proposes to amend Routing Services it provides. U.S. equity options industry.6 In its Fees Schedule relating to the Options Revenue generated from ORF, when particular, customer options volume Regulatory Fee. The text of the proposed combined with all of the Exchange’s across the industry has also significantly rule change is provided in Exhibit 5. other regulatory fees and fines, is increased year to date. For example, The text of the proposed rule change designed to recover a material portion of total customer options contract volume is also available on the Exchange’s the regulatory costs to the Exchange of in April 2020 was 50.27% higher than website (http://www.cboe.com/ the supervision and regulation of TPH total customer volume in April 2019 AboutCBOE/ customer options business including and total customer options contract CBOELegalRegulatoryHome.aspx), at performing routine surveillances, volume in May 2020, was 29.10% the Exchange’s Office of the Secretary, investigations, examinations, financial higher than total customer volume in and at the Commission’s Public monitoring, and policy, rulemaking, May 2019. These expectations are Reference Room. interpretive, and enforcement activities. estimated, preliminary and may change. II. Self-Regulatory Organization’s Regulatory costs include direct There can be no assurance that the Statement of the Purpose of, and regulatory expenses and certain indirect Exchange’s final costs for 2020 will not Statutory Basis for, the Proposed Rule expenses for work allocated in support differ materially from these expectations Change of the regulatory function. The direct and prior practice, nor can the Exchange expenses include in-house and third- predict with certainty whether options In its filing with the Commission, the party service provider costs to support volume will remain at the current level Exchange included statements the day to day regulatory work such as going forward. The Exchange notes concerning the purpose of and basis for surveillances, investigations and however, that when combined with the the proposed rule change and discussed examinations. The indirect expenses Exchange’s other non-ORF regulatory any comments it received on the include support from such areas as fees and fines, the revenue being proposed rule change. The text of these human resources, legal, information generated by ORF using the current rate statements may be examined at the technology, facilities and accounting. results in revenue that is running in places specified in Item IV below. The These indirect expenses are estimated to excess of the Exchange’s estimated Exchange has prepared summaries, set be approximately 26% of Cboe Options’ regulatory costs for the year.7 forth in sections A, B, and C below, of total regulatory costs for 2020. Thus, Particularly, as noted above, the options the most significant aspects of such direct expenses are estimated to be market has seen a substantial increase in statements. approximately 74% of total regulatory volume over the first half of the year, A. Self-Regulatory Organization’s costs for 2020. In addition, it is Cboe due in large part to the extreme Statement of the Purpose of, and the Options’ practice that revenue generated volatility in the marketplace as a result Statutory Basis for, the Proposed Rule from ORF not exceed more than 75% of of the COVID–19 pandemic. This Change total annual regulatory costs. unprecedented spike in volatility The Exchange monitors its regulatory resulted in significantly higher volume 1. Purpose costs and revenues at a minimum on a than was originally projected by the The Exchange proposes to reduce the semi-annual basis. If the Exchange Exchange (thereby resulting in Options Regulatory Fee (‘‘ORF’’) from determines regulatory revenues exceed substantially higher ORF revenue than $0.0045 per contract to $0.0023 per or are insufficient to cover a material projected). Moreover, in addition to contract, effective August 3, 2020, in portion of its regulatory costs in a given projected reductions in regulatory order to help ensure that revenue year, the Exchange will adjust the ORF expenses, the Exchange experienced collected from the ORF, in combination by submitting a fee change filing to the further unanticipated reductions in with other regulatory fees and fines, Commission. The Exchange also notifies costs, in connection with COVID–19 does not exceed the Exchange’s total TPHs of adjustments to the ORF via (e.g., reduction in travel expenses).8 The regulatory costs. regulatory circular and/or Exchange Exchange therefore proposes to decrease 4 The ORF is assessed by Cboe Options Notice. Based on the Exchange’s most the ORF in order to ensure it does not to each Trading Permit Holder (‘‘TPH’’) recent semi-annual review, the for options transactions cleared by the Exchange is proposing to reduce the 5 See https://www.theocc.com/Newsroom/Press- TPH that are cleared by the Options amount of ORF that will be collected by Releases/2020/07-01-OCC-June-2020-Total-Volume- Up-Nearly-81-Perc. Clearing Corporation (‘‘OCC’’) in the the Exchange from $0.0045 per contract side to $0.0023 per contract side. The 6 Id. The previous record for highest U.S. equity customer range, regardless of the options volume was March 2020. For further exchange on which the transaction proposed decrease is based on the context, the Exchange notes that The Options occurs.3 In other words, the Exchange Exchange’s estimated projections for its Clearing Corporation total volume for March 2020 imposes the ORF on all customer-range regulatory costs, which have decreased, was up 62.8% as compared to March 2019. 7 Consistent with Rule 2.2 (Regulatory Revenue), transactions cleared by a TPH, even if 4 The Exchange endeavors to provide TPHs with the Exchange notes that notwithstanding the excess the transactions do not take place on the such notice at least 30 calendar days prior to the ORF revenue collected to date, it has not used such Exchange. The ORF is collected by OCC effective date of the change. The Exchange notified revenue for nonregulatory purposes. on behalf of the Exchange from the TPHs of the proposed rate change for August 3, 8 The Exchange notes that in connection with Clearing Trading Permit Holder 2020 on July 1, 2020. See Cboe Options Regulatory proposed ORF rate changes, it provides the Circular RG20–042 ‘‘Options Regulatory Fee Commission confidential details regarding the Decrease and Discontinuation of Regulatory Exchange’s projected regulatory revenue, including 3 The Exchange notes ORF also applies to Circular’’ and Exchange Notice, C2020070100 projected revenue from ORF, along with a breakout customer-range transactions executed during Global ‘‘Cboe Options Exchanges Regulatory Fee Update of its projected regulatory expenses, including both Trading Hours. Effective August 3, 2020.’’ direct and indirect allocations.

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exceed its regulatory costs for the year. revenues, which includes revenues from violations and manipulation. Indeed, Particularly, the Exchange believes that ORF and other regulatory fees and fines, the Exchange cannot effectively review by decreasing the ORF, as amended, the Exchange determined that absent a for such conduct without looking at and when combined with all of the reduction in ORF, it would be collecting evaluating activity irregardless of where Exchange’s other regulatory fees and revenue in excess of 75% of its it transpires. In addition to its own fines, would allow the Exchange to regulatory costs. Indeed, the Exchange surveillance programs, the Exchange continue covering a material portion of notes that when taking into account the also works with other SROs and its regulatory costs, while lessening the recent options volume, coupled with the exchanges on intermarket surveillance potential for generating excess revenue projected reduction in regulatory costs, related issues. Through its participation that may otherwise occur using the it estimates the ORF will generate in the Intermarket Surveillance Group current rate.9 revenues that would cover more than (‘‘ISG’’) 14 the Exchange shares The Exchange will continue to the approximated 75% of the monitor the amount of revenue Exchange’s projected regulatory costs. information and coordinates inquiries collected from the ORF to ensure that it, Moreover, when coupled with the and investigations with other exchanges in combination with its other regulatory Exchange’s other regulatory fees and designed to address potential fees and fines, does not exceed the revenues, the Exchange estimates ORF intermarket manipulation and trading Exchange’s total regulatory costs. to generate over 100% of the Exchange’s abuses. Accordingly, there is a strong projected regulatory costs. As such, the nexus between the ORF and the 2. Statutory Basis Exchange believes it’s reasonable and Exchange’s regulatory activities with The Exchange believes the proposed appropriate to decrease the ORF amount respect to its TPH’s customer trading rule change is consistent with the from $0.0045 to $0.0023 per contract activity. Securities Exchange Act of 1934 (the side. ‘‘Act’’) and the rules and regulations The Exchange also believes the B. Self-Regulatory Organization’s thereunder applicable to the Exchange proposed fee change is equitable and Statement on Burden on Competition and, in particular, the requirements of not unfairly discriminatory in that it is The Exchange does not believe that Section 6(b) of the Act.10 Specifically, charged to all TPHs on all their the proposed rule change will impose the Exchange believes the proposed rule transactions that clear in the customer any burden on competition not change is consistent with Section 6(b)(4) range at the OCC. The Exchange of the Act,11 which provides that believes the ORF ensures fairness by necessary or appropriate in furtherance Exchange rules may provide for the assessing higher fees to those TPHs that of the purposes of the Act. This equitable allocation of reasonable dues, require more Exchange regulatory proposal does not create an unnecessary fees, and other charges among its TPHs services based on the amount of or inappropriate intra-market burden on and other persons using its facilities. customer options business they competition because the ORF applies to Additionally, the Exchange believes the conduct. Regulating customer trading all customer activity, thereby raising proposed rule change is consistent with activity is much more labor intensive regulatory revenue to offset regulatory the Section 6(b)(5) 12 requirement that and requires greater expenditure of expenses. It also supplements the the rules of an exchange not be designed human and technical resources than regulatory revenue derived from non- to permit unfair discrimination between regulating non-customer trading customer activity. The Exchange notes, customers, issuers, brokers, or dealers. activity, which tends to be more however, the proposed change is not The Exchange believes the proposed automated and less labor-intensive. For designed to address any competitive fee change is reasonable because example, there are costs associated with issues. Indeed, this proposal does not customer transactions will be subject to main office and branch office create an unnecessary or inappropriate a lower ORF fee than the current rate. examinations (e.g., staff and travel inter-market burden on competition Moreover, the proposed reduction is expenses), as well as investigations into because it is a regulatory fee that necessary in order for the Exchange to customer complaints and the supports regulation in furtherance of the not collect revenue in excess of its terminations of Registered persons. As a purposes of the Act. The Exchange is result, the costs associated with anticipated regulatory costs, in obligated to ensure that the amount of administering the customer component combination with other regulatory fees regulatory revenue collected from the and fines, which is consistent with the of the Exchange’s overall regulatory ORF, in combination with its other Exchange’s practices. The Exchange had program are materially higher than the regulatory fees and fines, does not designed the ORF to generate revenues costs associated with administering the that would be less than or equal to 75% non-customer component (e.g., TPH exceed regulatory costs. of the Exchange’s regulatory costs, proprietary transactions) of its C. Self-Regulatory Organization’s 13 which is consistent with the view of the regulatory program. Moreover, the Statement on Comments on the Commission that regulatory fees be used Exchange notes that it has broad Proposed Rule Change Received From for regulatory purposes and not to regulatory responsibilities with respect Members, Participants, or Others support the Exchange’s business to its TPHs’ activities, irrespective of operations. As discussed above, where their transactions take place. The Exchange neither solicited nor however, after its semi-annual review of Many of the Exchange’s surveillance received comments on the proposed its regulatory costs and regulatory programs for customer trading activity rule change. may require the Exchange to look at 9 The Exchange notes that its regulatory activity across all markets, such as 14 responsibilities with respect to TPH compliance reviews related to position limit ISG is an industry organization formed in 1983 with options sales practice rules have largely been to coordinate intermarket surveillance among the allocated to FINRA under a 17d–2 agreement. The SROs by cooperatively sharing regulatory 13 If the Exchange changes its method of funding information pursuant to a written agreement ORF is not designed to cover the cost of that options regulation or if circumstances otherwise change in sales practice regulation. the future, the Exchange may decide to modify the between the parties. The goal of the ISG’s 10 15 U.S.C. 78f(b). ORF or assess a separate regulatory fee on TPH information sharing is to coordinate regulatory 11 15 U.S.C. 78f(b)(4). proprietary transactions if the Exchange deems it efforts to address potential intermarket trading 12 15 U.S.C. 78f(b)(5). advisable. abuses and manipulations.

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III. Date of Effectiveness of the Reference Room, 100 F Street NE, NMS Plan’’ or ‘‘Plan’’) 3 to be consistent Proposed Rule Change and Timing for Washington, DC 20549, on official with an amendment to the CAT NMS Commission Action business days between the hours of Plan recently approved by the The foregoing rule change has become 10:00 a.m. and 3:00 p.m. Copies of the Commission. effective pursuant to Section 19(b)(3)(A) filing also will be available for The text of the proposed rule change of the Act 15 and paragraph (f) of Rule inspection and copying at the principal is available on the Exchange’s website at 19b–4 16 thereunder. At any time within office of the Exchange. All comments https://listingcenter.nasdaq.com/ 60 days of the filing of the proposed rule received will be posted without change. rulebook/nasdaq/rules, at the principal change, the Commission summarily may Persons submitting comments are office of the Exchange, and at the temporarily suspend such rule change if cautioned that we do not redact or edit Commission’s Public Reference Room. it appears to the Commission that such personal identifying information from comment submissions. You should II. Self-Regulatory Organization’s action is necessary or appropriate in the Statement of the Purpose of, and public interest, for the protection of submit only information that you wish Statutory Basis for, the Proposed Rule investors, or otherwise in furtherance of to make available publicly. All Change the purposes of the Act. If the submissions should refer to File No. Commission takes such action, the SR–CBOE–2020–069, and should be In its filing with the Commission, the Commission will institute proceedings submitted on or before August 31, 2020. Exchange included statements to determine whether the proposed rule For the Commission, by the Division of concerning the purpose of and basis for change should be approved or Trading and Markets, pursuant to delegated the proposed rule change and discussed disapproved. authority.17 any comments it received on the IV. Solicitation of Comments J. Matthew DeLesDernier, proposed rule change. The text of these Assistant Secretary. statements may be examined at the Interested persons are invited to [FR Doc. 2020–17350 Filed 8–7–20; 8:45 am] places specified in Item IV below. The submit written data, views, and BILLING CODE 8011–01–P Exchange has prepared summaries, set arguments concerning the foregoing, forth in sections A, B, and C below, of including whether the proposed rule the most significant aspects of such change is consistent with the Act. SECURITIES AND EXCHANGE statements. Comments may be submitted by any of COMMISSION the following methods: A. Self-Regulatory Organization’s Statement of the Purpose of, and Electronic Comments [Release No. 34–89467; File No. SR– Statutory Basis for, the Proposed Rule • Use the Commission’s internet NASDAQ–2020–046] Change comment form (http://www.sec.gov/ rules/sro.shtml); or Self-Regulatory Organizations; The 1. Purpose • Send an email to rule-comments@ Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of The purpose of this proposed rule sec.gov. Please include File No. SR– change is to amend General 7, the CBOE–2020–069 on the subject line. Proposed Rule Change To Amend the Exchange’s Compliance Rule Under Compliance Rule regarding the CAT Paper Comments General 7 of the Exchange’s Rulebook NMS Plan, to be consistent with an amendment to the CAT NMS Plan • Send paper comments in triplicate August 4, 2020. recently approved by the Commission.4 to Secretary, Securities and Exchange The Commission approved an Commission, 100 F Street NE, Pursuant to Section 19(b)(1) of the amendment to the CAT NMS Plan to Washington, DC 20549–1090. Securities Exchange Act of 1934 amend the requirements for Firm All submissions should refer to File No. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on July 31, Designated IDs in four ways: (1) To SR–CBOE–2020–069. This file number prohibit the use of account numbers as should be included on the subject line 2020, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Firm Designated IDs for trading if email is used. To help the accounts that are not proprietary Commission process and review your Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed accounts; (2) to require that the Firm comments more efficiently, please use Designated ID for a trading account be only one method. The Commission will rule change as described in Items I and II, below, which Items have been persistent over time for each Industry post all comments on the Commission’s Member so that a single account may be internet website (http://www.sec.gov/ prepared by the Exchange. The Commission is publishing this notice to tracked across time within a single rules/sro.shtml). Copies of the Industry Member; (3) to permit the use submission, all subsequent solicit comments on the proposed rule change from interested persons. of relationship identifiers as Firm amendments, all written statements Designated IDs in certain circumstances; with respect to the proposed rule I. Self-Regulatory Organization’s and (4) to permit the use of entity change that are filed with the Statement of the Terms of Substance of identifiers as Firm Designated IDs in Commission, and all written the Proposed Rule Change certain circumstances (the ‘‘FDID communications relating to the Amendment’’). As a result, the The Exchange proposes to amend proposed rule change between the Exchange proposes to amend the General 7 of the Exchange Rulebook, the Commission and any person, other than definition of ‘‘Firm Designated ID’’ in Exchange’s compliance rule those that may be withheld from the General 7, Section 1 to reflect the (‘‘Compliance Rule’’) regarding the public in accordance with the changes to the CAT NMS Plan regarding provisions of 5 U.S.C. 552, will be National Market System Plan Governing available for website viewing and the Consolidated Audit Trail (the ‘‘CAT 3 Unless otherwise specified, capitalized terms printing in the Commission’s Public used in this rule filing are defined as set forth in 17 17 CFR 200.30–3(a)(12). the Compliance Rule. 15 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 4 Securities Exchange Act Release No. 89397 (July 16 17 CFR 240.19b–4(f). 2 17 CFR 240.19b–4. 24, 2020), 85 FR 45941 (July 30, 2020).

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the requirements for Firm Designated that represents a trading account, in of the relationship. The masking IDs. certain scenarios in which an Industry requirement would avoid potentially General 7, Section 1(r) defines the Member does not have an account revealing the identity of the term ‘‘Firm Designated ID’’ to mean ‘‘a number available to its order handling relationship. unique identifier for each trading and/or execution system at the time of An example of the use of a account designated by Industry order receipt (e.g., certain institutional relationship identifier as a Firm Members for purposes of providing data accounts, managed accounts, accounts Designated ID would be as follows: to the Central Repository, where each for individuals). In such scenarios, the Suppose that Big Fund Manager is such identifier is unique among all trading account structure may not be known in Industry Member A’s systems identifiers from any given Industry available when a new order is first as ‘‘BFM1.’’ When an order is placed by Member for each business date.’’ received from a client and, instead, only Big Fund Manager, the order is tagged to BFM1. Industry Member A could use (1) Prohibit Use of Account Numbers an identifier representing the client’s trading relationship is available. In a masked version of BFM1 in place of The Exchange proposes to amend the these limited instances, the Industry the Firm Designated ID representing a definition of ‘‘Firm Designated ID’’ in Member may provide an identifier used trading account when reporting a new General 7, Section 1(r) to provide that by the Industry Member to represent the order from Big Fund Manager instead of Industry Members may not use account client’s trading relationship with the the account numbers to which executed numbers as the Firm Designated ID for Industry Member instead of an account shares/contracts will be allocated at a trading accounts that are not proprietary number. later time via a booking or other system. accounts. Specifically, the Exchange When a trading relationship is Similarly, another example of the use of proposes to add the following to the established at a broker-dealer for clients, a relationship identifier as a Firm definition of a Firm Designated ID: the broker-dealer typically creates a Designated ID would involve an ‘‘provided, however, such identifier parent account, under which additional individual in place of the Big Fund may not be the account number for such subaccounts are created. However, in Manager in the above example. trading account if the trading account is some cases, the broker-dealer In accordance with the FDID not a proprietary account.’’ establishes the parent relationship for a Amendment, the Exchange proposes to (2) Persistent Firm Designated ID client using a relationship identifier as amend the definition of a ‘‘Firm opposed to an actual parent account. Designated ID’’ in General 7, Section The Exchange also proposes to amend The relationship identifier could be any 1(r) to permit Industry Members to the definition of ‘‘Firm Designated ID’’ of a variety of identifiers, such as a short provide a relationship identifier as the in General 7, Section 1(r) to require a name for a relevant individual or Firm Designated ID as described above. Firm Designated ID assigned by an institution. This relationship identifier Specifically, the Exchange proposes to Industry Member to a trading account to is established prior to any trading for amend the definition of ‘‘Firm be persistent over time, not for each the client. If a relationship identifier has Designated ID’’ in General 7, Section 5 business day. To effect this change, the been established rather than a parent 1(r) to state that a Firm Designated ID Exchange proposes to amend the account, and an order is placed on means, in relevant part, ‘‘a unique and definition of ‘‘Firm Designated ID’’ in behalf of the client, any executed trades persistent relationship identifier when General 7, Section 1(r) to add ‘‘and will be kept in a firm account (e.g., a an Industry Member does not have an persistent’’ after ‘‘unique’’ and delete facilitation or average price account) account number available to its order ‘‘for each business date’’ so that the until they are allocated to the proper handling and/or execution system at the definition of ‘‘Firm Designated ID’’ subaccount(s), i.e., the accounts time of order receipt, provided, would read, in relevant part, as follows: associated with the parent relationship however, such identifier must be a unique and persistent identifier for each identifier connecting them to the client. masked.’’ trading account designated by Industry Relationship identifiers are used in (4) Entity Identifiers Members for purposes of providing data to circumstances in which the account the Central Repository . . . where each structure is not available to the trading The FDID Amendment also permits such identifier is unique among all system at the time of order placement. Industry Members to provide an entity identifiers from any given Industry identifier, rather than an identifier that Member. The clients have established accounts prior to the trade that satisfy relevant represents a trading account, when an (3) Relationship Identifiers regulatory obligations for opening employee of the Industry Member is The FDID Amendment also permits accounts, such as Know Your Customer exercising discretion over multiple an Industry Member to provide a and other customer obligations. client accounts and creates an relationship identifier as the Firm However, the order receipt workflows aggregated order for which a trading Designated ID, rather than an identifier operate using relationship identifiers, account number of the Industry Member not accounts. is not available at the time of order 5 If an Industry Member assigns a new account For Firm Designated ID purposes, as origination. An entity identifier is an number or entity identifier to a client or customer with an identifier for a trading account, identifier of the Industry Member that due to a merger, acquisition or some other corporate the relationship identifier must be represents the firm discretionary action, then the Industry Member should create a persistent over time. The relationship new Firm Designated ID to identify the new account relationship with the client rather than identifier/relationship identifier/entity identifier in identifier also must be unique among all a firm trading account. use at the Industry Member for the entity. In identifiers from any given Industry The scenarios in which a firm uses an addition, if a previously assigned Firm Designated Member. With these requirements, a entity identifier are comparable to when ID is no longer in use by an Industry Member (e.g., if the trading account associated with the Firm single relationship could be tracked a firm uses a relationship identifier (as Designated ID has been closed), then an Industry across time within a single Industry described above) except the entity Member may reuse the Firm Designated ID for Member using the Firm Designated ID. identifier represents the Industry another trading account. The Plan Processor will In addition, the relationship identifier Member rather than a client. As with maintain a history of the use of each Firm Designated ID, including, for example, the effective must be masked as the relationship relationship identifiers, entity dates of the Firm Designated ID with respect to each identifier could be a name or otherwise identifiers are used in circumstances in associated trading account. provide an indication as to the identity which the account structure is not

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available to the trading system at the Act,6 which require, among other C. Self-Regulatory Organization’s time of order placement. In this things, that the Exchange’s rules must Statement on Comments on the workflow, the Industry Member’s order be designed to prevent fraudulent and Proposed Rule Change Received From handling and/execution system does not manipulative acts and practices, to Members, Participants, or Others have an account number at the time of promote just and equitable principles of No written comments were either order origination. The relevant clients trade, and, in general, to protect solicited or received. that will receive an allocation of the investors and the public interest, and execution have established accounts Section 6(b)(8) of the Act,7 which III. Date of Effectiveness of the prior to the trade that satisfy relevant requires that the Exchange’s rules not Proposed Rule Change and Timing for regulatory obligations for opening impose any burden on competition that Commission Action accounts, such as Know Your Customer is not necessary or appropriate. The Exchange has filed the proposed and other customer obligations. rule change pursuant to Section However, the order origination The Exchange believes that this 19(b)(3)(A)(iii) of the Act 9 and Rule workflows operate using entity proposal is consistent with the Act 19b–4(f)(6) thereunder.10 Because the identifiers, not accounts. because it is consistent with, and proposed rule change does not: (i) For Firm Designated ID purposes, as implements, a recent amendment to the Significantly affect the protection of with the identifier for a trading account CAT NMS Plan, and is designed to investors or the public interest; (ii) or a relationship, the entity identifier assist the Exchange and its Industry impose any significant burden on must be persistent over time. The entity Members in meeting regulatory identifier also must be unique among all competition; and (iii) become operative obligations pursuant to the Plan. In prior to 30 days from the date on which identifiers from any given Industry approving the Plan, the SEC noted that Member. Each Industry Member must it was filed, or such shorter time as the the Plan ‘‘is necessary and appropriate Commission may designate, if make its own risk determination as to in the public interest, for the protection whether it believes it is necessary to consistent with the protection of of investors and the maintenance of fair mask the entity identifier when using an investors and the public interest, the and orderly markets, to remove entity identifier to report the Firm proposed rule change has become Designated ID to CAT. impediments to, and perfect the effective pursuant to Section 19(b)(3)(A) An example of the use of an entity mechanism of a national market system, of the Act 11 and Rule 19b–4(f)(6)(iii) identifier as a Firm Designated ID would or is otherwise in furtherance of the thereunder.12 be when Industry Member 1 has an purposes of the Act.’’ 8 To the extent A proposed rule change filed under employee that is a registered that this proposal implements the Plan, Rule 19b–4(f)(6) 13 normally does not representative that has discretion over and applies specific requirements to become operative prior to 30 days after several client accounts held at Industry Industry Members, the Exchange the date of the filing. However, pursuant Member 1. The registered representative believes that this proposal furthers the to Rule 19b–4(f)(6)(iii),14 the places an order that he will later objectives of the Plan, as identified by Commission may designate a shorter allocate to individual client accounts. the SEC, and is therefore consistent with time if such action is consistent with the At the time the order is placed, the the Act. protection of investors and the public trading system only knows it involves a interest. The Exchange has asked the representative of Industry Member 1 B. Self-Regulatory Organization’s Commission to waive the 30-day and it does not have a specific trading Statement on Burden on Competition operative delay so that the proposal may account that could be used for Firm become operative by July 31, 2020. The The Exchange does not believe that Designated ID reporting. Therefore, Commission believes that waiver of the the proposed rule change will result in Industry Member 1 could report IM1, its 30-day operative delay is consistent entity identifier, as the FDID with the any burden on competition that is not with the protection of investors and the new order. necessary or appropriate in furtherance public interest because it implements an In accordance with the FDID of the purposes of the Act. The amendment to the CAT NMS Plan Amendment, the Exchange proposes to Exchange notes that the proposed rule approved by the Commission.15 amend the definition of ‘‘Firm changes are consistent with a recent Accordingly, the Commission hereby Designated ID’’ in General 7, Section amendment to the CAT NMS Plan, and waives the 30-day operative delay and 1(r) to permit the use of an entity are designed to assist the Exchange in designates the proposal operative as of identifier as a Firm Designated ID as meeting its regulatory obligations July 31, 2020.16 described above. Specifically, the pursuant to the Plan. The Exchange also Exchange proposes to amend the notes that the FDID Amendment will 9 15 U.S.C. 78s(b)(3)(A)(iii). definition of a ‘‘Firm Designated ID’’ in apply equally to all Industry Members 10 17 CFR 240.19b–4(f)(6). 11 General 7, Section 1(r) to state that a that trade NMS Securities and OTC 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– Firm Designated ID means, in relevant Equity Securities. In addition, all 4(f)(6)(iii) requires the Exchange to give the part, ‘‘a unique and persistent entity national securities exchanges and Commission written notice of the Exchange’s intent identifier when an employee of an FINRA are proposing this amendment to to file the proposed rule change, along with a brief Industry Member is exercising description and text of the proposed rule change, their Compliance Rules. Therefore, this at least five business days prior to the date of filing discretion over multiple client accounts is not a competitive rule filing, and, of the proposed rule change, or such shorter time and creates an aggregated order for therefore, it does not impose a burden as designated by the Commission. The Exchange which a trading account number of the on competition. has satisfied this requirement. Industry Member is not available at the 13 17 CFR 240.19b–4(f)(6). time of order origination.’’ 14 17 CFR 240.19b–4(f)(6)(iii). 15 See Securities Exchange Act Release No. 89397 6 15 U.S.C. 78f(b)(6) [sic]. 2. Statutory Basis (July 24, 2020) (Federal Register publication 7 15 U.S.C. 78f(b)(8). pending). The Exchange believes that the 8 See Securities Exchange Act Release No. 79318 16 For purposes only of waiving the 30-day proposed rule change is consistent with (November 15, 2016), 81 FR 84696, 84697 operative delay, the Commission has considered the the provisions of Section 6(b)(5) of the (November 23, 2016). Continued

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At any time within 60 days of the office of the Exchange. All comments II. Self-Regulatory Organization’s filing of this proposed rule change, the received will be posted without change. Statement of the Purpose of, and Commission summarily may Persons submitting comments are Statutory Basis for, the Proposed Rule temporarily suspend such rule change if cautioned that we do not redact or edit Change it appears to the Commission that such personal identifying information from In its filing with the Commission, the action is necessary or appropriate in the comment submissions. You should Exchange included statements public interest, for the protection of submit only information that you wish concerning the purpose of and basis for investors, or otherwise in furtherance of to make available publicly. All the proposed rule change and discussed the purposes of the Act. If the submissions should refer to File any comments it received on the Number SR–NASDAQ–2020–046, and Commission takes such action, the proposed rule change. The text of these should be submitted on or before Commission will institute proceedings statements may be examined at the August 31, 2020. to determine whether the proposed rule places specified in Item IV below. The change should be approved or For the Commission, by the Division of Exchange has prepared summaries, set disapproved. Trading and Markets, pursuant to delegated forth in sections A, B, and C below, of authority.17 IV. Solicitation of Comments the most significant aspects of such J. Matthew DeLesDernier, statements. Interested persons are invited to Assistant Secretary. submit written data, views, and [FR Doc. 2020–17348 Filed 8–7–20; 8:45 am] A. Self-Regulatory Organization’s arguments concerning the foregoing, Statement of the Purpose of, and the BILLING CODE 8011–01–P including whether the proposed rule Statutory Basis for, the Proposed Rule change is consistent with the Act. Change Comments may be submitted by any of SECURITIES AND EXCHANGE 1. Purpose the following methods: COMMISSION The Exchange proposes to reduce the Electronic Comments [Release No. 34–89470; File No. SR–C2– Options Regulatory Fee (‘‘ORF’’) from • Use the Commission’s internet 2020–008] $0.0012 per contract to $0.0004 per comment form (http://www.sec.gov/ Self-Regulatory Organizations; Cboe contract, effective August 3, 2020, in rules/sro.shtml); or order to help ensure that revenue • Send an email to rule-comments@ C2 Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed collected from the ORF, in combination sec.gov. Please include File Number SR– with other regulatory fees and fines, NASDAQ–2020–046 on the subject line. Rule Change To Amend the Options Regulatory Fee does not exceed the Exchange’s total Paper Comments regulatory costs. • August 4, 2020. The ORF is assessed by C2 Options to Send paper comments in triplicate Pursuant to Section 19(b)(1) of the each Trading Permit Holder (‘‘TPH’’) for to Secretary, Securities and Exchange Securities Exchange Act of 1934 (the options transactions cleared by the TPH Commission, 100 F Street NE, ‘‘Act’’),1 and Rule 19b–4 thereunder,2 that are cleared by the Options Clearing Washington, DC 20549–1090. notice is hereby given that on July 21, Corporation (‘‘OCC’’) in the customer All submissions should refer to File 2020, Cboe C2 Exchange, Inc. (the range, regardless of the exchange on Number SR–NASDAQ–2020–046. This ‘‘Exchange’’ or ‘‘C2 Options’’) filed with which the transaction occurs.3 In other file number should be included on the the Securities and Exchange words, the Exchange imposes the ORF subject line if email is used. To help the Commission (the ‘‘Commission’’) the on all customer-range transactions Commission process and review your proposed rule change as described in cleared by a TPH, even if the comments more efficiently, please use Items I, II, and III below, which Items transactions do not take place on the only one method. The Commission will have been prepared by the Exchange. Exchange. The ORF is collected by OCC post all comments on the Commission’s The Commission is publishing this on behalf of the Exchange from the internet website (http://www.sec.gov/ notice to solicit comments on the Clearing Trading Permit Holder rules/sro.shtml). Copies of the proposed rule change from interested (‘‘CTPH’’) or non-CTPH that ultimately submission, all subsequent persons. clears the transaction. With respect to amendments, all written statements linkage transactions, C2 Options I. Self-Regulatory Organization’s with respect to the proposed rule reimburses its routing broker providing Statement of the Terms of Substance of change that are filed with the Routing Services pursuant to C2 the Proposed Rule Change Commission, and all written Options Rule 6.15 for options regulatory communications relating to the Cboe C2 Exchange, Inc. (the fees it incurs in connection with the proposed rule change between the ‘‘Exchange’’ or ‘‘C2 Options’’) proposes Routing Services it provides. Commission and any person, other than to amend its Fees Schedule relating to Revenue generated from ORF, when those that may be withheld from the the Options Regulatory Fee. The text of combined with all of the Exchange’s public in accordance with the the proposed rule change is provided in other regulatory fees and fines, is provisions of 5 U.S.C. 552, will be Exhibit 5. designed to recover a material portion of available for website viewing and The text of the proposed rule change the regulatory costs to the Exchange of printing in the Commission’s Public is also available on the Exchange’s the supervision and regulation of TPH Reference Room, 100 F Street NE, website (http://markets.cboe.com/us/ customer options business including Washington, DC 20549, on official options/regulation/rule_filings/ctwo/), performing routine surveillances, business days between the hours of at the Exchange’s Office of the investigations, examinations, financial 10:00 a.m. and 3:00 p.m. Copies of the Secretary, and at the Commission’s monitoring, and policy, rulemaking, filing also will be available for Public Reference Room. interpretive, and enforcement activities. inspection and copying at the principal 17 17 CFR 200.30–3(a)(12). 3 The Exchange notes ORF also applies to proposed rule’s impact on efficiency, competition, 1 15 U.S.C. 78s(b)(1). customer-range transactions executed during Global and capital formation. See 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. Trading Hours.

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Regulatory costs include direct in April 2020 was 50.27% higher than in combination with its other regulatory regulatory expenses and certain indirect total customer volume in April 2019 fees and fines, does not exceed the expenses for work allocated in support and total customer options contract Exchange’s total regulatory costs. of the regulatory function. The direct volume in May 2020, was 29.10% 2. Statutory Basis expenses include in-house and third- higher than total customer volume in party service provider costs to support May 2019. These expectations are The Exchange believes the proposed the day to day regulatory work such as estimated, preliminary and may change. rule change is consistent with the surveillances, investigations and There can be no assurance that the Securities Exchange Act of 1934 (the examinations. The indirect expenses Exchange’s final costs for 2020 will not ‘‘Act’’) and the rules and regulations include support from such areas as differ materially from these expectations thereunder applicable to the Exchange human resources, legal, information and prior practice, nor can the Exchange and, in particular, the requirements of technology, facilities and accounting. predict with certainty whether options Section 6(b) of the Act.10 Specifically, These indirect expenses are estimated to volume will remain at the current level the Exchange believes the proposed rule be approximately 1% of C2 Options’ going forward. The Exchange notes change is consistent with Section 6(b)(4) total regulatory costs for 2020. Thus, however, that when combined with the of the Act,11 which provides that direct expenses are estimated to be Exchange’s other non-ORF regulatory Exchange rules may provide for the approximately 99% of total regulatory fees and fines, the revenue being equitable allocation of reasonable dues, costs for 2020. In addition, it is C2 generated by ORF using the current rate fees, and other charges among its TPHs Options’ practice that revenue generated results in revenue that is running in and other persons using its facilities. from ORF not exceed more than 75% of excess of the Exchange’s estimated Additionally, the Exchange believes the total annual regulatory costs. regulatory costs for the year.7 proposed rule change is consistent with The Exchange monitors its regulatory Particularly, as noted above, the options the Section 6(b)(5) 12 requirement that costs and revenues at a minimum on a market has seen a substantial increase in the rules of an exchange not be designed semi-annual basis. If the Exchange volume over the first half of the year, to permit unfair discrimination between determines regulatory revenues exceed due in large part to the extreme customers, issuers, brokers, or dealers. or are insufficient to cover a material volatility in the marketplace as a result The Exchange believes the proposed portion of its regulatory costs in a given of the COVID–19 pandemic. This fee change is reasonable because year, the Exchange will adjust the ORF unprecedented spike in volatility customer transactions will be subject to by submitting a fee change filing to the resulted in significantly higher volume a lower ORF fee than the current rate. Commission. The Exchange also notifies than was originally projected by the Moreover, the proposed reduction is TPHs of adjustments to the ORF via Exchange (thereby resulting in necessary in order for the Exchange to regulatory circular and/or Exchange substantially higher ORF revenue than not collect revenue in excess of its Notice.4 Based on the Exchange’s most projected). Moreover, in addition to anticipated regulatory costs, in recent semi-annual review, the projected reductions in regulatory combination with other regulatory fees Exchange is proposing to reduce the expenses, the Exchange experienced and fines, which is consistent with the amount of ORF that will be collected by further unanticipated reductions in Exchange’s practices. The Exchange had the Exchange from $0.0012 per contract costs, in connection with COVID–19 designed the ORF to generate revenues side to $0.0004 per contract side. The (e.g., reduction in travel expenses).8 The that would be less than or equal to 75% proposed decrease is based on the Exchange therefore proposes to decrease of the Exchange’s regulatory costs, Exchange’s estimated projections for its the ORF in order to ensure it does not which is consistent with the view of the regulatory costs, which have decreased, exceed its regulatory costs for the year. Commission that regulatory fees be used balanced with recent options volumes, Particularly, the Exchange believes that for regulatory purposes and not to which has significantly increased. For by decreasing the ORF, as amended, support the Exchange’s business example, total options contract volume when combined with all of the operations. As discussed above, in June 2020 was 82.2% higher than the Exchange’s other regulatory fees and however, after its semi-annual review of total options contract volume in June fines, would allow the Exchange to its regulatory costs and regulatory 2019.5 In fact, June 2020 was the highest continue covering a material portion of revenues, which includes revenues from options volume month in the history of its regulatory costs, while lessening the ORF and other regulatory fees and fines, U.S. equity options industry.6 In potential for generating excess revenue the Exchange determined that absent a particular, customer options volume that may otherwise occur using the reduction in ORF, it would be collecting across the industry has also significantly current rate. 9 revenue in excess of 75% of its increased year to date. For example, The Exchange will continue to regulatory costs. Indeed, the Exchange total customer options contract volume monitor the amount of revenue notes that when taking into account the collected from the ORF to ensure that it, recent options volume, coupled with the 4 The Exchange endeavors to provide TPHs with projected reduction in regulatory costs, such notice at least 30 calendar days prior to the 7 Consistent with Rule 2.3 (Regulatory Revenue), it estimates the ORF will generate effective date of the change. The Exchange notified the Exchange notes that notwithstanding the excess revenues that would cover more than TPHs of the proposed rate change for August 3, ORF revenue collected to date, it has not used such 2020 on July 1, 2020. See C2 Options Regulatory revenue for nonregulatory purposes. the approximated 75% of the Circular RG20–042 ‘‘Options Regulatory Fee 8 The Exchange notes that in connection with Exchange’s projected regulatory costs. Decrease and Discontinuation of Regulatory proposed ORF rate changes, it provides the Moreover, when coupled with the Circular’’ and Exchange Notice, C2020070100 Commission confidential details regarding the Exchange’s other regulatory fees and ‘‘Cboe Options Exchanges Regulatory Fee Update Exchange’s projected regulatory revenue, including Effective August 3, 2020.’’ projected revenue from ORF, along with a breakout revenues, the Exchange estimates ORF 5 See https://www.theocc.com/Newsroom/Press- of its projected regulatory expenses, including both to generate over 100% of the Exchange’s Releases/2020/07-01-OCC-June-2020-Total-Volume- direct and indirect allocations. projected regulatory costs. As such, the Up-Nearly-81-Perc. 9 The Exchange notes that its regulatory Exchange believes it’s reasonable and 6 Id. The previous record for highest U.S. equity responsibilities with respect to TPH compliance options volume was March 2020. For further with options sales practice rules have largely been context, the Exchange notes that The Options allocated to FINRA under a 17d–2 agreement. The 10 15 U.S.C. 78f(b). Clearing Corporation total volume for March 2020 ORF is not designed to cover the cost of that options 11 15 U.S.C. 78f(b)(4). was up 62.8% as compared to March 2019. sales practice regulation. 12 15 U.S.C. 78f(b)(5).

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appropriate to decrease the ORF amount and investigations with other exchanges change should be approved or from $0.0012 to $0.0004 per contract designed to address potential disapproved. side. intermarket manipulation and trading The Exchange also believes the abuses. Accordingly, there is a strong IV. Solicitation of Comments proposed fee change is equitable and nexus between the ORF and the Interested persons are invited to not unfairly discriminatory in that it is Exchange’s regulatory activities with submit written data, views, and charged to all TPHs on all their respect to its TPH’s customer trading arguments concerning the foregoing, transactions that clear in the customer activity. range at the OCC. The Exchange including whether the proposed rule believes the ORF ensures fairness by B. Self-Regulatory Organization’s change is consistent with the Act. assessing higher fees to those TPHs that Statement on Burden on Competition Comments may be submitted by any of require more Exchange regulatory the following methods: The Exchange does not believe that services based on the amount of Electronic Comments customer options business they the proposed rule change will impose conduct. Regulating customer trading any burden on competition not • Use the Commission’s internet activity is much more labor intensive necessary or appropriate in furtherance comment form (http://www.sec.gov/ and requires greater expenditure of of the purposes of the Act. This rules/sro.shtml); or proposal does not create an unnecessary human and technical resources than • Send an email to rule-comments@ regulating non-customer trading or inappropriate intra-market burden on sec.gov. Please include File No. SR–C2– activity, which tends to be more competition because the ORF applies to 2020–008 on the subject line. automated and less labor-intensive. For all customer activity, thereby raising example, there are costs associated with regulatory revenue to offset regulatory Paper Comments main office and branch office expenses. It also supplements the examinations (e.g., staff and travel regulatory revenue derived from non- • Send paper comments in triplicate expenses), as well as investigations into customer activity. The Exchange notes, to Secretary, Securities and Exchange customer complaints and the however, the proposed change is not Commission, 100 F Street NE, terminations of Registered persons. As a designed to address any competitive Washington, DC 20549–1090. result, the costs associated with issues. Indeed, this proposal does not create an unnecessary or inappropriate All submissions should refer to File No. administering the customer component SR–C2–2020–008. This file number of the Exchange’s overall regulatory inter-market burden on competition should be included on the subject line program are materially higher than the because it is a regulatory fee that if email is used. To help the costs associated with administering the supports regulation in furtherance of the Commission process and review your non-customer component (e.g., TPH purposes of the Act. The Exchange is proprietary transactions) of its obligated to ensure that the amount of comments more efficiently, please use regulatory program.13 Moreover, the regulatory revenue collected from the only one method. The Commission will Exchange notes that it has broad ORF, in combination with its other post all comments on the Commission’s regulatory responsibilities with respect regulatory fees and fines, does not internet website (http://www.sec.gov/ to its TPHs’ activities, irrespective of exceed regulatory costs. rules/sro.shtml). Copies of the where their transactions take place. submission, all subsequent C. Self-Regulatory Organization’s amendments, all written statements Many of the Exchange’s surveillance Statement on Comments on the programs for customer trading activity with respect to the proposed rule Proposed Rule Change Received From change that are filed with the may require the Exchange to look at Members, Participants, or Others activity across all markets, such as Commission, and all written reviews related to position limit The Exchange neither solicited nor communications relating to the violations and manipulation. Indeed, received comments on the proposed proposed rule change between the the Exchange cannot effectively review rule change. Commission and any person, other than for such conduct without looking at and those that may be withheld from the evaluating activity irregardless of where III. Date of Effectiveness of the public in accordance with the it transpires. In addition to its own Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be surveillance programs, the Exchange Commission Action available for website viewing and printing in the Commission’s Public also works with other SROs and The foregoing rule change has become Reference Room, 100 F Street NE, exchanges on intermarket surveillance effective pursuant to Section 19(b)(3)(A) related issues. Through its participation Washington, DC 20549, on official of the Act 15 and paragraph (f) of Rule in the Intermarket Surveillance Group business days between the hours of 19b–4 16 thereunder. At any time within (‘‘ISG’’) 14 10:00 a.m. and 3:00 p.m. Copies of the the Exchange shares 60 days of the filing of the proposed rule filing also will be available for information and coordinates inquiries change, the Commission summarily may temporarily suspend such rule change if inspection and copying at the principal 13 If the Exchange changes its method of funding it appears to the Commission that such office of the Exchange. All comments regulation or if circumstances otherwise change in received will be posted without change. the future, the Exchange may decide to modify the action is necessary or appropriate in the ORF or assess a separate regulatory fee on TPH public interest, for the protection of Persons submitting comments are proprietary transactions if the Exchange deems it investors, or otherwise in furtherance of cautioned that we do not redact or edit advisable. the purposes of the Act. If the personal identifying information from 14 ISG is an industry organization formed in 1983 comment submissions. You should to coordinate intermarket surveillance among the Commission takes such action, the SROs by cooperatively sharing regulatory Commission will institute proceedings submit only information that you wish information pursuant to a written agreement to determine whether the proposed rule to make available publicly. All between the parties. The goal of the ISG’s submissions should refer to File No. information sharing is to coordinate regulatory SR–C2–2020–008, and should be efforts to address potential intermarket trading 15 15 U.S.C. 78s(b)(3)(A). abuses and manipulations. 16 17 CFR 240.19b–4(f). submitted on or before August 31, 2020.

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For the Commission, by the Division of office of the Exchange, and at the (1) Prohibit Use of Account Numbers Trading and Markets, pursuant to delegated Commission’s Public Reference Room. authority.17 The Exchange proposes to amend the definition of ‘‘Firm Designated ID’’ in J. Matthew DeLesDernier, II. Self-Regulatory Organization’s Rule 11.610(r) to provide that Industry Assistant Secretary. Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Members may not use account numbers [FR Doc. 2020–17351 Filed 8–7–20; 8:45 am] Change as the Firm Designated ID for trading BILLING CODE 8011–01–P accounts that are not proprietary In its filing with the Commission, the accounts. Specifically, the Exchange self-regulatory organization included proposes to add the following to the SECURITIES AND EXCHANGE statements concerning the purpose of definition of a Firm Designated ID: COMMISSION and basis for the proposed rule change ‘‘Provided, however, such identifier may not be the account number for such [Release No. 34–89466; File No. SR–IEX– and discussed any comments it received 2020–10] on the proposed rule change. The text trading account if the trading account is of these statement may be examined at not a proprietary account.’’ Self-Regulatory Organizations; the places specified in Item IV below. (2) Persistent Firm Designated ID Investors Exchange LLC; Notice of The self-regulatory organization has Filing and Immediate Effectiveness of prepared summaries, set forth in The Exchange also proposes to amend Proposed Rule Change To Amend the Sections A, B, and C below, of the most the definition of ‘‘Firm Designated ID’’ Rule Series 11.600, the Exchange’s significant aspects of such statements. in Rule 11.610(r) to require a Firm Compliance Rule Regarding the Designated ID assigned by an Industry A. Self-Regulatory Organization’s Member to a trading account to be National Market System Plan Statement of the Purpose of, and the Governing the Consolidated Audit Trail persistent over time, not for each Statutory Basis for, the Proposed Rule business day.7 To effect this change, the to be Consistent With an Amendment Change Recently Approved by the Commission Exchange proposes to amend the 1. Purpose definition of ‘‘Firm Designated ID’’ in August 4, 2020. Rule 11.610(r) to add ‘‘and persistent’’ Pursuant to Section 19(b)(1) of the The purpose of this proposed rule after ‘‘unique’’ and delete ‘‘for each Securities Exchange Act of 1934 change is to amend the Rule Series business date’’ so that the definition of (‘‘Act’’),1 and Rule 19b–4 thereunder,2 11.600, the Compliance Rule regarding ‘‘Firm Designated ID’’ would read, in notice is hereby given that, on July 31, the CAT NMS Plan, to be consistent relevant part, as follows: ‘‘A unique and 2020, the Investors Exchange LLC with an amendment to the CAT NMS persistent identifier for each trading (‘‘IEX’’ or the ‘‘Exchange’’) filed with the Plan recently approved by the account designated by Industry Securities and Exchange Commission Commission.6 The Commission Members for purposes of providing data (‘‘Commission’’) the proposed rule approved an amendment to the CAT to the Central Repository . . . where change as described in Items I and II NMS Plan to amend the requirements each such identifier is unique among all below, which Items have been prepared for Firm Designated IDs in four ways: (1) identifiers from any given Industry by the self-regulatory organization. The To prohibit the use of account numbers Member.’’ Commission is publishing this notice to as Firm Designated IDs for trading (3) Relationship Identifiers solicit comments on the proposed rule accounts that are not proprietary The FDID Amendment also permits change from interested persons. accounts; (2) to require that the Firm Designated ID for a trading account be an Industry Member to provide a I. Self-Regulatory Organization’s persistent over time for each Industry relationship identifier as the Firm Statement of the Terms of Substance of Member so that a single account may be Designated ID, rather than an identifier the Proposed Rule Change tracked across time within a single that represents a trading account, in Pursuant to the provisions of Section Industry Member; (3) to permit the use certain scenarios in which an Industry Member does not have an account 19(b)(1) of the Exchange Act,3 and Rule of relationship identifiers as Firm number available to its order handling 19b–4 thereunder,4 IEX is filing with the Designated IDs in certain circumstances; and/or execution system at the time of Commission a proposed rule change to and (4) to permit the use of entity order receipt (e.g., certain institutional amend the Rule Series 11.600, the identifiers as Firm Designated IDs in accounts, managed accounts, accounts Exchange’s compliance rule certain circumstances (the ‘‘FDID for individuals). In such scenarios, the (‘‘Compliance Rule’’) regarding the Amendment’’). As a result, the trading account structure may not be National Market System Plan Governing Exchange proposes to amend the available when a new order is first the Consolidated Audit Trail (the ‘‘CAT definition of ‘‘Firm Designated ID’’ in received from a client and, instead, only NMS Plan’’ or ‘‘Plan’’) 5 to be consistent Rule 11.610 to reflect the changes to the with an amendment to the CAT NMS CAT NMS Plan regarding the 7 If an Industry Member assigns a new account Plan recently approved by the requirements for Firm Designated IDs. number or entity identifier to a client or customer Commission. Rule 11.610(r) defines the term ‘‘Firm due to a merger, acquisition or some other corporate The text of the proposed rule change action, then the Industry Member should create a Designated ID’’ to mean ‘‘a unique new Firm Designated ID to identify the new account is available at the Exchange’s website at identifier for each trading account identifier/relationship identifier/entity identifier in www.iextrading.com, at the principal designated by Industry Members for use at the Industry Member for the entity. In purposes of providing data to the addition, if a previously assigned Firm Designated 17 17 CFR 200.30–3(a)(12). ID is no longer in use by an Industry Member (e.g., Central Repository, where each such if the trading account associated with the Firm 1 15 U.S.C. 78s(b)(1). identifier is unique among all identifiers Designated ID has been closed), then an Industry 2 17 CFR 240.19b–4. from any given Industry Member for Member may reuse the Firm Designated ID for 3 15 U.S.C. 78s(b)(1). each business date.’’ another trading account. The Plan Processor will 4 17 CFR 240.19b–4. maintain a history of the use of each Firm 5 Unless otherwise specified, capitalized terms Designated ID, including, for example, the effective used in this rule filing are defined as set forth in 6 Securities Exchange Act Release No. 89397 (July dates of the Firm Designated ID with respect to each the Compliance Rule. 24, 2020) (Federal Register pending). associated trading account.

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an identifier representing the client’s to BFM1. Industry Member A could use However, the order origination trading relationship is available. In a masked version of BFM1 in place of workflows operate using entity these limited instances, the Industry the Firm Designated ID representing a identifiers, not accounts. Member may provide an identifier used trading account when reporting a new For Firm Designated ID purposes, as by the Industry Member to represent the order from Big Fund Manager instead of with the identifier for a trading account client’s trading relationship with the the account numbers to which executed or a relationship, the entity identifier Industry Member instead of an account shares/contracts will be allocated at a must be persistent over time. The entity number. later time via a booking or other system. identifier also must be unique among all When a trading relationship is Similarly, another example of the use of identifiers from any given Industry established at a broker-dealer for clients, a relationship identifier as a Firm Member. Each Industry Member must the broker-dealer typically creates a Designated ID would involve an make its own risk determination as to parent account, under which additional individual in place of the Big Fund whether it believes it is necessary to subaccounts are created. However, in Manager in the above example. mask the entity identifier when using an some cases, the broker-dealer In accordance with the FDID entity identifier to report the Firm establishes the parent relationship for a Amendment, the Exchange proposes to Designated ID to CAT. client using a relationship identifier as amend the definition of a ‘‘Firm An example of the use of an entity opposed to an actual parent account. Designated ID’’ in Rule 11.610(r) to identifier as a Firm Designated ID would The relationship identifier could be any permit Industry Members to provide a be when Industry Member 1 has an of a variety of identifiers, such as a short relationship identifier as the Firm employee that is a registered name for a relevant individual or Designated ID as described above. representative that has discretion over institution. This relationship identifier Specifically, the Exchange proposes to several client accounts held at Industry is established prior to any trading for amend the definition of ‘‘Firm Member 1. The registered representative the client. If a relationship identifier has Designated ID’’ in Rule 11.610(r) to state places an order that he will later been established rather than a parent that a Firm Designated ID means, in allocate to individual client accounts. account, and an order is placed on relevant part, ‘‘a unique and persistent At the time the order is placed, the behalf of the client, any executed trades relationship identifier when an Industry trading system only knows it involves a will be kept in a firm account (e.g., a Member does not have an account representative of Industry Member 1 facilitation or average price account) number available to its order handling and it does not have a specific trading until they are allocated to the proper and/or execution system at the time of account that could be used for Firm subaccount(s), i.e., the accounts order receipt, provided, however, such Designated ID reporting. Therefore, associated with the parent relationship identifier must be masked.’’ Industry Member 1 could report IM1, its identifier connecting them to the client. entity identifier, as the FDID with the (4) Entity Identifiers Relationship identifiers are used in new order. circumstances in which the account The FDID Amendment also permits In accordance with the FDID structure is not available to the trading Industry Members to provide an entity Amendment, the Exchange proposes to system at the time of order placement. identifier, rather than an identifier that amend the definition of ‘‘Firm The clients have established accounts represents a trading account, when an Designated ID’’ in Rule 11.610(r) to prior to the trade that satisfy relevant employee of the Industry Member is permit the use of an entity identifier as regulatory obligations for opening exercising discretion over multiple a Firm Designated ID as described accounts, such as Know Your Customer client accounts and creates an above. Specifically, the Exchange and other customer obligations. aggregated order for which a trading proposes to amend the definition of a However, the order receipt workflows account number of the Industry Member ‘‘Firm Designated ID’’ in Rule 11.610(r) operate using relationship identifiers, is not available at the time of order to state that a Firm Designated ID not accounts. origination. An entity identifier is an means, in relevant part, ‘‘a unique and For Firm Designated ID purposes, as identifier of the Industry Member that persistent entity identifier when an with an identifier for a trading account, represents the firm discretionary employee of an Industry Member is the relationship identifier must be relationship with the client rather than exercising discretion over multiple persistent over time. The relationship a firm trading account. client accounts and creates an identifier also must be unique among all The scenarios in which a firm uses an aggregated order for which a trading identifiers from any given Industry entity identifier are comparable to when account number of the Industry Member Member. With these requirements, a a firm uses a relationship identifier (as is not available at the time of order single relationship could be tracked described above) except the entity origination.’’ across time within a single Industry identifier represents the Industry Member using the Firm Designated ID. Member rather than a client. As with 2. Statutory Basis In addition, the relationship identifier relationship identifiers, entity The Exchange believes that the must be masked as the relationship identifiers are used in circumstances in proposed rule change is consistent with identifier could be a name or otherwise which the account structure is not the provisions of Section 6(b)(5) of the provide an indication as to the identity available to the trading system at the Act,8 which require, among other of the relationship. The masking time of order placement. In this things, that the Exchange’s rules must requirement would avoid potentially workflow, the Industry Member’s order be designed to prevent fraudulent and revealing the identity of the handling and/execution system does not manipulative acts and practices, to relationship. have an account number at the time of promote just and equitable principles of An example of the use of a order origination. The relevant clients trade, and, in general, to protect relationship identifier as a Firm that will receive an allocation of the investors and the public interest, and Designated ID would be as follows: execution have established accounts Section 6(b)(8) of the Act,9 which Suppose that Big Fund Manager is prior to the trade that satisfy relevant requires that the Exchange’s rules not known in Industry Member A’s systems regulatory obligations for opening as ‘‘BFM1.’’ When an order is placed by accounts, such as Know Your Customer 8 15 U.S.C. 78f(b)(6). Big Fund Manager, the order is tagged and other customer obligations. 9 15 U.S.C. 78f(b)(8).

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impose any burden on competition that 19b–4(f)(6) thereunder.12 Because the IV. Solicitation of Comments is not necessary or appropriate. proposed rule change does not: (i) The Exchange believes that this Significantly affect the protection of Interested persons are invited to proposal is consistent with the Act investors or the public interest; (ii) submit written data, views, and because it is consistent with, and impose any significant burden on arguments concerning the foregoing, implements, a recent amendment to the competition; and (iii) become operative including whether the proposed rule CAT NMS Plan, and is designed to prior to 30 days from the date on which change is consistent with the Act. assist the Exchange and its Industry it was filed, or such shorter time as the Comments may be submitted by any of Members in meeting regulatory Commission may designate, if the following methods: consistent with the protection of obligations pursuant to the Plan. In Electronic Comments approving the Plan, the SEC noted that investors and the public interest, the the Plan ‘‘is necessary and appropriate proposed rule change has become • Use the Commission’s internet in the public interest, for the protection effective pursuant to Section 19(b)(3)(A) comment form (http://www.sec.gov/ 13 of investors and the maintenance of fair of the Act and Rule 19b–4(f)(6)(iii) rules/sro.shtml); or and orderly markets, to remove thereunder.14 • Send an email to rule-comments@ impediments to, and perfect the A proposed rule change filed under 15 sec.gov. Please include File Number SR– mechanism of a national market system, Rule 19b–4(f)(6) normally does not IEX–2020–10 on the subject line. or is otherwise in furtherance of the become operative prior to 30 days after purposes of the Act.’’ 10 To the extent the date of the filing. However, pursuant Paper Comments that this proposal implements the Plan, to Rule 19b–4(f)(6)(iii),16 the and applies specific requirements to Commission may designate a shorter • Send paper comments in triplicate Industry Members, the Exchange time if such action is consistent with the to Secretary, Securities and Exchange believes that this proposal furthers the protection of investors and the public Commission, 100 F Street NE, objectives of the Plan, as identified by interest. The Exchange has asked the Washington, DC 20549–1090. Commission to waive the 30-day the SEC, and is therefore consistent with All submissions should refer to File the Act. operative delay so that the proposal may become operative by July 31, 2020. The Number SR–IEX–2020–10. This file B. Self-Regulatory Organization’s Commission believes that waiver of the number should be included on the Statement on Burden on Competition 30-day operative delay is consistent subject line if email is used. To help the The Exchange does not believe that with the protection of investors and the Commission process and review your the proposed rule change will result in public interest because it implements an comments more efficiently, please use any burden on competition that is not amendment to the CAT NMS Plan only one method. The Commission will necessary or appropriate in furtherance approved by the Commission.17 post all comments on the Commission’s of the purposes of the Act. The Accordingly, the Commission hereby internet website (http://www.sec.gov/ Exchange notes that the proposed rule waives the 30-day operative delay and rules/sro.shtml). Copies of the changes are consistent with a recent designates the proposal operative as of submission, all subsequent 18 amendment to the CAT NMS Plan, and July 31, 2020. amendments, all written statements are designed to assist the Exchange in At any time within 60 days of the with respect to the proposed rule meeting its regulatory obligations filing of this proposed rule change, the change that are filed with the pursuant to the Plan. The Exchange also Commission summarily may Commission, and all written notes that the FDID Amendment will temporarily suspend such rule change if communications relating to the apply equally to all Industry Members it appears to the Commission that such proposed rule change between the that trade NMS Securities and OTC action is necessary or appropriate in the Commission and any person, other than Equity Securities. In addition, all public interest, for the protection of those that may be withheld from the national securities exchanges and investors, or otherwise in furtherance of public in accordance with the FINRA are proposing this amendment to the purposes of the Act. If the provisions of 5 U.S.C. 552, will be their Compliance Rules. Therefore, this Commission takes such action, the available for website viewing and is not a competitive rule filing, and, Commission will institute proceedings printing in the Commission’s Public therefore, it does not impose a burden to determine whether the proposed rule Reference Room, 100 F Street NE, on competition. change should be approved or Washington, DC 20549, on official disapproved. business days between the hours of C. Self-Regulatory Organization’s 10:00 a.m. and 3:00 p.m. Copies of the Statement on Comments on the 12 17 CFR 240.19b–4(f)(6). filing also will be available for Proposed Rule Change Received From 13 15 U.S.C. 78s(b)(3)(A). Members, Participants, or Others 14 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– inspection and copying at the principal 4(f)(6)(iii) requires the Exchange to give the office of the Exchange. All comments Written comments were neither Commission written notice of the Exchange’s intent received will be posted without change. solicited nor received. to file the proposed rule change, along with a brief description and text of the proposed rule change, Persons submitting comments are III. Date of Effectiveness of the at least five business days prior to the date of filing cautioned that we do not redact or edit Proposed Rule Change and Timing for of the proposed rule change, or such shorter time personal identifying information from as designated by the Commission. The Exchange Commission Action comment submissions. You should has satisfied this requirement. submit only information that you wish 15 17 CFR 240.19b–4(f)(6). The Exchange has filed the proposed to make available publicly. All rule change pursuant to Section 16 17 CFR 240.19b–4(f)(6)(iii). 17 submissions should refer to File 19(b)(3)(A)(iii) of the Act 11 and Rule See Securities Exchange Act Release No. 89397 (July 24, 2020) (Federal Register publication Number SR–IEX–2020–10, and should pending). be submitted on or before August 31, 10 See Securities Exchange Act Release No. 79318 18 For purposes only of waiving the 30-day 2020. (November 15, 2016), 81 FR 84696, 84697 operative delay, the Commission has considered the (November 23, 2016). proposed rule’s impact on efficiency, competition, 11 15 U.S.C. 78s(b)(3)(A)(iii). and capital formation. See 15 U.S.C. 78c(f). 19 17 CFR 200.30–3(a)(12).

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For the Commission, by the Division of I. Description of the Proposal non-compliance with the Beneficial Trading and Markets, pursuant to delegated Holders Rule in the last five years, 27 of authority.19 A continued listing requirement for certain ETPs 8 currently provides that, which ultimately were able to achieve J. Matthew DeLesDernier, following the initial 12-month period compliance while going through the Assistant Secretary. after commencement of trading on the delisting process. [FR Doc. 2020–17347 Filed 8–7–20; 8:45 am] Exchange, the Exchange will consider In addition, the Exchange believes BILLING CODE 8011–01–P the suspension of trading in, and will that the economic and competitive commence delisting proceedings under structures in place in the ETP ecosystem BZX Rule 14.12 for, shares of such ETPs naturally incentivize issuers to de-list SECURITIES AND EXCHANGE for which there are fewer than 50 COMMISSION products with insufficient investor beneficial holders for 30 or more interest, and that the Beneficial Holders consecutive trading days (‘‘Beneficial Rule has resulted in the forced [Release No. 34–89472; File No. SR– Holder Rule’’). The Exchange is CboeBZX–2020–036] termination of ETPs that issuers proposing to change the date after believed were still economically viable. Self-Regulatory Organizations; Cboe which an ETP must have at least 50 The Exchange states that there are BZX Exchange, Inc.; Order Instituting beneficial holders or be subject to significant costs associated with the Proceedings To Determine Whether to delisting proceedings under BZX Rule launch and continued operation of an 14.12 (‘‘Non-Compliance Period’’). Approve or Disapprove a Proposed ETP, and notes that the Exchange has Specifically, the Exchange seeks to Rule Change Relating to Rule 14.11, had 69 products voluntarily delist in the extend the Non-Compliance Period from Other Securities, To Modify a last two years. The Exchange also 12 months after commencement of Continued Listing Criterion for Certain questions whether the number of Exchange-Traded Products trading on the Exchange to 36 months after commencement of trading on the beneficial holders is a meaningful measure of market interest in an ETP, August 4, 2020. Exchange. and believes that an ETP issuer is On April 29, 2020, Cboe BZX A. The Exchange’s Rationale incentivized to have as many beneficial Exchange, Inc. (‘‘Exchange’’ or ‘‘BZX’’) holders as possible. filed with the Securities and Exchange The Exchange asserts that it would be Commission (‘‘Commission’’), pursuant appropriate to increase the Non- Finally, the Exchange states that the to Section 19(b)(1) of the Securities Compliance Period from 12 months to proposal ‘‘does not create any Exchange Act of 1934 (‘‘Act’’ or 36 months because: (1) It would bring significant change in the risk of ‘‘Exchange Act’’) 1 and Rule 19b–4 the rule more in line with the life cycle manipulation for ETPs listed on the thereunder,2 a proposed rule change to of an ETP; (2) the economic and exchange.’’ The Exchange ‘‘does not amend one of the continued listing competitive structures in place in the believe there is anything particularly requirements relating to certain ETP ecosystem naturally incentivize important about the 50th Beneficial exchange-traded products (‘‘ETPs’’) issuers to de-list products rather than Holder that reduces the manipulation continuing to list products that do not under BZX Rule 14.11. The proposed risk associated with an ETP as garner investor interest; and (3) rule change was published for comment compared to the 49th, nor is there any extending the period from 12 to 36 in the Federal Register on May 7, 2020.3 manipulation concern that arises on the months will not meaningfully impact On June 16, 2020, pursuant to Section 366th day after an ETP began trading on 19(b)(2) of the Act,4 the Commission the manipulation concerns that the continued listing standard is intended the Exchange that didn’t otherwise exist designated a longer period within which on the 1st, 2nd, or 365th day.’’ 9 The to approve the proposed rule change, to address. According to the Exchange, the ETP Exchange also states that it has in place disapprove the proposed rule change, or space is more competitive that it has a robust surveillance program for ETPs institute proceedings to determine ever been, with more than 2000 ETPs that it believes is sufficient to deter and whether to disapprove the proposed listed on exchanges. As a result, detect manipulation and other violative rule change.5 The Commission has distribution platforms have become activity, and that the Exchange (or the received one comment letter on the more restrictive about the ETPs they Financial Industry Regulatory Authority proposed rule change.6 The Commission will allow on their systems, often on its behalf) communicates as needed is issuing this order to institute requiring a minimum track record (e.g., with other members of the Intermarket proceedings pursuant to Section twelve months) and a minimum level of Surveillance Group. The Exchange 19(b)(2)(B) of the Act 7 to determine assets under management (e.g., $100 believes that ‘‘these robust surveillance whether to approve or disapprove the million). Many larger entities also proposed rule change. procedures will further act to mitigate require a one-year track record before concerns that arise from extending the they will invest in an ETP. In the 1 compliance period for the Beneficial 15 U.S.C. 78s(b)(1). Exchange’s view, this has slowed the 2 17 CFR 240.19b–4. Holders [Rule] from 12 months to 36 10 3 See Securities Exchange Act Release No. 88795 growth cycle of the average ETP, with months.’’ Lastly, the Exchange takes (May 1, 2020), 85 FR 27254 (‘‘Notice’’). the result that the Exchange has seen a the position that other continued listing 4 15 U.S.C. 78s(b)(2). significant number of deficiencies with standards (e.g., with respect to the 5 See Securities Exchange Act Release No. 89076, respect to the Beneficial Holders Rule diversity, liquidity and size of an ETP’s 85 FR 37488 (June 22, 2020). The Commission over the last several years. Specifically, designated August 5, 2020 as the date by which the holdings or reference assets) ‘‘are Commission shall approve or disapprove, or the Exchange notes that it has issued generally sufficient to mitigate institute proceedings to determine whether to deficiency notifications to 34 ETPs for manipulation concerns associated with disapprove, the proposed rule change. the applicable ETP.’’ 11 6 Comments on the proposed rule change can be 8 For purposes of the proposal, the term ‘‘ETP’’ found on the Commission’s website at: https:// means securities listed pursuant to BZX Rule www.sec.gov/comments/sr-cboebzx-2020-036/ 14.11(c) (Index Fund Shares), BZX Rule 14.11(i) 9 See Notice, supra note 3, 85 FR at 27256. srcboebzx2020036.htm. (Managed Fund Shares), and BZX Rule 14.11(l) 10 See id. 7 15 U.S.C. 78s(b)(2)(B). (Exchange-Traded Fund Shares (‘‘ETF Shares’’)). 11 See id.

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B. Comment on the Proposed Rule mechanism of a free and open market Beneficial Holders Rule difficult, and Change and a national market system, and, in led to the delisting of ETPs that may be The Commission received one general, to protect investors and the economically viable, the Exchange does comment in support of the proposal.12 public interest; and are not designed to not explain why these compliance The commenter states that the beneficial permit unfair discrimination between difficulties justify extending the Non- owner requirement disproportionately customers, issuers, brokers, or Compliance Period for this core 17 punishes smaller companies without the dealers.’’ quantitative listing standard for an resources to pay for aggressive The Commission has consistently additional two years. For example, the distribution, and disincentivizes issuers recognized the importance of the Exchange states that the manipulation from launching funds that can prove minimum number of holders and other risk is not materially greater with 49 themselves purely by investment merit similar requirements in exchange listing beneficial holders than with 50, but the over the long term.13 The commenter standards. Among other things, such Exchange is proposing to require no listing standards help ensure that believes that the purpose of the minimum number during the Non- exchange listed securities have beneficial holder minimum likely is to Compliance Period, and does not enforce some sort of minimum liquidity, sufficient public float, investor base, and trading interest to provide the depth explain why the manipulation and other and accordingly suggests alternative regulatory risks would not be greater liquidity measures such as the quality of and liquidity necessary to promote fair and orderly markets.18 with a very small number of beneficial secondary markets (e.g., spreads and holders. The Exchange also states that depth of book), the liquidity of the As discussed above, the Exchange is proposing to increase the Non- no new manipulation concerns would underlying basket, and the number of arise with a longer Non-Compliance potential liquidity providers. In this Compliance Period from 12 months to Period than a shorter one, but does not commenter’s view, increasing the time 36 months, thereby extending by two explain why tripling the period during period to achieve the minimum number years the length of time during which an of beneficial holders is a positive step, ETP listed on the Exchange would have which the same regulatory risks posed but eliminating the requirement no requirement to have a minimum by a Non-Compliance Period would be altogether would be far more number of beneficial holders. In support present, is consistent with the Exchange purposeful.14 of its proposal, the Exchange Act. The Exchange takes the position emphasizes that some ETPs have had that existing surveillances and other II. Proceedings To Determine Whether difficulty complying with the Beneficial listing standards are sufficient to To Approve or Disapprove SR– Holders Rule. The Exchange indicates mitigate manipulation concerns, but CboeBZX–2020–036 and Grounds for that noncompliance with the Beneficial does not explain in any detail the basis Disapproval Under Consideration Holders Rule is increasing because the for this view, or the impact of its The Commission is instituting ETP market has become so competitive, proposal on the maintenance of fair and proceedings pursuant to Section and there are so many of them, that it orderly markets or other applicable 19(b)(2)(B) of the Act 15 to determine can be difficult to acquire the requisite Exchange Act standards. whether the proposed rule change number of beneficial holders within the Under the Commission’s Rules of should be approved or disapproved. existing Non-Compliance Period. The Institution of such proceedings is Exchange also believes that the existing Practice, the ‘‘burden to demonstrate appropriate at this time in view of the Beneficial Holders Rule forces the that a proposed rule change is legal and policy issues raised by the delisting of ETPs that may still be consistent with the Exchange Act and proposed rule change. Institution of economically viable. With respect to the rules and regulations issued proceedings does not indicate that the regulatory considerations, the Exchange thereunder . . . is on the self-regulatory Commission has reached any takes the position that the manipulation organization [‘SRO’] that proposed the conclusions with respect to any of the risk would not be materially greater if rule change.’’ 19 The description of a issues involved. an ETP had 49 beneficial holders as proposed rule change, its purpose and Pursuant to Section 19(b)(2)(B) of the opposed to 50, and that no new operation, its effect, and a legal analysis Act,16 the Commission is providing manipulation concerns would arise with of its consistency with applicable notice of the grounds for disapproval a longer Non-Compliance Period than a requirements must all be sufficiently under consideration. The Commission is shorter one. The Exchange also asserts detailed and specific to support an instituting proceedings to allow for that existing surveillances and other affirmative Commission finding, and additional analysis of and input listing standards are sufficient to any failure of an SRO to provide this concerning the proposed rule change’s mitigate manipulation concerns. information may result in the consistency with the Act and, in While the Exchange takes the position Commission not having a sufficient particular, Section 6(b)(5) of the Act, that the highly-competitive ETP market basis to make an affirmative finding that which requires, among other things, that has made compliance with the a proposed rule change is consistent the rules of a national securities with the Exchange Act and the 17 15 U.S.C. 78f(b)(5). exchange be ‘‘designed to prevent applicable rules and regulations.20 fraudulent and manipulative acts and 18 See, e.g., Securities Exchange Act Release No. 57785 (May 6, 2008), 73 FR 27597 (May 13, For these reasons, the Commission practices, to promote just and equitable 2008)(SR–NYSE–2008–17) (stating that the principles of trade, to remove distribution standards, which includes exchange believes it is appropriate to institute impediments to and perfect the holder requirements ‘‘. . . should help to ensure proceedings pursuant to Section that the [Special Purpose Acquisition Company’s] 19(b)(2)(B) of the Act to determine securities have sufficient public float, investor base, 12 See Letter to Secretary, Commission, from S whether the proposal should be and liquidity to promote fair and orderly markets’’); Phil Bak, Founder & CEO, SecLenX (May 13, 2020) Securities Exchange Act Release No. 86117 (June approved or disapproved. (‘‘SecLenX Letter’’). 14, 2019), 84 FR 28879 (June 20, 2018) (SR–NYSE– 13 See id. at 1. 2018–46) (disapproving a proposal to reduce the 19 14 See id. at 2. minimum number of public holders continued Rule 700(b)(3), Commission Rules of Practice, 15 15 U.S.C. 78s(b)(2)(B). listing requirement applicable to Special Purpose 17 CFR 201.700(b)(3). 16 Id. Acquisition Companies from 300 to 100). 20 See id.

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IV. Commission’s Solicitation of comments more efficiently, please use Yuba, State of California. Those actions Comments only one method. The Commission will grant licenses, permits, and approvals The Commission requests that post all comments on the Commission’s for the project. interested persons provide written internet website (http://www.sec.gov/ DATES: By this notice, the FHWA, on submissions of their views, data, and rules/sro.shtml). Copies of the behalf of Caltrans, is advising the public arguments with respect to the issues submission, all subsequent of final agency actions subject to 23 identified above, as well as any other amendments, all written statements U.S.C. 139(l)(1). A claim seeking concerns they may have with the with respect to the proposed rule judicial review of the Federal agency proposal. In particular, the Commission change that are filed with the actions on the highway project will be invites the written views of interested Commission, and all written barred unless the claim is filed on or persons concerning whether the communications relating to the before January 7, 2021. If the Federal proposal is consistent with Section proposed rule change between the law that authorizes judicial review of a 6(b)(5) or any other provision of the Act, Commission and any person, other than claim provides a time period of less or the rules and regulations thereunder. those that may be withheld from the than 150 days for filing such claim, then Although there do not appear to be any public in accordance with the that shorter time period still applies. issues relevant to approval or provisions of 5 U.S.C. 552, will be FOR FURTHER INFORMATION CONTACT: For disapproval that would be facilitated by available for website viewing and Caltrans: Cara Lambirth, Branch Chief, an oral presentation of views, data, and printing in the Commission’s Public Caltrans Office of Environmental arguments, the Commission will Reference Room, 100 F Street NE, Management, M–3 California consider, pursuant to Rule 19b–4, any Washington, DC 20549 on official Department of Transportation-District 3, request for an opportunity to make an business days between the hours of 703 B Street, Marysville, CA 95901. oral presentation.21 10:00 a.m. and 3:00 p.m. Copies of the Office Hours: 8:00 a.m.–5:00 p.m., Interested persons are invited to filing also will be available for Pacific Standard Time, telephone (530) submit written data, views, and inspection and copying at the principal 741–4549 or email cara.lambirth@ arguments regarding whether the office of the Exchange. All comments dot.ca.gov. For FHWA, contact David proposal should be approved or received will be posted without change. Tedrick at (916) 498–5024 or email disapproved by August 31, 2020. Any Persons submitting comments are [email protected]. person who wishes to file a rebuttal to cautioned that we do not redact or edit SUPPLEMENTARY INFORMATION: Effective any other person’s submission must file personal identifying information from July 1, 2007, FHWA assigned, and the that rebuttal by September 14, 2020. The comment submissions. You should Caltrans assumed, environmental Commission asks that commenters submit only information that you wish responsibilities for this project pursuant address the sufficiency of the to make available publicly. All to 23 U.S.C. 327. Notice is hereby given Exchange’s statements in support of the submissions should refer to File that the Caltrans has taken final agency proposal, which are set forth in the Number SR–CboeBZX–2020–036 and actions subject to 23 U.S.C. 139(l)(1) by Notice, in addition to any other should be submitted by August 31, issuing licenses, permits, and approvals comments they may wish to submit 2020. Rebuttal comments should be for the following highway project in the about the proposed rule change. submitted by September 14, 2020. State of California. Comments may be submitted by any For the Commission, by the Division of The Caltrans proposes a project along of the following methods: Trading and Markets, pursuant to delegated a 9.6-mile portion of State Route 70 (SR authority.22 70) from Laurellen Road to Honcut Electronic Comments J. Matthew DeLesDernier, Creek Bridge in Yuba County. The • Use the Commission’s internet Assistant Secretary. project is intended to improve travel comment form (http://www.sec.gov/ [FR Doc. 2020–17353 Filed 8–7–20; 8:45 am] times along the corridor which will rules/sro.shtml); or BILLING CODE 8011–01–P result in greater reliability and • Send an email to rule-comments@ efficiency for the movement of goods, sec.gov. Please include File Number SR– provide better connectivity between CboeBZX–2020–036 on the subject line. DEPARTMENT OF TRANSPORTATION Yuba County and the Sacramento Paper Comments Valley, and support the overall Federal Highway Administration economic viability of the Yuba County • Send paper comments in triplicate region. This project will address to Secretary, Securities and Exchange Notice of Final Federal Agency Actions operational deficiencies in the corridor, Commission, 100 F Street NE, on Proposed Highway in California but these improvements improve the Washington, DC 20549–1090. AGENCY: Federal Highway overall safety of travelers within the All submissions should refer to File Administration (FHWA), Department of corridor. Number SR–CboeBZX–2020–036. This Transportation (DOT). The actions by the Federal agencies, and the laws under which such actions file number should be included on the ACTION: Notice of Limitation on Claims subject line if email is used. To help the for Judicial Review of Actions by the were taken, are described in the Final Commission process and review your California Department of Transportation Environmental Assessment (FEA)/ (Caltrans). Finding of No Significant Impact 21 Section 19(b)(2) of the Act, as amended by the (FONSI) for the project, issued July 16, Securities Act Amendments of 1975, Public Law SUMMARY: The FHWA, on behalf of 2020, and in other documents in 94–29 (June 4, 1975), grants the Commission flexibility to determine what type of proceeding— Caltrans, is issuing this notice to Caltrans’ project records. The FEA, either oral or notice and opportunity for written announce actions taken by Caltrans, that FONSI and other project records are comments—is appropriate for consideration of a are final. The actions relate to a available by contacting Caltrans at the particular proposal by a self-regulatory proposed highway improvement project addresses provided above. The Caltrans organization. See Securities Act Amendments of 1975, Senate Comm. on Banking, Housing & Urban along State Route 70 in the County of FEA, FONSI and other project records Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 can be viewed and downloaded from (1975). 22 17 CFR 200.30–3(a)(57). the project website at https://dot.ca.gov/

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caltrans-near-me/district-3/d3- implementing Executive Order 12372 SUPPLEMENTARY INFORMATION: Notice is programs/d3-environmental/d3- regarding intergovernmental consultation on hereby given that FHWA has taken final environmental-docs Federal programs and activities apply to this agency action by issuing a Record of This notice applies to all Federal program.) Decision for the following highway agency decisions as of the issuance date Authority: 23 U.S.C. 139(l)(1) project in the State of Michigan: I–94 of this notice and all laws under which Issued on: August 4, 2020. Detroit Modernization Project in Wayne such actions were taken, including but Rodney Whitfield, County including modernization of not limited to: Director, Financial Services, Federal Highway approximately 6.7 miles of Interstate 1. Council on Environmental Quality Administration, California Division. freeway (I–94) in the city of Detroit, Regulations [FR Doc. 2020–17450 Filed 8–7–20; 8:45 am] Michigan between I–96 and Conner 2. National Environmental Policy Act of BILLING CODE 4910–RY–P Avenue. Improvements include adding 1969, as amended, 42 U.S.C. 4321 et a travel lane in each direction, seq. modernizing system and service 3. Federal-Aid Highway Act of 1970, 23 DEPARTMENT OF TRANSPORTATION interchanges, reconstructing bridges U.S.C 109 crossing over the freeway, and work on 4. MAP–21, the Moving Ahead for Federal Highway Administration the service drives. The project is Progress in the 21st Century Act included in MDOT’s adopted 2020– Notice of Final Federal Agency Actions (Pub.L. 112–141) 2023 State Transportation Improvement on Proposed Highway in Michigan 5. Clean Air Act Amendments of 1990 Program (STIP) and 2045 State Long (CAAA) AGENCY: Federal Highway Range Plan. The project is also included 6. Clean Water Act of 1977 and 1987 Administration (FHWA), Transportation in the Southeast Michigan Council of 7. Federal Water Pollution Control Act (DOT). Government’s (SEMCOG) 2020–2023 of 1972 (see Clean Water Act of ACTION: Notice of limitation on claims Transportation Improvement Program 1977 & 1987) for judicial review of actions by FHWA and 2045 Regional Transportation Plan. 8. Federal Land Policy and Management and other Federal agencies. The FHWA’s action, related actions Act of 1976 (Paleontological by other Federal agencies and the laws Resources) SUMMARY: This notice announces actions under which such actions were taken, 9. Noise Control Act of 1972 taken by FHWA and other Federal are described in the Combined Final 10. Safe Drinking Water Act of 1944, as agencies that are final. This final agency Supplemental Environmental Impact amended action relates to a proposed highway Statement and Record of Decision 11. Endangered Species Act of 1973 project, I–94, from I–96 to Conner (Combined FSEIS and ROD) for the 12. Executive Order 11990, Protection of Avenue in the city of Detroit, Wayne project, approved on June 30, 2020, and Wetlands County, State of Michigan. The FHWA’s in other documents in the project file. 13. Executive Order 13112, Invasive Record of Decision provides details on The Combined FSEIS and ROD is Species the Selected Alternative for the available for review by contacting 14. Executive Order 13186, Migratory proposed improvements. FHWA or MDOT at the addresses Birds DATES: By this notice, FHWA is advising provided above. In addition, these 15. Fish and Wildlife Coordination Act the public of final agency actions documents can be viewed and of 1934, as amended subject to 23 U.S.C. 139(l)(1)–(2). A downloaded from the project website at: 16. Migratory Bird Treaty Act claim seeking judicial review of the https://i94detroit.org/. 17. Water Bank Act Wetlands Mitigation Federal agency action on the highway This notice applies to all Federal Banks, ISTEA 1991, Sections 1006– project will be barred unless the claim agency decisions as of the issuance date 1007 is filed on or before January 7, 2021. If of this notice and all laws under which 18. Wildflowers, Surface Transportation the Federal law that authorizes judicial such actions were taken, including but and Uniform Relocation Act of 1987 review of a claim provides a time period not limited to: Section 130 of less than 150 days for filing such 1. General: National Environmental 19. Coastal Zone Management Act of claim, then that shorter time period still Policy Act (NEPA) [42 U.S.C. 4321– 1972 applies. 4351]; Federal-Aid Highway Act [23 20. Coastal Zone Management Act FOR FURTHER INFORMATION CONTACT: For U.S.C. 109 and 23 U.S.C. 128]. Reauthorization Amendments Of FHWA: Ruth Hepfer, Environment/ 2. Air: Clean Air Act [42 U.S.C. 7401– 1990 Right-of-way Specialist, FHWA 7671(q)]. 21. Executive Order 11988, Floodplain Michigan Division, 315 Allegan, Room 3. Land: Section 4(f) of the Management 201, Lansing, MI 48933, Telephone: Department of Transportation Act of 22. Department of Transportation (DOT) (517) 702–1847, Email: Ruth.Hepfer@ 1966 [49 U.S.C. 303]; Landscaping and Executive Order 5650.2— dot.gov. The FHWA Michigan Division Scenic Enhancement (Wildflowers) [23 Floodplain Management and Office’s normal business hours are 8:00 U.S.C. 319]. Protection (April 23, 1979) a.m. to 4:30 p.m. (Eastern Standard 4. Wildlife: Endangered Species Act 23. Rivers and Harbors Appropriation Time). For the Michigan Department of (ESA) [16 U.S.C. 1531–1544 and Section Act of 1899, Sections 9 and 10 Transportation (MDOT): Terry 1536]; Marine Mammal Protection Act 24. Title VI of the Civil Rights Act of Stepanski, P.E., Senior Project Manager, [16 U.S.C. 1361]; Anadromous Fish 1964, as amended Michigan Department of Transportation, Conservation Act [16 U.S.C. 757(a)– 25. Executive Order 12898, Federal P.O. Box 30050, 425 W Ottawa Street, 757(g)], Fish and Wildlife Coordination Actions to Address Environmental Lansing, MI 48909, Telephone: (517) Act [16 U.S.C. 661–667d]; Migratory Justice and Low-Income 241–0233, Email: StepanskiT@ Bird Treaty Act [16 U.S.C. 703–712], Populations michigan.gov. The Michigan Magnuson-Stevenson Fishery (Catalog of Federal Domestic Assistance Department of Transportation’s normal Conservation and Management Act of Program Number 20.205, Highway Planning business hours are 8:00 a.m. to 5:00 p.m. 1976, as amended [16 U.S.C. 1801 et and Construction. The regulations (Eastern Standard Time). seq.].

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5. Historic and Cultural Resources: Issued on: August 3, 2020. permits, and approvals for the highway Section 106 of the National Historic Russell L. Jorgenson, projects in the State of Texas that are Preservation Act of 1966, as amended Division Administrator, Lansing, Michigan. listed below. [16 U.S.C. 470(f) et seq.]; Archeological [FR Doc. 2020–17182 Filed 8–7–20; 8:45 am] The actions by TxDOT and Federal Resources Protection Act of 1977 [16 BILLING CODE 4910–22–P agencies and the laws under which such U.S.C. 470(aa)–470(ll)]; Archeological actions were taken are described in the and Historic Preservation Act [16 U.S.C. Categorical Exclusion (CE), 469–469c]; Native American Grave DEPARTMENT OF TRANSPORTATION Environmental Assessment (EA), or Protection and Repatriation Act Environmental Impact Statement (EIS) Notice of Final Federal Agency Actions (NAGPRA) [25 U.S.C. 3001–3013]. issued in connection with the projects on Proposed Highway Projects in and in other key project documents. The 6. Social and Economic: Civil Rights Texas CE, EA, or EIS and other key documents Act of 1964 [42 U.S.C. 2000(d)– AGENCY: for the listed projects are available by 2000(d)(1)]; American Indian Religious Texas Department of Transportation (TxDOT), Federal contacting TxDOT at the address Freedom Act [42 U.S.C. 1996]; Farmland Highway Administration (FHWA), U.S. provided above. Protection Policy Act (FPPA) [7 U.S.C. Department of Transportation. This notice applies to all TxDOT and 4201–4209]. ACTION: Notice of Limitation on Claims Federal agency decisions as of the 7. Wetlands and Water Resources: for Judicial Review of Actions by issuance date of this notice and all laws Clean Water Act (Section 404, Section TxDOT and Federal Agencies. under which such actions were taken, 401, Section 319) [33 U.S.C. 1251– including but not limited to: 1377]; Coastal Barrier Resources Act [16 SUMMARY: This notice announces actions 1. General: National Environmental U.S.C. 3501–3510]; Coastal Zone taken by TxDOT and Federal agencies Policy Act (NEPA) [42 U.S.C. 4321– Management Act [16 U.S.C. 1451–1465]; that are final. The environmental 4351]; Federal-Aid Highway Act [23 Land and Water Conservation Fund review, consultation, and other actions U.S.C. 109]. required by applicable Federal (LWCF) [16 U.S.C. 4601–4604]; Safe 2. Air: Clean Air Act, 42 U.S.C. 7401– environmental laws for these projects Drinking Water Act (SDWA) [42 U.S.C. 7671(q). are being, or have been, carried-out by 3. Land: Section 4(f) of the 300(f)-300(j)(6)]; Rivers and Harbors Act TxDOT pursuant to an assignment Department of Transportation Act of of 1899 [33 U.S.C. 401–406]; Wild and agreement executed by FHWA and 1966 [49 U.S.C. 303]; Landscaping and Scenic Rivers Act [16 U.S.C. 1271– TxDOT. The actions relate to various Scenic Enhancement (Wildflowers), 23 1287]; Emergency Wetlands Resources proposed highway projects in the State U.S.C. 319. Act, [16 U.S.C. 3921, 3931]; TEA–21 of Texas. These actions grant licenses, 4. Wildlife: Endangered Species Act Wetlands Mitigation [23 U.S.C. permits, and approvals for the projects. [16 U.S.C. 1531–1544 and Section 103(b)(6)(M, 133(b)(11)]; Flood Disaster DATES: By this notice, TxDOT is 1536], Marine Mammal Protection Act Protection Act [42 U.S.C. 4001–4128]. advising the public of final agency [16 U.S.C. 1361], Fish and Wildlife 8. Hazardous Materials: actions subject to 23 U.S.C. 139(l)(1). A Coordination Act [16 U.S.C. 661– Comprehensive Environmental claim seeking judicial review of TxDOT 667(d)], Migratory Bird Treaty Act [16 Response, Compensation, and Liability and Federal agency actions on the U.S.C. 703–712]. Act (CERCLA) [42 U.S.C. 9601–9675]; highway projects will be barred unless 5. Historic and Cultural Resources: Superfund Amendments and the claim is filed on or before the Section 106 of the National Historic Reauthorization Act of 1986 (SARA); deadline. For the projects listed below, Preservation Act of 1966, as amended Resource Conservation and Recovery the deadline is January 7, 2021. If the [54 U.S.C. 300101 et seq.]; Archeological Act (RCRA) [42 U.S.C. 6901–6992(k)]. Federal law that authorizes judicial Resources Protection Act of 1977 [16 review of a claim provides a time period U.S.C. 470(aa)–11]; Archeological and 9. Executive Orders: E.O. 11990 of less than 150 days for filing such a Historic Preservation Act [54 U.S.C. Protection of Wetlands; E.O. 11988 claim, then that shorter time period still 312501 et seq.]; Native American Grave Floodplain Management; E.O. 12898, applies. Protection and Repatriation Act Federal Actions to Address FOR FURTHER INFORMATION CONTACT: (NAGPRA) [25 U.S.C. 3001–3013]. Environmental Justice in Minority Carlos Swonke, Environmental Affairs 6. Social and Economic: Civil Rights Populations and Low Income Division, Texas Department of Act of 1964 [42 U.S.C. 2000(d)– Populations; E.O. 11593 Protection and Transportation, 125 East 11th Street, 2000(d)(1)]; American Indian Religious Enhancement of Cultural Resources; Austin, Texas 78701; telephone: (512) Freedom Act [42 U.S.C. 1996]; Farmland E.O. 13007 Indian Sacred Sites; E.O. 416–2734; email: carlos.swonke@ Protection Policy Act (FPPA) [7 U.S.C. 13287 Preserve America; E.O. 13175 txdot.gov. TxDOT’s normal business 4201–4209]. Consultation and Coordination with hours are 8:00 a.m.–5:00 p.m. (central 7. Wetlands and Water Resources: Indian Tribal Governments; E.O. 11514 time), Monday through Friday. Clean Water Act, 33 U.S.C. 1251–1377 Protection and Enhancement of SUPPLEMENTARY INFORMATION: The (Section 404, Section 401, Section 319); Environmental Quality; E.O. 13112 environmental review, consultation, and Land and Water Conservation Fund Invasive Species. other actions required by applicable (LWCF), 16 U.S.C. 4601–4604; Safe (Catalog of Federal Domestic Assistance Federal environmental laws for these Drinking Water Act (SDWA), 42 U.S.C. Program Number 20.205, Highway Planning projects are being, or have been, carried- 300(f)–300(j)(6); Rivers and Harbors Act and Construction. The regulations out by TxDOT pursuant to 23 U.S.C. 327 of 1899, 33 U.S.C. 401–406; Wild and implementing Executive Order 12372 and a Memorandum of Understanding Scenic Rivers Act, 16 U.S.C. 1271–1287; regarding intergovernmental consultation on dated December 9, 2019, and executed Emergency Wetlands Resources Act, 16 Federal programs and activities apply to this by FHWA and TxDOT. U.S.C. 3921, 3931; TEA–21 Wetlands program.) Notice is hereby given that TxDOT Mitigation, 23 U.S.C. 103(b)(6)(m), and Federal agencies have taken final 133(b)(11); Flood Disaster Protection Authority: 23 U.S.C. 139 (l)(1). agency actions by issuing licenses, Act, 42 U.S.C. 4001–4128.

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8. Executive Orders: E.O. 11990 The Categorical Exclusion Northeastern Railroad. The purpose of Protection of Wetlands; E.O. 11988 Determination and other documents in the proposed project is to improve Floodplain Management; E.O. 12898, the TxDOT project file are available by traffic mobility and reduce congestion. Federal Actions to Address contacting TxDOT at the address The actions by TxDOT and Federal Environmental Justice in Minority provided above or the TxDOT Laredo agencies and the laws under which such Populations and Low Income District Office at 1817 Bob Bullock actions were taken are described in the Populations; E.O. 11593 Protection and Loop, Laredo, TX 78043; telephone Categorical Exclusion Determination Enhancement of Cultural Resources; (956) 712–7416. issued on January 13, 2020, and other E.O. 13007 Indian Sacred Sites; E.O. 3. William J. Bryan Parkway (FM 158) documents in the TxDOT project file. 13287 Preserve America; E.O. 13175 Improvement Project from BS 6–R The Categorical Exclusion Consultation and Coordination with (Texas Ave.) to SH 6, Brazos County, Determination and other documents in Indian Tribal Governments; E.O. 11514 Texas. The proposed project would the TxDOT project file are available by Protection and Enhancement of install shared use paths and sidewalks, contacting TxDOT at the address Environmental Quality; E.O. 13112 raised medians, and improve provided above or the TxDOT Dallas Invasive Species. (Catalog of Federal intersections. The purpose of the District Office at 4777 E. Highway 80, Domestic Assistance Program Number proposed project is to enhance safety Mesquite, TX 75150; telephone (214) 20.205, Highway Planning and and mobility along the Parkway. The 320–4480. Construction.) actions by TxDOT and Federal agencies 6. County Road (CR) 58 from The projects subject to this notice are: and the laws under which such actions Savannah Development to CR 48 in 1. SH 6 from SH 16 North to the East were taken are described in the Brazoria County, Texas. The project will city limit of De Leon, Comanche Categorical Exclusion Determination widen CR 58 from two lanes to four County, Texas. The project proposes to issued on February 26, 2019, and other lanes divided by a raised median. The expand the roadway from two to four documents in the TxDOT project file. project also includes drainage features lanes and include a center turn lane. The Categorical Exclusion such as curb-and-gutter and a The reconstruction of the roadway Determination and other documents in redesigned open drainage system with includes adding pavement width, the TxDOT project file are available by detention basin. The actions by TxDOT illumination, traffic signals, sidewalks, contacting TxDOT at the address and Federal agencies and the laws curb and gutter, and storm drains provided above or the TxDOT Bryan under which such actions were taken throughout the entire approximate 2 District Office at 2591 North Earl are described in the Categorical mile limits. The purpose is to enhance Rudder Freeway, Bryan, Texas 77803– Exclusion Determination approved on safety and improve mobility by allowing 5190; telephone (979) 778–9764. January 16, 2020 and other documents for safer turning movements into 4. County Road (CR) 59 from CR 48 numerous driveways along this facility. to Kirby Drive in Brazoria County, in the TxDOT project file. The The actions by TxDOT and Federal Texas. The project will widen CR 59 Categorical Exclusion Determination agencies and the laws under which such from two-lanes to four lanes divided by and other documents in the TxDOT actions were taken are described in the a raised median. The project also project file are available by contacting Categorical Exclusion approved on includes drainage features and a shared TxDOT at the address provided above or October 25, 2019. The Categorical use path. The actions by TxDOT and the TxDOT Houston District Office Exclusion Determination and other Federal agencies and the laws under located at 7600 Washington Avenue, documents in the TxDOT project file are which such actions were taken are Houston, Texas 77007; telephone (713) available by contacting TxDOT at the described in the Categorical Exclusion 802–5076. address provided above or the TxDOT Determination approved on December 7. US 380 from Airport Drive to CR Brownwood District Office at 2495 11, 2019 and other documents in the 458 in Collin County, Texas. The HWY 183 North, Brownwood, Texas TxDOT project file. The Categorical proposed project would widen the 76802; telephone (325) 643–0413. Exclusion Determination and other current 4-lane divided rural and urban 2. IH 35 from Shiloh Drive to 0.25 documents in the TxDOT project file are sections to a 6-lane divided urban Miles N of US 59/IH 69 W in Webb available by contacting TxDOT at the thoroughfare with two 12-foot wide County, Texas. The proposed project address provided above or the TxDOT lanes and one 14-foot wide outside lane would be constructed in two phases. Houston District Office located at 7600 in each direction. The project would The first phase would fill in the current Washington Avenue, Houston, Texas include a 15-foot raised median, curb railroad underpass and construct a 77007; telephone (713) 802–5076. and gutter, and 6.5-foot sidewalks. The railroad overpass allowing for six main 5. New SH 205 (John King Boulevard) length of the proposed project is lanes of I–35 traffic to pass over the from the junction of SH 205/John King approximately 7.5 miles. The purpose of Union Pacific Railroad (UPRR). This (South Goliad Street) to the junction of the proposed project is to improve project would be approximately 1.0- SH 205/John King (North Goliad Street) safety and mobility in the area and mile long. The second phase would in Rockwall County, Texas. John King alleviate traffic congestion. The actions extend the frontage roads by Boulevard currently serves as a bypass by TxDOT and Federal agencies and the constructing two lane frontage road for SH 205 around the east side of the laws under which such actions were bridges over the UPRR for both the City of Rockwall’s downtown area. The taken are described in the Categorical north bound and south bound frontage proposed project would widen existing Exclusion Determination issued on roads. These new bridges would tie into John King Boulevard to an ultimate six- January 29, 2020, and other documents the frontage roads/turnarounds that lane, divided, urban highway that in the TxDOT project file. The were constructed under the first phase. would be re-designated as SH 205. New Categorical Exclusion Determination The actions by TxDOT and Federal connections that would tie John King and other documents in the TxDOT agencies and the laws under which such Boulevard directly into SH 205 are project file are available by contacting actions were taken are described in the proposed at the northern and southern TxDOT at the address provided above or Categorical Exclusion Determination project termini. In addition, the the TxDOT Dallas District Office at 4777 issued on October 28, 2019 and other improvements include a proposed E. Highway 80, Mesquite, TX 75150; documents in the TxDOT project file. underpass of the Dallas Garland & telephone (214) 320–4480.

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8. FM 802 from FM 1847 to Old Port taken are described in the Categorical Expressway 83, Pharr, TX 78577; Isabel Road, Cameron County, Texas. Exclusion Determination issued on telephone (956) 702–6100. The purpose of the proposed project is September 30, 2019, and other 13. State Highway (SH) 105 from 10th to improve mobility, to accommodate documents in the TxDOT project file. Street in Conroe to Business 105 in current and future traffic volumes by The Categorical Exclusion Montgomery, San Jacinto, and Liberty reconstructing and widening the Determination and other documents in Counties, Texas. The proposed project freeway from four to six lanes, and the TxDOT project file are available by would widen SH 105 to the north and reconstructing and widening bike lanes contacting TxDOT at the address south to a four-lane facility with a and sidewalks. The proposed project provided above or the TxDOT Bryan continuous two-way turn lane of length is approximately 1.85 miles. The District Office at 2591 North Earl varying width. Sidewalk and bicycle actions by TxDOT and Federal agencies Rudder Freeway, Bryan, Texas 77803– accommodations along the north and and the laws under which such actions 5190; telephone (979) 778–9764. south sides of SH 105 would be were taken are described in the 11. US 281 from 0.273 mile south of provided for the entire length of the Categorical Exclusion Determination SH 186 to 0.023 mile north of FM 490, facility. The proposed project includes a approved on January 29, 2020 and other Hidalgo County, Texas. The purpose of curb and gutter system along documents in the TxDOT project file. the proposed project is to bring US 281 approximately 75 percent of the facility The Categorical Exclusion to current interstate highway standards with open ditches along the remaining Determination and other documents in between SH 186 and FM 490 to easternmost portion. The length of the the TxDOT project file are available by accommodate current and future traffic project, including transitions, is contacting TxDOT at the address volumes by reconstructing, approximately 20 miles. The purpose of provided above or the TxDOT Pharr straightening, and widening US 281 the project is to improve safety, District Office at 600 W. Expressway 83, with inside and outside shoulders, operational efficiency, and travel times; Pharr, TX 78577; telephone (956) 702– installation of a center concrete barrier, to accommodate growth along SH 105 6100. and constructing frontage roads to within the project limits, and reduce the 9. FM 526 from Nola Court to IH 10; control access. The proposed project number of traffic accidents and IH 10 WB frontage road from FM 526 to length is approximately 7.04 miles. The fatalities. The actions by TxDOT and Normandy Street; and Normandy Street actions by TxDOT and Federal agencies Federal agencies and the laws under from IH 10 to Greens Bayou Street in and the laws under which such actions which such actions were taken are Harris County, Texas. The project will were taken are described in the Final described in the Final Environmental construct bicycle and pedestrian Environmental Assessment approved on Assessment (EA) approved on February improvements within the project area, December 9, 2019, the Finding of No 19, 2020, the Finding of No Significant Impact (FONSI) issued on February 20, including sidewalks and a shared use Significant Impact (FONSI) approved on path. The project will also relocate 2020 and other documents in the December 12, 2019 and other existing storm sewers and widen TxDOT project file. The EA, FONSI, and documents in the TxDOT project file. existing shoulders. The actions by other documents in the TxDOT project The final environmental assessment, TxDOT and Federal agencies and the file are available by contacting TxDOT FONSI, and other documents in the laws under which such actions were at the address provided above or the TxDOT project file are available by taken are described in the Categorical TxDOT Houston District Office located contacting TxDOT at the address Exclusion Determination approved on at 7600 Washington Avenue, Houston, provided above or the TxDOT Pharr February 5, 2020 and other documents Texas 77007; telephone (713) 802–5076. District Office at 600 W. Expressway 83, in the TxDOT project file. The 14. FM 1378 at FM 3286 Intersection Pharr, TX 78577; telephone (956) 702– Categorical Exclusion Determination Improvement in Collin County, Texas. and other documents in the TxDOT 6100. The proposed project would improve project file are available by contacting 12. FM 676 and Mile 5 from SH 107 the existing intersection at FM 1378 and TxDOT at the address provided above or to FM 2220, Hidalgo County, Texas. The FM 3286. The purpose of the proposed the TxDOT Houston District Office purpose of the proposed project is to project is to provide congestion relief, located at 7600 Washington Avenue, improve mobility on FM 676 and Mile improve traffic flow, and improve Houston, Texas 77007; telephone (713) 5 between SH 107 and FM 2220, to safety. The actions by TxDOT and 802–5076. accommodate current and future traffic Federal agencies and the laws under 10. SH 6 at FM 2 Intersection volumes by reconstructing and which such actions were taken are Improvement from 0.51 miles north of widening the facility from two to four described in, the Categorical Exclusion FM 2 and 0.11 miles west of SH 6 to lanes with continuous center turn lane, Determination issued on February 27, 0.53 miles south of FM 2 and 0.11 miles and constructing 10-foot shoulders and 2020, and other documents in the east of SH 6, Grimes County, Texas. The sidewalks. TxDOT project file. The Categorical proposed project would convert the at- The proposed project length is Exclusion Determination and other grade intersection to a grade-separated approximately 4.0 miles. The actions by documents in the TxDOT project file are intersection. This would create a typical TxDOT and Federal agencies and the available by contacting TxDOT at the main-lane section on SH 6 with 12 ft. laws under which such actions were address provided above or the TxDOT travel lanes bounded by 10 ft. inside taken are described in the Final Dallas District Office at 4777 E. and outside shoulders; the ramps would Environmental Assessment approved on Highway 80, Mesquite, TX 75150; have two 12 ft. lanes, one for dedicated February 5, 2020, the Finding of No telephone (214) 320–4480. left turns and the other for through Significant Impact (FONSI) approved on 15. FM 518 from SH 288 to SH 35 in traffic. The length of this project is February 7, 2020 and other documents Brazoria County, Texas. The proposed approximately 1.4 miles. The purpose of in the TxDOT project file. The final project would reconstruct and widen the proposed project is to improve environmental assessment, FONSI, and the existing roadway from two lanes in safety at the intersection of SH 6 with other documents in the TxDOT project each direction to three lanes in each FM 2 in Grimes County. The actions by file are available by contacting TxDOT direction. The typical section would TxDOT and Federal agencies and the at the address provided above or the include two 12-foot-wide travel lanes laws under which such actions were TxDOT Pharr District Office at 600 W and one 15-foot-wide outside travel lane

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(in each direction), a typical 18-foot West of Loop 170, in Nolan County, safety by removing the existing left exits raised median, and 5-foot-wide Texas. The project is located at the and to address conflict points along SH sidewalks on both sides of the roadway. interchange of IH 20 and US 84 between 31 by reconstructing the IH 20 and SH The actions by TxDOT and Federal the towns of Roscoe and Sweetwater. 31 interchange. The proposed project agencies and the laws under which such The proposed project would flatten the length is approximately 1.5 miles in actions were taken are described in the sharp curve at the interchange, and length. The actions by TxDOT and Final Environmental Assessment (EA) construct and reconstruct direct Federal agencies and the laws under approved on February 28, 2020 with the connectors and associated ramps. The which such actions were taken are Finding of No Significant Impact existing two-way frontage roads would described in the Categorical Exclusion (FONSI) issued on March 03, 2020, and be reconstructed but would remain two- Determination approved on April 3, other documents in the TxDOT project way. The project is approximately one 2020 and other documents in the file. The EA, FONSI and other mile in length and would address TxDOT project file. The Categorical documents in the TxDOT project file are operational and safety concerns at the Exclusion Determination and other available by contacting TxDOT at the interchange. The actions by TxDOT and documents in the TxDOT project file are address provided above or the TxDOT Federal agencies and the laws under available by contacting TxDOT at the Houston District Office 7600 which such actions were taken are address provided above or the TxDOT Washington Avenue, Houston Texas described in the approved Categorical Tyler District Office at 2709 W Front St., 77007; telephone (713) 802–5076. The Exclusion Determination issued on Tyler, TX 75702; telephone (903) 510– EA and FONSI can also be viewed and April 1, 2020, and other documents in 9100. downloaded from the following website: the TxDOT project file. The Categorical 21. El Dora Road from FM 3362 https://www.txdot.gov/inside-txdot/ Exclusion Determination and other (Jackson Road) to Veterans Boulevard (I projects/studies/houston/fm518-sh288- documents in the TxDOT project file are Road), in Hidalgo County, Texas. The to-sh35.html. available by contacting TxDOT at the proposed project would widen the 16. I–10 from SH 46 to FM 3351 in address provided above or the TxDOT roadway from two to four lanes, with Bexar and Kendall Counties, Texas. The Abilene District Office at 4250 North continuous left turn lane, adding right project adds one general-purpose lane Clack, Abilene, TX. 79601; (325) 676– turn lanes, and including sidewalks. and one High Occupancy Vehicle (HOV) 6817. The proposed project length is lane in each direction of I–10 from FM 19. IH 10 from 0.54 miles east of FM approximately 2.3 miles. The actions by 3351 (Ralph Fair Rd) to SH 46. The 3247 to the Sabine River Bridge in TxDOT and Federal agencies and the project is approximately 10.07 miles in Orange County, Texas. The proposed laws under which such actions were length. The actions by TxDOT and project would be reconstructed from taken are described in the Categorical Federal agencies and the laws under four, 12-foot wide travel lanes (two in Exclusion Determination approved on which such actions were taken are each direction) with variable width April 10, 2020 and other documents in described in the Categorical Exclusion inside and outside shoulders to six 12- the TxDOT project file. The Categorical Determination issued on February 27, foot wide travel lanes with 10-foot wide Exclusion Determination and other 2020 and other documents in the inside shoulders and 10-foot wide documents in the TxDOT project file are TxDOT project file. The Categorical outside shoulders. A concrete median available by contacting TxDOT at the Exclusion Determination and other barrier would separate the eastbound/ address provided above or the TxDOT documents in the TxDOT project file are westbound travel lanes. The project also Pharr District Office at 600 W available by contacting TxDOT at the includes widening the existing I–10 Expressway 83, Pharr, TX 78577; address provided above or the TxDOT Adam’s Bayou bridges to provide the telephone (956) 702–6100. San Antonio District Office at 4615 NW additional 12-foot wide travel lane in 22. Watson Road from FM 2790/ Loop 410, San Antonio, TX 78229; each direction. The length of the Somerset Road to 0.62 mile east of telephone (210) 615–5839. proposed project is 4.84 miles with all Somerset Road in Bexar County, Texas. 17. SH 42 from IH 20 to US 80, in work being completed in existing right The proposed project would expand the Gregg County, Texas. The proposed of way. The purpose of the proposed existing two-lane roadway to four lanes, project would construct a four-lane project is to improve the safety and provide a shared use path for highway with two 12-foot travel lanes in ensure mobility of the traveling public pedestrians and bicycles, make storm- each direction, a center left-turn lane, by widening the interstate highway and water drainage improvements, and shoulders, and sidewalks in portions of replacing the structurally deficient construct a roundabout at the the project. The proposed project length Sabine River Relief bridge. The actions intersection of Verano Parkway and is approximately 5.9 miles in length. by TxDOT and Federal agencies and the Watson Road. The project is The actions by TxDOT and Federal laws under which such actions were approximately 0.62 miles in length. The agencies and the laws under which such taken are described in the Categorical purpose of the proposed project is to actions were taken are described in the Exclusion Determination issued on improve mobility and safety in the Final Environmental Assessment September 6, 2019, and other project area. The actions by TxDOT and approved on March 12, 2020, the documents in the TxDOT project file. Federal agencies and the laws under Finding of No Significant Impact The Categorical Exclusion which such actions were taken are approved on March 12, 2020, and other Determination and other documents in described in the Categorical Exclusion documents in the TxDOT project file. the TxDOT project file are available by Determination issued on April 15, 2020, The Final Environmental Assessment contacting TxDOT at the address and other documents in the TxDOT and other documents in the TxDOT provided above or the TxDOT Beaumont project file. The Categorical Exclusion project file are available by contacting District Office at 8350 Eastex Freeway, Determination and other documents in TxDOT at the address provided above or Beaumont, Texas 77708; telephone (409) the TxDOT project file are available by the TxDOT Tyler District Office at 2709 898–5745. contacting TxDOT at the address W Front St., Tyler, TX 75702; telephone 20. IH 20 at SH 31 Interchange from provided above or the TxDOT San (903) 510–9100. 0.7 miles west of US 259 to 1.3 miles Antonio District Office at 4615 NW 18. IH 20 Roscoe Interchange east of SH 31, in Gregg County, Texas. Loop 410, San Antonio, TX 78229; Improvement, from East of CR 608 to The proposed project would improve telephone (210) 615–5839.

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23. Galm Road Phase III From FM 471 of No Significant Impact (FONSI) issued County, Texas. The proposed project to Government Canyon State Natural on March 25, 2020 and other documents would construct continuous one-way, Area in Bexar County, Texas. The in the TxDOT project file. The EA and two lane urban northbound and proposed project would consist of the other documents are available by southbound frontage roads along IH reconstruction and widening of Galm contacting TxDOT at the address 35W, entrance and exit ramp reversals, Road from a two- lane section to a four- provided above or the TxDOT Dallas flipping three interchanges so that IH lane curbed urban arterial section with District Office at 4777 E Highway 80, 35W mainlanes cross over these streets; continuous sidewalks in each direction. Mesquite, TX 75150; telephone: (214) constructing a new interchange for The project is approximately 1.6 miles 320–4480. future Denton Creek Road and in length. The purpose of the proposed 26. IH 20 from Lawson Road to East expanding the Cleveland Gibbs Road, project is to improve mobility and safety of CR 138 (Wilson Road) in Dallas and FM 407, Robson Ranch Road/Crawford in the project area. The actions by Kaufman Counties, Texas. The proposed TxDOT and Federal agencies and the project would include constructing Road, and proposed Loop 288/Vintage laws under which such actions were continuous one-way frontage road lanes Road interchanges. The length of the taken are described in, the Categorical in each direction, reconfiguring the proposed project is approximately 12.3 Exclusion Determination issued on ramps from a ‘‘diamond’’ configuration miles. The purpose of the proposed April 21, 2020, and other documents in to an ‘‘X’’ configuration at each project is to improve safety and provide the TxDOT project file. The Categorical interchange, and adding auxiliary lanes access to adjacent lands. The actions by Exclusion Determination and other on the mainlanes. The length of the TxDOT and Federal agencies and the documents in the TxDOT project file are proposed project is approximately 20.39 laws under which such actions were available by contacting TxDOT at the miles. The purpose of the proposed taken are described in the Final address provided above or the TxDOT project is to address local policies, Environmental Assessment (EA) San Antonio District Office at 4615 NW improve mobility, accommodate future approved on June 30, 2020, Finding of Loop 410, San Antonio, TX 78229; traffic demand, enhance access, and No Significant Impact (FONSI) issued telephone (210) 615–5839. improve safety. The actions by TxDOT on June 30, 2020 and other documents 24. FM 2642 from FM 35 to SH 66 in and Federal agencies and the laws in the TxDOT project file. The EA and Hunt County, Texas. The proposed under which such actions were taken other documents are available by project would convert FM 2642 to a are described in the Final contacting TxDOT at the address four-lane urban divided roadway with Environmental Assessment (EA) provided above or the TxDOT Dallas curb/gutter and sidewalks. The approved on April 10, 2020, Finding of District Office at 4777 E Highway 80, proposed project length is No Significant Impact (FONSI) issued Mesquite, TX 75150; telephone: (214) approximately 2.37 miles in length. The on April 10, 2020 and other documents purpose of the proposed project is to in the TxDOT project file. The EA and 320–4480. improve safety and mobility. The other documents are available by 29. Nolana Loop from FM 1426 to FM actions by TxDOT and Federal agencies contacting TxDOT at the address 88, in Hidalgo County, Texas. The and the laws under which such actions provided above or the TxDOT Dallas proposed project would widen, were taken are described in the District Office at 4777 E Highway 80, reconstruct, and extend the existing Categorical Exclusion Determination Mesquite, TX 75150; telephone: (214) roadway. The proposed project length is approved on June 12, 2020 and other 320–4480. approximately 9.8 miles. The purpose of documents in the TxDOT project file. 27. US 80 from IH 30 to FM 460 in the project is to improve mobility and The Categorical Exclusion Dallas and Kaufman Counties, Texas. connectivity. The actions by TxDOT and Determination and other documents in The proposed project would consist of Federal agencies and the laws under reconstruction and widening to four the TxDOT project file are available by which such actions were taken are mainlanes in each direction and contacting TxDOT at the address described in the Final Environmental provided above or the TxDOT Paris reconstruction of the frontage roads, Assessment (EA) approved on May 1, District Office at 1365 N Main St., Paris, ramps, and bridge structures within the 2020, Finding of No Significant Impact TX 75460; telephone (903) 737–9213. US 80 project limits. The length of the 25. FM 664 From IH 35 East to IH 45 proposed project is approximately 11 (FONSI) issued on July 20, 2020 and in Ellis County, Texas. The proposed miles. The purpose of the proposed other documents in the TxDOT project project would widen and reconstruct project is to meet current roadway file. The final environmental FM 664 within the proposed limits from design standards, reduce congestion, assessment, FONSI, and other a two/four-lane undivided rural improve mobility, and meet anticipated documents in the TxDOT project file are roadway to a six-lane rural, curb and traffic demand with the project limits. available by contacting TxDOT at the gutter facility with a raised median. A The actions by TxDOT and Federal address provided above or the TxDOT 2.5-mile bypass south of the City of agencies and the laws under which such Pharr District Office at 600 W Ferris would be constructed on new actions were taken are described in the Expressway 83, Pharr, TX 78577; location to connect to a new interchange Final Environmental Assessment (EA) telephone (956) 702–6100. at IH 45. Major interchanges are approved on April 13, 2020, Finding of Authority: 23 U.S.C. 139(l)(1). proposed at IH 35 and IH 45. The length No Significant Impact (FONSI) issued of the proposed project is approximately on April 13, 2020 and other documents Issued on: July 29, 2020. 9.96 miles. The purpose of the proposed in the TxDOT project file. The EA and Michael T. Leary, project is to alleviate traffic congestion, other documents are available by Director, Planning and Program Development, accommodate future traffic, and contacting TxDOT at the address Federal Highway Administration. improve mobility and safety. The provided above or the TxDOT Dallas [FR Doc. 2020–16935 Filed 8–7–20; 8:45 am] actions by TxDOT and Federal agencies District Office at 4777 E Highway 80, BILLING CODE 4910–22–P and the laws under which such actions Mesquite, TX 75150; telephone: (214) were taken are described in the Final 320–4480. Environmental Assessment (EA) 28. IH 35W from Dale Earnhardt Way approved on January 23, 2020, Finding to IH 35E/IH 35W Interchange in Denton

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DEPARTMENT OF TRANSPORTATION and is sufficient to evaluate the 19. Coastal Zone Management Act of environmental impacts of the 1972 Federal Highway Administration connections that originate in downtown 20. Coastal Zone Management Act Long Beach at the south end and Reauthorization Amendments of Notice of Final Federal Agency Actions terminate at the bridge’s connection to 1990 on Proposed Highway in California SR–710 at the north end because the 21. Executive Order 11988, Floodplain AGENCY: Federal Highway Project purpose is to modernize the Management Administration (FHWA), Department of structure and geometrics of the bridge 22. Department of Transportation (DOT) Transportation (DOT). and to facilitate planned projects Executive Order 5650.2— Floodplain Management and ACTION: Notice of Limitation on Claims adjacent to the bridge. Protection (April 23, 1979) for Judicial Review of Actions by the The actions by the Federal agencies, and the laws under which such actions 23. Rivers and Harbors Appropriation California Department of Transportation Act of 1899, Sections 9 and 10 (Caltrans). were taken, are described in the Final Environmental Impact Report (FEIR)/ 24. Title VI of the Civil Rights Act of SUMMARY: The FHWA, on behalf of Finding of No Significant Impact 1964, as amended 25. Executive Order 12898, Federal Caltrans, is issuing this notice to (FONSI) for the project, issued on June Actions to Address Environmental announce actions taken by Caltrans, that 30, 2020, and in other documents in Justice and Low-Income are final. The actions relate to a Caltrans’ project records. The FEIR/ Populations proposed highway project, replacement FONSI and other project records are of Shoemaker Bridge at State Route 710 available by contact Caltrans at the (Catalog of Federal Domestic Assistance at the Los Angeles River in the City of addresses provided above. The Caltrans Program Number 20.205, Highway Planning Long Beach, County of Los Angeles, FEIR/FONSI and other project records and Construction. The regulations State of California. Those actions grant implementing Executive Order 12372 can be viewed and downloaded at the regarding intergovernmental consultation on licenses, permits, and approvals for the following City of Long Beach Federal programs and activities apply to this project. Shoemaker Bridge Project website. program.) DATES: By this notice, the FHWA, on This notice applies to all Federal Authority: 23 U.S.C. 139(l)(1) behalf of Caltrans, is advising the public agency decisions as of the issuance date of final agency actions subject to 23 of this notice and all laws under which Issued on: August 4, 2020. U.S.C. 139(l)(1). A claim seeking such actions were taken, including but Rodney Whitfield, judicial review of the Federal agency not limited to: Director, Financial Services, Federal Highway actions on the highway project will be 1. Council on Environmental Quality Administration, California Division. barred unless the claim is filed on or Regulations [FR Doc. 2020–17451 Filed 8–7–20; 8:45 am] before January 7, 2021. If the Federal 2. National Environmental Policy Act of BILLING CODE 4910–RY–P law that authorizes judicial review of a 1969, as amended, 42 U.S.C. 4321 et claim provides a time period of less seq. than 150 days for filing such a claim, 3. Federal-Aid Highway Act of 1970, 23 DEPARTMENT OF THE TREASURY then that short time period applies. U.S.C. 109 FOR FURTHER INFORMATION CONTACT: For 4. MAP–21, the Moving Ahead for Financial Crimes Enforcement Network Caltrans: Jason Roach, Senior Progress in the 21st Century Act Environmental Planner/Branch Chief, (Pub. L. 112–141) Agency Information Collection Caltrans Division of Environmental 5. Clean Air Act Amendments of 1990 Activities; Proposed Renewal; Planning, District 7, 100 South Main (CAAA) Comment Request; Renewal Without Street, Los Angeles, CA 90012. Office 6. Clean Water Act of 1977 and 1987 Change of Information Collection Hours: 8:00 a.m.–5:00 p.m., Pacific 7. Federal Water Pollution Control Act Requirements in Connection With the Standard Time, telephone (213) 266– of 1972 (see Clean Water Act of Imposition of a Special Measure 3805 or email [email protected]. 1977 & 1987) Concerning Bank of Dandong as a For FHWA, contact David Tedrick at 8. Federal Land Policy and Management Financial Institution of Primary Money (916) 498–5024 or email david.tedrick@ Act of 1976 (Paleontological Laundering Concern dot.gov. Resources) AGENCY: Financial Crimes Enforcement SUPPLEMENTARY INFORMATION: Effective 9. Noise Control Act of 1972 Network (FinCEN), Treasury. July 1, 2007, FHWA assigned, and 10. Safe Drinking Water Act of 1944, as ACTION: Notice and request for Caltrans assumed, environmental amended comments. responsibilities for this project pursuant 11. Endangered Species Act of 1973 to 23 U.S.C. 327. Notice is hereby given 12. Executive Order 11990, Protection of SUMMARY: As part of its continuing effort that Caltrans has taken final agency Wetlands to reduce paperwork and respondent actions subject to 23 U.S.C. 139(l)(1) by 13. Executive Order 13112, Invasive burden, FinCEN invites comment on a issuing licenses, permits, and approvals Species renewal, without change, to information for the following highway project in the 14. Executive Order 13186, Migratory collection requirements finalized on State of California. Birds November 8, 2017, imposing a special Caltrans in corporation with the City 15. Fish and Wildlife Coordination Act measure with respect to Bank of of Long Beach proposes a bridge of 1934, as amended Dandong as a financial institution of replacement project at State Route 710 16. Migratory Bird Treaty Act primary money laundering concern. (SR–710). The proposed Project would 17. Water Bank Act Wetlands Mitigation This request for comments is being reconstruct Shoemaker Bridge and Banks, ISTEA 1991, Sections 1006– made pursuant to the Paperwork realign local street connections to the 1007 Reduction Act of 1995. bridge. The proposed Project limits 18. Wildflowers, Surface Transportation DATES: Written comments are welcome serve as logical termini, or rational end and Uniform Relocation Act of 1987 and must be received on or before points for transportation improvements Section 130 October 9, 2020.

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ADDRESSES: Comments may be exist for concluding that a foreign measure against Bank of Dandong as a submitted by any of the following jurisdiction, financial institution, class financial institution of primary money methods: of transactions, or type of account is of laundering concern pursuant to the • Federal E-rulemaking Portal: http:// primary money laundering concern, to authority contained in 31 U.S.C. 5318A. www.regulations.gov. Follow the require domestic financial institutions See 31 CFR 1010.660. .instructions for submitting comments. and financial agencies to take certain Type of Review: Renewal without Refer to Docket Number FINCEN–2020– special measures to address the primary change of a currently approved 0008 and the specific Office of money laundering concern. collection. Management and Budget (OMB) control FinCEN may impose one or more of Affected Public: Businesses or other number 1506–0072. these special measures in order to for-profit institutions, and not-for-profit • Mail: Global Investigations protect the U.S. financial system from institutions. Division, Financial Crimes Enforcement these threats. Special measures one Frequency: One time notification. See Network, P.O. Box 39, Vienna, VA through four, codified at 31 U.S.C. 31 CFR 1010.660(b)(3)(i)(A) and 22183. Refer to Docket Number 5318A(b)(1)–(b)(4), impose additional 1010.660(b)(4)(i). FINCEN–2020–0008 and OMB control recordkeeping, information collection, Estimated Number of Respondents: 6 number 1506–0072. and reporting requirements on covered 17,063. Please submit comments by one U.S. financial institutions. The fifth Estimated Time per Respondent: 1 method only. All comments submitted special measure, codified at 31 U.S.C. hour. Estimated Total Annual Burden: in response to this notice will become 5318A(b)(5), allows FinCEN to impose a matter of public record. Therefore, you 17,063 hours. prohibitions or conditions on the When the final rule was published on should submit only information that opening or maintenance of certain November 8, 2017, the number of you wish to make publicly available. correspondent accounts. financial institutions affected by the FinCEN issued a final rule on FOR FURTHER INFORMATION CONTACT: The rule was estimated at 5,000. FinCEN has November 8, 2017, imposing the fifth FinCEN Regulatory Support Section at since revised the estimated number of special measure to prohibit covered U.S. [email protected]. affected financial institutions upward to financial institutions from opening or SUPPLEMENTARY INFORMATION: account for all domestic financial maintaining a correspondent account institutions that could potentially I. Statutory and Regulatory Provisions for, or on behalf of, Bank of Dandong.3 maintain correspondent accounts for The rule further requires covered U.S. The legislative framework generally foreign banks, and recognizing that, financial institutions to apply due referred to as the Bank Secrecy Act under the final rule, covered financial diligence to their correspondent (BSA) consists of the Currency and institutions are required to apply due accounts that is reasonably designed to Financial Transactions Reporting Act of diligence to their correspondent guard against their use by Bank of 1970, as amended by the Uniting and accounts that is reasonably designed to Dandong.4 It also requires covered Strengthening America by Providing guard against their indirect use by Bank Appropriate Tools Required to Intercept institutions to apply special due diligence to their foreign correspondent and Obstruct Terrorism Act of 2001 6 The Estimated Number of Respondents is based (USA PATRIOT Act) (Pub. L. 107–56) accounts that is reasonably designed to on the sum of the following numbers: and other legislation. The BSA is guard against their use to process • 5,306 banks—according to the Federal Deposit codified at 12 U.S.C. 1829b, 12 U.S.C. transactions involving Bank of Dandong. Insurance Corporation (FDIC) there were 5,103 1951–1959, 31 U.S.C. 5311–5314 and The notification requirement in 31 FDIC-insured banks as of March 31, 2020. CFR 1010.660(b)(3)(i)(A) is intended to According to the Federal Reserve Board (FRB), there 5316–5332, and notes thereto, with were 203 other entities supervised by the FRB, as implementing regulations at 31 CFR enhance cooperation from of June 16, 2020, that fall within the definition of Chapter X. correspondent account holders in bank. (20 Edge Act institutions, 15 agreement The BSA authorizes the Secretary of preventing Bank of Dandong from corporations, and 168 foreign banking accessing to the U.S. financial system. organizations). the Treasury, inter alia, to require • 5,236 federally-insured credit unions— financial institutions to keep records The information financial institutions according to the National Credit Union and file reports that are determined to are required to maintain pursuant to Administration there were 5,236 federally regulated have a high degree of usefulness in section 1010.660(b)(4)(i) will be used by credit unions as of December 31, 2019. • criminal, tax, and regulatory matters, or federal agencies and certain self- 125 privately-insured credit unions—according regulatory organizations to verify to the General Accountability Office, PRIVATE in the conduct of intelligence or DEPOSIT INSURANCE: Credit Unions Largely counter-intelligence activities, to protect compliance by covered financial Complied with Disclosure Rules, but Rules Should against international terrorism, and to institutions with the provisions of 31 Be Clarified, March 2017. implement counter-money laundering CFR 1010.660. • 1,104 introducing brokers—according to the 1 Commodities and Futures Trading Commission programs and compliance procedures. II. Paperwork Reduction Act of 1995 (CFTC), there were 1,104 introducing brokers in Regulations implementing Title II of the (PRA) 5 commodities registered with the CFTC as of March BSA appear at 31 CFR Chapter X. The 31, 2020. authority of the Secretary to administer Title: Information Collection • 61 futures commission merchants—according the BSA has been delegated to the Requirements in Connection With the to the CFTC, there were 61 futures commission merchants registered with the CFTC, as of March Director of FinCEN.2 Imposition of a Special Measure Against Bank of Dandong, a Financial Institution 31, 2020. Section 311 of the USA PATRIOT Act • 3,640 broker/dealers—according to the (Section 311), codified at 31 U.S.C. of Primary Money Laundering Concern. Securities and Exchange Commission (SEC), there 5318A, grants FinCEN the authority, OMB Control Number: 1506–0072. were 3,640 brokers or dealers in securities Abstract: FinCEN is issuing this registered with the SEC, as of March 31, 2020. upon finding that reasonable grounds notice to renew the OMB control • 1,591 mutual funds—according to the SEC, number for the imposition of a special there were approximately 1,591 mutual funds in 1 Section 358 of the USA PATRIOT Act added 2017, based on forms filed with the SEC. The SEC language expanding the scope of the BSA to provided the estimate to FinCEN for the last intelligence or counter-intelligence activities to 3 82 FR 51765. renewal of OMB control number 1506–0033 (83 FR protect against international terrorism. 4 See 31 CFR 1010.660. 46012, Sept. 11, 2018). FinCEN was unable to 2 Treasury Order 180–01 (January 14, 2020). 5 Public Law 104–13, 44 U.S.C. 3506(c)(2)(A). obtain a more recent estimate.

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of Dandong. There are approximately regulatory and law enforcement quality, utility, and clarity of the 17,063 such financial institutions doing authorities. information to be collected; (d) ways to business in the United States. As noted, Request for Comments: Comments minimize the burden of the collection of this revision should not have a submitted in response to this notice will information on respondents, including significant impact on a substantial be summarized and/or included in the through the use of automated collection number of small entities. request for OMB approval. All techniques or other forms of information An agency may not conduct or comments will become a matter of technology; and (e) estimates of capital sponsor, and a person is not required to public record. Comments are invited on: or start-up costs and costs of operation, respond to, a collection of information (a) Whether the collection of maintenance, and purchase of services unless it displays a valid control information is necessary for the proper to provide information. number assigned by OMB. Records performance of the functions of the required to be retained under the BSA agency, including whether the Michael Mosier, must be retained for five years. information shall have practical utility; Deputy Director, Financial Crimes Generally, information collected (b) the accuracy of the agency’s estimate Enforcement Network. pursuant to the BSA is confidential but of the burden of the collection of [FR Doc. 2020–17408 Filed 8–7–20; 8:45 am] may be shared as provided by law with information; (c) ways to enhance the BILLING CODE 4810–02–P

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Part II

Department of the Interior

Fish and Wildlife Service 50 Part 17

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 Endangered and Threatened Wildlife; 12-Month Finding on a Petition To Identify the Northwest Atlantic Leatherback Turtle as a Distinct Population Segment and List It as Threatened Under the Endangered Species Act; Final Rule

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DEPARTMENT OF INTERIOR DATES: This finding was made on additional details, please see the Status August 10, 2020. Review Report (see ADDRESSES). Fish and Wildlife Service ADDRESSES: The Status Review Report ESA Statutory, Regulatory, and Policy are available on NMFS’ website at Provisions and Evaluation Framework 50 Part 17 https://www.fisheries.noaa.gov/species/ leatherback-turtle. Under the ESA, the term ‘‘species’’ includes any subspecies of fish or FOR FURTHER INFORMATION CONTACT: wildlife or plants, and any DPS of any DEPARTMENT OF COMMERCE Jennifer Schultz, NMFS Office of vertebrate fish or wildlife which Protected Resources, (301) 427–8443, interbreeds when mature (16 U.S.C. National Oceanic and Atmospheric [email protected]. Persons who Administration 1532(16)). The Services adopted a joint use a Telecommunications Device for policy clarifying their interpretation of the Deaf (TDD) may call the Federal 50 CFR Parts 223 and 224 the phrase ‘‘distinct population Information Relay Service (FIRS) at segment’’ for the purposes of listing, [Docket No. 200717–0190] 1–800–877–8339, 24 hours a day and 7 delisting, and reclassifying a species days a week. RIN 0648–XF748 under the ESA (‘‘Policy Regarding the SUPPLEMENTARY INFORMATION: Recognition of Distinct Vertebrate Endangered and Threatened Wildlife; Background Population Segments Under the 12-Month Finding on a Petition To Endangered Species Act,’’ 61 FR 4722 The leatherback turtle species as a Identify the Northwest Atlantic (Feb. 7, 1996; ‘‘DPS Policy’’). The DPS whole was listed as an endangered Leatherback Turtle as a Distinct Policy stipulates two elements that must species (one determined to be Population Segment and List It as be considered: (1) Discreteness of the threatened with worldwide extinction) Threatened Under the Endangered population segment in relation to the (35 FR 8491; June 2, 1970), under the Species Act remainder of the species to which it Endangered Species Conservation Act of belongs; and (2) the significance of the AGENCY: National Marine Fisheries 1969, the precursor statute to the ESA population segment to the species to Service (NMFS), National Oceanic and (16 U.S.C. 1531 et seq.). When the ESA which it belongs. Atmospheric Administration (NOAA), was enacted in 1973, it specifically Section 3 of the ESA defines an Commerce; U.S. Fish and Wildlife provided for continuity with the lists endangered species as any species Service (USFWS), Interior. previously in effect under the which is in danger of extinction ACTION: Notification of 12-month Endangered Species Conservation Act. throughout all or a significant portion of petition finding. Section 4(c)(3) of the ESA directed that its range and a threatened species as one species on the lists of endangered which is likely to become an SUMMARY: We, NMFS and USFWS, foreign or native wildlife at the time the endangered species within the announce a 12-month finding on a ESA took effect would be deemed foreseeable future throughout all or a petition to identify the Northwest ‘‘endangered species’’ under the ESA significant portion of its range (16 Atlantic population of the leatherback without interruption. See 39 FR 1444 U.S.C. 1532(6) and (20)). Thus, we turtle (Dermochelys coriacea) as a (January 9, 1974) (explaining transition interpret an ‘‘endangered species’’ to be distinct population segment (DPS) and provisions); 39 FR 1158, 1172 (January one that is presently in danger of list it as threatened under the 4, 1974) (setting out the final list of extinction. A ‘‘threatened species,’’ on Endangered Species Act (ESA). In ‘‘endangered foreign wildlife,’’ the other hand, is not presently in response to the petition, we completed including ‘‘Turtle, Leatherback’’ at 50 danger of extinction, but is likely to a comprehensive status review of the CFR 17.11). become so within the foreseeable future species, which also constitutes the 5- On September 20, 2017, the Blue (that is, within a specified later time). In year review of the species, to determine Water Fishermen’s Association other words, the primary statutory potential DPSs following the Policy petitioned NMFS and USFWS (together, difference between a threatened and Regarding the Recognition of Distinct the Services) to identify the Northwest endangered species is the timing of Vertebrate Population Segments Under (NW) Atlantic leatherback turtle when a species may be in danger of the ESA and to perform extinction risk population as a DPS and to list it as extinction, either presently analyses. Based on the best scientific threatened under the ESA. On December (endangered) or within the foreseeable and commercial data available, 6, 2017, NMFS published a ‘‘positive’’ future (threatened). The ESA uses the including the Status Review Report, and 90-day finding in the Federal Register term ‘‘foreseeable future’’ to refer to the after taking into account efforts made to (82 FR 57565) announcing the time over which identified threats are protect the species, we conclude that determination that the petition likely to impact the biological status of seven populations would meet the presented substantial information the species. The duration of the discreteness and significance criteria for indicating that the petitioned action ‘‘foreseeable future’’ in any recognition as DPSs, including the may be warranted. At that time, NMFS circumstance is inherently fact-specific Northwest Atlantic population. also solicited information on and depends on the particular kinds of However, even if we were to list them leatherback turtles and announced that threats, the life-history characteristics, separately, all seven DPSs would meet it would commence, jointly with and the specific habitat requirements for the definition for endangered species USFWS, a status review of the entire the species under consideration. The (i.e., they are in danger of extinction listed species, pursuant to ESA section existence of threats to a species and the throughout all or a significant portion of 4(b)(3)(A) and 50 CFR 424.14. The species’ response to such threats are not, their range). The species is already resulting Status Review Report includes in general, equally predictable or listed as endangered throughout its all information used to evaluate the foreseeable. Hence, in some cases, the range. We have determined that the petitioned actions and explains the ability to foresee a threat to a species is listing of DPSs is not warranted, and process followed by the Status Review greater than the ability to foresee the therefore we do not propose any Team (i.e., the Team). The following species’ exact response, or the changes to the existing global listing. summarizes that information; for timeframe of such a response, to that

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threat. For purposes of making this 12- received in the petition and in response with all the requirements of Section 4 of month finding, the relevant to the Federal Register request the ESA and considering agency consideration is whether the species’ associated with the 90-day finding (82 policies. Because we ultimately population response (i.e., abundance, FR 57565; December 6, 2017). The Team conclude for the reasons discussed in productivity, spatial distribution, also requested leatherback nesting data this finding that it would not be diversity) is foreseeable, not merely from beach monitoring programs. To appropriate to disaggregate the existing whether the emergence of a threat is evaluate recent abundance and trends, global listing into DPSs, references in foreseeable. The foreseeable future unpublished nesting beach monitoring the Status Review Report (and in this extends only as far as we are able to datasets were often the best available finding when we are reviewing the reliably predict the species’ population data (i.e., most recent and relevant). The information presented by the Team) response to threats. Team assessed these data in terms of must be understood as references to Pursuant to the ESA and our standardization (i.e., the use of potential or hypothetical DPSs only. implementing regulations, we determine standardized methodology), consistency The Team evaluated significance in whether a species is threatened or (i.e., consecutive seasonal data terms of the importance of the endangered based on any one or a collection), and duration of data population segment to the overall combination of the following ESA collection (i.e., the number of years that welfare of the species, such as: (1) section 4(a)(1) factors or threats (16 data were collected). When evaluating Persistence of the population segment in U.S.C. 1533(a)(1), 50 CFR 424.11(c)): threats, peer-reviewed information, an unusual or unique ecological setting; 1. The present or threatened specifically primary research with large (2) evidence that loss of the population destruction, modification, or sample sizes and long-term sampling segment would result in a significant curtailment of its habitat or range; duration, was often the best available gap in the range of the taxon; (3) 2. Overutilization for commercial, data. In some locations, reports from evidence that the DPS represents the recreational, scientific, or educational governments or non-governmental only surviving natural occurrence of a purposes; organizations and expert opinion taxon that may be more abundant 3. Disease or predation; constituted the best available elsewhere as an introduced population 4. Inadequacy of existing regulatory information. The Team also addressed outside its historic range; or (4) mechanisms; or the source and magnitude of any evidence that the population segment 5. Other natural or manmade factors uncertainty and the impact on its differs markedly from other populations affecting its continued existence, which conclusions. of the species in its genetic could include but are not limited to: characteristics. Fisheries bycatch; vessel strikes; The Team evaluated the discreteness For each population segment that the pollution (including marine debris and and significance of each population and Team determined would meet the plastics, contaminants, oil and gas provided their evaluation of whether criteria of the DPS Policy (which the activities, and derelict fishing gear); each population would meet the criteria Team and we refer to as a ‘‘DPS’’ for natural disasters; climate change; and of the DPS Policy. The DPS Policy states ease of reference), the Team performed oceanographic regime shifts. that a population of a vertebrate species an extinction risk analysis, which Section 4(b)(1)(A) of the ESA requires may be considered discrete if it satisfies involved the evaluation of demographic us to make listing determinations based one of the following conditions: (1) It is factors and threats. Demographic factors solely on the best scientific and markedly separated from other reflect the impact that operative threats commercial data available after populations of the same taxon as a have had on the species. In some cases conducting a review of the status of the consequence of physical, physiological, those threats or the impacts from the species and after taking into account ecological, or behavioral factors threats are continuing in nature. The efforts being made by any State or (quantitative measures of genetic or demographic factors included foreign nation or political subdivision morphological discontinuity may abundance, productivity, spatial thereof to protect the species’ existence provide evidence of this separation); or distribution, and diversity. Because sea (16 U.S.C. 1533(b)(1)(A)). (2) it is delimited by international turtles spend the majority of their lives governmental boundaries within which at sea, where they are spread across vast Approach to the Status Review differences in control of exploitation, distances, it is difficult to estimate total The Services convened a team of management of habitat, conservation abundance. However, the number of NMFS and USFWS biologists (i.e., the status, or regulatory mechanisms exist nesting females can be counted directly, Team) to gather and review the best that are significant in light of section or estimated indirectly by counting the available scientific and commercial data 4(a)(1)(D) of the ESA (61 FR 4722, number of nests on beaches, during a on the leatherback turtle, assess the February 7, 1996). While the Team used nesting season. Females nest more than discreteness and significance of the term ‘‘DPS’’ in describing and once in a season (i.e., clutch frequency, populations by applying the DPS Policy, discussing populations that they which is the average number of nests evaluate the extinction risk of any concluded meet the requirements of per season) and do not nest every season population segments that meet the DPS discreteness and significance, it is (i.e., remigration interval, which is the criteria, and document all findings in a important to note that the DPS term is average number of years between report (i.e., the Status Review Report). used throughout the Status Review successive nesting seasons). To Although the petitioner requested Report for ease of reference only. A DPS calculate the index of nesting female evaluation only of the NW Atlantic is formally recognized under the ESA abundance at a nesting beach, the Team leatherback population, we instructed only upon a listing action by the summed the total number of nests over the Team to perform a comprehensive Services, and the Services cannot the most recent remigration interval status review to identify and evaluate delegate authority to take formal listing (i.e., a run-sum) and divided this the status of all potential DPSs. actions to status review teams. The number by the clutch frequency. The The Team compiled information on information compiled by the Team must Team performed these calculations only leatherback turtle life history, biology, be reviewed by the Services, which if available data were recent (i.e., last ecology, demographic factors, and retain responsibility for making the year of the remigration interval occurred threats. This included the information listing determination after complying in 2014 or more recently), consistent

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(i.e., seasonal data collected for each remigration interval; clutch size; clutch Responding to Petitions and Conducting year of the remigration interval), and frequency; internesting interval; Status Reviews under the Endangered collected in a standardized manner (i.e., incubation period; hatching success (the Species Act, Section II’’ (i.e., NMFS’ data collection methods remained the proportion of eggs in a nest that produce Guidance; November 9, 2017) and in the same over the remigration interval), as live hatchlings); and sex ratio. Each of Status Review Report. further detailed in the Status Review these metrics contributes to the growth After the Team completed its draft Report. To provide a total index of rate, or reproductive potential, of the Status Review Report, the Services met nesting female abundance for each DPS, population. to review and discuss that document we summed the indices of nesting For each DPS, the Team evaluated and conservation efforts. The Services female abundance for all monitored spatial distribution, which included the based our status determinations of the beaches used by that DPS. The total number and location of nesting beaches DPSs on the best scientific and index of nesting female abundance for and foraging areas, as well as spatial commercial data available (as compiled each DPS is an index (rather than a structure (i.e., whether the DPS exists as and reflected in the Status Review census) because not all nesting beaches a single population or several Report) and after taking into account met these criteria. However, the nesting subpopulations connected by efforts by States and foreign nation, or beaches that were not included were metapopulation dynamics). The Team any political subdivision thereof, to generally unmonitored or not recently also evaluated diversity, which like protect the species as mandated by the monitored because they host few spatial distribution, is a measure of statute. resilience. In general, diverse nesting females. Even where data were DPS Analysis not sufficient to allow for a calculation populations with broad spatial of the index of nesting female distributions and metapopulation The following is a summary of the abundance, the Team provided all dynamics are more resilient to threats DPS analysis conducted by the Team. available data to ensure the analysis and environmental changes than less For a detailed description of the Team’s would be as robust as possible. diverse populations with narrow analyses of discreteness and distributions. significance, please see the Status The Team evaluated the productivity For each DPS, the Team next Review Report. As a starting point, the for each DPS by evaluating nesting evaluated each of the ESA Section Team considered seven leatherback trends (through trend analyses or bar 4(a)(1) factors (or ‘‘threats’’) as listed populations that were previously graphs) and productivity metrics. Where above (16 U.S.C. 1533(a)(1), 50 CFR identified as regional management units available data allowed it, they estimated 424.11(c)). For each threat, the Team (RMUs) by Wallace et al. (2010) and the long-term trend for individual used the best available information to recognized as subpopulations under the beaches using a Bayesian state-space describe the threat, identify which life International Union for Conservation of model of stochastic exponential stages are affected, and describe the Nature (IUCN) Red List (https:// population growth (Boyd et al. 2017), impact to the DPS with as much www.iucnredlist.org/species/6494/ where the rate parameter describes the specificity as the best available 43526147). The Team found that seven annual percent change in observed nest information allowed to link the threat to leatherback populations met the counts (or female counts where the demographic factor it affected. The discreteness and significance criteria applicable) over the period of data best available data often allow only for per the DPS Policy and identified the collection. This is further explained in qualitative assessment. For each DPS, following potential DPSs: Northwest the Status Review Report. To reflect the Team identified the primary (NW) Atlantic; Southwest (SW) Atlantic; current trends over approximately three threat(s) to its continued existence, as Southeast (SE) Atlantic; SW Indian; remigration intervals, the criteria for well as other threats. The Team Northeast (NE) Indian; West Pacific; and trend analyses were as follows: Nesting considered the impact of each threat East Pacific. data (i.e., nest or nesting female counts) individually, with the primary threat(s) consistently collected over nine or more given the greatest weight, and all threats Discreteness years in a standardized manner (for that cumulatively, to determine the The Team evaluated all populations site), with the most recent data extinction risk. To assess confidence in for discreteness and determined that collection in 2014 or later and with a the extinction risk determination, the each showed marked separation from minimum average number of nests of 50 Team identified any sources of the others as a consequence of annually. The Team reported the uncertainty and the impact of behavioral and physical factors. median trend, along with the standard uncertainty on the conclusions. They Behavioral factors, especially returning deviation (sd), 95 percent credible analyzed all threats assuming the DPS to waters off a turtle’s natal beach to interval (CI), and an ‘‘f statistic’’ which had lost ESA protections going forward breed, have prevented interbreeding, is the proportion of the posterior because a DPS would not receive such resulting in reproductive isolation, as distribution with the same sign as the protections if it was not listed under the indicated by genetic discontinuity. median (i.e., the confidence that the ESA. For example, a DPS would not Although some populations use the trend is positive or negative). When the have benefits of section 9 take same foraging areas, tagging and data did not meet the criteria for prohibitions or section 7 consultations telemetry studies also demonstrate the performing trend analyses, the Team on actions that may affect the DPS. discreteness of the populations at provided bar graphs and/or historical The Team performed an extinction nesting beaches. Physical factors, such data in the Status Review Report. Based risk assessment for each of the seven as land masses, ocean currents, and on the trend analysis (where possible) DPSs by evaluating the demographic other oceanographic features, have and the best available historical data, factors and threats, as described above. established and reinforced barriers to the Team characterized the nesting Then, the Team voted, based on the best gene flow among the seven populations. trend for each DPS as decreasing, stable, available data, on whether the Genetic data provide the most or increasing. The Team also evaluated extinction risk of each DPS was high, compelling evidence for discreteness the following productivity metrics (if moderate, or low, following the among the seven populations. The most available): Average size of nesting definitions included in NMFS’ internal recent and comprehensive global female; nesting female survivorship; guidance document, ‘‘Guidance on analysis of published and unpublished

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mitochondrial deoxynucleic acid Dutton et al. 1999) and the West Pacific turtles return to their natal beaches to (mtDNA) sequence data (i.e., 28 population (X2 = 49.346, P = 0.002; nest on opposite sides of the Atlantic haplotypes, which are unique sequences Dutton et al. 2007). There is genetic Ocean (Dutton et al. 2013; Vargas et al. of mtDNA) evaluated samples collected discontinuity between the West and 2017), and no tag recoveries contradict from 21 nesting sites representing key East Pacific populations, as these data. regions from all ocean basins (Dutton et demonstrated by significant genetic In the Indian Ocean, telemetry studies al. 2007; Dutton et al. 2013; Shanker et differentiation between the samples have been conducted at South African al. 2011; Dutton and Shanker 2015); from Solomon Islands in the western nesting beaches in the SW Indian Ocean analyzing the evolutionary relationship Pacific and Mexico or Costa Rica in the (Hughes et al. 1998; Luschi et al. 2006; of these data revealed three distinct eastern Pacific (FST = 0.270 and 0.331, Robinson et al. 2016) and at Andaman haplogroups (i.e., similar haplotypes P <0.001; Dutton et al. 1999). Genetic Islands nesting beaches in the NE Indian that cluster together, relative to other discontinuity among all seven Ocean (Namboothri et al. 2012; haplotypes) that are geographically populations provides evidence for Swaminathan et al. 2019). South segregated across the Atlantic, Indian, marked separation from the others and African nesting females showed diverse and Pacific Oceans (Dutton, thus discreteness of each population. movements that were highly influenced unpublished data; NMFS and USFWS Tagging and telemetry studies confirm by complex oceanographic currents and 2020). Early mtDNA analyses indicated marked separation of the seven features that lead them to foraging strong genetic discontinuity, globally populations because nesting sites destinations in the South Atlantic (FST = 0.415, P <0.001) and within ocean remain distant and isolated. Nesting Ocean, SW Indian Ocean, and basins (FST = 0.203 to 0.253, P <0.001; females of one population have not been Mozambique Channel (Hughes et al. Dutton et al. 1999). Wallace et al. (2010) tracked to, or observed on, beaches used 1998, Luschi et al. 2006, Robinson et al. combined these and other genetic data by another population, even though 2016). About half of the 10 post-nesting with nesting, flipper tagging, and telemetry data indicate shared use of females tagged at the Andaman Islands satellite telemetry data to identify seven foraging areas by different populations. moved westward: Two individuals leatherback RMUs, which provided the Telemetry studies demonstrate that reached the Mozambique Channel; the starting point for our identification of females nesting on NW Atlantic beaches other half moved southeastward, past discrete populations. move throughout most of the North the Indonesian islands of Sumatra and Atlantic from the Equator to about 50° Java, with one leatherback reaching an From this starting point, the Team N latitude (Ferraroli et al. 2004; Hays et apparent foraging ground off NW then evaluated more recent genetic data. al. 2004; James et al. 2005a; James et al. Australia before transmissions stopped Subsequent genetic analyses confirmed 2005b; 2005c; Eckert 2006a; Eckert et al. (Namboothri et al. 2012; Swaminathan genetic discontinuity among the NW, 2006b; Hays et al. 2006; Doyle et al. et al. 2019). Despite overlap in one SW, and SE Atlantic populations 2008; Evans 2008; Dodge et al. 2014; foraging area (i.e., reaching the (Wallace et al. 2010; Dutton et al. 2013; Fossette et al. 2014; Aleksa 2017; Aleksa Mozambique Channel), tagging data do Carreras et al. 2013; Molfetti et al. 2013; et al. 2018). Turtles originating from not indicate movement between the Vargas et al. 2017). Elevated genetic beaches of the NW Atlantic appear to distant nesting beaches. differentiation at nuclear DNA (FST = mix at foraging areas throughout the Within the Pacific Ocean, nearly all ¥ 0.211 0.86) indicates that males, like North Atlantic Ocean (Fossette et al. turtles tracked from East Pacific nesting females, likely return to the waters off 2014), but their movements rarely beaches moved southward across the their natal beaches to mate and that extend into waters south of the Equator. Equator to forage in open-ocean waters male-mediated gene flow may not be as Tagging studies further support the of the SE Pacific Ocean or in the coastal pronounced as previously thought connectivity within and among nesting waters of Central America, Peru, and (Dutton et al. 2013; see Jensen et al. beaches and foraging areas of the North Chile. The movements of post-nesting 2013). Nuclear (FST >0.126, P <0.001; Atlantic Ocean (Troe¨ng et al. 2004; females from the West Pacific Ocean are Dutton et al. 2013) and mtDNA (FST Bra¨utigam and Eckert 2006; Chaco´n- dependent on the season in which they >0.061, P = 0.05¥0.001; Dutton et al. Chaverri and Eckert 2007; Turtle Expert nest, with winter-nesting females 2013; FST >0.061, P <0.01; Vargas et al. Working Group (TEWG) 2007; So¨nmez predominantly tracked into the 2017) analyses indicate genetic et al. 2008; Dutton et al. 2013b; Southern Hemisphere and summer- discontinuity between the Atlantic Horrocks et al. 2016), but turtles tagged nesting females foraging in diverse populations and the SW Indian in the North Atlantic Ocean have never coastal and oceanic ecosystems population. Preliminary mtDNA results been found on nesting beaches in Brazil throughout the northern Indo-Pacific for leatherback turtles nesting at Little (SW Atlantic population) or Africa (SE region (Benson et al. 2011). Telemetry Andaman Island, India (Shanker et al. Atlantic population). In the South data indicate little or no overlap with 2011; Dutton and Shanker 2015), Atlantic Ocean, post-nesting females foraging destinations utilized by nesting indicate that this population is closely tracked from nesting beaches in Gabon females of the East and West Pacific related to the extinct Malaysian and Brazil use the same foraging areas, populations (Bailey et al. 2012; Benson population, with which it shares including waters off SW Africa, in the et al. 2011). However, a genetic study of common haplotypes. It is markedly south equatorial Atlantic and off SE bycaught turtles off the coast of Chile different from the South African nesting Brazil and Uruguay (Almeida et al. and Peru indicated that 15 percent of population, as well as those in the West 2011; Witt et al. 2011). Turtles leatherback turtles originated from West Pacific population (Dutton et al. 2007, incidentally captured in fisheries off Pacific nesting beaches (Donoso and 2013 and unpublished). Samples from South America (Billes et al. 2006, Dutton 2010), suggesting that foraging extant and extirpated nesting Lo´pez-Mendilaharsu et al. 2009) also overlap may be more prevalent than aggregations of the NE Indian demonstrate that turtles originating from estimated by telemetry data. Still, there population (Shanker et al. 2011; Dutton the SW and SE Atlantic Ocean beaches is no genetic evidence for contemporary and Shanker 2015; Dutton et al. share foraging areas. Despite such interbreeding between the two unpublished data) are genetically mixing at foraging areas, there is no populations (Dutton et al. 2007), and differentiated from the SW Indian evidence for the shared use of nesting telemetry and tagging data do not population (FST = 0.415, P <0.003; beaches. Genetic data indicate that indicate movement between the distant

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nesting beaches. Thus, flipper tagging their life stages within the North occur in a unique ecological setting; this and satellite telemetry data support the Atlantic (Fossette et al. 2010; Chambault is the only DPS that regularly forages at marked separation, and thus et al. 2017). The SE and SW Atlantic high latitudes. Sightings have been discreteness, of the seven populations at populations are similarly retained in the documented as far north as Norway and their nesting beaches. South Atlantic Ocean by the South Iceland (Brongersma 1972; Goff and Physical factors likely shape and Atlantic Gyre and the Benguela Current, Lien 1988; Carriol and Vader 2002; reinforce the behavior patterns that which flows northward along the SE McMahon and Hayes 2006; Eckert et al. result in reproductive isolation. Though coast of Africa, restricting movement 2012). Such high latitude foraging is the species has a global range, with into the Indian Ocean. Within the likely facilitated by the warm Gulf foraging areas extending into high Indian Ocean, the Somali Current runs Stream, which meets cold water latitudes, nesting mainly occurs on between the nesting beaches of the SW currents to create highly productive tropical or subtropical beaches. Post- and NE Indian populations. The NE foraging areas. The Team concluded that hatchling dispersal is determined by the Indian and West Pacific populations the NW Atlantic population is ocean currents they encounter off likely became isolated as a result of biologically significant to the species. nesting beaches. While adults move exposed land barriers between In the SW Atlantic Ocean, leatherback throughout tropical and temperate Indonesia, New Guinea, and the turtles only nest in a small area of the waters irrespective of ocean currents, Philippines as a result of low sea levels coastline of Brazil. All other nesting in both males and females return to the within the past 6,000 years (Barber et al. South America occurs above the Equator or on the Pacific Coast. Therefore, the waters off their natal nesting beach to 2000). Seasonal monsoons may also loss of this population would result in mate. This natal homing is somewhat play a contemporary role by altering a gap of the nesting range of the species flexible, (Dutton et al. 2013; Jensen et al. current directions and hatchling (i.e., the SW Atlantic coast). Although 2013), creating reproductive isolation dispersal patterns (Benson et al. 2011; SE Atlantic leatherback turtles forage off only among distant nesting sites, which Gaspar et al. 2012). Thus, physical the coasts of Brazil, Argentina, and may also be physically separated from factors have likely helped to shape, or Uruguay, they do not breed there. one another by land masses and at least reinforce, the reproductive isolation among distant nesting beaches. Rather, they return to the waters off oceanographic barriers to gene flow. For Based on these data, the Team western Africa to mate (Vargas et al. example, leatherback turtles in the concluded that the seven populations 2017). Therefore, if the SW Atlantic Atlantic Ocean are physically separated demonstrate discreteness, or marked population were extirpated, it is from those in the Pacific Ocean by the separation from each other, due to unlikely that leatherback turtles from Americas. Though leatherback turtles behavioral and physical factors. These other populations would recolonize this have greater cold tolerance than other are the NW Atlantic, SW Atlantic, SE region, leaving a significant gap in the sea turtles, they do not appear to Atlantic, SW Indian, NE Indian, West nesting range of the species. The venture into latitudes greater than 47° S ° Pacific, and East Pacific populations. extirpation of this population would or 71 N (Eggleston 1971; Eckert et al. also significantly reduce the genetic Significance 2012). Therefore, the low latitude and diversity of the species, as reflected by cold waters of the Cape Horn Current Each of the discrete populations is the possession of unique haplotypes and likely prevent movement between the significant to the species because the high genetic diversity, despite the small Atlantic and Pacific Oceans. Within loss of any one would result in a population size (Vargas et al. 2017). The ocean basins, nesting beaches of the significant gap (i.e., a half or quarter of SW Atlantic population is biologically discrete populations are separated by an ocean basin) in the range of the significant to the species. long distances of uninterrupted deep species. Several populations also persist Leatherback turtles of the SE Atlantic water (e.g., the East Pacific Barrier and in unique ecological settings. Each population nest in West Africa and the mid-Atlantic Barrier). While population likely possesses unique forage in the South Atlantic Ocean. This leatherback turtles clearly cross these genetic characteristics and local population is much more abundant than open-ocean barriers to reach distant adaptations as a result of thousands of the SW Atlantic population, which also foraging areas, they do not appear to do years of reproductive isolation, but none forages in the South Atlantic Ocean. so for nesting and breeding, but rather have yet been identified because all Therefore, the loss of this population return to their natal region to breed and genetic studies have involved neutral would result in a gap of the nesting nest (Barragan et al. 1998; Dutton et al. markers. Therefore, the Team did not range of the species (i.e., western Africa) 1999; Barragan and Dutton 2000; Dutton rely on evidence of unique genetic and a significant reduction in the et al. 2013). Within ocean basins, characteristics and local adaptations for abundance of leatherback turtles currents shape post-hatchlings’ its significance finding. foraging throughout the South Atlantic movement patterns, which they may A loss of the NW Atlantic population Ocean. The extirpation of this retain as adults (e.g., Fossette et al. would result in a gap (i.e., the entire population would also significantly 2010; Benson et al. 2011). The NW North Atlantic Ocean) of the nesting and reduce the genetic diversity of the Atlantic leatherback population appears foraging range of the species. If the NW species, as reflected by the possession of to be physically separated from the SE Atlantic population were extirpated, it unique haplotypes. The Team and SW Atlantic populations by the is unlikely that leatherback turtles from concluded that the SE Atlantic current systems of the South and North other populations would recolonize the population is biologically significant to Atlantic Gyres, respectively. NW North Atlantic Ocean in an ecological the species. Atlantic leatherback nesting beaches are time frame (i.e., tens to hundreds of In the SW Indian Ocean, leatherback adjacent to northward moving currents years), leaving a significant gap in the turtles only nest in a small area along (e.g., Gulf Stream). Leatherback range of the species. Extirpation of this the South African and Mozambican hatchlings from these nesting beaches, population would also significantly coastlines. No other leatherback turtles therefore, are transported northward, reduce the genetic diversity of the nest in eastern Africa or in other areas remaining in the North Atlantic Ocean. species, as reflected by the possession of throughout the entire western Indian Those that survive return to their several unique haplotypes. Leatherback Ocean. Therefore, the loss of this nesting beaches as adults, completing turtles of the NW Atlantic Ocean also population would result in a gap of the

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nesting range of the species (i.e., the SW leatherback turtles from other analysis for each DPS, and in the Status Indian Ocean). The SW Indian populations would recolonize this Review Report. population also occurs in a unique region, leaving a significant gap in the NW Atlantic DPS ecological setting: It is the only nesting range of the species. The population to nest on temperate extirpation of this population would The Team defined the NW Atlantic beaches. The warm Agulhas Current, also significantly reduce the genetic DPS as leatherback turtles originating adjacent to the nesting beaches, likely diversity of the species, as the from the NW Atlantic Ocean, south of ° facilitates their high-latitude nesting. population possess several unique 71 N, east of the Americas, and west of The Team concluded that the SW Indian haplotypes. The East Pacific population Europe and northern Africa; the population is biologically significant to is unique in having the smallest nesting southern boundary is a diagonal line ° ° the species. female size, clutch size, and egg size of between 5.377 S, 35.321 W and ° ° Leatherback turtles nest in small all populations, possibly reflecting 16.063 N, 16.51 W. The northern numbers in the NE Indian Ocean. These unique foraging conditions that are boundary reflects a straight latitudinal nesting sites are separated from other subject to oceanographic regime shifts line based on the northernmost Indian Ocean nesting sites by at least (e.g., the El Nin˜ o Southern Oscillation, documented occurrence of leatherback 5,000 km. Although western Pacific or ENSO). The Team concluded that the turtles (Brongersma 1972; Goff and Lien nesting sites are closer, males and East Pacific population is biologically 1988; Carriol and Vader 2002; McMahon females return to the waters off their significant to the species. and Hayes 2006; Eckert et al. 2012). The natal beaches to breed, preventing southern boundary is a diagonal line interbreeding among NE Indian and DPS Summary between the elbow of Brazil, where the West Pacific populations. Therefore, the Brazilian current begins and likely The Team found that seven loss of this population would result in restricts the nesting range of this DPS, populations met the definition for a gap of the nesting range of the species and the northern boundary of Senegal. discreteness. These populations are (i.e., the NE Indian Ocean). The The boundary between Senegal and markedly separated as a result of the extirpation of this population would Mauritania was chosen because the SE behavioral factors of movement (as also significantly reduce the genetic Atlantic DPS does not appear to nest demonstrated by satellite telemetry and diversity of the species, as reflected by above this boundary (Fretey et al. 2007). flipper tagging studies) and philopatry, the possession of unique haplotypes. The range of this DPS (i.e., all areas which has led to reproductive isolation The Team concluded that the NE Indian of occurrence) extends throughout the population is biologically significant to (as demonstrated by genetic North Atlantic Ocean, including the the species. discontinuity). They are also physically Caribbean Sea, Gulf of Mexico (GOM), West Pacific leatherback turtles nest separated by land masses, and Mediterranean Sea. Available data in small numbers primarily in four oceanographic features, and currents. indicate that the NW Atlantic DPS nations of the West Pacific Ocean. These The Team found these seven occurs (at varying levels of frequency) in nesting sites are separated from East populations to be significant to the the waters of the following nations or Pacific nesting sites by over 10,000 km. species because the loss of any one of territories: Albania, Algeria, Anguilla, Though NE Indian nesting sites are them would result in a significant gap Antigua and Barbuda, Aruba, Azores, closer in distance, male and female in the range of the species as well as a Bahamas, Barbados, Belize, Bermuda, philopatry prevents interbreeding. significant loss of genetic diversity, Bonaire, Bosnia and Herzegovina, Therefore, the loss of this population reducing the evolutionary potential of Brazil, British Virgin Islands, Canada, would result in a gap of the nesting the species. Some populations also Cape Verde, Cayman Islands, Colombia, range of the species (i.e., the West occur in a unique ecological setting. Costa Rica, Croatia, Cuba, Curac¸ao, Pacific Ocean). The loss of this Thus, after reviewing the best available Cyprus, Denmark, Dominica, Dominican population would also result in a gap of information, the Team identified the Republic, Egypt, France, French Guiana, the foraging range of the species (i.e., the following populations as potential Greece, Greenland, Grenada, North Pacific Ocean). The extirpation of DPSs: NW Atlantic, SW Atlantic, SE Guadeloupe, Guatemala, Guyana, Haiti, this population would also significantly Atlantic, SW Indian, NE Indian, West Honduras, Iceland, Ireland, Israel, Italy, reduce the genetic diversity of the Pacific, and East Pacific. The Team Jamaica, Lebanon, Libya, Madeira, species, as reflected by the possession of defined the potential DPSs as Malta, Martinique, Mauritania, Mexico, unique haplotypes. The West Pacific leatherback turtles originating from Montenegro, Montserrat, Morocco, population is ecologically unique in two nesting beaches within the boundaries Netherlands Antilles, Nicaragua, ways: It is the only population to forage for each DPS. The range of each DPS, Norway, Panama, Portugal, Slovenia, in both hemispheres; and it nests year- which also includes foraging areas, thus Spain, St. Barthelemy, St. Eustatius, St. round, with nesting peaks in the extends beyond the nesting boundaries Kitts and Nevis, St. Lucia, St. Maarten, summer and winter. The Team for most DPSs, and may overlap St. Pierre and Miquelon, St. Martin, St. concluded that the West Pacific extensively with the range of another Vincent and the Grenadines, Suriname, population is biologically significant to DPS. The boundaries are based on the Sweden, Syria, Trinidad and Tobago, the species. best available genetic, telemetry, and Tunisia, Turkey, Turks and Caicos Leatherback turtles nesting on eastern observational data. When such data Islands, United Kingdom, United States Pacific coastlines also forage in the East were not available, the Team used (including Puerto Rico and the U.S. Pacific Ocean. A loss of this population information on possible barriers to gene Virgin Islands (USVI), Venezuela, and would result in a gap of the nesting flow, such as oceanographic features. Western Sahara. range of the species (i.e., the East Pacific For ease of use, the Team applied All nesting in this DPS occurs in the Ocean). Though West Pacific political boundaries when this did not NW Atlantic Ocean, concentrated from leatherback turtles may forage off the conflict with biological or the southeast United States throughout coasts of Peru and Chile, they do not oceanographic data. Additional the Wider Caribbean Region (Dow et al. breed there (Donoso and Dutton 2010). information on the boundaries is 2007). Leatherback nesting in the NW Therefore, if the East Pacific population available in the following sections, Atlantic can be grouped into several were extirpated, it is unlikely that which summarize the extinction risk broad geographical areas, including the

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U.S. mainland (primarily Florida), GOM, northwestern Europe, and trends, we did not include them in our North Caribbean (including USVI and northwestern Africa (James et al. 2005a, total index. To calculate the indices of Puerto Rico), West Caribbean (Honduras 2006b, 2007; Eckert 2006; Eckert et al. nesting female abundance, we added the to Colombia), and Southern Caribbean/ 2006; Fossette et al. 2010a; Fossette et number of nests over the last 3 years Guianas (Venezuela to French Guiana; al. 2010b; Dodge et al. 2014; Stewart et (representing the most recent TEWG 2007). The largest nesting al. 2016; Aleksa et al. 2018). Fossette et remigration interval; Eckert et al. 2012) aggregations occur in Trinidad, French al. (2014) analyzed available satellite and divided by the clutch frequency Guiana, and Panama. The northern-most telemetry data from 1995 to 2010 on (site-specific values or, when such confirmed nesting occurs in North post-nesting females (n = 93) as well as values were not available, the average of Carolina, but there has been a crawl males (n = 4), females (n = 8), and a the site-specific values, i.e., 5.5 clutches recorded as far north as Assateague juvenile (n = 1) from foraging grounds per season). Island National Seashore, Maryland throughout the Atlantic Ocean. They Our total index of nesting female (Rabon et al. 2003). No nesting occurs in found widespread use of the North abundance is based on the best available the Mediterranean Sea (Casale and Atlantic Ocean (Fossette et al. 2014). data for this DPS. It is the most robust Margaritoulis 2010). High-use areas mainly occurred in the estimate of nesting females at this time ° ° Nesting occurs on unobstructed, high- central (25 to 50 N, 50 to 30 W) and because it only includes available energy beaches with either a deep water eastern Atlantic Ocean, in particular in nesting data from recently and oceanic approach or a shallow water the waters offshore Western Europe, consistently monitored nesting beaches. approach with mud banks, but without around Cape Verde (year-round) and the Our total index does not include data coral or rock formations (TEWG 2007). Azores (October to March; Fossette et al. from beaches where we were unable to The main characteristics of leatherback 2014). Fossette et al. (2014) found that quantify the number of nesting females, nesting beaches include coarse-grained seasonal high-use areas also occurred either due to the lack of recent or sand; steep, sloping littoral zone; along the eastern U.S. coast (April to available nesting data or because only obstacle-free approach; proximity to June and October to December) and off crawl data were reported (often on deep water; and oceanic currents along Canada (July to December). The GOM is smaller nesting beaches). Scattered the coast (Hendrickson and Balasingam also a high-use foraging area, with a nesting may occur on beaches 1966 in Eckert et al. 2015). During the peak in the northeast GOM during throughout the region, but because these nesting season, adult females and males August and September (Aleksa et al. beaches are not monitored, or have not inhabit the waters off nesting beaches. 2018). Overall, leatherback turtles of the been recently monitored, recent data are During a nesting season, females North Atlantic population appear to not available. generally stay within about 100 km of have a diverse array of foraging habitat Nesting in the NW Atlantic DPS is their nesting beaches, remaining close to available. the coast on the continental shelf, and characterized by many small nesting engaging in shallow dives (Eckert et al. Abundance beaches. Large nesting aggregations are 2012). Intra-seasonal movement of The total index of nesting female rare; only about 10 leatherback nesting greater than 100 km also occurs, abundance for the NW Atlantic DPS is beaches in the Wider Caribbean Region especially between French Guiana and 20,659 females. The nesting beaches (about two percent of the DPS’s total Suriname (Fossette et al. 2007; Georges with the greatest abundance have been nesting sites) host more than 1,000 et al. 2007), Panama and Costa Rica included in this index, and most crawls annually (Dow Piniak and Eckert (Chaco´n-Chaverri and Eckert 2007), and beaches with an unquantified number of 2011). Only one site, Grande Riviere in among Caribbean nesting beaches, nests likely host few nesting females. Trinidad, hosts more than 5,000 nesting including those on Trinidad (Brautigam We based this index on 24 nesting females, representing 29 percent of the and Eckert 2006; Georges et al. 2007; aggregations in 10 nations: Trinidad and total index of nesting female abundance. Horrocks et al. 2016). Adult males Tobago (n = 11,324), French Guiana (n Relatively large nesting aggregations are migrate from temperate foraging areas in = 2,519), Panama (n = 2,251), United also found in Matura (Trinidad), the North Atlantic Ocean to waters off States (n = 1,694), Costa Rica (n = Chiriqui Beach (Panama), and Cayenne nesting beaches, typically arriving 1,306), Suriname (n = 698), Grenada (n and Remire Montjoly (French Guiana). before the nesting season and remaining = 499), Venezuela (n = 215), Guyana (n In contrast, most known nesting beaches for the majority of the season (James et = 76), and Nicaragua (n = 10). With the support a small nesting female al. 2005b; Doyle et al. 2008; Dodge et al. possible exception of Colombia, our abundance; 71 percent of the total 2014). total index does not include 31 nesting sites record annual crawls of Foraging areas of the NW Atlantic unquantified but likely small nesting less than 100 (Dow Piniak and Eckert DPS include coastal and pelagic waters aggregations for which data are not 2011). The number of nesting females is of the North Atlantic Ocean (Eckert et available. It also does not include unquantified at 31 beaches (i.e., the al. 2012; Saba 2013; Shillinger and outdated data published by Dow et al. majority of nesting sites for the DPS). Bailey 2015). These waters include the (2007), which includes binned crawls, However, for the reasons identified GOM, North Central Atlantic Ocean, categorized as less than 25, 25 to 100, above, most of those sites have small northwestern Atlantic shelf waters of 100 to 500, 500 to 1000, or unknown abundance levels as inferred from the the United States and Canada, waters abundance. Crawls or emergences numbers of crawls estimated by Dow et along the southeastern U.S. coast, the (measured as females or tracks on al. (2007). Therefore, our total index of Mediterranean Sea, and the northeastern beaches) include both successful egg- nesting female abundance represents the Atlantic shelf waters of Europe and laying and unsuccessful nesting, so the most robust estimate allowed by the best northwestern Africa (TEWG 2007). number of crawls represents available data and includes the majority Some post-nesting females also remain approximately two to 10 times the of nesting females because the largest in tropical waters to forage (Fossette et number of nests (Dow et al. 2007). nesting aggregations were included. The al. 2010). This DPS is mostly commonly Because the Dow et al. data, which are data regarding additional nesting associated with open-ocean and coastal more than 10 years old and do not aggregations are not sufficiently recent, shelf foraging areas off Nova Scotia provide the number of actual nests, may specific, or reliable for inclusion, and (Canada), northeastern United States, not be representative of recent nesting the contribution of these nesting

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aggregations to the total index is available are likely small. Significant ¥14.6 percent annually (sd = 9.6 expected to be small. declines have been observed at nesting percent; 95 percent CI = ¥36.4 to 4.5 Our total index of nesting female beaches with the greatest historical or percent; f = 0.953; mean annual nests = abundance is similar in comparison to current nesting female abundance, most 4,586). In Grenada, data on the number other published estimates. TEWG (2007) notably in Trinidad and Tobago (Grande of nesting tracks were collected on estimated the abundance of NW Atlantic Riviere, Fishing Pond, and Tobago), Levera beach between 2002 and 2018. leatherback turtles using nesting data Suriname, French Guiana (Awala- There was a 7.1 percent annual increase from 2004 and 2005. At that time, the Yalimapo), Florida, and Costa Rica in tracks at Levera during that period number of adult females (equating to (Tortuguero). Therefore, these nest (sd = 8.7 percent; 95 percent CI = ¥10.5 total index of nesting female abundance trends represent the best available data to 25.3 percent; f = 0.827; mean annual in our analysis) was estimated to be for this DPS. tracks = 895). In Panama, the nest approximately 18,700 (range 10,000 to In Trinidad and Tobago, trends in counts at Chiriqui beach increased by 31,000). While a wide range was annual nest counts were largely negative 0.8 percent annually (sd = 7.0 percent; provided, the point estimate in TEWG between 2009 and 2017, the years for 95 percent CI = ¥14.1 to 14.6 percent; (2007) is similar to, albeit slightly lower which data were available. For f = 0.557; mean annual nests = 4,463) than, our total index of 20,659 nesting Trinidad, we analyzed trends for three between 2004 and 2017. females. The most recent, published separately monitored beaches, including In Costa Rica, the four beaches for IUCN Red List assessment for the NW Grande Riviere, Matura, and Fishing which we had sufficient data to analyze Atlantic Ocean subpopulation estimated Pond. The long-term trend was negative annual nest count trends mostly a total of 20,000 mature individuals for Grande Riviere (median = ¥6.9 exhibited declining trends. Tortuguero (The NW Atlantic Working Group 2019). percent; sd = 17.4 percent; 95 percent CI experienced the steepest decrease, with Our total index, which only includes = ¥43.8 to 26.9 percent; f = 0.682; mean a median trend of ¥10.9 percent nesting females, exceeds their estimate, annual nests = 13,272), positive for annually (sd = 4.2 percent; 95 percent likely due to our use of a 3-year Matura (median = 1.8 percent; sd = 15.1 CI = ¥19.5 to 2.2 percent) for data remigration interval, which has percent; 95 percent CI = ¥29.2 to 33.0 collected between 1995 and 2017. Nest increased at some locations in recent percent; f = 0.561; mean annual nests = counts decreased by ¥3.8 percent years (e.g., 4.5 years at St. Croix; K.R. 7,359), and negative for Fishing Pond annually at Pacuare beach (sd = 9.3 Stewart, The Ocean Foundation and C. (median = ¥19.3 percent; sd = 15.1 percent; 95 percent CI = ¥22.6 to 16.9 Lombard, USFWS, pers. comm., 2019). percent; 95 percent CI = ¥49.8 to 12.0 percent) between 2004 and 2017, but We conclude that the total index of percent; f = 0.916; mean annual nests = increased by 1.8 percent annually (sd = nesting females for the NW Atlantic DPS 3,892). For Tobago, the median trend 6.0 percent; 95 percent CI = ¥10.8 to is 20,659 females. The nesting beaches was ¥0.9 percent annually (sd = 11.3 14.2 percent) at the nearby Pacuare with the greatest abundance have been percent; 95 percent CI = ¥25.0 to 21.5 Nature Reserve between 1991 and 2017. included in our total index, and most percent; f = 0.540; mean annual nests = Nest counts at Estacion la Tortuga beaches with an unquantified number of 452). deceased slightly, with a median trend nests likely host few nesting females. For French Guiana, we analyzed nest of ¥0.5 percent annually (sd = 7.0 Current nesting female abundance is not count data from 2002 to 2017 for Awala- percent; 95 percent CI = ¥15.7 to 13.1 at a level where stochastic or Yalimapo beach in the west and data percent) between 2002 and 2017. environmental changes would have from 1999 to 2017 for Cayenne and For the United States, we analyzed catastrophic impacts, but the abundance Remire Montjoly beaches in the east. annual nest count trends for Florida at several nesting sites with previously There was a steep decline at Awala- (statewide data collected between 2008 high density has declined drastically. Yalimapo, with a median trend of and 2017), three beaches in Puerto Rico, However, as we discuss below, a ¥19.4 percent annually (sd = 12.2 including Culebra (1984 to 2017), declining nest trend and several existing percent; 95 percent CI = ¥43.2 to 6.0 Luquillo-Fajardo (1996 to 2017), and threats will likely continue to reduce percent; f = 0.942; mean annual nests = Maunabo (1999 to 2017), and Sandy this abundance. 3,200). In contrast to Awala-Yalimapo, Point National Wildlife Refuge in St. nest counts at Cayenne and Remire Croix, USVI (1982 to 2017). The median Productivity Montjoly increased by 2.8 percent trend for Florida was a decline of ¥2.1 The NW Atlantic DPS exhibits annually (sd = 12.9 percent; 95 percent percent annually (sd = 13.0 percent; 95 decreasing nest trends at nesting CI = ¥24.9 to 27.9 percent; f = 0.596; percent CI = ¥28.3 to 25.5 percent; f = aggregations with the greatest indices of mean annual nests = 3,498). In addition, 0.582; mean annual nests = 1,288). nesting female abundance. Though leatherback nesting occurred on remote Culebra nests decreased by ¥3.7 some nesting aggregations indicate beaches in western French Guiana until percent annually (sd = 5.3 percent; 95 increasing trends, most of the largest 2013 (e.g., a high of 4670 nests was percent CI = ¥14.9 to 6.8 percent; f = ones demonstrate declining nest trends. found in 2003, with 1,270 mean annual 0.791; mean annual nests = 153), while We evaluated nest trends by using nest nests from 2002 to 2013), but we were nests increased by 15.9 percent annually count data consistently collected using unable to analyze trends because at Luquillo-Fajardo (sd = 5.5 percent; 95 a standardized approach for at least 9 monitoring on these remote beaches has percent CI = ¥7.1 to 15.3 percent; f = years, with the last year of data in 2014 been reduced since approximately 2010 0.805; mean annual nests = 283) and by or more recently and with an average of due to significant beach erosion and the 7.7 percent annually at Maunabo (sd = more than 50 nests annually. When data disappearance of some previously 4.9 percent; 95 percent CI = ¥2.7 to did not meet these criteria, we evaluated monitored beaches. 17.4 percent; f = 0.945; mean annual bar graphs provided in the Status Suriname, Grenada, and Panama each nests = 161). In St. Croix, nests Review Report to consider all available had a single time series sufficient for increased by 1.7 percent annually (sd = data. Thus, these data are representative trend analysis. For Suriname, we 4.6 percent; 95 percent CI = ¥7.8 to of the DPS because they include the combined datasets from two beaches, 10.7 percent; f = 0.660; mean annual largest nesting aggregations. With the Galibi and Braamspunt, which were nests = 399). possible exception of Colombia, nesting monitored between 2001 and 2017. These trend data are similar to other aggregations for which data are not Total nests in Suriname declined by recent findings, adding further

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confidence in declining trends at beach in French Guiana (Cayenne) be interpreted with caution because of multiple large nesting aggregations. demonstrated an increasing trend (7.44 the small study area, opportunistic data Because of concerns about declining percent annually from 1990 to 2017 and collection, availability bias variance, nest counts throughout the region, the 8.19 percent annually from 1998 to and lack of understanding of the relative National Fish and Wildlife Foundation 2017). However, it exhibited a density outside the study area (NFWF) convened a NW Atlantic decreasing trend (¥14.21 percent (Archibald and James 2016). Leatherback Working Group (i.e., the annually) from 2008 to 2017. While Despite the declining trend in nesting, Working Group) to assess recent nesting nesting increased over time at Cayenne, productivity parameters for the DPS are data and complete a region-wide trend this increase has apparently not resulted similar to the species’ averages (though analysis (NW Atlantic Leatherback from females shifting from Awala- some may be declining, as we discuss Working Group 2018). The trend Yalimapo, as turtles that nest at below). While there is some variation, analyses conducted by the Working Cayenne are genetically distinct most productivity parameters are Group used leatherback nesting data (Molfetti et al. 2013) and females tagged relatively consistent throughout the from 23 sites from 14 different nations in Awala-Yalimapo are not seen in DPS. The overall survival rate for with at least 10 years of data with Cayenne or vice versa (NW Atlantic nesting females is relatively high at 85 consistent within-site methodology, Leatherback Working Group 2018). percent (Pfaller et al. 2018), with mean analyzing data for three time periods: These modeling results demonstrate estimates of 0.70 to 0.99 in French 1990 to 2017, 1998 to 2017, and 2008 to that there has been a decline in NW Guiana (Rivalan et al. 2005, 2008), 0.89 Atlantic nesting from 1990 to 2017, with 2017. Our approach to trend analyses in St. Croix (Dutton et al. 2005), and the most significant decreases occurring was similar to that used by the Working 0.89 to 0.96 on the Atlantic coast of from 2008 to 2017. Some nesting Group in that both approaches involved Florida (Stewart et al. 2007, 2014). beaches demonstrated positive trends Bayesian analyses of data meeting set Remigration intervals range from 1 to 11 for the longer time period. However, criteria. However, the Team decided years (Schulz 1975; Boulon et al. 1996; none showed significant increases over against aggregating the data over the Chevalier and Girondot 1998; Hilterman the most recent time period. The cause DPS due to incongruity of data and Goverse 2007; Eckert et al. 2012; for the decline is uncertain, but the collection methods, collection dates and Stewart et al. 2014; Rivas et al. 2016; Working Group identified duration, and reporting. Despite these Garner et al. 2017). In St. Croix and St. differences, the overall conclusion was anthropogenic sources (e.g., fisheries bycatch), habitat losses, and changes in Kitts, the median remigration interval the same—an overall declining nest appears to be increasing (4.5 years; K.R. trend. life history parameters (such as remigration interval) as potential drivers Stewart, The Ocean Foundation and C. The Working Group found that of the regional decline. While these Lombard, USFWS, pers. 2019; K.M. regional, abundance-weighted trends results were taken into consideration by Stewart, Ross University School of were negative for all three time periods the Team when evaluating the Veterinary Medicine and St. Kitts Sea and became more negative in the more extinction risk of the NW Atlantic DPS, Turtle Monitoring Network, pers. recent time series (NW Atlantic the Team also performed its own trend comm., 2019). Averaging all available Leatherback Working Group 2018). analysis of the data provided to the data, the mean remigration interval for Specifically, overall nesting trends Team so that the trends were calculated the DPS is 2.7 years, rounded to 3 years decreased at ¥4.21 percent annually for use in our calculation of the index ¥ in a manner consistent with other DPSs. from 1990 to 2017 and at 5.37 percent Regardless, both trend analyses of nesting female abundance. Average annually from 1998 to 2017, with the clutch frequency per nesting season ¥ conclude that the NW Atlantic DPS is most notable decrease ( 9.32 percent experiencing a significant decline in ranges from 3.6 to 8.3 throughout the annually) occurring during the most nesting. region, with an overall mean of 5.5 nests recent time frame of 2008 to 2017. In-water abundance studies of per season, interspersed with 9 to 10 While site-level trends showed variation leatherback turtles are rare. Archibald day internesting intervals (Eckert et al. within and among sites and across the and James (2016) assessed the relative 2015; Garner et al. 2017). Recent records time periods, overall the sites also abundance of turtles at a foraging area indicate that nesting females deposit 80 reflected the same regional pattern: off Nova Scotia, Canada, from 2002 to to 88 eggs per clutch. However, an early More negative trends were apparent 2015. This study evaluated study by Carr and Ogren (1959) reported during the most recent time frame. opportunistic sightings per unit effort only 67 eggs per clutch. Hatching Seven sites had significant positive and found a mean density of 9.8 turtles success is highly variable for nests that nesting trends from 1990 to 2017, but no per 100 km2, representing the highest remain in situ, even for those that are sites exhibited significant positive in-water density of leatherback turtles viable and do not experience significant trends from 2008 to 2017. The reported to date. Archibald and James inundation or predation, with estimates significant decline observed at Awala- (2016) concluded that the relative as low as 8.9 percent in Costa Rica Yalimapo, French Guiana (¥12.95 abundance of foraging leatherback (Troe¨ng et al. 2007) and 10.6 percent in percent annually from 1990 to 2017, turtles off Canada exhibited high inter- Suriname (Hilterman and Goverse 2007) ¥19.05 percent annually from 1998 to annual variability but, overall, showed a and as high as 93.4 percent in Florida 2017, and ¥31.26 percent annually stable trend from 2002 to 2015. The (Perrault et al. 2012). Overall, hatching from 2008 to 2017), drove the regional authors reported that (at that time) these success is estimated at approximately 50 results, but similar significant declines results were consistent with the stable percent (Eckert et al. 2012). Hatchling were found at other nesting beaches for or, in some cases, increasing trends sex ratios often exhibit a female bias, the longer time period, including: St. reported for contributing NW Atlantic but less so than for other sea turtle Kitts and Nevis (¥12.43 percent nesting beaches over the last decade species, with estimated production of annually), Tortuguero, Costa Rica (Dutton et al. 2005; Girondot et al. 2007; anywhere from 30 to 100 percent (¥10.42 percent annually), Suriname Fossette et al. 2008; McGowan et al. females in Suriname, Tobago, Colombia, (¥5.14 percent annually), and Culebra, 2008; Stewart et al. 2011; Rivas et al. and Costa Rica (Mrosovsky et al. 1984; Puerto Rico (¥4.61 percent annually). It 2015). While there were no indications Dutton et al. 1985; Godfrey et al. 1996; should be noted that the other nesting of a decreasing trend, the results should Leslie et al. 1996; Mickelson and

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Downie 2010; Patin˜ o-Martı´nez et al. Central America (e.g., Guyana, boundaries, likely a result of flexible 2012). However, the proportion of Venezuela, Colombia, and Panama). A natal homing. Nesting females use females documented in foraging comprehensive survey of genetic beaches up to 400 km apart between individuals and strandings ranges from population structure in the Atlantic nesting seasons (Troe¨ng et al. 2004; 57 to 70 percent (Murphy et al. 2006; Ocean included large sample sizes from Chaco´n-Chaverri and Eckert 2007) and James et al. 2007; TEWG 2007), and the five nesting populations representative up to 463 km apart within the same ratio of females to males during an of the DPS and analysis of longer nesting season (Stewart et al. 2014). individual breeding season is thought to mtDNA sequences in combination with Additional sampling of the remaining be closer to 1:1 (Stewart and Dutton an array of 17 nuclear microsatellite nesting sites will be required to 2014). DNA loci (Roden and Dutton 2011; determine the extent of fine-scale We conclude that the DPS exhibits a Dutton et al. 2013). The microsatellite structuring within the NW Atlantic DPS. declining nest trend. In addition, there data revealed fine-scale genetic However, the available science indicates are indications of decreased differentiation among neighboring significant substructure within the DPS. productivity within the DPS. In St. subpopulations (Dutton et al. 2013): Tagging studies indicate individual Croix, one of the most thoroughly Trinidad, French Guiana/Suriname, movement and gene flow among nesting monitored nesting beaches in this DPS, Florida, Costa Rica, and St. Croix. The aggregations. This is facilitated by the the data from 1981 to 2010 indicate that mtDNA data failed to find significant species’ flexible natal homing, i.e., hatching success and clutch frequency differentiation between Florida and philopatry to a region, rather than a are declining and remigration intervals Costa Rica or between Trinidad and specific beach. In adjacent nesting sites in French Guiana and Suriname, five to are increasing (Garner et al. 2017). French Guiana/Suriname. However, Overall, we have a high degree of six percent of nesting females were Dutton et al. (2013) show that the confidence in the decreasing nest trend observed to shift from one site to the mtDNA sequence variation had and productivity metrics for this DPS, other within a season (TEWG 2007), relatively low statistical power to detect due to the large amount of data available while Schulz (1971) reported this fine scale structure compared to the from the largest nesting aggregations. proportion to be slightly higher at 8.5 microsatellite DNA loci. The mtDNA We acknowledge that data are not percent. In contrast, 35 percent of homogeneity between Costa Rica and available from all nesting beaches, but nesting females in Gandoca, Costa Rica, Florida, with differentiation the data that we have relied upon is the were estimated to nest at sites other demonstrated at nuclear DNA loci, best available and meets established than the study site during an individual standards. The declining trends reflect suggests that Costa Rica may be the season (Chaco´n-Chaverri and Eckert reduced nesting female abundance. In source of founders for the Florida 2007). The predisposition of nesting addition, longer remigration intervals population via one or multiple recent females to stray within a nesting season and/or reduced clutch frequencies may colonization events, likely indicating may be influenced by the proximity of play a role in this decline. The decline historic connectivity rather than alternative nesting sites within a range reflects a reduction in productivity that ongoing demographic connectivity of approximately 200 km (Horrocks et places the DPS at risk given the (Dutton et al. 2013). Likewise the al. 2016). However, even within a given magnitude and duration of the French Guiana/Suriname and Trinidad nesting season, females have been decreasing trend. populations were undifferentiated with observed to move as far as 369 km mtDNA likely indicating historic (Grenada), 463.5 km (Florida), and 532 Spatial Distribution connectivity. However, microsatellite km (Dominica) from their original The DPS has a broad spatial DNA reveal fine-scale genetic structure location (Horrocks et al. 2016). Among distribution for both foraging and that is consistent with tagging studies nesting seasons, interchange between nesting. There is significant genetic demonstrating a lack of nesting female nesting locations also appears to be population structure, with movement between the two nesting frequent and wide-ranging, with subpopulations connected via various aggregations (TEWG 2007). Significant maximum distance separating two levels of gene flow and metapopulation genetic differentiation has also been nesting sites for an individual female dynamics. Tagging and telemetry reported for Martinique and Guadeloupe recorded as 1,849 km over an 8-year studies indicate considerable mixing of and the mainland French Guiana span (Horrocks et al. 2016). leatherback turtles among nesting rookery (Molfetti et al. 2013). St. Croix Genetic studies have revealed that beaches and at multiple foraging areas likely represents a broader Northern turtles from different nesting throughout the North Atlantic Ocean. Caribbean subpopulation of the NW aggregations use the same foraging Nesting is widespread throughout the Atlantic population that includes areas. Analyzing 684 longline bycatch NW Atlantic beaches, occurring multiple neighboring island nesting samples from across the NW Atlantic in primarily as scattered, small aggregations in the USVI and Puerto a mixed stock analysis and aggregations throughout the Wider Rico. However, sampling and analysis microsatellite assignment, Stewart et al. Caribbean, but with larger would be required to determine extent (2016) found that leatherback turtles concentrations of nesting activity at of fine scale structuring (NMFS from Costa Rica were caught in a higher certain sites in Trinidad, French Guiana, unpublished data; Dutton et al. 2013). proportion in the GOM (43 percent) Suriname, Trinidad, Colombia, Panama, The Costa Rica (Tortuguero and compared to the Northeast Distant Costa Rica, Puerto Rico, St. Croix, and Gandoca) and Guiana (French Guiana fishing zone, an area in the Florida (Horrocks et al. 2016). and Suriname) nesting aggregations are northwestern Atlantic Ocean (6 Genetic sampling in the NW Atlantic distinct subpopulations based on percent), while turtles from Trinidad DPS has been generally extensive with microsatellite and mtDNA results and French Guiana comprised 54 good coverage of large populations in (Dutton et al. 2013), but information on percent of bycatch in the GOM and 93 this region. However, sampling from tag returns indicates movement of percent in the Northeast Distant fishing some smaller Caribbean nesting nesting females between adjacent zone. A study of turtles foraging off aggregations is absent, and there are beaches of Panama, Colombia, Nova Scotia, Canada, similarly assigned gaps in sampling or analysis for nesting Venezuela and Guyana. Therefore, these most (82 percent) of the 288 sampled sites along the coasts of South and nesting aggregations have ‘‘fuzzy’’ turtles to Trinidad (n = 164) and French

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Guiana (n = 72), with 15 percent (n = data, but the migration routes to those Diversity 44) from Costa Rica, and the remainder areas may vary. Ferraroli et al. (2004) The NW Atlantic DPS exhibits spatial from St. Croix (n = 7) and Florida (n = tracked leatherback turtles from French diversity, as demonstrated by insular 1; Stewart et al. 2013). These Guiana and found turtles dispersed and continental nesting, multiple proportions generally represent the widely throughout the North Atlantic diverse foraging areas, and moderate relative population sizes for these but mostly followed two dispersion genetic diversity. The DPS nests along breeding populations. Microsatellite patterns: (1) Moving north to the Gulf both continental and insular coastlines. DNA assignment of wild captured or Stream area, where they started Nesting beach habitat also shows stranded males (n = 122) throughout the following the general ocean circulation; considerable diversity, ranging from NW Atlantic and Mediterranean found and (2) traveling east, swimming mostly coarse-grained, sandy beaches to silty, that all males originated from NW against the North Equatorial Current. ephemeral shorelines whose dynamics Atlantic nesting aggregations (Trinidad: Fossette et al. (2014) found a relatively are influenced by estuarine input. The 55 percent, French Guiana: 31 percent, broad migratory corridor when turtles breadth and, in some cases, transiency, and Costa Rica: 14 percent; Roden et al. departed their nesting sites in French of suitable nesting habitat in the western 2017). No turtles were identified from Guiana/Suriname, and their movements North Atlantic may contribute to St. Croix or Florida. One turtle that overlapped with turtles from Grenada consistent, low-level flexibility in natal stranded in Turkey was assigned to and Trinidad. Fossette et al. (2010a, homing, both within and among French Guiana, while strandings in 2010b) found that turtles tracked from reproductive seasons (Bra¨utigam and France were assigned to Trinidad or nesting beaches in French Guiana, Eckert 2006), and this flexibility is French Guiana (Roden et al. 2017). Suriname, and Grenada and turtles The mixing of nesting aggregations at thought to surpass that of other sea caught in waters off Nova Scotia and turtle species (TEWG 2007). foraging areas is also supported by Ireland displayed three distinct several tagging and/or satellite telemetry This DPS exhibits some temporal migration strategies: (1) Heading variation in nesting. Nesting generally projects, conducted in U.S. waters northwest to fertile foraging areas off the (Murphy et al. 2006; LPRC 2014; Dodge begins in March or April, peaks in May Gulf of Maine, Canada, and GOM; (2) or June, and ends in July or August et al. 2014, 2015; Aleksa et al. 2018), crossing the North Atlantic Ocean to Canada (James et al. 2005a, 2005b, (Eckert et al. 2012). In French Guiana, areas off western Europe and Africa; and a second small nesting peak was 2005c, 2006b, 2007; Bond and James (3) residing between northern and 2017), Atlantic Europe and documented in Awala-Yalimapo during equatorial waters. Essentially, tagging December and January. However, the Mediterranean (Doyle et al. 2008; data coupled with satellite telemetry Sonmez et al. 2008), and on nesting number of nests deposited during that data indicate that leatherback turtles of time frame decreased from 700 in 1986/ beaches of various nations (Hildebrand the NW Atlantic DPS use the entire 1987; Hays et al. 2004; Ferraroli et al. 1987 to 40 in 1992/1993, and now only North Atlantic Ocean for foraging and a small number of individuals are 2004; Eckert 2006; Eckert et al. 2006; migration (TEWG 2007). Hays et al. 2006; TEWG 2007; Sonmez observed to nest during that time Although adults forage at multiple et al. 2008; Evans et al. 2008; Fossette (Girondot et al. 2007). Some evidence areas throughout the North Atlantic et al. 2010a, 2010b; Richardson et al. indicates that the timing of nesting may Ocean (Fossette et al. 2014), the range of 2012; Bailey et al. 2012; Stewart et al. be modulated by environmental juvenile leatherback turtles may be more 2014; Fossette et al. 2014; Horrocks et characteristics distant from the nesting al. 2016; Chambault et al. 2017). For restricted. Using an active movement beach, such as water temperatures at instance, turtles from Nova Scotian model, Lalire and Gaspar (2019) found foraging grounds (Neeman et al. 2015). foraging grounds were tracked to nesting that most juveniles originating from The foraging strategies are also areas off Colombia, Trinidad, Guyana, nesting beaches in French Guiana and diverse, with turtles using coastal and and French Guiana (Bond and James Suriname cross the Atlantic Ocean at pelagic waters throughout the entire 2017). The reverse has also been mid-latitudes with north-south seasonal North Atlantic Ocean (Fossette et al. demonstrated: some leatherback turtles migrations; after several years, they 2014). Foraging habitats include from the western Atlantic undertake reach the coasts of Europe and North temperate waters of the GOM, North annual migrations to Canadian waters to Africa. Eckert (2002) reviewed the Central Atlantic Ocean, northwestern forage (James et al. 2005c), exemplified records of nearly 100 sightings of shelf (United States and Canada), by post-nesting adults tracked to the juvenile (less than 100 cm curved southeastern U.S. coast, the waters off Nova Scotia from a variety of carapace length (CCL)) leatherback Mediterranean Sea, and northeastern nesting locations, including French turtles and determined they are shelf (Europe; TEWG 2007). Some post- Guiana and Trinidad (Fossette et al. generally found in waters warmer than nesting females also remain in tropical ° 2014), Costa Rica, Panama (Evans et al. 26 C, suggesting that the first portion of waters (Fossette et al. 2010). Overall, 2008), and Anguilla (Richardson et al. their life is spent in tropical and leatherback turtles in the North Atlantic 2012). The eastern and western GOM subtropical waters. After exceeding 100 Ocean appear to have a diverse array of also provide foraging areas for this DPS cm CCL, distribution extends into cooler foraging habitat available. ° (Aleksa et al. 2018), as observed from waters (as low as 8 C), which is Genetic diversity of the DPS is tracks of post-nesting turtles from considered to be the primary habitat for moderate, with six mtDNA haplotypes Florida (Hildebrand 1987), Costa Rica the species (Eckert 2002). (Dutton et al. 2013). In St. Croix, a (Tortuguero, Gandoca), and Panama The wide distribution of nesting and unique haplotype occurs at high (Chiriquı´ Beach; Evans et al. 2008; foraging areas likely buffers the DPS frequency. The Florida and Costa Rica Evans et al. 2012). Evans et al. (2008) against local catastrophes or nesting aggregations each possess one suggested that the GOM may represent environmental changes. The fine-scale unique, low frequency haplotype. a significant foraging ground for population structure, with movement of Based upon this information, we leatherback turtles from the Caribbean individuals and genes among nesting conclude that nesting location and coast of Central America. aggregations, indicates that the DPS has habitat are diverse, providing some level High use foraging areas may be the capacity to withstand other of resilience against short-term spatial identified through available telemetry catastrophic events. and temporal changes in the

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environment. However, high-abundance from using optimal locations, destroying in the future. For instance, the area nesting occurs only at a few locations nests, eggs, and hatchlings, and around Cayenne, French Guiana, is (e.g., Trinidad, French Guiana, and preventing hatchlings from successfully undergoing increased urbanization and Panama). The foraging diversity likely reaching the ocean (USFWS 1999; recreational use (Fossette et al. 2008). In provides resilience against local Chaco´n-Chaverri and Eckert 2007; recent years, nesting has increased at reductions in prey availability or Hernandez et al. 2007; Witherington et Cayenne and eastern beaches compared catastrophic events, such as oil spills, al. 2014). Development involving the to the western Awala-Yalimapo beaches by limiting exposure to a limited construction of tall buildings and (Re´serve Naturelle de l’Amana data in proportion of the total population. clearing of vegetation can also alter sand Berzins 2018 and KWATA data in Moderate genetic diversity may provide temperatures and skew sex ratios Berzins 2018). As such, more nesting in the DPS with the raw material necessary (Gledhill 2007). French Guiana is exposed to coastal for adapting to long-term environmental Development occurs to varying development and the associated threats, changes, such as cyclic or directional extents throughout the range of the DPS, and these threats are likely to continue changes in ocean environments due to but most leatherback nesting occurs in and increase. natural and human causes (McElhany et proximity to some coastal development. Beach Erosion and Inundation al. 2000; NMFS 2017). We conclude that The Florida shoreline is extensively such diversity provides some level of developed outside wildlife refuges While erosion is often intensified due resilience to threats for this DPS. (Witherington et al. 2011). In Grenada, to anthropogenic influences, natural nearly 20 percent of all nests surveyed features in some areas result in high Present or Threatened Destruction, from 2001 to 2005 occurred in an area erosion rates and unstable beaches, thus Modification, or Curtailment of Habitat affected by development, resulting in affecting leatherback nesting. For or Range ongoing run-off onto nesting beaches instance, the Maroni River influence in Destruction and modification of (Maison et al. 2010). In Trinidad, the Guianas (French Guiana especially) leatherback turtle nesting habitat results increasing rural and commercial has resulted in highly dynamic and from a variety of activities including beachfront development is a concern, unstable beaches, with shifting mudflats coastal development and construction; especially on the east coast where the making nesting habitat unsuitable beach erosion and inundation; main nesting beaches are located (Crossland 2003; Goverse and Hilterman placement of erosion control and (Trinidad and Tobago Forestry Division 2003; Fossette et al. 2008). Beaches are nearshore shoreline stabilization et al. 2010), including Grande Riviere, often created and lost along the coast of structures and other barriers to nesting; the largest nesting aggregation of this French Guiana (Kelle et al. 2007). For beachfront lighting; vehicular and DPS. Likewise, several Tobago beaches example, remote beaches in western pedestrian traffic; beach sand are densely developed for commercial French Guiana experience significant placement; sand extraction; removal of tourism, resulting in reduced turtle beach erosion and several disappeared, native vegetation; and planting of non- access to potential nesting sites due to reducing or preventing monitoring (and native vegetation (Lutcavage et al. 1997; buildings, umbrellas, and other likely nesting). In Suriname, Bouchard et al. 1998; USFWS 1999; recreational equipment (Trinidad and Braamspunt Beach at the mouth of the Dow et al. 2007; Eckert et al. 2012; Tobago Forestry Division et al. 2010). Suriname River is moving west, out of NMFS and USFWS 2013). As a result, Development in Puerto Rico, in the established Wia Wia Nature Reserve most nesting beaches are severely particular Playa Grande-El Paraiso (i.e., and may disappear in the next several degraded by such activities that Dorado Beach, which is considered to years (M. Hiwat, WWF, pers. comm., continue to cause adverse impacts be the most important nesting beach in 2018). This is significant in that throughout the range of the DPS. Puerto Rico), is also a notable concern Braamspunt is currently the main nesting beach in Suriname. The second Coastal Development and Construction (Crespo and Diez 2016; Flores and Diez 2016). There, ecosystems continue to be highest nesting area in Suriname, Galibi In many areas, nesting habitat is threatened by coastal development, Beach, is also experiencing significant under constant threat from coastal even though the coastal zone is erosion and becoming narrower. Similar development and construction (Dow et protected by the Maritime-Terrestrial beach erosion is occurring in Guyana, as al. 2007; Crespo and Diez 2016; Flores Zone designation (i.e., Coastal Public well as in Trinidad and Tobago and Diez 2016). Coastal development Trust Lands; Flores and Diez 2016). (Reichart et al. 2003; Trinidad and impacts include construction of Coastal development likely influences Tobago Forestry Division et al. 2010). At buildings and pilings on the beach; leatherback nest placement and some Trinidad and Tobago nesting sites increased erosion; artificial lighting; subsequent nest success, which is the (e.g., Fishing Pond, Matura, Grande pollution; recreational beach equipment percentage of nesting attempts (i.e., Riviere, and Great Courland Bay), rivers and other obstacles on the beach; beach emergences onto the beach) that result emerge onto nesting beaches and create driving; increased human disturbance; in eggs being deposited. On Margarita additional erosion during the nesting and mechanized beach cleaning Island, Venezuela, Hernandez et al. season (Godley et al. 1993; Lee Lum (Lutcavage et al. 1997; USFWS 1999; (2007) found that leatherback nesting 2005), intensifying nest loss (up to 35 Hernandez et al. 2007; Dow et al. 2007; aggregated towards the portions of the percent of nests; Trinidad and Tobago Trinidad and Tobago Forestry Division beach with fewer risk factors, such as Forestry Division et al. 2010). et al. 2010; Flores and Diez 2016). light pollution and concentrations of Seasonal erosion also occurs at most Driftwood found on nesting beaches beach furniture. This change in nesting Caribbean nesting beaches. A survey of also has the potential to alter nesting behavior resulted in females nesting in Wider Caribbean Regions found that beach habitat and obstruct nesting less optimum areas (e.g., areas with erosion/accretion was the highest threat females and hatchlings, as seen in lower hatching success), thus affecting to nesting habitat (Dow et al. 2007). For Gandoca, Costa Rica (Chaco´n-Chaverri the reproductive potential of example, at Playa Gandoca, Costa Rica, and Eckert 2007). These threats impact leatherback turtles in this region. erosion from strong coastal drift nesting habitat by reducing the amount The magnitude of development is also currents is thought to be one of the and quality of suitable beaches, changing in some areas, where nest largest obstacles to hatching success, preventing or deterring nesting females placement and success may be affected destroying greater than 10 percent of all

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nests laid in some years (Chaco´n- beach erosion are relocated, under Erosion Control, Nearshore Shoreline Chaverri and Eckert 2007). In 2006 and certain circumstances. Other nations Stabilization Structures, and Other 2007, coastal erosion and inundation still relocate nests to reduce the impacts Barriers accounted for 33 to 42 percent of nest of erosion. However, as mentioned, such A widespread strategy to reduce loss in southern Panama and 29 to 48 practices may result in cooler nests and coastal erosion is to construct erosion percent on Caribbean Colombia beaches affect sex ratios (Spanier 2008). While control structures. However, these (Patin˜ o-Martı´nez et al. 2008). eggs relocated to hatcheries could have structures reduce the amount of Inundation of nests is also a concern. been lost under natural circumstances, available nesting habitat. Also, when Leatherback turtles generally nest closer due to coastal erosion and inundation in beachfront development occurs, the site to the water than other sea turtles (Caut some areas (Dutton and Whitmore 1983, is often engineered to protect the et al. 2010). If nests are laid too close Chaco´n-Chaverri and Eckert 2007), property from erosion. This type of to the high tide line, they are subjected hatching success in relocated nests is shoreline engineering, collectively to erosion and inundation, which can often lower than in situ nests (Revuelta referred to as beach armoring, includes result in egg mortality from suffocation et al. 2014; Valentin-Gamazo et al. 2018; sea walls, rock revetments, riprap, or curtailed embryonic development Florida Department of Environmental sandbag installations, groins and jetties. (Chaco´n-Chaverri and Eckert 2007; Caut Protection unpublished data 2018). Beach armoring can result in permanent et al. 2010). This inundation Such naturally dynamic areas make it loss of a nesting beach through phenomenon occurs on multiple nesting difficult to protect nesting beach habitat accelerated erosion and prevention of beaches and is particularly of concern in and accurately assess leatherback natural beach/dune accretion. These areas with high tidal influence and nesting trends. This is particularly impacts can prevent or hamper nesting dynamic coastlines. On Krofajapasi noteworthy given that nesting females females from accessing suitable nesting beach in Suriname, 31.6 percent of nests use high energy, erosion-prone beaches, sites (USFWS 1999). Clutches deposited laid by females were below the spring which often result in high nest loss seaward of these structures may be high tide level and determined to be (Chaco´n-Chaverri and Eckert 2007; inundated at high tide or washed out ‘‘doomed’’ clutches (Dutton and TEWG 2007; Spanier 2008; Trinidad entirely by increased wave action near Whitmore 1983). Similarly, in Gandoca, and Tobago Forestry Division et al. the base of the erosion control Costa Rica, 37 percent of nests from 2010). However, leatherback turtles in structures. As these structures fail and 1990 to 2004 were laid in the low tide the Guianas seem to have adapted to break apart, they spread debris on the zone and would have been inundated if this constant geomorphological change beach, thus creating additional impacts not relocated (Chaco´n-Chaverri and of beaches. When new beaches develop, to hatchlings and nesting females. Eckert 2007). In St. Croix, 43 percent of they may be colonized within months In the southeastern United States, the nests (with a range of 25 to 68 by nesting females, who take advantage numerous erosion control structures percent) were considered to be of the fresh, clean sand (or seashells, in that create barriers to nesting have been ‘‘doomed’’ each season (McDonald- Guyana) and absence of entangling or constructed. In Florida, the total amount Dutton et al. 2001), but beginning in deep-rooted beach vegetation (TEWG of existing and potential future armoring 1983, all doomed clutches were 2007). along the coastline is approximately 24 relocated to improve hatching success percent (164 miles; FDEP, pers. comm., (Dutton et al. 2005). Without Nest site selection by leatherback 2018). This assessment of armoring does intervention, these nests would likely turtles is still poorly understood not include other structures that are a have been lost. On Awala-Yalimapo, (Maison et al. 2010), but nesting females barrier to sea turtle nesting, such as French Guiana, 27 of 89 nests were may be changing their nesting patterns dune crossovers, cabanas, sand fences, overlapped by tide at least once during due to erosion. Spanier (2008) found and recreational equipment. the incubation period, and the hatching that nesting females at Playa Gandoca, Additionally, jetties have been placed at success was on average significantly Costa Rica, appear to actively select nest many ocean inlets in the United States lower in overwashed nests (Caut et al. sites that are not undergoing extensive to keep transported sand from closing 2010). Observed mortality was 100 erosion, with slope considered to be the the inlet channel. The installation of percent in the intertidal zone at sites cue for site selection. A similar result jetties resulted in lower loggerhead and along the coasts of Panama and was found on Grande Riviere, Trinidad, green turtle nesting density updrift and Colombia, with an overall nest loss by with a nesting shift from east to west downdrift of the inlets, leading erosion and inundation ranging from 16 throughout the season as an apparent researchers to propose that beach to 48 percent among three major nesting response to erosion on the eastern end instability from both erosion and sites (Patin˜ o-Martı´nez et al. 2008). of the nesting beach (Lee Lum 2005). accretion may discourage turtle nesting While levels of inundation and resulting Further, Maison et al. (2010) studied (Witherington et al. 2005). Leatherback declines in hatching success have been nest placement in Grenada and nesting near jetties and inlets is low, noted at multiple sites throughout the discovered that leatherback turtles possibly reflecting their avoidance of range of the NW Atlantic DPS, the seemed to respond to the accretion of such areas. There are some efforts, such specific impacts of inundation may be the north facing beach and erosion of as the Coastal Construction Control Line variable. Hilterman and Goverse (2007) the east facing beach in 2005 by nesting Program, that provide protection for noted that leatherback nests can tolerate more often on the north facing beach. If Florida’s beaches and dunes while relatively high levels of inundation, so erosion is increasing in existing nesting allowing for continued use of private hatching may still be successful despite locations, nesting may occur in areas property. However, armoring structures proximity to the tide line. Because of with lower success rates, thus affecting on and adjacent to the nesting beach this, and because it may affect natural productivity. In addition, leatherback continue to be permitted and sex ratios (Mrosovsky and Yntema nests are deeper than those of other sea constructed on the nesting beaches of 1980), the relocation of nests susceptible turtles; water content and salinity Florida, as in other nations where the to inundation was abandoned in 2002 in typically increase with depth, leading to DPS nests. Suriname (Hilterman and Goverse a decrease in sea turtle hatching success Due to erosion, beach nourishment is 2007); only nests directly threatened by (Foley et al. 2006). a frequent activity in some developed

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areas, and many beaches are on a major nesting beaches in this DPS are mining: In St. Lucia, the Conservation periodic nourishment schedule. Beach located in comparatively remote areas, and Management Act of 2014 requires a nourishment may result in direct burial and large-scale development is currently certificate of environmental approval for and disturbance to nesting females, if less of an issue there (Trinidad and projects removing sand from nesting conducted during the nesting season. It Tobago Forestry Division et al. 2010; beaches. may also result in changes in sand NMFS and USFWS 2013). That said, Removal of Native Vegetation density, beach hardness, beach moisture even within the same country, light content, beach slope, sand color, sand pollution is variable. Fossette et al. In some nations, upland deforestation grain size, sand grain shape, and sand (2008) reported that in French Guiana, and the resultant deposition of debris grain mineral content, if the placed sand light pollution from residential areas is and garbage can destroy or modify is dissimilar from the original beach a problem at Cayenne Beach, but it is nesting beaches. The debris can block sand (Nelson and Dickerson 1988; not an issue at Awala-Yalimapo. access of gravid (pregnant) females and USFWS 1999). These changes can affect Similarly, lighting is not a significant fatally trap emergent hatchlings nest site selection, digging behavior, problem on nesting beaches in Trinidad, (Chaco´n-Chaverri and Eckert 2007). The incubation temperature (and hence sex but is a concern in Tobago (Trinidad accumulation of logs reduces the ratios), gas exchange parameters within and Tobago Forestry Division et al. amount of available nesting habitat, incubating nests, hydric environment of 2010). With the risk of increased possibly forcing leatherback females to the nest, hatching success and hatchling development in some of these relatively nest in suboptimal locations (TEWG emerging success (Lutcavage et al. 1997; remote areas, additional light pollution 2007). Deforestation due to coastal Steinitz et al. 1998; Ernest and Martin is anticipated, and disorientation of development is a notable concern in 1999; USFWS 1999; Rumbold et al. hatchlings and adults from such lighting Puerto Rico (Crespo and Diez 2016). 2001; Brock et al. 2009). On severely may become a bigger problem. In Costa Vehicular Traffic eroded sections of beach, where little or Rica, beachfront lighting is increasing no suitable nesting habitat previously and may become problematic at Beach driving also occurs in most existed, beach nourishment has been Gandoca Beach (Chaco´n-Chaverri and nations throughout the range of this DPS found to result in increased nesting Eckert 2007) and Tortuguero (de Haro (Chaco´n-Chaverri and Eckert 2007; Dow (Ernest and Martin 1999). However, on and Troe¨ng 2006). et al. 2007; Trinidad and Tobago most beaches in the southeastern United Light pollution has been managed to Forestry Division et al. 2010). In the States, nesting success typically some extent (Witherington et al. 2014). United States, vehicular driving is declines for the first year or two Lighting in Florida is regulated by allowed on certain beaches in Florida following nourishment, even though multiple rules and regulations including (e.g., Duval, St. Johns, and Volusia more nesting habitat is available for Florida statutes, the Florida Building Counties). Beach driving reduces the turtles (Trindell et al. 1998; Ernest and Code, and local lighting ordinances quality of nesting habitat in several Martin 1999; Herren 1999; Brock et al. (Witherington et al. 2014). In addition, ways. Vehicle ruts on the beach can 2009). Further, nourishment projects the Florida Department of prevent or impede hatchlings from result in heavy machinery, pipelines, Transportation and local governments reaching the ocean following emergence increased human activity and artificial have adopted lighting-design standards. from the nest (Mann 1977; Hosier et al. lighting on the project beach, further A total of 82 municipalities in Florida 1981; Cox et al. 1994; Hughes and Caine affecting nesting females and beach have adopted lighting ordinances to 1994). Sand compaction by vehicles habitat. Overall, the impacts of beach minimize the impact of lighting on hinders nest construction and hatchling nourishment to this DPS are not as adjacent sea turtle nesting beaches emergence from nests (Mann 1977; widespread as other threats to nesting (Witherington et al. 2014). However, Gledhill 2007). Vehicle lights and habitat, as Dow et al. (2007) found that compliance and enforcement is lacking vehicle movement on the beach after only four nations (Anguilla, Cuba, in some areas. Further, lighting away dark can deter females from nesting and Mexico, and United States) reported from areas covered by beachfront disorient hatchlings. Additionally, frequent or occasional beach ordinances is unregulated, resulting in vehicle traffic contributes to erosion, nourishment. urban glow. Although outreach and especially during high tides or on conservation programs control the narrow beaches where driving is Artificial Lighting impacts of lighting in some other concentrated on the high beach and Coastal development also contributes locations, such as Costa Rica, Mexico, foredune. to habitat degradation by increasing and Puerto Rico (Lutcavage et al. 1997; Vegetation light pollution, which can result in Crespo and Diez 2016), a majority of hatchling and nesting female nations do not have regulations in place. Beach vegetation (native and non- disorientation, altering behavior and native) can affect turtle nesting leading to mortality. In Florida, from Sand Extraction productivity by obstructing nest 2013 to 2017, a total of 341 leatherback Extracting sand from nesting beaches construction and potentially drying the nests (representing the whole or for construction projects has a sand (resulting in egg chamber majority of hatchlings in the nest) and detrimental effect on the amount of collapse). Vegetation can form five nesting females were disoriented available nesting beach habitat and also impenetrable root mats that can invade (FWC unpublished data 2018). Artificial accelerates erosion (resulting in the and desiccate eggs and affect developing lighting ranked as the third highest aforementioned associated impacts). embryos, impede hatchling emergence, threat to nesting/hatching turtles in the Sand mining occurs in most Wider and trap hatchlings (Conrad et al. 2011). Wider Caribbean Region (Dow et al. Caribbean nations to varying extent and Non-native vegetation has invaded 2007). For example, urban development frequency (Dow et al. 2007). In many coastal areas and often is significant in Puerto Rico, with light particular, beach sand mining has been outcompetes native plant species pollution (as well as coastal erosion and extensive at Matura Bay and (USFWS 1999). The occurrence of exotic deforestation) occurring near Blanchisseuse in Trinidad (Trinidad vegetation (or loss of native vegetation) leatherback nesting beaches (Crespo and and Tobago Forestry Division et al. was recognized as a medium-ranked Diez 2016). Fortunately, some of the 2010). Some nations regulate sand threat in many Wider Caribbean nations

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(Dow et al. 2007). The Australian pine threats to some extent. USFWS and While the vast majority of nations (Casuarina equisetifolia) is particularly NMFS also designated as critical habitat within the range of the NW Atlantic harmful to sea turtles (USFWS 1999). for leatherback turtles the nesting DPS protect leatherback turtles from Australian pines cause excessive beaches at Sandy Point, St. Croix (43 FR harvest, it is legal in some Caribbean shading of the beach that would not 43688; September 26, 1978) and and Central American nations otherwise occur. Studies of loggerhead surrounding marine waters (44 FR (Brautigam and Eckert 2006; Dow et al. turtles in Florida suggest that nests laid 17710; March 23, 1979), which benefits 2007; Richardson et al. 2013; Horrocks in shaded areas are subjected to lower the turtles in this DPS. However, if ESA et al. 2016). For example, the harvest of incubation temperatures, which may protections did not continue (i.e., if this leatherback turtles over 20 pounds is alter the natural hatchling sex ratio species were no longer listed), these allowed in Montserrat and Dominica (Marcus and Maley 1987; Schmelz and protections would be lost. from October 1 to May 31; Saint Lucia Mezich 1988). Fallen Australian pines allows leatherback turtles over 65 Marine Habitat Modifications limit access to suitable nest sites and pounds to be taken from October 2 to can entrap nesting females (Reardon and In the marine environment, habitat February 27; and St. Kitts and Nevis Mansfield 1997). The shallow root threats include anthropogenic noise and allows take of leatherback turtles over network of these pines can interfere offshore lighting. We discuss other 350 pounds from October 2 to February with nest construction (Schmelz and threats to marine habitat and prey (e.g., 27 (Montserrat Turtles Act 2002; Mezich 1988). Dense stands of marine pollution, oil exploration, and Bra¨utigam and Eckert 2006). In some Australian pine have overtaken many climate change) in later sections. nations, commercial use is prohibited, coastal areas throughout central and Anthropogenic noise impacts the but traditional use is allowed, which south Florida. marine habitat of the DPS. Dow Piniak can still diminish protection. In While non-native vegetation can affect et al. (2012) measured hearing Colombia, subsistence fishing of sea nesting habitat throughout the range of sensitivity of leatherback hatchlings. turtles is permitted, and indigenous use the DPS, native vegetation can also They found that hatchlings are able to is allowed in Honduras. Traditional or affect productivity. For instance, at detect sounds underwater and in air, cultural use is permitted in Belize with Sandy Point, St. Croix, changing responding to stimuli between 50 and prior approval (Bra¨utigam and Eckert erosion-accretion cycles led to native 1200 Hz in water and 50 and 1600 Hz 2006). However, regular leatherback Ipomoea pes-caprae, a creeping vine, in air, with maximum sensitivity nesting does not occur in Belize, and its extending into the nesting area in some between 100 and 400 Hz in water and occurrence in surrounding waters is years. Nesting females at Sandy Point 50 and 400 Hz in air. This sensitivity infrequent, reducing the impact of such typically avoided nesting in vegetation, range overlaps with the frequencies and mortality. Legal harvest throughout the resulting in more nests laid near the levels produced by many anthropogenic range of this DPS is not monitored, and high-tide line (Conrad et al. 2011). As a sources used in the North Atlantic, the precise magnitude of this threat is result, Ipomoea pes-caprae decreased including seismic airgun arrays, not clear. However, we conclude that nest productivity by reducing drilling, low frequency sonar, shipping, legal harvest of turtles is significant leatherback hatching and emergence pile driving, and operating wind because, when it occurs, nesting turtles (percentage of hatchlings that emerge turbines. These noise sources may affect are targeted, removing the most from the nest) success rates (Conrad et leatherback turtles’ marine habitat and important individuals from the al. 2011). subsequently impact distribution and population. More often, leatherback Mitigations to Habitat Modification behavior. Offshore artificial lighting eggs, rather than turtle meat, are Nesting habitat disruptions are occurs in some marine waters of this harvested (TEWG 2007; Patin˜ o-Martı´nez minimized in some areas. Several areas DPS (Dow et al. 2007) but is less of a et al. 2008), reducing productivity in the in the NW Atlantic DPS range are under threat than beachfront lighting DPS. U.S. Federal ownership as National throughout the range of the DPS. Poaching of turtles and eggs occurs Wildlife Refuges in Florida (Archie Carr Summary throughout the NW Atlantic DPS, and and Hobe Sound), Puerto Rico (Culebra Dow et al. (2007) ranked it as a threat and Vieques) and St. Croix (Sandy We conclude that nesting females, for all turtle species on the beaches in Point). Beaches in some Wider hatchlings, and eggs are exposed to the the Wider Caribbean Region. In Panama, Caribbean countries are also protected. loss and modification of nesting habitat, interviews with locals revealed that the In Trinidad, Matura and Fishing Pond especially as a result of coastal development of a new way for cooking beaches were declared Prohibited Areas development and armoring, erosion, and leatherback turtle meat has resulted in in 1990, and the nesting beach at artificial lighting. These threats impact a recent increase of its consumption in Grande Riviere in 1997. In 1998, the the DPS by reducing nesting and Changuinola, Bocas del Toro Province Amana Nature Reserve, which includes hatching success, thus, lowering the (CITES Secretariat 2019). Adult turtles Awala-Yalimapo beach and a 30 m wide productivity of the DPS. Based on the are killed in Panama and on remote marine fringe, was established in French information presented above, we beaches in Trinidad and Tobago (Troe¨ng Guiana. In Suriname, the Wia Wia conclude that habitat reduction and et al. 2002; Ordon˜ ez et al. 2007; Nature Reserve was implemented in modification pose a threat to the NW Trinidad and Tobago Forestry Division 1961 (amended and enlarged in 1966 to Atlantic DPS. et al. 2010). Most poaching, however, protect sea turtles), and in 1969, the Overutilization for Commercial, targets eggs, and the level often is Marowijne beaches were declared a Recreational, Scientific, or Educational determined by how much monitoring sanctuary (the Galibi Nature Reserve; Purposes and activity to deter poachers occur on Schulz 1971). In addition, Tortuguero the nesting beaches. Some of the highest National Park, Costa Rica, was Overutilization is a threat to the NW levels of egg poaching occur throughout established in 1976 to protect nesting Atlantic DPS, mostly due to poaching of Costa Rica (Troe¨ng et al. 2004). Troe¨ng habitat (Bjorndal et al., 1999). turtles and eggs in certain nations. Legal et al. (2007) found that, at a minimum, Terrestrial habitat in these areas is harvest of turtles and eggs also occurs in between 13 to 21.5 percent of nests therefore protected from the above some nations. between 2000 and 2005 were illegally

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collected at Tortuguero. Poaching of al. 2017). However, the establishment of 2008) and St. Kitts (Dutton et al. 2013); leatherback nests was higher outside the USFWS Sandy Point National the majority of identified bacterial Tortuguero National Park (minimum 33 Wildlife Refuge has reduced egg species may be considered as potential percent) than within the National Park poaching to 0 to 1.8 percent annually as or opportunistic pathogens for sea (minimum 9 percent) in 2005 (de Haro a result of nightly patrols (Garner et al. turtles. A putative case of and Troe¨ng 2006). At Pacuare Playa, 2017). fibropapilloma, a virus-associated Costa Rica, 55 percent of nests were Poaching of eggs is widespread tumor-causing disease in sea turtles, has poached in 2012 (Fonseca and Chaco´n throughout the Caribbean, especially on been reported in a leatherback; this 2012) and 42 percent were poached in beaches of Costa Rica, Dominican disease is considered very rare in the 2017, which was the lowest level since Republic, and Colombia. The total species (Huerta et al. 2002). Latin American Sea Turtles (LAST) number of individuals affected by An in-water health assessment was started to monitor in 2012 (LAST 2017). poaching cannot be quantified at this performed on 12 turtles directly caught Poaching at Gandoca Beach has time. However, we conclude that many at-sea and seven turtles bycaught in decreased over time (previously 100 eggs and some adults are affected by fishing gear in the NW Atlantic Ocean percent of nests were poached), but illegal poaching at nesting beaches. (Innis et al. 2010). Most were rates still averaged 15.5 percent Adults and eggs are also exposed to determined to be in good health, but annually from 1990 to 2004 (Chaco´n- legal harvest in some nations. The legal several exhibited evidence of past Chaverri and Eckert 2007). In the and illegal harvest of nesting females injuries. The blood chemistry of Dominican Republic, poaching is also reduces both abundance (through loss of entangled turtles indicated stress, high. Revuelta et al. (2012) determined nesting females) and productivity seawater intake, and reduced food the poaching of clutches in Jaragua (through loss of reproductive potential), consumption associated with National Park and Saona Island ranged resulting in a high impact to the DPS. entanglement. In addition, Perrault et al. from 0 to 100 percent from 2006 to Legal and illegal egg harvest reduces (2012) examined baseline blood 2010, with averages of 19 percent on productivity only. Thus, we conclude chemistry metrics (i.e., plasma protein western Jaragua National Park beaches, that overutilization poses a threat to the electrophoresis, hematology, and 71 percent on eastern Jaragua National DPS. plasma biochemistry) as indicators of health for nesting females in Florida. Park beaches, and 74 percent on Saona. Disease or Predation Poaching also occurs at relatively high They found that multiple measures of For the NW Atlantic DPS, information levels in Colombia (e.g., 22 to 31 percent maternal health significantly correlated on diseases is limited, but predation is of clutches at Playona in 2006 and 2007; with leatherback hatching and a well-documented threat. emergence success (the percentage of Patin˜ o-Martı´nez et al. 2008) and, to Much of the available information on some extent, in most other Caribbean hatchlings that emerge from the nest). disease in leatherback turtles was From these data, we estimate that the nations (e.g., Guyana and Grenada). obtained by necropsy of stranded large exposure of eggs, juveniles, and adults Poaching is likely more prevalent, and juvenile and adult turtles; the health to disease is low. The impact of disease occurs at higher levels, on unmonitored implications of various conditions cannot be quantified at this time as we or unprotected beaches (Dow et al. reported in this species are have no documentation of any deaths or 2007; TEWG 2007; Troe¨ng et al. 2007; incompletely understood. Solitary large reductions in productivity directly Trinidad and Tobago Forestry Division intestinal diverticulitis of unknown related to disease. However, disease et al. 2010; K. Charles, Oceans Spirits etiology was found in 31 subadult and may compound the effects of or have Inc., pers. comm., 2018). adult leatherback turtles stranded in synergistic effects with other threats to Poaching has been significantly U.S. waters (Stacy et al. 2015). All the species and related physiologic reduced at some nesting beaches. In lesions were chronic and unrelated to derangements. We conclude that Suriname, high levels of egg poaching the cause of death in all cases, although disease, alone or in combination with (at least 26 percent of nests) occurred in risk of perforation and other other threats, is likely a threat to the the late 1990s, but due to better complications are possible. Adrenal DPS. monitoring and enforcement, that level gland protozoal parasites were found in Throughout the range of the DPS, has been significantly reduced 17 leatherback turtles in North predation is a threat to leatherback eggs, (Hilterman and Goverse 2007; M. Hiwat, American waters examined from 2001 to hatchlings, and adults. Eckert et al. WWF, pers. comm., 2018). Poaching 2014; it is not currently known whether (2012) provides an exhaustive list of the was also a major problem in Trinidad, parasitism affects adrenal function documented predators for each life stage but levels have been reduced with more (Ferguson et al. 2016). In addition, and area. For eggs in the NW Atlantic people monitoring the beach (Trinidad leatherback turtles are hosts for several DPS, predators include ants (Dorylus and Tobago Forestry Division et al. trematode parasites (flatworms), known spininodis), fly larvae (Diptera spp.), 2010). The Marine Turtle Conservation species of which also occur in hard- locust larvae (Acrididae spp.), mole Act of 2004 (MTCA) funds activities in shelled sea turtles (Manfredi et al. 1996, crickets (Scapteriscus didactylus), ghost Panama in an attempt to reduce Greiner et al. 2013). In general, crabs (Ocypode quadratus), vultures poaching. At Chiriqui Beach, Panama, trematodes are frequently encountered (Cathartidae), dogs (Canis familiaris), intense monitoring efforts have without any apparent clinical effect on cattle (Bos taurus; due to trampling), attempted to reduce poaching. However, the turtle host but can affect some armadillo (Dasypodidae), opossum of the monitored nests, 29 leatherback heavily parasitized individuals. With (Didelphis marsupialis), coati (Nasua nests (0.7 percent) were still poached in regard to other types of potential spp.), and raccoons (Procyon lotor); see 2017 (Sea Turtle Conservancy 2017). disease-causing organisms, there are a Eckert et al. 2012). Further, poaching in Panama outside small number of reports of bacterial In particular, dog predation of eggs the monitored areas still occurs, with infections in stranded individuals occurs in many areas (e.g., Colombia, the clandestine sale of eggs widespread (Poppi et al. 2012; Donnelly et al. 2016). French Guiana, Guyana, Panama, Puerto (Brautigam and Eckert 2006). In St. A variety of other bacteria have been Rico, and Trinidad and Tobago). In Croix, almost 100 percent of nests were documented in nesting females on Trinidad, where the largest nesting lost to poaching prior to 1981 (Garner et beaches in Costa Rica (Santoro et al. aggregation occurs, feral dogs are

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considered to be the primary threat to Point have observed an apparent enforcement. Specifically, existing eggs, even above poaching and coastal increase in injuries to leatherback regulatory mechanisms continue to be erosion (Trinidad and Tobago Forestry turtles (K. Stewart, NMFS, pers. comm., inadequate to control impacts to nesting Division et al. 2010). On Chiriqui Beach, 2019). These injuries, many of them beach habitat and overutilization Panama, 54 percent of the monitored consistent with shark predation, affect (harvest of turtles and eggs) for this DPS. leatherback nests were depredated by up to 70 percent of all nesting females In addition, regulatory mechanisms are dogs in 2003 and approximately eight at the beach (Scarfo et al. 2019). While inadequate to reduce several other percent in 2004 (Ordon˜ ez et al. 2007). some turtles probably survive these threats including bycatch in fishing Such predation may been reduced as a encounters, it is unknown how many gear, vessel strikes, and marine debris. result of protection efforts funded by the encounters result in mortality or Despite existing regulatory mechanisms, MTCA. In Playa California, Maunabo, reduced nesting effort. Jaguars (Panthera bycatch from fisheries (discussed in Puerto Rico, more than 30 percent of the onca) prey on nesting females in some detail along with existing regulatory leatherback nests were depredated by areas, including Suriname, French mechanisms in the Fisheries Bycatch stray dogs in 2012 (Crespo and Diez Guiana, Guyana, and Costa Rica (see section), incomplete nesting habitat 2016). A public outreach project in Eckert et al. 2012). While three nesting protection, and poaching remain major Puerto Rico was established in 2013 to females were killed by jaguars at threats to the DPS. reduce this impact. Puerto Rico is a U.S. Tortuguero, Costa Rica, from 1998 to Fisheries Bycatch territory; if ESA protections were 2005, this mortality is only considered removed, it is likely that predation rates to be a minor threat and is therefore Fisheries bycatch is the primary threat would be higher. unlikely to cause a population decline to the NW Atlantic DPS. Bycatch occurs Egg predation by other species is also on its own (Troe¨ng et al. 2007). throughout the range of the DPS, a notable concern in some areas. On Archibald and James (2018) examined affecting juveniles, subadults, and Gandoca Beach, Costa Rica, dipteran 228 leatherback turtles for injuries off adults. larvae infestation exceeded 75 percent Atlantic Canada and on Matura, Finkbeiner et al. (2011) analyzed sea of nests in 2005 and 2006 (Gautreau et Trinidad, and found 15.7 percent of turtle bycatch across all commercial al. 2008). In French Guiana, on average, turtles exhibited injuries of suspected U.S. fisheries from 1990 to 2007. They mole crickets preyed on 18 percent of predatory origin. examined sea turtle bycatch reduction all eggs (Maros et al. 2003). These Predation on early life stages is based on the year a particular fishery threats are likely to continue, as no natural; however, at high rates, it implemented bycatch reduction predator screening typically occurs in reduces the viability of the DPS (see the measures. Prior to implementing Wider Caribbean nations due to the Status Review). Predation primarily bycatch reduction measures, potential for increased poaching as well reduces productivity via reduced egg approximately 3,800 leatherback as logistical difficulties in these areas of and hatching success and the loss of interactions, of which 2,300 were lethal, high density nesting. Nest loss to hatchlings. Predation on nesting females occurred in U.S. Atlantic Ocean and predators was found to be the seventh reduces abundance and productivity. GOM commercial fisheries annually. ranked threat to turtles (all species, not We conclude that predation is a threat After bycatch reduction measures were specific to leatherback turtles) on to the NW Atlantic DPS. implemented, 1,400 leatherback turtles, nesting beaches in the Wider Caribbean 40 of those dead, were estimated to be Inadequacy of Existing Regulatory Region, and have been noted to taken annually in the Atlantic Ocean. Mechanisms frequently occur in Honduras, Mexico, The Atlantic/GOM pelagic longline Panama, Puerto Rico, and Venezuela Many regulatory mechanisms fishery was responsible for the most (Dow et al. 2007). (including state, Federal and annual interactions (n = 900) and Hatchlings are preyed upon by a wide international) have been promulgated to mortality events (n = 17) in the Atlantic variety of species, including mole protect leatherback turtles, eggs, and Ocean, followed by the southeast crickets, ghost crabs, horse-eye jack fish nesting habitat throughout the range of Atlantic/GOM shrimp trawl fishery (Caranx latus), gray snapper (Lutjanus the NW Atlantic DPS. We reviewed the (Finkbeiner et al. 2011). These estimates griseus), tarpon (Megalops atlanticus), objectives of each regulation and to represent minimum numbers of actual vultures, hawks (Accipitridae), gulls what extent they adequately address the bycatch and mortality. Because the (Larus spp.), night heron (Nyctanassa targeted threat (i.e., the threat that the observer coverage for these fisheries is violacea), frigate birds (Fregatidae), regulation was intended to address). low (so some bycatch may not be dogs, mongoose (Atilax paludinosus), The effectiveness of many international observed and observed effort may not be coati, and raccoons (Eckert et al. 2012). regulations was evaluated by Hykle a true representation of actual fleet Again, dogs are a serious threat to (2002), who found that international effort), not all fisheries are observed and leatherback hatchlings in some areas, instruments often do not realize their thus some are not included in these and especially in Puerto Rico (Crespo full potential, either because they do not estimates. Interactions are difficult to and Diez 2016). include all key countries, do not observe if gear modifications are in There are few documented predators specifically address sea turtle place, and so the methods used are to subadults and adult leatherback conservation, are handicapped by the conservative (Finkbeiner et al. 2011). turtles, presumably because of their lack of a sovereign authority that In the Wider Caribbean Region, large size and pelagic behavior. promotes enforcement, or are not legally reports of leatherback bycatch in Predation by sharks (Elasmobranchii) binding. fisheries are common. In a survey of and killer whales (Orcinus orca) has National regulatory mechanisms are Caribbean nations, Dow et al. (2007) been reported in Barbados and St. described in full in the Status Review ranked fisheries bycatch among the Vincent, respectively (Caldwell and Report. Although these regulatory highest in-water threat to sea turtles. Caldwell 1969; Horrocks 1989). Sharks mechanisms provide some protection to Many fisheries in less industrialized have also been reported to prey on the species, most inadequately reduce nations are coastal and small-scale, but nesting females off St. Croix, USVI the threat they were designed to these fisheries are reported to have (DeLand 2017; Scarfo et al. 2019). Over address, generally as a result of poor significant ecological impacts due to the past 6 years, researchers at Sandy implementation or incomplete their high bycatch discards and impacts

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to the marine environment (Shester and Spanish and Italian surface longlines, north and east coasts of Trinidad during Micheli 2011). Of particular concern are North Adriatic Italian trawls, Tunisian January to August, i.e., the breeding and leatherback bycatch in artisanal trawls, Turkish trawls, Moroccan nesting season, when nesting females nearshore and offshore gillnet, longline driftnets, and Italian driftnets (Camin˜ as and adult males occur in the waters off and trawl fisheries (Barrios-Garrido and 2004). The same types of fishing gear nesting beaches (Lee Lum 2006). Gilman Montiel-Villalobos 2016). Information from other nations also affect turtles, but et al. (2010) extrapolated leatherback on fisheries bycatch is collected mostly the bycatch numbers are lower (Camin˜ as bycatch estimates (Lee Lum 2006; from stranding records but also from 2004). Stranding records from Portugal Gearhart and Eckert 2007) to the entire fisher surveys (Moncada et al. 2003; from 1978 to 2013 found that 49 of 275 Trinidad Spanish mackerel and king Delamare 2005; Madarie 2006, 2010, leatherback turtles exhibited evidence of mackerel surface gillnet fishery, and 2012) and observations of nesting fishery interactions (the cause of estimated that almost 7,000 turtles were females. Hilterman and Goverse (2007) stranding could not be determined in captured in 2000. Additionally, Eckert recorded fisheries related injuries on most cases due to decomposition state; et al. (2013) worked with drift gillnet nesting females in Suriname. In 2002, Nicolau et al. 2016). Multifilament nets fishermen to identify leatherback 16.9 percent of the nesting females had accounted for approximately 41 percent bycatch hot spots off the north and east fisheries- related injuries; in 2003, at of the strandings, followed by coasts of Trinidad (where the nesting least 18.3 percent had such injuries; and monofilament nets, traps/pots, and beaches are), with capture probability in 2005, 9 percent (Hilterman and longlines. Coastal artisanal fisheries increasing from March to July and a Goverse 2007). From 2000 to 2003, an were recognized as a particular threat in secondary peak in October. average of 28 leatherback turtles Portugal. Whereas most of the documented stranded on the Suriname survey Based upon these summary reports leatherback bycatch off Trinidad occurs beaches. Although no cause of death and stranding assessments, it is clear in surface drift gillnet fisheries, bottom was immediately apparent, Hilterman that fisheries have a large impact on the set gillnet fishing also captures and Goverse (2007) indicated that the NW Atlantic DPS. In the following leatherback turtles (Gass 2006; S. Eckert, mortalities were fisheries-related, based paragraphs, we review information on WIDECAST, pers. comm., 2018). The upon the fisheries that occur offshore specific gear interactions, including the magnitude of effort and turtle bycatch in with high bycatch and documented following fisheries: Gillnet, longline, this fishery are lower than for surface fisheries-related injuries on nesting trawl, pot/trap, and other. nets, but mortality rates are higher (approximately 70 percent; Gass 2006). leatherback turtles at the same time. On Gillnet Fisheries the western oceanic nesting beaches of As such, the bottom set gillnet fishery Gillnet fisheries are common is thought to have a comparable level of French Guiana, injuries consistent with throughout the range of this DPS. Due fisheries interactions (e.g., scars, mortality to the drift gillnet fishery to the nature of the gear and fishing (approximately 500 to 1,000 leatherback wounds) were recorded on 8.4 percent practices (e.g., relatively long soak (n = 1,259) of nesting females in 2003 turtles annually; Gass 2006; S. Eckert, times), bycatch in gillnets is among the WIDECAST, pers. comm., 2018). The (Morisson et al. 2003). In Venezuela, 55 highest source of direct sea turtle percent of strandings from 2001 to 2007 Sea Turtle Recovery Action Plan for the mortality (Upite et al. 2013; Wallace et Republic of Trinidad and Tobago noted (n = 57) exhibited evidence of fisheries al. 2013; Upite et al. 2018). Upite et al. interactions (Barrios-Garrido and that drowning in gillnets is that nation’s (2018) evaluated observed fishery most significant cause of sea turtle Montiel-Villalobos 2016). Most recently, interactions and post-interaction mortality (Trinidad and Tobago Forestry an injury assessment of 228 leatherback mortality and determined a 79 percent Division et al. 2010). Bond and James turtles from two foraging areas off the sea turtle mortality rate for Northeast (2017) tracked a female from Canadian Atlantic coast of Canada and Trinidad and Mid-Atlantic gillnet gear from 2011 waters to a nesting beach off Trinidad, nesting beaches found 19 percent of to 2015. Wallace et al. (2013) calculated but the turtle was confirmed dead, turtles exhibited injuries indicative of leatherback bycatch in gillnets entangled in coastal fishing gear, just entanglement in lines or nets, and 17 throughout the NW Atlantic Ocean of prior to the date of her first predicted percent showed evidence of hooks; 62 0.015 turtles/set, with a 21 percent nesting event. Venezuelan fishers have percent of turtles assessed exhibited a median mortality rate (not considering also been seen hauling leatherback minimum of one external injury post-interaction mortality). This gear turtles from Trinidad waters into their (Archibald and James 2018). was classified as having a relatively boats (Brautigam and Eckert 2006). Fisheries bycatch also occur in the high bycatch impact on the NW Atlantic Together, drift and bottom-set gillnets Mediterranean and eastern North leatherback population. Small scale off the Trinidad beaches, which host the Atlantic Ocean. Casale et al. (2003) fisheries are of particular concern, given largest nesting aggregation in the DPS, analyzed 411 records of leatherback the magnitude of bycatch, nearshore are estimated to kill well over 1,000 turtles in the Mediterranean, of which distribution, and limited monitoring leatherback turtles annually, and they 152 were collected from Italy. Most of (Lewison et al. 2015). When nets are thus pose a large threat to the DPS. these records were from fishery captures used in waters off nesting beaches, High levels of gillnet bycatch occur in (n = 170) or found in unknown where leatherback turtles mate, nesting other Caribbean and South American circumstances (n = 127). Of those females and mature males are often nations, also off major nesting beaches. reported by fishermen, set or drift nets captured and killed. In French Guiana, bycatch was had the highest number of interactions The largest documented bycatch of confirmed to be high in the Maroni (29.4 percent), followed by unknown leatherback turtles in gillnet gear occurs estuary (Chevalier 2001; Girondot 2015). fishing equipment (22.9 percent), off the coast of Trinidad. Lee Lum In 2003, 26 leatherback turtles were longlines (20.6 percent), unspecified (2006) estimated that more than 3,000 caught in coastal gillnets and released nets (12.9 percent), other fishing leatherback turtles were captured by off the Cayenne and Montjoly nesting equipment (9.4 percent), and trawls (4.7 coastal surface gillnets off Trinidad sites (Gratiot et al. 2003 in TEWG 2007). percent). The main fisheries affecting annually, with an approximate 30 Delamare (2005) conducted fishermen turtles in the Mediterranean (all turtle percent mortality rate. These captures interviews and estimated an average of species, not just leatherback turtles) are involved adult turtles, occurring off the 1,149 leatherback captures in 2004 and

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2005 by bottom-set or drifting gillnets in fishing by the European Union fleet in prohibits fishing within 100 meters of French Guiana. No estimate of mortality the Mediterranean went into effect in shore to protect nesting turtles. There was provided, but it is likely similar to 2002; and the International Commission are gillnet and trammel net restrictions Trinidad fisheries, i.e., 70 and 30 for the Conservation of Atlantic Tunas in Curacao (Ministry of Health, percent, respectively. In Suriname, a (ICCAT) banned driftnets in 2003. Environment, and Nature 2014, UN World Wildlife Fund survey of Nevertheless, unregulated driftnetting Environment Programme 2017). In the fishermen estimated leatherback continued to occur in some areas (e.g., United States, gillnets with stretched bycatch in drifting gillnets at 584 in the Mediterranean Sea and off Europe; mesh seven inches and larger are 2006, 174 in 2010, and 424 in 2012 Pierpoint 2000; Camin˜ as 2004). In the prohibited at certain times off North (Madarie 2006; Madarie 2010; Madarie Atlantic Ocean, leatherback bycatch has Carolina and Virginia to protect sea 2012). Most of the turtles were captured been reported from NE Atlantic tuna turtles (50 CFR 223.206(d)(8); 71 FR alive. In Colombia, 10 to 40 leatherback driftnet fisheries by English, French and 24776, April 26, 2006). While no gear turtles are killed annually by gillnets Irish vessels (Pierpoint 2000). Of 20 modifications are currently required for (Patin˜ o-Martı´nez et al. 2008). Longline leatherback turtles found in nets in U.S. gillnet fisheries, Federal U.S. and driftnet gillnet fisheries in British and Irish waters (1980 to 2000), fisheries are subject to section 7 of the Moroccan waters off the northwestern eight were caught in the NE Atlantic ESA, 16 U.S.C. 1536(a)(2), and through Africa coast capture approximately 100 tuna driftnet fishery (with 25 percent formal consultations on specific leatherback turtles annually mortality) and one was caught in a hake fisheries, measures may be required to (Benhardouze et al. 2012). gillnet (Pierpoint 2000). minimize the impact of incidental take Although not at as high a rate as in Historically, driftnet fishing in the in gillnets (NMFS 2013). Regardless of the Caribbean (based upon observed Mediterranean Sea caught large some of these protective measures, interactions), gillnet bycatch occurs in numbers of sea turtles. And today an gillnet bycatch (especially off nesting U.S. and Canadian waters. Although estimated 600 illegal driftnet vessels beaches) results in the loss of thousands South Carolina, Georgia, Florida, operate in the Mediterranean, including of mature individuals annually. Louisiana, and Texas have prohibited fleets based in Algeria, France, Italy, gillnets in their State waters, active Morocco, and Turkey (Environmental Longline Fisheries gillnet fisheries remain in other states Justice Foundation 2007). Out of 411 Leatherback turtles are known to and U.S. Federal waters. No cumulative records of leatherback turtles (stranded, interact with longline fishing gear, most estimates of leatherback bycatch in captured, sighted, or found in unknown commonly pelagic longlines (Lewison et gillnet fisheries in U.S. waters are circumstances) in the Mediterranean al. 2004; Zollett 2009; Wallace et al. available due to the limited observed Sea, 170 turtles were captured by 2010; Wallace et al. 2013). There is interactions. However, from 2003 to fishermen, of which 29.4 percent were significant concern over the effects of 2017, fishery observers recorded lethal caught by set or drift nets (Casale et al. pelagic longline fishing, which extends and non-lethal bycatch in fixed sink, 2003). Driftnets and gillnets in Greece, globally throughout temperate and drift sink, and drift floating gillnets Israel, Italy, Tunisia and Turkey have tropical waters, including several high throughout the U.S. Atlantic Exclusive reported documented leatherback pressure fishing areas in the North Economic Zone (EEZ) and GOM (NMFS interactions, and occasional leatherback Atlantic Ocean (Fossette et al. 2014; unpublished data). From 2012 to 2016, bycatch occurs in Croatian artisanal Gray and Diaz 2017). In international 27 leatherback turtles (coefficient of gillnet fisheries (Camin˜ as 2004; Ergene waters, numerous flag states have high variation = 0.71, 95 percent CI over all and Ukar 2017). In particular, Karaa et seas longline fisheries that frequently years: 0–68) were bycaught with 21 al. (2013) reviewed 36 leatherback catch leatherback turtles (Lewison et al. mortalities in sink gillnet gear in the bycatch records from Tunisia fisheries 2004). Individuals are found entangled Georges Bank and Mid-Atlantic regions in the Gulf of Gabes, and found that and hooked in this gear, mostly by the (Murray 2018). From 1989 to 1998, U.S. gillnets are the dominant threat to flippers (Witzell and Cramer 1995; drift pelagic gillnets captured 54 leatherback turtles in the region. A Coelho et al. 2015; Huang 2015). leatherback turtles, but that gear is no similar result (e.g., gillnets being a high Leatherback bycatch in longlines longer used. Hamelin et al. (2017) threat to leatherback turtles in the area) throughout the NW Atlantic Ocean was reviewed leatherback entanglement was found in the Adriatic Sea (Lazar et calculated at 0.062 turtles per set, records reported by Canada in Atlantic al. 2012). The first leatherback recorded classifying the gear as a relatively low Canadian waters between 1998 and on the Aegean coast of Turkey was bycatch impact relative to other sea 2014. Gillnets, mainly targeting caught in a gillnet (Taskavak et al. turtle populations (Wallace et al. 2013; groundfish, were involved in 24 of 205 1998). Further, a review by Casale Lewison et al. 2015). However, because entanglements (11.7 percent), (2008) found that leatherback turtles are longline fisheries are widespread across particularly in Newfoundland and taken in the drift gillnet fishery in Spain leatherbacks’ distribution and use Labrador (n = 15). Often, gillnet at a rate of 0.065 turtles/day-boat. millions of hooks each year, they pose entanglements involve the vertical lines Throughout the range of the NW a large threat to the NW Atlantic DPS associated with gear (M. James, DFO, Atlantic DPS, effective gillnet bycatch and are estimated to kill thousands of pers. comm., 2019). reduction measures have not been individuals (mature and immature) Gillnet bycatch occurs in the eastern required, but measures to reduce annually. North Atlantic Ocean and in the leatherback bycatch have been Pelagic longline fishing is widespread Mediterranean Sea. As in other areas, discussed in some areas (e.g., Trinidad; throughout the range of the DPS and sea turtles have the potential to interact Eckert 2013). If nations have a closed involves a number of nations, so an with set gillnets and drift gillnets. The season for fishing, at least in the nesting accurate estimate of total bycatch is United Nations (UN) established a season (e.g., Suriname; Madarie 2006), difficult to obtain. In the Atlantic Ocean worldwide moratorium on drift gillnet nesting females are afforded some level from 2002 to 2013, the largest longline fishing effective in 1992; the General of protection from gillnet bycatch. Some fishing fleets belonged to Taiwan, Japan, Fisheries Commission for the nations have prohibited gillnet gear; St. Spain, Belize, and China, with the Mediterranean prohibited driftnet Barthelemy does not allow trammel nets Taiwanese fleet comprising the largest fishing in 1997; a total ban on driftnet in its territorial waters and St. Lucia distant-water longline effort throughout

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the region (Angel 2014; Huang 2015). In studied in the last decade. Current Greece, and Albania have documented an assessment of the impact of ICCAT estimates of leatherback interactions leatherback interactions (Camin˜ as 2004). fisheries on sea turtles, Gray and Diaz with the U.S. Atlantic pelagic longline In the western Mediterranean, swordfish (2017) estimated leatherback fishery are lower than previous years. In longlines appeared to be responsible for interactions with pelagic longlines in the late 1990s and early 2000s, estimates most of the leatherback bycatch and the ICCAT area from 2012 to 2014 (15 of Atlantic U.S. pelagic longline bycatch entanglements (Camin˜ as 1998; Camin˜ as to 16 fleets). Using a combination of were around 1000 leatherback turtles 2004). Casale et al. (2003) reviewed published and assigned sea turtle annually (NMFS 2001; Yeung 2001; bycatch rates for longline fisheries bycatch rates as a function of estimated NMFS 2018), with bycatch rates of targeting swordfish and estimated the fishing effort submitted to ICCAT by its about 0.15 to 0.5 turtles per 1000 hooks average Mediterranean longline bycatch members, Gray and Diaz (2017) found a (Watson et al. 2005). In 2005, after the rates at 0.0025 leatherback turtles/1000 high degree of overlap in the central United States required pelagic longline hooks, with a maximum rate of 0.0510 North Atlantic Ocean and equatorial gear modifications (50 CFR 635.21), the leatherback turtles/1000 hooks in the waters (some of which are outside this fleet was estimated to have interacted Tyrrhenian Sea of Italy (Casale et al. DPS). Within the NW Atlantic region, an with 351 leatherback turtles outside 2003; Casale and Margaritoulis 2010). Of estimated 7,138 leatherback interactions experimental fishing operations (Walsh 170 leatherback fishery captures in occurred in 2012, 6,036 in 2013 and and Garrison 2006). NMFS (2018) fisheries from the Mediterranean Sea, 4,991 in 2014 (Gray and Diaz 2017). estimated 239 leatherback interactions approximately 35 involved longlines Applying a reasonable estimated in the U.S. Atlantic pelagic longline (Casale et al. 2003). While leatherback mortality rate of 21.4 percent, as seen in fishery in 2011, 596 in 2012, 363 in turtles are encountered in other high seas pelagic longline gear 2013, 268 in 2014, 299 in 2015, and 339 Mediterranean longlines, loggerheads (Huang 2015), results in an average in 2016. The majority of interactions are the most common species caught; annual estimated mortality of 1,296 occurred in the GOM, Mid-Atlantic only 0.1 percent of turtles captured leatherback turtles from 2012 to 2014. Bight, Northeast Coastal, and Northeast during an observer program in Spain, However, this is likely an underestimate Distant areas (NMFS 2018). The post- Italy and Greece were leatherback of total mortality, as the high seas interaction mortality estimate for the turtles (3 out of 2,370 observed turtles; mortality rate in Huang (2015) was most recently available 3-year period Laurent et al. 2001). However, given the based upon the disposition of the turtle (2013 to 2015) for leatherback turtles is extensive longline effort in the when boarded and therefore did not 30.13 percent (L. Desfosse, NMFS, pers. Mediterranean Sea (Casale 2008), account for post-interaction mortality; comm., 2018). Based on the average leatherback bycatch in the 240 of 459 leatherback turtles caught leatherback interaction estimate for the Mediterranean is still a concern. from 2002 to 2013 were alive and 121 entire U.S. pelagic longline fleet from Lewison et al. (2004) estimated a range were of unknown status (Huang 2015). 2011 to 2016 (351), the estimated of 250 to 10,000 leatherback turtles Angel et al. (2014) conducted a risk average annual mortality for the U.S. bycaught in the Mediterranean in 2000, assessment of turtles from the impacts pelagic longline fishery is 106 with 6 percent observer coverage. of tuna fishing in the ICCAT region and leatherback turtles. Longline bycatch of leatherback found the NW Atlantic RMU (which is Leatherback interactions also occur in turtles in the range of the NW Atlantic comparable to the NW Atlantic DPS; Canadian pelagic longline fisheries. DPS also occurs in waters off Cape From summer to fall, primarily on the Verde (Melo and Melo 2013; Coelho et Wallace et al. 2010) has high-moderate Scotian Shelf, encounters with al. 2015), Morocco (Benhardouze et al. vulnerability to longline gear, with as leatherback turtles have been 2012), and Brazil (Pacheco et al. 2011). many as 270 million longline hooks documented in the large pelagic Given the wide distribution of both annually from 2000 to 2009. In longline fishery since 2001 (DFO 2012). pelagic longline gear and leatherback particular, Fossette et al. (2014) With observer coverage ranging from 5 turtles, bycatch of individuals in analyzed leatherback satellite tracks to 30 percent since 2001, there were 102 longline gear can occur wherever and (converted to densities) overlaid with reported interactions with pelagic whenever the gear and sea turtle longline fishing effort from 1995 to 2009 longlines from 2001 to 2005, and 36 distribution overlap. in the Atlantic Ocean. In the North from 2006 to 2010 (DFO 2012). Large circle hooks (non-offset) have Atlantic Ocean, a total of four seasonal Mortality rates are estimated to be in the been found to reduce leatherback high-susceptibility areas were range of 21 to 49 percent, resulting in bycatch by as much as 55 percent identified: one in the central northern an estimated mortality of 13 to 44 compared to traditional J-style hooks Atlantic in international waters, one leatherback turtles annually. Based on (Andraka et al. 2013; Coelho et al. along the east coast of the United States, an analysis of Canadian observer data 2015). While the vessels of certain and one each in the Canary and Cape from 2002 to 2010, the bycatch rate in nations may employ large circle hooks, Verdean basins (Fossette et al. 2014). this fishery is estimated to have there are no obligations for international These areas partly occurred in the EEZs declined from 120–190 leatherback longline fleets to adopt such bycatch of eight nations (Cape Verde, Gambia, turtles annually from 2002 to 2006 to mitigation measures (Richardson et al. Guinea Bissau, Mauritania, Senegal, 60–90 leatherback turtles annually from 2013). In 2005, an ICCAT resolution Spain/Canaries, United States, and 2006 to 2010, largely as a result of gear encouraged circle hook research (ICCAT Western Sahara). Given the species’ modifications (Hanke et al. 2012). 2005), but no legally binding measure to flexible diving behavior, it is reasonable In the Mediterranean Sea, longlining require circle hooks exists (Gilman to expect that turtles are likely to is prevalent. Drifting longlines targeting 2011). Without the widespread use of encounter pelagic longlines throughout swordfish (Xiphias gladius), albacore non-offset circle hooks, it is likely that the Atlantic Ocean, regardless of (Thunnus alalunga), and bluefin tuna the high bycatch rates of leatherback whether they are engaged in foraging or (T. thynnus) are considered to be the turtles in pelagic longline gear will migratory behavior (Fossette et al. most dangerous fishing gear for turtles continue throughout the North Atlantic 2014). in the Mediterranean Sea (Lucchetti and high seas fisheries. Bycatch in U.S. Atlantic and GOM Sala 2010). Drifting longlines (mainly Since 2004, the United States has pelagic longlines has been extensively for albacore tuna) in Spain, Italy, issued regulations that require

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modifications to pelagic longline gear in measures are not widely required, the be a widespread threat to this DPS, the U.S. Atlantic and GOM to reduce the number of vessels that do not employ likely resulting in the loss of thousands bycatch and post-interaction mortality bycatch reduction measures is likely of individuals annually. of sea turtles; these regulations (50 CFR higher than the number of vessels that Trawl Fisheries 635.21(c)(2)) specify hook type and size do, and so we conclude on the basis of (18/0 or 16/0 circle hooks depending on the best available information that Leatherback turtles may interact with the area), bait type, use of turtle leatherback bycatch in pelagic longline bottom and midwater trawl gear disentangling equipment and handling fisheries is still a significant threat throughout the North Atlantic Ocean. guidelines. Swimmer et al. (2017) (Lewison et al. 2015). The highest reported trawl bycatch of recently analyzed pelagic longline Leatherback interactions with bottom leatherback turtles of the NW Atlantic interactions before (1992 to 2001) and longlines also occur. Directed shark DPS is likely from the southeastern U.S. after (mid-2004 to 2015) these fisheries using bottom longlines in the shrimp trawl fishery. Epperly et al. regulations were promulgated. Atlantic Ocean and GOM may capture (2003) anticipated an average of 80 Throughout the study period, 844 or entangle leatherback turtles (NMFS leatherback mortalities a year in shrimp leatherback turtles were captured. 2012), and the GOM reef fishery is also trawl interactions, dropping to an Overall, turtle bycatch was highest in anticipated to take leatherback turtles estimate of 26 leatherback mortalities in the Northeast Distant statistical (NMFS 2011). On February 7, 2007, 2009 due to reduction in fishing effort reporting area (0.3 turtles/1000 hooks), NMFS published a rule that required (Memo from Dr. B. Ponwith, SEFSC, to followed by the Northeast Coastal, commercial shark bottom longline Dr. R. Crabtree, SERO, January 5, 2011). GOM, and Caribbean areas. Bycatch vessels to carry the same dehooking The 2014 NMFS Southeast U.S. Shrimp rates were higher for years prior to 2004; equipment as the pelagic longline Fishery Biological Opinion estimated after the regulations, Atlantic vessels; this rule was promulgated to 167 annual leatherback captures (144 leatherback bycatch rates declined by 40 reduce post-interaction mortality (72 FR mortalities) in the Atlantic Ocean and percent (0.13 to 0.078 turtles/1000 5633). GOM shrimp otter trawl fishery, with an hooks). Within the Northeast Distant The Canadian east coast groundfish additional 34 captures in try nets (single area alone, where additional restrictions longline fishery targets a wide variety of nets testing for shrimp concentrations; include a large circle hook (18/0) and groundfish species, including cod, NMFS 2014). The majority of these limited use of squid bait, rates declined haddock, pollock and white hake. interactions were in the GOM. However, by 64 percent (0.44 to 0.16 turtles/1000 Observer coverage has ranged from 2 to a more recent study of the GOM and hooks; Swimmer et al. 2017). Gilman 30 percent depending on area, and there southeastern U.S. Atlantic coast shrimp and Huang (2017) found similar results: have been no reported interactions of otter trawl fishery found fewer Fish versus squid bait lowered catch leatherback turtles in the observer leatherback captures: From 2007 to rates of leatherback turtles, and wider database since 2001 (DFO 2012). 2017, only 3 leatherback turtles were circle hooks reduced leatherback catch However, there have been three reports reported in the observer data (with rates relative to narrower J and tuna from Quebec logbooks and 10 reports of coverage levels around 2 percent of hooks. Capture probabilities are lowest interactions with groundfish longline nominal days at sea; Babcock et al. when using a combination of circle gear to non-governmental groups (DFO 2018). hook and fish bait. 2012). This indicates that the risk of In the mid-Atlantic and northeastern Efforts have been made to reduce interactions in this gear may be higher U.S. waters, observers reported 9 interactions in Canadian waters as well. than documented through the observer leatherback captures in bottom otter Circle hook use has been recommended program. trawl gear and 5 captures in midwater in the swordfish-directed Canadian Bottom longlines are also used in the trawls from 1993 to 2017 (NMFS longline fleet since 2003, whereas Mediterranean Sea (Casale 2008). While unpublished data 2018). In the Wider corrodible circle hooks have been there have not been any documented Caribbean Region, leatherback turtles required in the pelagic longline fishery leatherback captures from this gear type, are reported captured in trawls in since 2012 (DFO 2013; C. MacDonald, loggerheads have been caught at high French Guiana (Ferraroli et al. 2004; DFO, pers. comm., 2019). There is no rates in Tunisia, Libya, Greece, Turkey, TEWG 2007), Guyana (Reichart et al. mandatory hook size restriction for the Egypt, Morocco, and Italy (Casale 2008), 2003), Suriname (Madarie 2010), Canadian longline fleet, but license and interactions with leatherback turtles Trinidad (Forestry Division et al. 2010), holders almost exclusively use 16/0 are possible. and Venezuela (Alio et al. 2010). circle hooks (C. MacDonald, DFO, pers. Commercial pelagic longline fisheries Since 1980, there were eight reports of comm., 2019). De-hooking and line- do not operate in some Caribbean leatherback turtles incidentally captured cutting kits are required on swordfish nations, such as in Panama where effort by trawl gear in British and Irish waters longline fishery vessels (C. MacDonald, is limited to vessels under six tons (Pierpoint 2000). In the Mediterranean DFO, pers. comm. 2019). (Executive Decree 486, December 28, Sea, leatherback bycatch in bottom Some fishing fleets in the Atlantic 2010). However, other Caribbean trawls off Tunisia (Caminas 2004) and Ocean (e.g., U.S., Canadian, ICCAT nations allow commercial pelagic Egypt (Casale 2008) has also been vessels) use large circle hooks and longline fishing, and many find reported. modified bait, but these measures are leatherback turtles with longline hooks Trawl bycatch reduction measures not required in all areas (Watson et al. (Re´serve Naturelle de l’Amana data in (e.g., turtle excluder devices (TEDs) are 2005; Gilman et al. 2007; Gilman 2011). Berzins, Office National de la Chasse et in place in some nations. The Some nations in the Wider Caribbean de la Faune Sauvage, pers. comm., 2018 southeastern U.S. shrimp fishery has Region have implemented circle hook and KWATA data in Berzins 2018). required TEDs since the early 1990s. provisions; in Belize, the high seas While no longlines exist in the However, TEDs that were initially fishing fleet adopted the use of circle Caribbean Dutch nations of Bonaire, St. required for use in the U.S. Atlantic hooks on 10 percent of the fleet and are Eustatius and Saba, there are efforts to Ocean and GOM shrimp fisheries were required to report capture of sea turtles introduce circle hooks into the trolling less effective for leatherback turtles as by longlines (Belize Fisheries fishery (Ministry of Economic Affairs compared to smaller, hard-shelled turtle Department 2017). Because the 2014). We consider longline bycatch to species, because the TED openings were

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too small to allow leatherback turtles to Kingdom, and Uruguay. Ten nations the public and subsequent escape. To address this problem, NMFS (Bahamas, Belize, China, the Dominican documentation and disentanglement by issued a final rule on February 21, 2003, Republic, Fiji, Jamaica, Oman, Peru, Sri trained responders. From 2008 to 2017, to amend the TED regulations (68 FR Lanka, and Venezuela) and Hong Kong 267 leatherback entanglements were 8456) to require modified TEDs in the only harvest shrimp using small boats reported in vertical fishing line (STDN southeastern United States (Atlantic with crews of less than five that use unpublished data). Of those fisheries Area and GOM Area) that exclude manual rather than mechanical means that could be identified, 79 were lobster, leatherback turtles, as well as large to retrieve nets or catch shrimp using 21 were fish traps or fish lines, 18 were benthic immature and sexually mature other methods that do not threaten sea conch (or a combination of conch and loggerhead and green sea turtles. TEDs turtles. Use of such small scale lobster), and 5 were crab gear; 144 are also required in summer flounder technology is not believed to adversely entanglements were from unidentifiable trawls operating off Virginia (south of affect sea turtles. For those nations fishing gear. While most unknown Cape Charles) and North Carolina (64 within the geographical range of the NW vertical line entanglements likely FR 55860, October 15, 1999; 67 FR Atlantic DPS, the threat of shrimp involve pot/trap gear, this cannot 19933, April 17, 2002). trawling is minimized with TED use. always be conclusively determined. The TEDs are also used outside the United TEDs are also required in trawl fleets majority of the leatherback turtle reports States. Shrimp harvested with in Trinidad, Belize, Brazil, and (67 percent) were from Massachusetts commercial fishing technology that may Venezuela, but those gear modifications waters. Of the 267 leatherback do not currently meet the U.S. adversely affect sea turtles generally entanglements, 221 were released alive certification protocol. On June 20, 2019, cannot be imported into the United and 46 were found dead. the European Union passed a regulation States per Public Law 101–162, Section Given the nature of their injuries, it is (PE–CONS 59/1/19 Rev 1) that requires 609(b), enacted on November 21, 1989 probable that not all animals released technical measures concerning: The (16 U.S.C. 1537 note). The import ban alive from entanglements survived. taking and landing of marine biological does not apply to nations that have Currently there are limited empirical resources; the operation of fishing gear; adopted sea turtle protection programs data on leatherback survival from pot/ and the interaction of fishing activities comparable to that of the United States trap entanglements. Innis et al. (2010) with marine ecosystems. Specific to sea (i.e., require and enforce TED use) or found that at least some of the turtles, the regulation requires shrimp disentangled individuals were able to whose fishing activity does not present trawl fisheries to use a TED in European a threat to sea turtles (e.g., nations Union waters of the Indian and West resume normal behavior and migratory fishing in areas where sea turtles do not Atlantic Oceans, consisting of waters patterns, but two leatherback turtles occur). Although most certifications are around Guadeloupe, French Guiana, were entangled at least twice, and a done on a national basis, the U.S. State Martinique, Mayotte, Re´union and Saint third disentangled turtle had significant Department guidelines allow some Martin. forelimb skin and muscle injuries. The individual shipments of TED-harvested TEDs are not required in effects of entanglement may be sub- shrimp from uncertified countries with Mediterranean trawls. Some nations, lethal initially, but could result in appropriate documentation. like Belize, St. Barthelemy, Venezuela subsequent mortality. By assessing the Approximately 40 nations are currently (industrial fishing only), and the injuries experienced by each turtle that certified to import shrimp into the Caribbean Netherlands (Bonaire, St. was documented to have been entangled United States, and five fisheries have Eustatius, Saba), have banned trawling and using NMFS’ post-interaction been determined as having their (Bolivarian Republic of Venezuela mortality guidance (NMFS 2017), the products eligible for importation with Official Gazette N° 5.877, March 14, resulting mortality rate for northeastern proper documentation (83 FR 22739, 2008; Ministry of Economic Affairs U.S. vertical fishing line interactions for May 16, 2018). Specifically, on May 8, 2016; Belize Fisheries Department all sea turtle species combined was 2018, the U.S. State Department 2017), and Costa Rica does not allow the calculated at 55 percent from 2013 to certified 13 nations on the basis that issuance of any new permits for shrimp 2017 (NMFS unpublished data). When their sea turtle protection programs (e.g., trawling (Costa Rica Ministry of the mortality estimate includes those use of TEDs) are comparable to that of Environment and Energy 2017). Curacao turtles that were not disentangled and the United States: Colombia, Costa Rica, prohibits fishing in its territorial waters assumed to have died, the rate increases Ecuador, El Salvador, Gabon, and inland bays with dragnets (and to 61 percent. As a result (and applying Guatemala, Guyana, Honduras, Mexico, certain fish traps). These initiatives the latest 5 year mortality rate to the last Nicaragua, Nigeria, Panama, and reduce the impact of trawling on 10 years of entanglement data), 147 to Suriname. It also certified 26 shrimp- leatherback turtles. 163 leatherback turtles died from harvesting nations and one economy as vertical fishing line gear (most of which having fishing environments that do not Pot/Trap Fisheries were likely pot/trap gear) in the pose a danger to sea turtles. In addition, Leatherback turtles are commonly northeastern U.S. waters from 2008 to one fishery from a non-certified nation entangled in the vertical lines of pot and 2017, based on opportunistically within the range of the NW Atlantic trap gear. Entanglements have been reported data. An additional 36 DPS (the French Guiana domestic trawl mostly reported from U.S. and Canadian leatherback turtles were reported fishery) has been authorized to import waters, but line entanglements have entangled in trap/buoy lines from North shrimp products, provided certain occurred in other areas where similar Carolina to Texas from 2008 to 2017 documentation accompanies the gear is used (e.g., Britain; Godley et al. (STSSN unpublished data). Of those 36 imports. Sixteen nations have shrimping 1998). entanglements, 32 turtles were found grounds only in cold waters where the Due to high numbers of entanglement alive and 4 dead, but these southeastern risk of taking sea turtles is negligible: reports, a Sea Turtle Disentanglement U.S. numbers do not incorporate Argentina, Belgium, Canada, Chile, Network (STDN) was established by potential post-interaction mortality so Denmark, Finland, Germany, Iceland, NMFS in the northeastern United States the total lethal interactions were likely Ireland, the Netherlands, New Zealand, (Maine to Virginia) in 2002. This higher. Further, this information is Norway, Russia, Sweden, the United program relies primarily on reports from likely an underestimate of actual

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entanglements and mortality given the Maine (Hayes et al. 2018). There are a fraction of the total captures reported. opportunistic reporting nature of the currently no existing mitigation For those purse seines in the ICCAT program; therefore, it is clear that measures to reduce leatherback bycatch region using fish aggregating devices leatherback interactions with vertical in vertical fishing lines, but efforts to and for those setting over free- fishing lines are a threat to this DPS. reduce the amount of vertical lines in swimming tuna schools, the effort Entanglements in Canadian waters are the water to assist with large whale (through 2011) was concentrated in the also frequently reported under conservation in the United States may tropics, off West Africa between circumstances similar to the U.S. STDN help reduce the impact to the DPS Namibia and Mauritania and off program, i.e., opportunistically by (https:// Venezuela (Clermont et al. 2012; Angel fishermen or the public. Between 1998 www.greateratlantic.fisheries.noaa.gov/ et al. 2014). While leatherback and and 2014, 205 leatherback protected/whaletrp/). purse seine interactions may occur entanglements were reported in Canada where distribution and effort overlap, Other Gear Types along the Atlantic coast, with most from the magnitude of the purse seine Nova Scotia (136) and Newfoundland Leatherback turtles are also impacts on the NW Atlantic DPS is (40; Hamelin et al. 2017). Entanglements susceptible to bycatch in pound nets, lower than the bycatch values presented mostly involved pot fisheries (44 weirs, and purse seine fisheries. In the in Clermont et al. (2012). Further, Angel percent; n = 91), including snow crab (n United States, pound nets set in Virginia (2014) found that the direct impacts on = 37), inshore lobster (n = 31), rock crab waters have entangled leatherback turtles from purse seine fishing (n = 10), whelk (n = 8), and hagfish (n turtles. On June 23, 2006, NMFS issued operations appears to be minor in = 3) fisheries. Trap net fisheries were a regulation (71 FR 36024) requiring comparison to the impacts from longline involved in 26 percent of the offshore pound nets set in a portion of fishing, especially as most purse seine entanglements (n = 53). Of the overall the lower Chesapeake Bay from May 6 captures are released alive. 205 reports, the majority of turtles were through July 15 of each year to use reported alive and successfully released modified pound net leaders, a gear Summary of Fisheries Bycatch (n = 174), and the other 15 percent (n modification consisting of vertical hard We conclude that most immature and = 31) were reported dead in gear. lay lines spaced at least two feet apart adult leatherback turtles of this DPS are However, the number of dead turtles is on the top portion of the leader, and exposed to bycatch in multiple fisheries likely an underestimate of actual eight inch or smaller stretched mesh on throughout their range. Bycatch in entanglement-associated mortality the bottom portion of the leader. From gillnet fisheries, in particular, is a major (Hamelin et al. 2017). 2013 to 2017, 16 leatherback turtles threat with high mortality rates (Lee Leatherback turtles are also found have been found entangled in the hard Lum 2006; Gilman et al. 2010; Girondot entangled in vertical fishing lines in lay lines of the leaders, of which two 2015), annually killing thousands of NW European waters. Since 1980, 83 were dead (NMFS 2018). While Atlantic leatherback turtles. When set leatherback turtles were bycaught in individuals may continue to be off nesting beaches, gillnets result in British and Irish waters, with the entangled in modified pound net high mortality of nesting females and method of capture identified in 58 cases leaders, the impact of the pound net mature males (Lee Lum 2006; Eckert (Piedpoint 2000). The majority of fishery on the NW Atlantic DPS is likely 2013). Longline bycatch is considered to captures (n = 36) were rope minor given the few nets set in the be a widespread threat throughout the entanglements, usually buoy lines used lower Chesapeake Bay using this gear DPS and a primary source of leatherback in pot fisheries for crustaceans or whelk, (approximately four to six) and the mortality (Lewison et al. 2004), with a 61 percent recorded mortality frequency of live interactions. From resulting in the death of thousands of (Pierpoint 2000). 2008 to 2017, the STDN also leatherback turtles annually. In general, Some types of aquaculture use documented leatherback captures in bycatch mortality reduces abundance by vertical lines similar to pot/traps and weirs set off Massachusetts; these turtles removing individuals from the may pose an entanglement risk (Price et were found alive, either entangled in the population. When nesting females are al. 2017). Four leatherback turtles (two netting (n = 2) or free swimming in the killed, it also reduces productivity. We alive, two dead) in Canadian and U.S. weir (n = 4). conclude that fisheries bycatch is the waters have been opportunistically Purse seines are used to catch a primary threat to the NW Atlantic DPS. reported in aquaculture gear to date variety of fish species and are (Price et al. 2017). However, as this commonly used in the ICCAT area to Vessel Strikes industry is anticipated to grow in the catch tuna (Angel et al. 2014). Vessel strikes are a threat to the NW near future, leatherback interactions Leatherback captures have occurred in Atlantic DPS. Injuries from vessel with aquaculture lines, and subsequent Atlantic purse seine fisheries, and this strikes may include blunt force trauma injury or mortality, may increase. bycatch may have a minor impact on the and propeller parallel slicing wounds These data comprise the best available DPS. In British and Irish waters, two affecting the carapace, flippers, head, information on pot/trap fishery leatherback turtles were reported to be and/or underlying organs (Work et al. interactions with the NW Atlantic DPS. captured in purse seine gear between 2010). Most of what is known about However, due to the high probability of 1980 and 2000 (Pierpont 2000). vessel strikes comes from stranding underreporting leatherback turtle Clermont et al. (2012) reported a total records; the most extensive stranding entanglements by fishers, the ad hoc capture of 67 leatherback turtles in more network is found in the United States: nature of public reporting, and the than 9000 observed Atlantic purse seine The Sea Turtle Stranding and Salvage uncertainty about post-release sets between 1995 and 2011, with only Network (STSSN). In the United States survivorship, the leatherback mortality four found dead (representing 10 (Maine through Texas), 957 leatherback rate due to entanglements in vertical percent observer coverage). Most of the turtles were reported stranded, lines is likely underestimated (Hamelin interactions were adults (75 percent). captured, or entangled from 2008 to et al. 2017). Estimates indicate that However, not all of the purse seine 2017, and of those, 204 had probable approximately 622,000 vertical lines are effort reported by Clermont occurs in vessel-related injuries (STSSN deployed from fishing gear in U.S. the NW Atlantic DPS range. Thus, purse unpublished data). For example, at least waters from Georgia to the Gulf of seine interactions with this DPS may be 72 leatherback turtles stranded in

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Massachusetts with vessel strike (2015) found these leatherback turtles industrial runoff, and beach litter/ wounds between 2006 and 2018, primarily occupied the upper 30 m of debris; they found pollution on the including at least three adult females the water column and had shallow 4 to beach to be a threat. Pollution on the that had previously been documented 6 minute dives. Given most leatherback beach and in the water occurs nesting in the Caribbean (Dourdeville et activity occurs in the top 15 to 30 throughout the range of the NW Atlantic al. 2018; Mass Audubon Wellfleet Bay meters of the water column in temperate DPS. Wildlife Sanctuary, unpublished data, shelf waters of the NW Atlantic Ocean Leatherback turtles are susceptible to 2019). It is sometimes difficult to and vessel traffic is high along the U.S. adverse effects from pollution. Marine determine whether the vessel related East coast, the risk of vessel strikes is pollution, including direct wounds occurred before or after the likely higher than the documented contamination and structural habitat turtle died (Stacy et al. 2015). However, interactions would suggest (DFO 2012; degradation, can also affect leatherback a recent study estimated that Hamelin et al. 2014). habitat. In particular, the Mediterranean approximately 93 percent of Florida While observational data are limited, is an enclosed sea, so organic and stranded turtles with vessel strike it is reasonable to conclude that, based inorganic wastes, toxic effluents, and wounds were killed by those injuries upon the best available information, other pollutants rapidly affect the (Foley et al. 2019). Based on the best mortality due to vessel strikes may ecosystem (Camin˜ as 2004). available information, it is reasonable to occur wherever vessel traffic and Of particular concern, due to their conclude that approximately 190 leatherback distribution (juvenile and immune, reproductive, and endocrine leatherback turtles were killed as a adult) overlap. The impact is likely disrupting nature, are persistent organic result of vessel strikes in U.S. Atlantic minimized in areas with less frequent pollutants (POPs), such as and GOM waters from 2008 to 2017. vessel traffic (e.g., less developed areas) polychlorinated biphenyls (PCBs), This number is likely an underestimate and decreased leatherback turtle polybrominated diphenyl ethers as strandings represent a small presence. Nesting females and mature (PBDEs), and pesticides (Bergeron et al. percentage of turtles that are injured or males may be especially vulnerable to 1994; Bishop et al. 1991, 1998; Keller et die at sea, and many vessel strikes are vessel strikes because they occur in the al. 2004). These chemicals have been not reported, detected, or recovered. waters off nesting beaches, which are identified in both adults and eggs in Vessel strikes have been documented coastal areas where vessel traffic is more several areas occupied by this DPS. in other nations as well, including in prevalent. Vessel strikes affect the NW Guirlet et al. (2010) measured maternal Portugal (Nicolau et al. 2016), Britain Atlantic DPS by lowering abundance (if transfer of organochlorine contaminants (Godley et al. 1998), and off the coast of the interaction results in mortality) and (OCs) from 38 nesting females in French Tunisia in the Strait of Sicily (Karaa et affecting future reproductive potential Guiana. PCBs were found to be the al. 2013; Caracappa et al. 2017). While (productivity) when nesting females are dominant OC, followed by pesticides, there is very limited observational killed. We conclude that vessel strikes but OC concentrations were lower than information on vessel collisions in pose a threat to the NW Atlantic DPS. concentrations measured in other Atlantic waters of Canada, there has marine turtles (potentially due to the Pollution been at least one recorded vessel strike lower trophic level diet and offshore (DFO 2012). More recently, an injury Pollution includes contaminants, foraging areas). All OCs detected in assessment of leatherback turtles (n = marine debris, and ghost fishing gear. nesting adults were detected in eggs, 228) on Atlantic Canada foraging The detection of pollution impacts on suggesting a maternal transfer of OCs. In grounds and on a Trinidad nesting leatherback turtles is opportunistic and French Guiana, hatching success has beach found only 1.3 percent of turtles thus likely underestimated. While been shown to be low when OCs are exhibited injuries consistent with vessel plastic ingestion is not always fatal, it present in the sand (most likely strikes (Archibald and James 2018). can reduce ability to feed, affect originating from pesticide use in However, this low injury rate may swimming behavior and buoyancy plantations and malaria prophylaxis indicate that there is low survivorship control, potentially lead to chemical (Guirlet 2005). However, a link between of vessel strikes. Females with carapace contamination and chronic effects, and OCs and embryonic mortality could not damage from propellers have been also weaken physical condition, which be determined (Guirlet et al. 2010). observed on Costa Rican nesting could impair the ability to avoid Stewart et al. (2011) also recorded PCB, beaches (de Haro et al. 2006). predators and survive threats (Nelms et OC, and PBDE concentrations for Leatherback behavior data can help al. 2016). Entanglement in marine nesting and stranded leatherback turtles predict the potential for vessel strikes. debris results in injuries that can reduce in the southeastern United States. Their Based on telemetry data for leatherback fitness, cause eventual death, reduce results also suggested maternal transfer turtles (n = 15) on the northeastern U.S. ability to avoid predators, reduce ability of POPs in leatherback turtles, but shelf, leatherback turtles spent over 60 to forage and/or swim efficiently due to Stewart et al. (2011) found higher levels percent of their time in the top 10 m of drag, and lead to starvation or drowning of PCBs and pesticides than those found the water column and over 70 percent (Nelms et al. 2016). Pollution on the in French Guiana (Guirlet et al. 2010). of their time in the top 15 m (Dodge et beach and in the water occurs While finding that leatherback al. 2014). Additional turtle-borne throughout the range of the NW Atlantic contaminant concentrations were camera and autonomous underwater DPS. substantially lower than concentrations vehicle research in the waters off Dow et al. (2007) defined marine in other reptile studies that Massachusetts suggests that turtles pollution as agriculture, petroleum, demonstrated toxic effects, Stewart et al. surface frequently and engage in sewage, industrial runoff, vessel (2011) suggested that sub-lethal effects subsurface swimming (within the top 2 discharges, declining water quality, and (especially on hatchling body condition m) when occupying shallow, well- marine debris. They found pollution in and health) may nevertheless be mixed, coastal environments, increasing the marine environment to be among the occurring in this species. De Andres et the probability of a vessel strike (Dodge greatest threats to all sea turtle species al. (2016) similarly monitored PCB and et al. 2018). Based on 24 free swimming in the Wider Caribbean Region. Dow et PBDE concentrations in eggs laid in leatherback turtles tagged in Canadian al. (2007) defined beach pollution as Costa Rica (18 nests). POP levels were waters from 2008 to 2013, Wallace et al. agriculture, petroleum/tar, sewage, similar to those reported in French

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Guiana nesting females (Guirlet et al. carcinogenic, teratogenic, and toxic Ingestion of marine debris is a 2010) and slightly lower than those in effects in a variety of species (Innis et concern for leatherback turtles, Florida (Stewart et al. 2011). Further, De al. 2010). especially given the similarity of their Andres et al. (2016) found a significant Mercury and selenium have also been preferred prey (e.g., gelatinous negative relationship between PBDE recorded in nesting females and eggs in zooplankton) to some plastics. In levels and hatching success, suggesting Florida and St. Croix. Animals particular, plastic bags appear similar to potential harmful effects of these persistently exposed to mercury can jellyfish in the marine environment, contaminants on leatherback experience selenium deficiency, which leading to mistaken and inappropriate reproduction. OCs (and mercury) have is of concern because selenium is triggering of the sensory cue to feed also been documented in turtles that important to hatching and emergence (Schuyler et al. 2014; Nelms et al. 2016). stranded in the United Kingdom success (Perrault et al. 2011). However, While plastic ingestion is not always (Godley et al. 1998). A leatherback that high levels of selenium can be toxic and fatal, it can reduce ability to feed, affect stranded off the coast of Wales, U.K. negatively impact hatching success swimming behavior and buoyancy was found with PCB levels one-to-three (Perrault et al. 2013). Mercury control, potentially lead to chemical orders of magnitude higher than the concentrations in nesting females from contamination and chronic effects, and lowest levels reported for fish taken in Florida were found to be higher than in weaken physical condition, which the North Atlantic, but similar to the St. Croix, which could be a result of could impair the ability to avoid lowest concentrations reported from different migratory and foraging areas, predators and survive threats (Nelms et oceanic cetaceans (Davenport et al. whereas hatchling blood mercury values al. 2016). 1990). Even with the recent restriction were higher in St. Croix (Perrault et al. Marine debris ingestion can occur in of the use of POPs, due to the 2011; Perrault et al. 2013). It is any location, but given the enclosed widespread persistent nature of these interesting to note that in St. Croix, no nature of the sea and intense human chemicals and continuing atmospheric correlations were found between pressure, the Mediterranean Sea in deposition (Ross et al. 2009) it is mercury or selenium concentrations and particular is a hot spot for plastic probable that similar chemical hatching or emergence success, which is marine debris and other pollutants ˜ concentrations occur in other areas of different from results in Florida (Caminas 2004; Cozar et al. 2015). this DPS. (Perrault et al. 2011; Perrault et al. Marine debris ingestion has been 2013). Hazard quotient results by documented from leatherback turtles Other contaminants have also been stranded in Tunisia (Karaa et al. 2013), Perrault et al. (2013, 2014) imply that documented in leatherback turtles and Israel (Levy et al. 2005), the northern mercury and selenium levels could pose their eggs. Heavy metals (e.g., arsenic, Adriatic Sea (Poppi et al. 2012), and the a threat to leatherback turtle cadmium, chromium, mercury, lead, Strait of Sicily (Caracappa et al. 2017). reproductive success and/or hatchling etc.) enter the environment from a Of particular note, 30 to 73 percent of health and survival. Leatherback variety of sources (Guirlet et al. 2008; turtles stranded in the Bay of Biscay hatching and emergence success rates Perrault 2012). In particular, mercury (France) were found to have ingested are already low compared to other can affect a variety of functional plastic annually from 1979 to 1999 (out species of sea turtles (Bell et al. 2004; processes in wildlife, including the of 87 leatherback turtles necropsied; Perrault et al. 2011), so the impacts of nervous, excretory and reproductive Duguy et al. 2000). The seasonal rate of systems (Wolfe et al. 1998). Mercury, pollution and contamination on ingestion was inversely related to the cadmium, and lead were recorded in hatching success is a notable concern. In abundance of jellyfish, leading the nesting females (n = 46) and eggs in addition, mercury was found to be authors to propose that the depletion of French Guiana (Guirlet et al. 2008). higher in adults than juveniles/sub- jellyfish led to debris ingestion as Maternal transfer of all three elements adults stranded along the U.S. Atlantic potential prey. Cozar et al. (2015) was documented, and female lead levels coast, suggesting potential physiological conclude that the effects of plastic increased throughout the nesting season concerns due to accumulation and pollution on marine life are anticipated (Guirlet et al. 2008). This could be ongoing inputs into the environment to be frequent in the high plastic- explained, in part, by external (Perrault et al. 2012). It is clear that accumulation region of the contamination via ingestion of additional long-term research is needed Mediterranean Sea. contaminated prey or polluted water to better understand the relationship of In U.S. waters, marine debris during nesting, as the French Guiana non-essential elements in turtle ingestion has also been documented in coast environment is exposed to development and reproduction. stranded leatherback turtles. However, significant environmental pollution via Marine debris (most notably plastic ingestion does not always cause anthropogenic and natural sources. pollution) is a threat throughout the mortality and is typically an incidental While mercury concentrations were range of the NW Atlantic DPS (Girondot finding. Of 41 leatherback turtles lower than values reported for other sea 2015). Several global reviews have necropsied from North Carolina to turtle species, cadmium levels outlined the persistent and widespread Texas between 2008 and 2017, 17 had documented in French Guiana were at nature of the issue, both as an ingestion ingested plastics or marine debris the same level shown to impact gonadal and an entanglement threat (Mrosovsky (STSSN unpublished data 2018). From development in other turtle species and et al. 2009; Schuyler et al. 2014; Nelms Maine to Virginia during that same time may impact reproductive processes and et al. 2016; Lynch 2018). Law et al. period, 10 necropsies detected lower fertility (Guirlet et al. 2008). In (2010) assessed plastic content at the ingestion, but the total number of Massachusetts, entangled turtles had surface of the western North Atlantic necropsied turtles, out of the 677 significantly higher blood lead Ocean and Caribbean Sea from 1986 to strandings in the region, is currently concentrations than directly captured 2008, and found the highest unknown. It is likely that many more turtles (Innis et al. 2010). While similar concentration of plastic debris was stranded turtles ingested some level of to those reported in French Guiana observed in subtropical latitudes and marine debris (STSSN unpublished data (Guirlet et al. 2008), blood associated with large-scale convergence 2018). Out of 33 leatherback turtles concentrations of mercury and cadmium zones, which include foraging areas examined in New York Bight (an area were at levels high enough to induce targeted by leatherback turtles. with dense population), 30 percent had

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synthetic material ingestion, mostly nations within the range of the DPS. The oil and gas explorations in the GOM consisting of thin, clear plastic (Sadove degree of impact is difficult to quantify, pose a direct threat for leatherback et al. 1989). Of two leatherback turtles especially given the widespread nature turtles in foraging grounds and stranded in North Carolina during 2017 of pollution and the diverse types of migratory routes, due to the potential for whose gastrointestinal tracts were impacts. Contaminants may affect this vessel strikes and harassment (Wallace analyzed, microplastics were present in DPS by reducing productivity, if et al. 2017; Ward 2017). Oil spills both (Duncan et al. 2018). hatching success is lowered, and by regularly occur in the GOM, from small Marine debris ingestion is not limited lowering abundance, if contamination amounts of varying types of oil product to microplastics or plastic bags. Off the results in mortality. Marine debris to large catastrophic spills. In 2010, a northeastern U.S. coast, necropsies of affects the DPS by lowering abundance, major oil spill occurred in the north- disentangled leatherback turtles that when it causes death through ingestion central GOM, affecting important have died post-release have documented or entanglement, and reducing foraging habitat used by leatherback considerably large pieces of plastic (e.g., productivity, when hatchlings and turtles (Deepwater Horizon NRDA 83 by 35 cm) in their stomachs (Innis et nesting females are affected. While, we Trustees 2016). Evans et al. (2012) al. 2010). These numbers likely do not have quantitative estimates of the tracked a post-nesting leatherback from underestimate the true marine debris number of individuals that are killed or Chiriqui Beach, Panama, into the GOM ingestion rate because many turtles injured as a result of pollution, we during the Deepwater Horizon oil spill. likely ingest marine debris and do not conclude that it is prevalent throughout The track followed similar tracks from strand. the range of the DPS and constitutes a turtles in previous years and did not Leatherback turtles can also become threat to the NW Atlantic DPS. seem to change once entering areas with entangled in marine debris. From 2008 Oil and Gas Exploration visible oil slicks (on two occasions). to 2017, the Northeast U.S. STDN Injuries to leatherback turtles caused by documented 24 entanglements from Oil and gas activities have the the GOM Deepwater Horizon oil spill miscellaneous sources not attributed to potential to impact the NW Atlantic could not be quantified (Deepwater obvious fisheries entanglements, as DPS directly (e.g., exposure to oil Horizon NRDA Trustees 2016). described above (STDN unpublished following oil spills) and indirectly (e.g., However, given that the GOM is data). These unknown entanglements increased probability of vessel strikes important habitat for leatherback turtles could involve a myriad of sources but and habitat degradation/destruction). In (Aleksa et al. 2018) and leatherback are considered as entangling marine addition to lethal effects, sublethal turtles were documented in the effects may occur and include debris. The Sea Turtle Recovery Action Deepwater Horizon oil spill zone during displacement from primary foraging Plan for the Republic of Trinidad and the oil spill period, the Deepwater areas with accompanying energy costs Tobago noted that entanglement in lost Horizon NRDA Trustees (2016) or abandoned fishing gear (primarily (TEWG 2007). concluded that leatherback turtles were nets) poses a threat to leatherback Several areas within the range of the exposed to Deepwater Horizon oil, and turtles in the marine and terrestrial NW Atlantic DPS have intense oil and some portion of those exposed likely environment (Forestry Division et al. gas development and exploration close died. 2010). to major nesting beaches. The potential Marine debris is also a problem on for oil spills is of particular concern in In Atlantic Canada, impacts from oil nesting beaches and can reduce nesting the Wider Caribbean Region due to its and gas may also occur. Several success. Pollution and debris often are effect on all life stages in the marine petroleum production projects occur deposited on high energy beaches, environment. The biggest oil producing offshore of Nova Scotia (https:// which are also the preferred nesting nations in South America are Brazil, www.cnsopb.ns.ca/offshore-activity/ habitat of leatherback turtles (TEWG Mexico, Venezuela, and Colombia. offshore-projects). Howard (2012) 2007). Coastal and inland littering Although only three Caribbean nations determined that oil pollution from (which can ultimately reach the sea) is currently have exportable oil and coastal refineries, ships, small engine a problem throughout Trinidad and natural gas reserves (Barbados, Cuba, vessels, and oil and gas exploration and Tobago, and ocean borne debris is and Trinidad and Tobago, with Trinidad production is a risk to leatherback particularly prevalent on the east and and Tobago the only significant survival in Canada. There are also north coasts, which host the main exporter), in 2017, a major oil field was offshore oil and gas platforms in the leatherback nesting beaches (Trinidad discovered off Guyana, which will North (United Kingdom, Denmark) and and Tobago Forestry Division et al. likely lead to extensive new Mediterranean Seas, where similar 2010). Extensive debris on nesting development and extraction. As a result, impacts to leatherback turtles may also beaches is not uncommon throughout marine traffic is likely to increase in the occur (EU Offshore Authorities Group the Caribbean, often carried by rivers to area as well as the possibility for oil 2018; https://euoag.jrc.ec.europa.eu/ the sea and later washed ashore (e.g., in spills. In Panama, contamination from node/63). In particular, the Costa Rica; Chaco´n-Chaverri and Eckert oil spills, primarily in area of the Trans- Mediterranean Sea has been declared a 2007). Debris on nesting beaches may Isthmus oil pipeline and the Panama ‘‘special area’’ by the International impede females during the nest-site Canal, is of particular concern Convention for the Prevention of selection stage, limit and degrade the (Bra¨utigam and Eckert 2006; Ruiz et al. Pollution from Ships (MARPOL), in amount of habitat available, and/or 2006). Some Caribbean nations (e.g., which deliberate petroleum discharges result in aborted nesting attempts Belize, French Guiana) have permanent from vessels are banned, but numerous (Chaco´n-Chaverri and Eckert 2007). If moratoria on oil and gas exploration in repeated offenses are still thought to line or netting is encountered on nesting offshore waters. occur (Pavlakis et al. 1996). Some beaches, entanglement of nesting In the United States, oil and gas estimates of the amount of oil released females and hatchlings is also a risk. extraction primarily occurs in the GOM into the region is as high as 1,200,000 The majority of the NW Atlantic DPS (BOEM 2016; BOEM 2017), an area with metric tons (Alpers 1993). Direct oil is exposed to pollution throughout all leatherback foraging and migratory spill events also occur, as in Lebanon in life stages. These threats are a result of habitat (Aleksa et al. 2018). Increased 2006 when 10,000 to 15,000 tons of the developed nature of many of the shipping traffic and marine noise due to heavy fuel oil spilled into the eastern

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Mediterranean (UN Environment the potential to disrupt females’ nesting and Spotila 2015) and warmer Programme 2007). activities and impede hatchlings’ access temperatures produce more female In summary, oil and gas activities are to the ocean (Maurer et al. 2015). In embryos (Mrosovsky et al. 1984; prevalent in foraging, migratory, and 2011 and 2015, large amounts of Hawkes et al. 2007). In the NW Atlantic offshore nesting habitats of the NW Sargassum were present in the DPS, the pivotal temperature (the Atlantic DPS, potentially exposing all Caribbean (mainly Trinidad and Tobago temperature at which a sex ratio of 1:1 life stages to oil associated threats, such and Grenada) and frequently washed is produced) is estimated to be between as direct miring in oil, oil ingestion, ashore, covering large expanses of sandy 29.25 °C and 30.5 °C (Eckert et al. 2012) vessel strikes, and nesting beach shoreline on nesting beaches. While but there are variations in contamination. Oil and gas activities females still nested in these areas, measurements (Girondot et al. 2018), have the potential to affect this DPS by hatchlings needed intervention to reach over time, and among locations. An reducing productivity (e.g., if hatching the ocean (Wang and Hu 2016; increase over that temperature would success is reduced by oil spills) and Audroing, TVT, pers. comm., 2018; K. result in more female hatchlings. Such potentially lowering abundance (e.g., if Charles, Ocean Spirits Inc., pers. comm., increases in female hatchling output oil exposure results in mortality). As 2018). Most recently, large amounts of have already been documented (Patin˜ o- such, oil and gas activities are a threat Sargassum were found in 2018 on Martı´nez et al. 2012), and with an to the NW Atlantic DPS. Caribbean beaches, causing Barbados to increase in temperatures from climate Natural Disasters declare a national emergency in June change, these trends are likely to 2018. Such widespread blanketing of continue if other nesting factors remain Natural disasters, such as hurricanes Sargassum on leatherback nesting constant. For example, Patin˜ o-Martı´nez and other storms, and natural beaches throughout the Caribbean has et al. (2012) developed a model to relate phenomena, such as Sargassum events the potential to impact future hatching measured incubation temperature to sex on or near nesting beaches, pose a threat success and survival. ratio and estimated that females nesting to the NW Atlantic DPS. In summary, natural disasters and at Caribbean Colombian beaches Hurricanes are common in the phenomena have the potential to impact currently produce approximately 92 Caribbean and southeastern United the NW Atlantic DPS. However, given States. Hurricanes and tropical storms percent female hatchlings. Under all the infrequent and temporary nature of future climate change scenarios, impact nesting beaches by increasing the occurrences, only a small proportion erosion and sand loss and depositing complete feminization could occur as of eggs, hatchlings, and nesting females soon as 2021 (Patin˜ o-Martı´nez et al. large amounts of debris. In 2017, are exposed to these threats. Impacts Hurricane Maria devastated the islands 2012). In St. Eustatius, leatherback include egg and hatchling mortality that hatchling production was female biased of Dominica, St. Croix, and Puerto Rico, affect productivity of the DPS. Seasonal and even though the nesting season was from 2002 to 2012, with less than losses at individual beaches may be approximately 24 percent of males nearly over, many beaches were large, but we do not expect such impacted, including Maunabo, Puerto produced every year (Laloe¨ et al. 2016). impacts to be spatially or temporally Future warming air temperatures will Rico (one of the most abundant nesting widespread. However, we conclude that beaches on the island; R. Espinoza, exacerbate this female bias, and female natural disasters pose a threat to the leatherback sex ratios are projected to Conservacio´n ConCiencia, pers. comm., DPS. 2017). Dewald and Pike (2014) found consistently reach 95 percent after 2028 that a lower level of leatherback nesting Climate Change on that island, which has dark and light attempts occurred on sites that were Climate change is a threat to the NW sand beaches (Laloe¨ et al. 2016). more likely to be impacted by Atlantic DPS. The impacts of climate Warming trends in Costa Rica are hurricanes. These types of storm events change include increases in expected to be higher than the global may ultimately affect the amount of temperatures (air, sand, and sea average and resulting female-biased sex suitable nesting beach habitat, surface); sea level rise; increased coastal ratios are also expected (Gledhill 2007). potentially resulting in reduced erosion; more frequent and intense While the assumption is that most productivity, especially as leatherback storm events; and changes in ocean nesting beaches will become female- turtles typically nest on high energy currents. These impacts may affect biased due to increased sand beaches (TEWG 2007). leatherbacks through alterations of the temperatures, this may not be the case Hurricanes may also result in egg loss incubation environment, reduction of in all areas. In Grenada, increased by destroying and inundating nests. nesting habitat, and changes in prey as rainfall (another effect of climate However, hurricanes are usually described in the following subsections. change) was found to have a cooling aperiodic so the impacts are expected to Modeling results show that global influence on nests, so that more male be infrequent. Hurricanes also typically warming (rise in average surface producing temperatures (less than 29.75 ° occur after the peak of the leatherback temperature) poses a ‘‘slight risk’’ to C) were found within the clutches hatching season and would not be females nesting in French Guiana and (Houghton et al. 2007). Further, due to expected to affect the majority of Suriname relative to those nesting in the tendency of nesting females to incubating nests (USFWS 1999). That Gabon, Congo, and West Papua (Dudley deposit some clutches in the cooler said, according to the Intergovernmental et al. 2016). As global temperatures intertidal zone of beaches, the effects of Panel on Climate Change (IPCC), climate continue to increase, some beaches will long-term climate on sex ratios may be change may be increasing the frequency experience changes in sand mitigated (Kamel and Mrosovsky 2004; and patterns of hurricanes (IPCC 2014) temperatures, which in turn will alter Patin˜ o-Martı´nez et al. 2012). potentially causing such impacts to the thermal regime of incubating nests. Hatching success is affected by nests to become more common in the Changing sand temperatures at nesting warming temperatures. Extremely high future. beaches may result in changing sex sand/nest temperatures are anticipated Sargassum is a genus of macroalgae ratios of hatchling cohorts and reduced to result in embryonic mortality found in temperate and tropical waters. hatching output (Hawkes et al. 2009). (Gledhill 2007, Santidria´n Tomillo et al. When large amounts of Sargassum wash Leatherback turtles exhibit temperature- 2012, Valentin-Gamazo et al. 2018). In ashore, they form thick mats that have dependent sex determination (Binckley Costa Rica, warmer conditions can

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exacerbate the effects of biotic Overturning Circulation, a system of future become used by leatherback contamination and mold infestations of ocean currents in the North Atlantic, turtles, potentially offsetting some loss developing embryos (Gledhill 2007), have been unusually weak over the past of accessibility to beaches in southern resulting in reduced hatching success. 150 years or so, and this weakened state portions of the range. Leatherbacks’ Temperature increases are likely to be may have modified northward ocean behavioral flexibility may allow for associated with more extreme heat transport, as well as atmospheric opportunities to colonize new beaches, precipitation and faster evaporation of warming by altering ocean-atmosphere but whether turtles can colonize nesting water, leading to greater frequency of heat transfer. Further, the documented areas that become available, either both very wet and very dry conditions weakening of this system is related to thermally or geographically, by climate that reduce productivity (Patin˜ o- above-average sea level rise along the change, and whether these colonized Martı´nez et al. 2014; Santidria´n Tomillo U.S. East Coast (Caesar et al. 2018). Sea areas provide incubation regimes that et al. 2015). These impacts may affect level rise may result in intensified will lead to successful nesting, nests in different ways, but the result erosion and loss of nesting beach habitat emergence success, and hatchling (e.g., reduced hatching output) is (Fish et al. 2005; Fuentes et al. 2010; fitness cannot be known at this time similar. Very wet conditions may Fonseca et al. 2013). In Bonaire, up to (Hawkes et al. 2009). inundate nests or increase fungal and 32 percent of the current beach area Observed changes in marine systems mold growth, reducing hatching success could be lost with a 0.5 m rise in sea are associated with other aspects of (Patin˜ o-Martı´nez et al. 2014). Very dry level, with lower, narrower beaches climate change, including rising water conditions may affect embryonic being the most vulnerable (Fish et al. temperatures, as well as related changes development and decrease hatchling 2005). Ussa (2013) predicted a 20 to 25 in ice cover, salinity, oxygen levels, and output. Under climate change scenarios, percent loss in beach areas due to sea circulation. Ocean temperatures of the very dry conditions are expected for St. level rise by the year 2100 within the U.S. northeastern continental shelf and Croix, an area already showing Archie Carr National Wildlife Refuge, surrounding NW Atlantic waters have decreased productivity and reduced first Florida, as well as areas adjacent to the warmed faster than the global average time nesting female abundance Refuge. With the threat of increasing sea over the last decade (Pershing et al. (Santidria´n Tomillo et al. 2015; Garner level rise, protection of developed 2015). New projections for the U.S. et al. 2017). Santidria´n Tomillo et al. coastlines often involves shoreline northeastern shelf and NW Atlantic (2015) assessed climatic conditions on armoring that reduces the amount of Ocean suggest that this region will hatchling output at four nesting sites beach available, thus creating a smaller warm two to three times faster than the (Sandy Point, St. Croix; Pacuare, amount of space for turtles to nest global average and existing projections Caribbean Costa Rica; Playa Grande, (Hawkes et al. 2009). Along such from the IPCC may be too conservative Pacific Costa Rica; Maputaland, South developed coastlines, rising sea levels (Saba et al. 2015). This increase in Africa), and found that St. Croix had the may cause severe effects on eggs, northeastern shelf waters is relevant for highest projected warming rate (+ 5.4 because nesting females are forced to NW Atlantic leatherback turtles, as they °C), highest absolute temperature and deposit eggs seaward of shoreline rely on U.S. and Canadian waters to lowest precipitation levels. With these armoring, potentially subjecting them to forage during the warmer months (James further increases in dryness and air repeated tidal inundation and/or egg 2005a, 2006b, 2007; Dodge 2014, 2015). temperatures, hatchling productivity is exposure from exacerbated wave action Global warming is expected to expand expected to be compromised by the end near the base of these structures. leatherback foraging habitats into, and of the 21st century in this area Sea level rise is expected to result in increase residency time in, higher (Santidria´n Tomillo et al. 2015). more nests being inundated, reducing latitude waters (James et al. 2006a; Santidria´n Tomillo et al. (2015) hatching success. On Playona Beach, McMahon and Hays 2006; Robinson et suggested that the lack of rain is what Colombia, Patin˜ o-Martı´nez et al. (2014) al. 2009). For example, leatherback reduces developmental success and found that nests in wet sand suffered turtles have extended their range in the hatchling emergence. However, Rafferty higher mortality (emergence success of Atlantic north by around 200 km per et al. (2017) evaluated long-term climate zero percent for wettest nests to 64 decade over the last two decades as data for St. Croix, using climate data percent for the driest nests), suggesting warming has caused the northerly collected from a nearby weather station, that nesting success should be expected migration of the 15 °C sea surface and found no significant trend in to decrease under future climate change temperature (SST) isotherm, the lower incubation temperatures or precipitation sea level rise scenarios. Inundation is limit of thermal tolerance for that could be associated with observed likely to reduce hatching success leatherback turtles (McMahon and Hays decreases in productivity at this (Patin˜ o-Martı´nez et al. 2008; Caut et al. 2006). Documented weakening of the location. 2010) and will continue to occur (or Meridional Overturning Circulation is Finally, incubation temperatures can worsen) with sea level rise. related to above-average warming in the also influence hatchling morphology However, leatherback turtles may be Gulf Stream region and an associated and locomotion (Mickelson and Downie less susceptible than other species of sea northward shift of the Gulf Stream 2010). Leatherback hatchlings turtles to loss of nesting habitat, because (Caesar et al. 2018). This weakening of originating from nests incubated at they exhibit lower nest-site fidelity the deep, cold-water circulation in the lower temperatures exhibited carapace (Dutton et al. 1999). Nesting beaches in North Atlantic is likely to continue to and front flipper length-width ratios the Guianas are already highly dynamic occur with global warming. Migratory that significantly improved their and interseasonally variable, and routes may be altered by climate change crawling speeds relative to those leatherback nesting females have been as increasing ocean temperatures shift hatchlings incubated at high successful in those areas despite the fact range-limiting isotherms north temperatures (Mickelson and Downie that some beaches disappear between (Robinson et al. 2009). Post-nesting 2010). nesting years (Plaziat and Augustinus females from French Guiana were found Sea level rise is another threat to 2004; Kelle et al. 2007; Caut et al. 2010). to migrate northward toward the Gulf leatherback turtles. Thornalley et al. If global temperatures increase and there Stream north wall, targeting similar (2018) found that the Labrador Sea deep is a range shift northwards, beaches not habitats in terms of physical convection and the Atlantic Meridional currently used for nesting could in the characteristics, i.e., strong gradients of

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SST, sea surface height, and a deep their wide geographic distribution and Council Directive 92/43/EEC on the mixed layer (Chambault et al. 2017). relatively weak nesting site fidelity. Conservation of Natural Habitats and of Hatchling dispersal may also be affected Overall, we conclude that climate Wild Fauna and Flora (EC Habitats by changes in surface current and change is a threat to the NW Atlantic Directive); Food and Agricultural thermohaline circulation patterns DPS. Organization (FAO) Technical (Hawkes et al. 2009; Pike 2013). Consultation on Sea Turtle-Fishery Conservation Efforts The effects of global warming are Interactions; Inter-American Convention difficult to predict, but changes in Next we consider ‘‘conservation for the Protection and Conservation of reproductive behavior (e.g., remigration efforts’’ under Section 4(b)(1)(A) (16 Sea Turtles (IAC); MARPOL; Inter- intervals, timing and length of nesting U.S.C. 1533(b)(1)(A)).1 There are American Tropical Tuna Convention season) could occur (Hawkes et al. 2009; numerous efforts to conserve the (IATTC); IUCN; North American Hamann et al. 2013). Robinson et al. leatherback turtle. The following Agreement for Environmental (2014) found that the median nesting conservation efforts apply to the NW Cooperation; Protocol Concerning date at Sandy Point (St. Croix) occurred Atlantic DPS (for a description of each Specially Protected Areas and Biological on average 0.17 days earlier per year, effort, please see the section on Diversity in the Mediterranean; Ramsar between 1982 and 2010. However, conservation efforts for the taxonomic Convention on Wetlands; Regional Neeman et al. (2015) found that species): African Convention on the Fishery Management Organizations increased temperatures at the foraging Conservation of Nature and Natural (RFMOs); UN Convention on the Law of grounds tend to delay leatherback Resources (Algiers Convention); Central the Sea (UNCLOS); and UN Resolution nesting. Temperatures at the nesting American Regional Network; 44/225 on Large-Scale Pelagic Driftnet beaches (Playa Grande, Costa Rica; Convention on the Conservation of Fishing. Although numerous Tortuguero, Costa Rica; and St. Croix) Migratory Species of Wild Animals; conservation efforts apply to the turtles did not affect the timing of leatherback Convention on Biological Diversity; of this DPS, they do not adequately nesting (Neeman et al. 2015). Because Convention on International Trade in reduce its risk of extinction. the relation between temperatures (local Endangered Species of Wild Fauna and sea surface and the foraging grounds) Flora; Convention Concerning the Extinction Risk Analysis and timing of nesting is complex, Protection of the World Cultural and After reviewing the best available Neeman et al. (2015) indicated that Natural Heritage (World Heritage information, the Team concluded that further study is needed at the nesting Convention); Convention for the the NW Atlantic DPS is at high risk of beaches to determine how Protection and Development of the extinction. The total index of nesting environmental conditions change Marine Environment of the Wider female abundance is 20,659 females at within the season and how these Caribbean Region, Specially Protected consistently monitored beaches, and the changes affect nesting success. Robinson Areas and Wildlife (SPAW); Convention most recent annual rate of decline is et al. (2014) suggests that shifts in the on the Conservation of European estimated to be approximately nine nesting phenology may make the Wildlife and Natural Habitats; percent (NW Atlantic Leatherback Atlantic populations more resilient to Convention for the Co-operation in the Working Group 2018). The best climate change. Protection and Development of the available nest data reflect a steady Extreme precipitation events over Marine and Coastal Environment of the decline for more than a decade, most of the mid-latitude and tropical West and Central African Region becoming more pronounced since 2008 regions will very likely become more (Abidjan Convention); Memorandum of (Eckert and Mitchell 2018; NW Atlantic intense and more frequent (IPCC 2014). Understanding Concerning Leatherback Working Group 2018). This Changes in the frequency and timing of Conservation Measures for Marine decreasing trend is observed when all storms or changes in prevailing currents Turtles of the Atlantic Coast of Africa available nest data are combined and at could lead to increased beach loss via (Abidjan Memorandum); Convention for most nesting beaches (NW Atlantic erosion (Van Houtan and Bass 2007; the Protection and Development of the Leatherback Working Group 2018), Fuentes and Abbs 2010). More frequent Marine Environment of the North East including the largest nesting aggregation and intense storm events will have the Atlantic; Convention on Nature in Trinidad (i.e., Grande Riviere, which same effect on leatherback nesting Protection and Wildlife Preservation in is declining at 6.9 percent annually). In success as previously described for the Western Hemisphere (Washington or terms of productivity, the DPS exhibits natural disasters. Western Hemisphere Convention); low hatching success, while other key In summary, climate change is likely Convention for the Protection and parameters such as clutch size, to affect multiple life stages of turtles in Development of the Marine remigration interval, and clutch the NW Atlantic DPS. Likely impacts Environment of the Wider Caribbean frequency are similar to species’ include altering sex ratios and reducing Region (Cartagena Convention); averages. There are also indications of nest success, reducing nesting beach Cooperative Agreement for the decreased productivity within the DPS habitat and nests due to sea level rise Conservation of Sea Turtles of the at one of the most intensively monitored and storms, and potentially changing Caribbean Coast of Costa Rica, nesting beaches (i.e., Sandy Point, St. distribution. Climate change therefore Nicaragua, and Panama (Tri-Partite Croix; Garner et al. 2017). The declining has the potential to alter productivity Agreement); Council Regulation (EC) region-wide nest trend and potential and diversity. These impacts could be No. 1239/98 of 8 June 1998 Amending changes in productivity make the DPS more severe in certain areas with more Regulation (EC) No. 894/97 Laying highly vulnerable to threats. dynamic beach environments, or could Down Certain Technical Measures for However, the DPS exhibits broad be widespread throughout the DPS. the Conservation of Fishery Measures spatial distribution and some diversity. Impacts are likely to range from small, (Council of the European Union); Based upon genetic data, as well as temporal changes in nesting season to flipper tagging and satellite telemetry large losses of productivity. That said, 1 For a related discussion of existing regulatory data, this DPS shows significant spatial leatherback turtles are considered to be mechanisms to protect turtles, which are structure with some connectivity among considered separately under Section 4(a)(1)(D), see the best able to cope with climate the discussion above at ‘‘Inadequacy of Existing nesting and foraging areas. Further, change of all sea turtle species due to Regulatory Mechanisms.’’ nesting occurs in a variety of habitats,

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including islands and mainland, as well Coastal development and armoring, plastic ingestion, adrenal gland as muddy, sandy, and shelly beaches. erosion (natural and anthropogenic), parasitism, diverticulitis, and burdens The DPS uses multiple, distant, and and artificial lighting are some of the of environmental toxins (Innis et al. diverse foraging areas, including most significant stressors on nesting 2010). Such cumulative pressures affect oceanic and coastal waters throughout beach habitat, reducing nesting and individual survival and productivity. In the North Atlantic Ocean, hatching success (i.e., productivity). some cases, it is possible to directly link Mediterranean Sea, and GOM, providing Habitat loss and modification is also individual threats to demographic some resilience against reduced prey anticipated to increase over time with reductions (e.g., high mortality in availability. While the numerous and additional development and climate gillnets off nesting beaches reduces diverse nesting and foraging locations, change. Legal and illegal harvest of nesting female abundance). More often, along with moderate levels of genetic turtles and eggs reduces abundance and however, several threats contribute diversity, provide some level of buffer to productivity. Illegal egg poaching occurs synergistically to demographic the DPS, the highest concentrations of in several nations, particularly Costa reductions. For example, reductions in nesting occur in Trinidad, French Rica, Dominican Republic, and hatching success may be caused by one Guiana, and Panama, where a Colombia. While reduced in some or more of the following threats alone or catastrophic event could have a nations, illegal poaching still occurs on in combination: erosion, poaching, disproportionate impact on the DPS. unmonitored beaches throughout most predation, climate change, and The primary threat to the NW Atlantic of the Caribbean, including Suriname pollution. DPS is bycatch in commercial and and Trinidad. While leatherback eggs We find that the NW Atlantic DPS is artisanal, pelagic and coastal fisheries. and hatchlings are preyed upon by affected by numerous severe threats. Gillnet fisheries, in particular those off many species, the biggest threat is from These present, ongoing threats injure or nesting beaches, are the greatest concern feral dogs. Egg predation by dogs occurs kill turtles and contribute to the given the high mortality rate. In in many nations, but it is a particular declining nest trend. The Team particular, the coastal surface drift concern in Colombia, French Guiana, evaluated whether the DPS is at risk of gillnet fishery off Trinidad kills an Guyana, Panama, Puerto Rico, and extinction currently or would become so estimated 1,000 adult leatherback turtles Trinidad and Tobago. Intervention (e.g., within the foreseeable future. To answer annually (Lee Lum 2006; Eckert et al. screening) to reduce predation is not this question, they asked how long it 2008; Eckert 2013). Bycatch, and used in most places, partially due to the would take for the total index of nesting subsequent mortality, in Trinidad concern of attracting poachers as well as female abundance to be reduced by 50 bottom set gillnets and surface gillnets the infeasibility of implementing percent, a drastic decline that would in Suriname and French Guiana are effective measures at high-density or reduce abundance to a level where major threats to the NW Atlantic DPS. remote beaches. Egg predation reduces demographic risks would present an Trinidad and French Guiana host the productivity. independent threat to the DPS’s highest number of nesting females in Vessel strikes are also a threat, killing continued existence, and whether this this DPS, so the continued mortality of numerous leatherback turtles each year. time period places the DPS at risk adults in that area is of significant While exposure to vessel strikes may be currently or within the foreseeable concern. Further, no adequate most severe in developed areas, the total future. Using estimates of the mean time regulatory mechanism is currently in impacts are high, affecting both to maturation for the population place (e.g., no gear modifications or abundance and productivity. Pollution, (approximately 19 years; Avens et al. in closures) to address this incidental ingestion of plastics, and entanglement review) and mean nesting longevity bycatch. These fisheries and the related in marine debris are threats to all (approximately 11 years; Avens et al. in mortality rates have been occurring for leatherback turtles, most likely resulting review) of the species, they estimated a years (Lee Lum 2006; Eckert 2013). in injury and compromised health, and generation time of approximately 30 Longline fisheries are the most sometimes mortality. Exposure to years. They then considered three widespread threat, occurring throughout pollution is widespread in the NW different scenarios. First, they the Atlantic Ocean by fisheries from Atlantic Ocean, but effect data are calculated the time until 50 percent multiple nations, incidentally capturing limited. Oil and gas activities are threats reduction in the total index of nesting thousands of leatherback turtles with the potential to grow in some female abundance using data on a annually based on the best available Caribbean areas. Natural disasters significant and influential, well- data. Longline gear modifications (e.g., (hurricanes) and phenomenon (large documented, threat: Gillnet bycatch circle hooks) are sometimes, but not Sargassum events) have an intermittent mortality of 1,000 adult turtles annually consistently, used. Fishery bycatch in impact to the NW Atlantic DPS. Climate off the largest nesting aggregation, i.e., pot/trap gear, especially off the change is likely to result in reduced Trinidad. Assuming that half of the northeastern U.S. coast and in Canadian productivity due to greater rates of turtles at Trinidad killed are female, waters, and trawls are also significant coastal erosion and sea level rise and total index of nesting female abundance threats. Fisheries bycatch reduces subsequent nest inundation and habitat would decrease by 50 percent in 28 abundance by removing individuals loss, reduced hatching success, years, which is approximately one from the population; when those changing sex ratios, and distributional generation. individuals are nesting females, it changes. Although many international, Second, the Team used regional nest reduces productivity as well. Given the national, and local regulatory trend data from the NW Atlantic lack of observer coverage and reporting, mechanisms are in place, they do not Leatherback Working Group (2018). cumulative mortality due to fisheries adequately reduce the impact of these Using the most recent trends as is bycatch is likely higher than available threats. typical for population projections (i.e., estimates. The cumulative impact of these ¥9.32 percent per year from 2008 to Additional threats to the DPS include multiple threats is potentially large 2017), they found that the total index of habitat loss, the legal and illegal harvest (Andersen et al. 2017). Innis et al. nesting female abundance would fall by of turtles and eggs, predation, vessel (2010) reported that many individuals 50 percent within 8 years (95 percent CI: strikes, pollution, climate change, oil are simultaneously exposed to multiple 6 to 13 years). Using trends from the and gas activities, and natural disasters. threats, including: entanglement, injury, longer data set (¥4.21 percent per year

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from 1990 to 2017), the total index of less than one generation equates to a coarser further south, and the nesting female abundance would fall by current, high risk of extinction. We find excavation of nests becomes more 50 percent within 17 years (95 percent support for this conclusion in well difficult because the sand falls back into CI: 11 to 31 years). Finally, using their documented examples of other the holes (Thome´ et al. 2007). calculation of nest trend for the highest leatherback populations that have While nesting is limited abundance nesting area in the DPS, quickly declined despite larger geographically, the overall range of this Trinidad (¥7.3 percent per year, 95 abundances (e.g., the Mexico nesting DPS (i.e., all areas of occurrence) is percent CI: ¥34 to 18 percent), the aggregation declined from 70,000 extensive, as demonstrated by Team found that the total index of nesting females in 1982 to under 1,000 individuals tracked to numerous nesting female abundance would nesting females by 1994; Spotila et al. foraging areas. Leatherback turtles of decrease by 50 percent within 10 years 2000). this DPS use coastal waters off South (95 percent CI: 3 years to ‘‘never;’’ We conclude that the NW Atlantic America from the ‘‘elbow’’ of Brazil however, ‘‘never’’ is highly unlikely, DPS is presently in danger of extinction southwards to Uruguay and Argentina, given that there is a 75 percent due to the number and magnitude of where quality foraging areas allow for likelihood that the true value of the nest threats, of which fisheries bycatch is the coastal foraging in addition to open- trend in Trinidad is negative (f = greatest concern. These present and ocean foraging (Almeida et al. 2011). 0.754)). There are several caveats with ongoing threats have resulted in Individuals of this DPS are also known using nest trend data: Adult females imminent and substantial demographic to migrate to the waters off western typically account for, at most, a small risks (i.e., declining trends and reduced Africa and forage in the oceanic habitat percentage of the population; trends in abundance). Although numerous in between South America and Africa nesting female abundance may not be an conservation efforts apply to the turtles (Almeida et al. 2011). Likewise, index of the remainder of population; of this DPS, they do not adequately Prosdocimi et al. (2014) found 84 to 86 stable age distribution is assumed; and reduce the risk of extinction. We percent of leatherback turtles sampled time series of available data do not conclude that the NW Atlantic DPS is in from the foraging grounds off Argentina always span one generation (let alone danger of extinction throughout its and Elevac¸a˜o do Rio Grande (an multiple generations required to reach range and therefore meets the definition elevated offshore area across from stable age distribution). Despite these of an endangered species. The Brazil) to originate from western African caveats, all scenarios resulted in a 50 threatened species definition does not beaches. apply because the DPS is currently at percent reduction in the total index of Abundance nesting female abundance in less than risk of extinction (i.e., at present), rather The total index of nesting female one generation. While the first scenario than on a trajectory to become so within the foreseeable future. abundance for the SW Atlantic DPS is did not involve the use of nest trend 27 females. We based this index on nest data, it did result in a 50 percent SW Atlantic DPS monitoring data from Projeto TAMAR, reduction within one generation when The Team defined the SW Atlantic the Brazilian Sea Turtle Conservation considering only one threat (albeit the DPS as leatherback turtles originating Program, which has established an most severe), and we know that the DPS from the SW Atlantic Ocean, north of index nesting survey area along 47 km faces many large-impact threats, 47° S, east of South America, and west of beach (10 km along Povoac¸a˜o and 37 (suggesting that the first scenario of 20° W; the northern boundary is a km along Comboios; IAC Brazil Annual understates the DPS’s degree of risk). diagonal line between 5.377° S, 35.321° Report 2018), where complete daily For the purpose of the extinction risk W and 12.084620° N, 20° W. The surveys have been conducted during the analysis, the Team discussed whether southern boundary is based on the primary nesting season from September the resulting range of time periods (8 to Antarctic circumpolar current which through March, since the 1986/1987 28 years) suggests a present risk of prevents sea turtles from nesting further nesting season. Some nesting occurs extinction or a risk of extinction within south. The western end of the northern along the non-index stretches of the foreseeable future. The Team did not boundary is based at the ‘‘elbow’’ of the Povoac¸a˜o and the beaches to the have a unanimous view. All but one Brazilian coast, where the Brazilian northern part of the area, but it is minor Team member were present to vote on Current begins and likely restricts the relative to nesting on the index survey the level of extinction risk. Eight Team northern nesting range of this DPS. We area (Thome´ et al. 2007). To calculate members concluded with moderate placed the eastern boundary at the 20° the index of nesting female abundance confidence that the DPS is at high W meridian as an approximate midpoint (i.e., 27 nesting females) for the Espı´rito extinction risk due to threats and the between SW Atlantic and SE Atlantic Santo index area, we divided the total declining trend that has accelerated in (i.e., turtles that nest in western Africa) number of nests between the 2014/2015 recent years. Their confidence was nesting beaches and to reflect both and 2016/2017 nesting seasons (i.e., a 3- moderate rather than high due to some DPS’s wide foraging range throughout year remigration interval; Thome´ et al. resilience provided by the abundance, the South Atlantic Ocean. However, due 2007) by the clutch frequency (5 spatial distribution, and diversity for to its low abundance, the SW Atlantic clutches/season; Thome´ et al. 2007; this DPS. Two Team members DPS is less likely to be encountered Tiwari et al. 2013). concluded with low confidence that the compared to the more abundant SE Minimal, scattered nesting has been DPS is at moderate extinction risk. Their Atlantic DPS. reported on beaches outside Espı´rito confidence in this conclusion was low The SW Atlantic DPS only nests on Santo (Barata and Fabiano 2002; Thome´ due to the declining trend that has the southeastern coast of Brazil, et al. 2007; Bezerra et al. 2014), but accelerated in recent years. The Terms primarily in the state of Espı´rito Santo, these beaches exhibit suboptimal sand of Reference called for a simple on a continuous stretch of beach, less characteristics for nesting, limiting the majority, and after voting, the Team than 100 km in length, with possibility of substantial nesting concluded that the DPS met the concentrated nesting in Povoac¸a˜o and expansion into those areas (Thome´ et al. definition for high risk of extinction. We Comboios. While there is occasional, 2007). Therefore, while the nest counts agree with the Team’s overall limited nesting south of these primary from the index beach surveys do not conclusion that a 50 percent decline in nesting beaches, the sand becomes provide a full estimate of all nesting for

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the DPS, they provide a high-quality years to 89.8 nests in the last 5 years of in Brazil (Espı´rito Santo). A tagging dataset, account for the majority of the monitoring (between 1988 and 2017). study has shown internesting nests (approximately 80 percent; While the long term trend indicates movements along 300 km of the coast, Colman et al. 2019), and are used for an increase in nesting, the most recent including over 100 km on either side of determining our index of nesting female 3 years of data (i.e., 30, 64, and 38 nests known nesting beaches (Almeida et al. abundance and the nest trend in the from 2014 to 2016) show a marked 2011), indicating connectivity next section. reduction in nests compared to the throughout this area. The nesting spatial Our total index of nesting female previous 3 years (i.e., 78, 124, and 102 distribution is extremely restricted, with abundance is similar to the IUCN Red nests from 2011 to 2013). The reason for nesting constrained to a small area, with List assessment’s estimate of 35 mature this reduction is unknown. It could little suitable nesting habitat into which individuals (female and male, assuming reflect declining nesting female a 3:1 sex ratio) based on nesting data abundance or changes in productivity it can expand. Conversely, the DPS through 2010 (Tiwari et al. 2013). metrics (i.e., a longer remigration exhibits a broad foraging range, The total index of nesting female interval or reduced clutch frequency) extending south to waters off Uruguay abundance (i.e., 27 nesting females at related to environmental shifts or prey and Argentina, throughout the pelagic the index beach) places the DPS at risk availability. Therefore, there is waters of the South Atlantic, and across for environmental variation, genetic uncertainty regarding whether the to western Africa (Almeida et al. 2011). complications, demographic increasing trend will continue. The wide distribution of foraging stochasticity, negative ecological The productivity parameters for this areas likely provides some level of feedback, and catastrophes (McElhany DPS are fairly typical for the species. In buffer for the DPS against local et al. 2000; NMFS 2017). These Brazil, the average clutch size appears to catastrophes or environmental changes processes, working alone or in concert, be on the lower end of the range for that could limit prey availability. place small populations at a greater Atlantic populations; conversely, However, the limited nesting range, and extinction risk than large populations, Brazilian nests tend to have a higher apparent lack of suitable nesting which are better able to absorb losses in average number and percentage of eggs individuals. Due to its small size, the per clutch (Thome´ et al. 2007). beaches into which to expand, renders DPS has limited capacity to buffer such Therefore, the egg production of this the DPS highly susceptible to losses. Given the intrinsic problems of DPS appears to be weighed more detrimental environmental impacts, small population size, we conclude that towards production of viable, hatchling- both acute (e.g., storms and singular the nesting female abundance is a major producing eggs compared to other events) and chronic (e.g., sea level rise factor in the extinction risk of the SW Atlantic populations (Thome´ et al. and temperature changes). Any such Atlantic DPS. 2007). Nesting females produced an change would impact the entire extent average of 3,496 hatchlings annually of the DPS’s nesting habitat. With no Productivity over the past 10 years of nesting, which metapopulation structure, the DPS has The SW Atlantic DPS exhibits an was calculated by multiplying 60.4 reduced capacity to withstand other increasing, although variable nest trend. nests annually, 87.7 eggs per nest, and catastrophic events. Thus, despite Long-term monitoring data for this small 66.0 percent hatching success (Colman widely distributed foraging areas, the DPS are limited to the index nesting et al. 2019). This estimate does not extremely narrow nesting distribution survey area in southeastern Brazil, include the limited nesting outside the and lack of population structure where data has been collected between index area. The mean size of nesting increases the extinction risk of the SW the 1986/1987 and 2016/2017 nesting females (CCL) has changed from 159.8 Atlantic DPS. seasons. Over the 31-year data cm, with a range of 139 to 182 cm collection period, the mean annual (Thome´ et al. 2007) to 152.9 cm ± 10.0 Diversity number of nests for these beaches was SD, with a range of 124.7 to 182.0 cm; 35. While this is below the criterion of the decrease was statistically significant Despite its extremely low nesting 50 annual nests for conducting a trend and may indicate recruitment (Colman female abundance, the Brazilian nesting analysis, we determined that this site et al. 2019). Hatching success has aggregation has the second-highest should nevertheless be included due to increased from a mean of 65.1 percent haplotype diversity among all Atlantic the high quality and consistency of the (with a range of 53.3 to 78 percent; populations (h = 0.498¥0.532; Dutton data, and the fact that these data Thome´ et al. 2007) to a mean of 66 et al. 2013; Vargas et al. 2017). accurately represent the low level of percent (with a range of 38.8 to 82.4 According to Thome´ et al. (2007), while nesting of this DPS. The median percent; Colman et al. 2019). most nesting occurs from September increase in nest counts was 4.8 percent While the overall nest trend for this through March, sporadic nesting has annually (sd = 5.8 percent; 95 percent DPS is increasing, there is uncertainty been recorded throughout the year, ¥ CI = 8.4 to 15.5 percent; f = 0.832; regarding the continuation of this trend, which may provide temporal resilience mean annual nests = 35). As the index given the data for the past 3 years. The if environmental conditions limit area hosts the majority of known nesting population remains extremely small, nesting during the primary nesting activity, these data are representative of and thus overall productivity is limited. season. The use of estuarine waters (of the entire DPS. We conclude that Additionally, the potential for the Rio de la Plata) as a year-round nesting has increased from 1986 to population growth is not clear, given the foraging ground is an unusual 2017. Our trend estimate is similar to limited suitable nesting habitat characteristic shared with the SE that of the IUCN Red List assessment, available. We conclude that limited which characterizes the population as Atlantic DPS (Lopez-Mendilaharsu et al. productivity places the DPS at risk of 2009; Prosdocimi et al. 2014). Despite increasing (Tiwari et al. 2013). It is also extinction. in agreement with the recent study by genetic and foraging diversity, the Colman et al. (2019), which describes Spatial Distribution limited size and range of the nesting the trend as increasing but variable, The SW Atlantic DPS comprises a aggregation reduces the resilience of this with the mean annual number of nests single, small nesting aggregation DPS. increasing from 25.6 nests in the first 5 concentrated on the beaches of one state

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Present or Threatened Destruction, creation of protected areas and previously noted, there is protection for Modification, or Curtailment of Habitat minimization of direct lighting on the or limited access to much of the nesting or Range nesting beaches. Nests are relocated habitat south of the Doce River. Within the limited nesting range of from heavily lit areas. All light sources However, this protection does not the SW Atlantic DPS, habitat with a light intensity greater than 0 lux extend north of the river, where 2 modification is a threat. The 2015 (lux = lumen per m ) on these beaches additional nesting occurs. Because of collapse of a tailings dam at an ore mine are prohibited by a Federal ordinance the very small size of the population, upstream of the index nesting survey (Portaria IBAMA 11/1995). even very low levels of egg poaching area had an undetermined, but Construction, lighting, and poaching have the potential to impact the potentially long-term, impact on the were not considered a significant population. Therefore, we conclude that nesting beach of the DPS. Tens of problem at the leatherback nesting overutilization poses a threat to the SW ´ millions of cubic meters of heavy metal- beaches by Thome et al. (2007). Atlantic DPS. However, such problems persist in laden mining waste entered the Doce Disease or Predation several other turtle nesting beaches in River and ultimately passed through the Brazil (Mascarenhas et al. 2004; Lara et While we could not find any mouth of the river, in the middle of the al. 2016). More recently, coastal information on disease for this DPS, index nesting area. Nests laid near the development and artificial lighting have predation is a threat to the SW Atlantic river mouth were relocated to prevent been identified as potential threats for DPS. Invertebrates, reptiles, and hatchlings from entering polluted leatherback turtles on the beaches of mammals prey on eggs, while hatchlings waters. Hatching success was not Espı´rito Santo (TAMAR/Unpublished fall prey to land, air, and marine significantly different between years in data) and further research is needed to predators. According to Thome´ et al. the period of 2012 to 2017, which better understand these threats. Nests (2007), relocation and protection of include three seasons before (2012– are relocated from heavily lit areas. nests may be undertaken when 2014) and three seasons after (2015– Colman et al. (2018) found a negative inundation (primarily) or predation 2017) the mining event (Colman et al. relationship between nest density and (secondarily) risk is considered high (J. 2019). While no difference was noted in light levels. Additionally, as oil industry Thome´, Projeto TAMAR, pers. comm., the distribution of nests following the and other economic developments are 2019). Predators include foxes dam breach, non-lethal impacts to explored, the potential threat to the (Cerdocyon thous), raccoons (Procyon individuals encountering the polluted nesting habitat may increase (Thome´ et cancrivorus), and domestic dogs, waters, especially hatchlings, could not al. 2007). although there are no quantitative be measured. Such impacts may have A significant portion of the nesting estimates of predation for this DPS (J. occurred but may not be evident for beach is protected as a Federal reserve Thome´, Projeto TAMAR, pers. comm., decades following the spill. Projeto under Brazilian Decree no. 90222 2019). Some predation of large juveniles TAMAR is monitoring for heavy metals (September, 25 1984), which covers 15 and adults occurs in the marine in eggs and nesting females and is km of Comboios Beach, south of the environment, especially by sharks closely watching for changes in fitness mouth of the Doce River. An additional (Bornatowski et al. 2012), but the and reproductive parameters (Thome´ et 22 km, south of the reserve, falls within frequency and impact on those al. 2017). As a result of the dam’s indigenous land that has restricted populations is not well understood. For collapse, the Brazilian Federal access under Federal law. No Federally this DPS, predation primarily impacts government is implementing a marine protected areas exist north of the Doce productivity (i.e., reduced egg and protected area (APA-Area de Protecao River mouth, where Povoac¸a˜o Beach hatching success). We conclude that Ambiental da Foz do Rio Doce), occurs. However, local, state, and predation is a threat to the SW Atlantic including about 100 kilometers of Federal regulations provide some DPS, but that there is insufficient coastline, which should encompass the coastal zone protections in that area. information to classify disease as a entire extension of the index nesting threat. beaches, with both coastline and Overutilization for Commercial, surrounding marine areas. Such a Recreational, Scientific, or Educational Inadequacy of Existing Regulatory measure is an environmental Purposes Mechanisms compensation for the dam’s collapse, Overutilization poses a threat to the The SW Atlantic DPS is protected by and should be implemented with SW Atlantic DPS. Though specific several regulatory mechanisms. For specific resources in the coming years information on leatherback turtle each, the Team reviewed the objectives (ICMBio, MMA, Brazil; J. Thome´, harvests is not available, there was of the regulation and to what extent it Projeto TAMAR, pers. comm., 2019). historically traditional harvest of sea adequately addresses the targeted threat. Beach erosion and tidal flooding are turtles and eggs in Espı´rito Santo (Hartt Beach habitat is protected throughout also threats to this DPS. According to 1941; Medeiros 1983). This harvest, much of the nesting range of this DPS. Thome´ et al. (2007), occasional however, has been largely curtailed The vast majority of nesting occurs in relocation of nests and nest protection through the work of Projeto TAMAR, Espı´rito Santo, where beaches have been occur when inundation or predation which promoted other economic protected since 1982. All light sources risk is considered high. The majority of activities and hired ex-turtle hunters to with a light intensity greater than 0 lux nests are relocated when in danger of protect nests (Marcovaldi et al. 2005; (lux = lumen per m2) on these beaches beach erosion or tidal flooding (J. Almeida and Mendes 2007). The are prohibited by a Federal ordinance Thome´, Projeto TAMAR, pers. comm., capture of leatherback turtles was (Portaria IBAMA 11/1995). 2019). banned in Brazil in 1968, and full The take of leatherback turtles is Although coastal light pollution has protection for all sea turtles was enacted illegal throughout the SW Atlantic been documented to be increasing in in 1986 (Marcovaldi and Marcovaldi Ocean. Regional regulations include: Brazil, nesting has not been notably 1999). At present, egg poaching has Brazil Portaria, Manter proibida a impacted thus far (Colman et al. 2018). been reduced, and there is no known captura de tartarugas marinhas das The lack of impact may be attributable subsistence hunting for sea turtles of espe´cies Caretta, Dermochelys coriacea, to conservation strategies including the any species (Thome´ et al. 2007). As Eretmochelys imbricata e Lepidochelys

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olivacea 2 No.27/1982; Uruguay Fisheries Bycatch South America. Additionally, coastal Presidential Decree 144 and additional Fisheries bycatch is the primary threat artisanal gillnet fishery interactions legislation to reduce bycatch and to the SW Atlantic DPS. Leatherback with leatherback turtles are known to prevent habitat alteration, and to turtles are captured as bycatch in occur off the western coast of Africa, prevent the removal of individuals from commercial and artisanal fisheries, where some individuals from the SW their natural environment; Argentina along coastal foraging and breeding Atlantic DPS forage (Riskas and Tiwari National Decree 666 from 1997; and areas, and on the high seas. The 2013). The Rio de la Plata estuary, an various laws prohibiting hunting and extensive foraging range of this DPS important foraging area off Uruguay, has selling sea turtles. Harvest and makes it vulnerable to interactions with numerous documented instances of consumption of sea turtles are illegal fisheries off the coasts of Brazil, leatherback turtle entanglements, under Brazilian law (Law on Uruguay, and Argentina, in the pelagic including mortalities from coastal Environmental Crimes N° 9605/1998). waters of the South Atlantic Ocean, and bottom-set gillnet fisheries (Fallabrino et While these protections are mostly along the coastal waters off western al. 2006; Lopez-Mendilaharsu et al. effective, very low levels of egg Africa. Recoveries of females tagged in 2009; Velez-Rubio et al. 2013). poaching still exist (Thome´ et al. 2007). Espı´rito Santo are scarce, however. Larger-scale commercial ocean gillnet Fisheries bycatch is the primary threat Three were found dead on the Brazilian fisheries are also a significant threat for to the SW Atlantic DPS. Although coast (incidentally captured in fisheries the SW Atlantic DPS, with high bycatch regulations address this issue to some around the Doce River mouth (TAMAR, rates reported off Brazil in drift and set extent, they do not do so adequately and unpublished data)), one in Argentina gillnets (Fiedler et al. 2012; Ramos and it continues to be a threat. In 2001, (Alvarez et al. 2009), and one in Vasconcellos 2013). Drift gillnet fishing Brazil established the National Plan for Namibia, West Africa (Almeida et al. off Brazil started in 1986, targeting the Reduction of Incidental Capture of 2014). Fisheries interaction information hammerhead sharks (Domingo et al. Sea Turtles in Fishing Activities specific to this DPS is limited, because 2006). Marcovaldi et al. (2006) reported (Marcovaldi et al. 2005). However, the data do not differentiate among that leatherback turtles comprised about individuals from this DPS and SE bycatch continues to be a major 70 percent of all sea turtles captured in Atlantic individuals that forage within problem. In Brazil, the use of TEDs in Brazilian driftnet shark fisheries. From the same range. Because the SE Atlantic trawl fisheries is mandatory (Instruc¸a˜o 2002 to 2008, 351 sea turtles were DPS is much more abundant than the Normativa MMA No. 31; December 13, incidentally caught in 41 fishing trips SW Atlantic DPS, most fishery 2004), but most fishermen nevertheless and 371 sets. Leatherback turtles interactions likely involve SE Atlantic do not use such gear, and there is little accounted for 77.3 percent of the take (n individuals. However, data about or no enforcement by authorities (IAC = 252 turtles, capture rate = 0.1405 bycatch involving the SE Atlantic DPS turtles/km of net) with 22.2 to 29.4 Brazil Annual Report 2018). The UN is informative because the impact to the percent of turtles dead upon retrieval established a worldwide moratorium on SW Atlantic DPS individuals is likely to and no estimate of post-release mortality drift gillnet fishing effective in 1992, the be proportional to their relative for those released alive. The annual General Fisheries Commission for the presence in the area. Bycatch in gillnets; catch by this fishery ranged from 1,212 Mediterranean prohibited driftnet surface, deep-water longline hooks; and fishing in 1997, and the International trawls are the principal causes of sea to 6,160 leatherback turtles, as estimated Commission for the Conservation of turtle deaths, with not only higher based on bootstrap procedures under Atlantic Tunas (ICCAT) banned interaction numbers, but higher different fishing effort scenarios in the driftnets in 2003. Despite these and mortality rates than other fishery 1990s (Fiedler et al. 2012). In 1998, a other numerous regulations and interactions (Kotas et al. 2004; Pinedo Brazilian Federal ordinance limited the international instruments to protect sea and Polacheck 2004; Tudela et al. 2005; use and transport of bottom and drift turtles, significant bycatch still occurs Giffoni et al. 2013). gillnets over 2.5 km long. Such in artisanal and commercial fisheries Coastal gillnet fisheries interactions regulations were difficult to enforce, operating in the territorial waters of are one of the largest threats to the and vessels from the ports of Itajaı´, Argentina, Uruguay, and Brazil and on survival of the SW Atlantic DPS. In an Navegantes and Porto Belo, Santa the high seas (Gonza´lez et al. 2012). analysis of Brazilian fishery data from Catarina, Brazil, deployed nets up to In summary, while numerous 1990 to 2012, Giffoni et al. (2013) 7,846 m long between 2005 and 2006 regulatory mechanisms have been documented 237 leatherback turtle (Kotas et al. 2008). In 2010 the enacted to provide some protections to interactions, and 31 percent mortality, ordinance was suspended, permitting leatherback turtles, their eggs, and in coastal set, fixed, encircling, and unrestricted fishing with driftnets nesting habitat throughout the range of pelagic drift gillnets. The actual number (Fiedler 2012). The shark drift gillnet this DPS, they have been inadequate. of interactions is likely substantially fishery declined steeply in later years, Many do not effectively reduce the higher, as many interactions go with no vessels operating in 2009 threat that they were designed to unreported. (UNIVALI/CTTMar 2010) likely because address, generally as a result of limited Smaller scale artisanal gillnet of target species reduction, reduced implementation or enforcement. fisheries occur in coastal waters that are profitability, and IBAMA Normative Fisheries bycatch, in particular, remains used by SW Atlantic individuals for Instruction N166/2007 which a major threat to the DPS despite mating, access to nesting beaches, and temporarily stopped the issuance of new regulatory mechanisms. We conclude foraging. Thome´ et al. (2007) described driftnet fishing licenses and established that the failure to implement and the occurrence of artisanal gillnet a 2-year deadline by which vessels were enforce effective regulations is a threat fisheries close to the nesting beach but to replace driftnets with other gear. to the DPS. indicated that Brazil was investing Various other gillnet fisheries, such as resources in developing lower-impact bottom gillnets for sharks and mollusks, fishing techniques. However, such have reported leatherback mortalities as 2 Prohibition of the capture of sea turtles of the species Caretta caretta, Dermochelys coriacea, fisheries occur throughout other well, such as that occurring off Uruguay Eretmochelys imbricata, and Lepidochelys olivacea. important coastal foraging areas off (Fallabrino et al. 2006; Laporta et al.

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2006; Eckert et al. 2009) and the western the stranded leatherback turtles could (Giffoni et al. 2013). Mortality reduces coast of Africa (Riskas and Tiwari 2013). have been caused by interactions with abundance, by removing individuals Longline fisheries pose a significant pelagic longlines. Onboard observers in from the population; it also reduces threat to the SW Atlantic DPS, as the longline fisheries off Brazil have productivity, when nesting females are spatio-temporal distribution of reported that leatherback turtles tend to incidentally captured and killed. Given leatherback turtles overlaps with be foul-hooked in the flipper rather than the small size of the DPS, the loss of longline fishing effort (Fossette et al. the mouth (Kotas et al. 2004; Pinedo and even a small number of individuals 2014). In a review of reported, observed Polacheck 2004; Lima 2007). In 2017, from fishery interactions has the takes in hook and line fishery (primarily Brazil enacted a law (PORTARIA potential to reduce abundance and longline) interactions with leatherback INTERMINISTERIAL No 74, DE 1o- DE productivity. Therefore, we conclude turtles in all of Brazil from 1990 to 2012, NOVEMBRO DE 2017) requiring the use that fisheries bycatch is the primary 1061 takes were documented, with 3 of circle hooks in the pelagic longline threat to the SW Atlantic DPS. fisheries as well as keeping specified percent of the taken turtles found dead Vessel Strikes on the line and another 37.5 percent of dehooking and gear removal equipment There is little information regarding unknown condition after release on board any Brazilian longline vessel. vessel strikes for the SW Atlantic DPS. (Giffoni et al. 2013). High frequencies of Specifically, the Brazilian government Many of the primary foraging areas for leatherback deaths from bycatch have required the use of 14/0 or larger circle this DPS off the coasts of Argentina, been documented on longline fishing hooks for all longline vessels targeting swordfish or tuna (https:// Uruguay, and Brazil are experiencing vessels from southern Brazil and increased vessel traffic from fishing Uruguay (Kotas et al. 2004; Pinedo and www.jusbrasil.com.br/diarios/ 166677996/dou-secao-1-06-11-2017-pg- vessels, cargo transport, and tourism Polacheck 2004; Domingo et al. 2006; (Lo´pez-Mendilaharsu et al. 2009; Giffoni et al. 2008; Monteiro 2008). 81). Trawl fisheries also impact the SW Fossette et al. 2014), so leatherback Between 2004 and 2005, in a study off Atlantic DPS, mainly along coastal turtle interactions with vessels may southern Brazil, eight leatherback turtles waters off southern Brazil, Argentina, occur. Affected individuals likely were captured, with a mean capture rate and Uruguay (Gonzalez Carman et al. include immature and mature turtles. of 0.03 turtles per 1,000 hooks 2011; Velez Rubio et al. 2013; Monteiro Impacts range from injury to mortality. (Monteiro 2008). In 1999, there were 70 et al. 2016). Although there are fewer We conclude from the best available longliners in the Brazilian fleet, with 33 interactions with trawl fisheries relative information that vessel strikes are likely vessels operating out of southern Brazil to other fisheries (i.e., gillnet and a threat to the DPS. and fishing a total of 13,598,260 hooks longline fisheries), mortality rates in Pollution (ICCAT 2001). However, the overall trawl fisheries are far higher (Miller et effort in the area was much higher, as al. 2006; Laporta et al. 2013). As with all leatherback turtles, longliners from Uruguay, Chile, Japan, Observation of the Uruguayan bottom entanglement in and ingestion of marine Taiwan, and Spain fish in this area trawl fishery, during a tagging and data debris and plastics is a threat that likely (Folsom 1997; Weidner and Arocha collection program designed to increase kills several individuals a year. Multiple 1999; Weidner et al. 1999). Scientific the understanding of the fishery impacts studies have implicated the ingestion of observers documenting 10 trips by on sea turtles, documented 17 marine debris and/or entanglement in longline vessels from the Uruguayan leatherback interactions from April 2002 cases of injury or death of turtles found fleet operating in the SW Atlantic Ocean in waters occupied by the SW Atlantic ° ° to June 2005 (Laporta et al. 2013). between 26 and 37 S between April Coastal bottom trawl and artisanal DPS (Bugoni et al. 2001; Eckert et al. 1998 and November 2000 observed 27 gillnet fisheries were the main causes of 2009; Schulyer et al. 2013; Scherer et al. incidentally caught leatherback turtles death of leatherbacks found stranded in 2014). However, no individuals were (Balestre et al. 2003). The prevalence of Uruguay (Velez Rubio et al. 2013). assigned to a particular population and leatherback interactions in pelagic Recorded interactions in coastal trawl could have been members of the more longline fisheries is likely a result of the fisheries are also known from Gabon, abundant SE Atlantic DPS, which is longline fleet fishing the productive Congo, and Namibia (Riskas and Tiwari known to occupy the same waters. areas in the convergence zone of the 2013). While there is no specific information Brazilian Current and the cold waters Other fisheries such as corrals, pound on effects to leatherback turtles of this from the Falklands Current (Kotas et al. nets, and pots appear to present a much DPS, pollution from various economic 2004), which coincides with important lower risk for leatherback turtles than to activities including maritime transport, sea turtle foraging and developmental other sea turtle species. From 1990 to tourism, and domestic and industrial habitat. As with gillnets, the scope of 2012, Giffoni et al. (2013) documented waste discharges that are known to the longline threat to the SW Atlantic only two leatherback turtles (both alive) occur within their range, may also have DPS spans across the South Atlantic of the 8,367 total sea turtles taken in an impact (Lo´pez-Mendilaharsu et al. Ocean in both coastal and oceanic those fisheries. 2009; Fossette et al. 2014). Events such waters. In addition to exposure to While specific information is not as the failure of a mining tailings dam longline fisheries off South America, available to permit calculating an in 2015 that resulted in the discharge of coastal longline fisheries off Cameroon, estimate of overall bycatch and tons of mining mud contaminated with Angola, and Namibia, and pelagic mortality rates of SW Atlantic heavy metals into the Doce River, and longlines in the Gulf of Guinea and the leatherback turtles, it is clear that subsequently into the waters off Espı´rito eastern portion of the South Atlantic fisheries bycatch, especially in gillnets Santo nesting beaches, are also a Ocean have also been documented to and longlines, is a major threat to the concern, though no specific impacts to take leatherback turtles (Honig et al. DPS. Immature and adult individuals leatherback turtles have so far been 2007; Riskas and Tiwari 2013; Angel et are exposed to high fishing effort noted from that event (Garcia et al. al. 2014; Huang 2015; Gray and Diaz throughout their foraging range and in 2017). There is also concern about the 2017). Additional evidence of longline coastal waters near nesting beaches. potential for increased oil and gas interactions comes from the stranding Bycatch mortality is also high, with exploration activities (Thome´ et al. data, where flipper injuries on some of reported rates of up to 31 percent 2007). The petroleum industry in Brazil

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has implemented a beach monitoring Channel Dredging its limited abundance, spatial structure, program, along large stretches of the and resilience. Brazilian coast, including Espı´rito There is evidence of interactions with Current threats place this DPS at Santo, to monitor for potential impacts hopper dredges associated with channel further risk of extinction. The primary to sea turtles and their nesting beaches dredging and maintenance. Between threat to this DPS is bycatch in from industry activities (Werneck et al. 2008 and 2014, four leatherback turtles commercial and artisanal, pelagic and 2018) were killed by hopper dredges in Rio de coastal fisheries, especially gillnet and Assigning impacts of pollution Janeiro (Goldberg et al. 2015). longline fisheries. Fisheries bycatch specifically to individuals within the Conservation Efforts reduces abundance by removing SW Atlantic DPS is difficult, and the individuals from the population. best available information does not There are numerous efforts to Because several fisheries operate near quantify such impacts. However, given conserve the leatherback turtle. The nesting beaches, productivity is also its prevalence, we conclude that following conservation efforts apply reduced when nesting females are pollution poses a threat to the DPS. turtles of the SW Atlantic DPS (for a prevented from returning to nesting description of each effort, please see the beaches. Exposure to and impact of this Climate Change section on conservation efforts for the threat are high. Additional threats Climate change poses a threat to the overall species): Southwest Atlantic Sea include: Habitat modification, SW Atlantic DPS. The impacts of Turtle Network, Convention on the overutilization, predation, pollution, climate change include: Increases in Conservation of Migratory Species of vessel strikes, and climate change. temperatures (air, sand, and sea Wild Animals, Convention on Biological Habitat modification includes incidents surface); sea level rise; increased coastal Diversity, Convention on International such as the mining dam breach erosion; more frequent and intense Trade in Endangered Species of Wild upstream of the Doce River, which flows storm events; and changes in ocean Fauna and Flora, Convention into the ocean through the middle of the currents. Concerning the Protection of the World primary nesting beach. Overutilization Because leatherback turtles nest lower Cultural and Natural Heritage (World and predation are threats for this DPS as on the beach than other sea turtles, their Heritage Convention), FAO Technical well, though some protective measures eggs are more at risk of being exposed Consultation on Sea Turtle-Fishery exist. While many laws are in place to and destroyed by increases in sea level Interactions, IAC, MARPOL, IUCN, protect sea turtles from fishery impacts, and coastal erosion (Boyes et al. 2010). Ramsar Convention on Wetlands, the continued impact of bycatch indicates that regulatory mechanisms Additionally, given the limited RFMOs, South Atlantic Association, are inadequate to sufficiently address availability of suitable nesting habitat, UNCLOS, and UN Resolution 44/225 on the threat. Pollution and vessel strikes the loss of the current nesting habitat Large-Scale Pelagic Driftnet Fishing. are potentially increasing threats to the with no buffer area to move into would Although numerous conservation efforts DPS. Climate change is another threat pose a major problem for the DPS. Thus, apply to the turtles of this DPS, they do that is likely to increase, resulting in rising sea level and beach erosion are not adequately reduce its risk of reduced productivity due to greater potential threats to the DPS. extinction. rates of coastal erosion and nest While we do not have specific Extinction Risk Analysis inundation, and in some areas, nest information on pivotal temperatures and failure or skewed sex ratios due to temperature thresholds for egg mortality After reviewing the best available increased sand temperatures. for this DPS, sand temperatures information, the Team concluded that We conclude, consistent with the influence egg viability and sex the SW Atlantic DPS is at ‘‘high’’ risk of Team’s findings, that the SW Atlantic determination. Given the potential lack extinction. The DPS exhibits a total DPS is currently in danger of extinction. of suitable nesting habitat outside the index of nesting female abundance of 27 The total index of nesting female area currently being utilized, there is females at the index beach. Such a abundance make the DPS highly little opportunity for a spatial shift in nesting population size places this DPS vulnerable to threats despite the nesting in response to changing at risk of stochastic or catastrophic apparent increasing nesting trend. In temperatures. This DPS exhibits some events that increase its extinction risk. addition, this DPS consists of only one year-round nesting, which provides a Although there has been substantial small nesting aggregation with limited small measure of resilience to variability in nesting at the index potential nesting beaches to the north counteract increasing temperatures. nesting beach since 1986, the nest trend and south for expansion. The limited However, it is not likely to be sufficient shows a strong, nearly five percent nesting range and small size makes the to make up for the loss of nesting habitat annual increase through 2017, with the DPS highly vulnerable to stochastic and opportunity resulting from sea level largest increase occurring in the past impacts in the natural environment as rise and temperature increases. The decade. However, nesting has declined well as singular, large-scale, impacts on productivity and in the past 3 years. There is only one anthropogenic events such as oil spills. survivorship for such shifts in nesting nesting aggregation, limited to a Some degree of resilience is provided by are unknown. relatively small stretch (47 km) of beach the use of multiple foraging areas across The threat of climate change is likely along a single coast. Some nesting also a vast geographic area. However, that to modify the nesting conditions for the occurs outside that area, but is mostly expansive foraging range also exposes DPS. Adverse impacts on turtles of the sporadic and limited by sand and the DPS to numerous fisheries (which SW Atlantic DPS would be inescapable temperatures unsuited for nesting. Thus, are coastal and on the high seas, because the entire DPS is confined to a stochastic events have the potential to artisanal and commercial, off both limited nesting area. Impacts are likely have catastrophic effects on the entire South America and western Africa), to range from small, temporal changes DPS, with no distant subpopulations making fisheries bycatch by far the in nesting season to large losses of serving as a buffer or source of biggest threat to the DPS. Although productivity. Therefore, we conclude additional individuals or diversity. numerous conservation efforts apply to that climate change is a threat to the Based on these factors, we find the DPS the turtles of this DPS, they do not DPS. to be at risk of extinction as a result of adequately reduce the risk of extinction.

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We conclude that the SW Atlantic DPS While nesting occurs along the were based on a combination of aerial is currently in danger of extinction western coast of Africa, foraging surveys and ground-truthing surveys, throughout its range and thus meets the grounds and migratory paths stretch conducted during the 2002/2003, 2005/ definition of an endangered species. The across the South Atlantic Ocean to the 2006, and 2006/2007 nesting seasons. threatened species definition does not coastal waters of Brazil, Uruguay, and More recent aerial surveys indicate a apply because the DPS is at risk of Argentina. Because of the greater steep decline in nesting since the early extinction now (i.e., at present), rather abundance of this DPS, most 2000s, with a high of 108,588 estimated than on a trajectory to become so within individuals found in the western South nests in 2002/03, a low of 4,275 the foreseeable future. Atlantic along the coast of South estimated nests in 2009/10, and fewer America, and on the high seas, belong than 25,000 nests in the final year of SE Atlantic DPS to the SE Atlantic DPS. Prosdocimi et al. available data (2015/16; Formia et al. in The Team defined the SE Atlantic (2014) found 84 to 86 percent of prep). DPS as leatherback turtles originating leatherback turtles sampled from the Nesting is scattered on continental from the SE Atlantic Ocean, north of foraging grounds off Argentina and Equatorial Guinea (Fretey 2001), but it 47° S, east of 20° W, and west of 20° E; Elevac¸a˜o do Rio Grande (an elevated occurs on several beaches of Bioko the NW boundary is a diagonal line offshore area across from Brazil) to Island and is monitored at the Gran between 12.084620° N, 20° W and originate from western African beaches. Caldera Scientific Reserve (n = 457 ° ° nesting females, based on body pit data 16.063 N, 16.51 W. The eastern Abundance boundary occurs at the southern tip of from the 2000/2001 through 2017/2018 Africa, where the Agulhas and Benguela The total index of nesting female nesting seasons; D. Venditti et al., Currents meet. Along with the cold abundance for the SE Atlantic DPS is Drexel University, pers. comm., 2018). waters of the Antarctic Circumpolar 9,198 females. We based this total index Rader et al. (2006) documented an Current, these currents likely restrict the on nine nesting aggregations in Gabon average of 3,896 nests annually between nesting range of this DPS. We placed the (n = 8,495 nesting females), Equatorial the 2000/2001 to 2004/2005 nesting western boundary at the 20° W meridian Guinea (n = 457), Republic of Congo (n seasons, which equates to as an approximate midpoint between SE = 69), Sierra Leone (n = 39), Liberia (n approximately 2,338 nesting females Atlantic and SW Atlantic (i.e., turtles = 45), Ivory Coast (n = 40), Ghana (n = (i.e., using a 3-year remigration interval that nest in Brazil) nesting beaches and 4), Cameroon (n = 3), and Sao Tome and and a clutch frequency of 5 nests Principe (n = 46). Our total index does to reflect the DPS’s wide foraging range annually). Based on the data available not include 10 unquantified nesting throughout the South Atlantic Ocean; on nesting in the Republic of Congo aggregations in Guinea-Bissau, Angola, this DPS is more likely to be from the 2003/2004 to 2016/2017 and other nations. For more information encountered in these waters compared nesting seasons (N. Breheret, SWOT, on data sources and calculations, please to individuals from the less abundant pers. comm., 2018), we estimated 69 see the Status Review Report. SW Atlantic DPS. The northern nesting females. In an analysis of older Our total index of nesting female data (1999 to 2008), Girard et al. (2016) boundary is a diagonal line between the abundance is an index because we do elbow of Brazil and the northern estimated 933 nests per year on the not have consistent data from much of monitored beaches, which equates to boundary of Senegal because the SE the nesting range of the DPS, which Atlantic DPS does not appear to nest approximately 560 nesting females. extends from Senegal to Angola. In Guinea-Bissau, only one beach is above this boundary (Fretey et al. 2007). However, the largest nesting monitored regularly, in Orango National The range of the SE Atlantic DPS is aggregations occur in Gabon, Equatorial Park, Bijagos Archipelago, where extensive, mirroring that of the SW Guinea (including Bioko Island), and occasional leatherback nesting tracks are Atlantic DPS. While nesting occurs the Republic of Congo (TEWG 2007; recorded. Each season, a few nests are along the western coast of Africa, data Fretey et al. 2007; Witt et al. 2009; reported elsewhere throughout the indicate that foraging areas and Tiwari et al. 2013), which are nation (Barbosa et al. 1998; Fretey et al. migratory paths stretch along the represented in our total index. The 2007). Atlantic coast of Africa from Senegal to IUCN Red List assessment did not In the Ivory Coast (n = 40 nesting South Africa, across the South Atlantic provide an estimate of population size females), Gomez (2005) counted 218 Ocean, and into the coastal waters of but instead concluded that the nests over 41 km of beach in February Brazil, Uruguay, and Argentina. As with subpopulation was ‘‘data deficient’’ 2001. Pen˜ ate et al. (2007) reported 189 the SW Atlantic DPS, this DPS does not (Tiwari et al. 2013). nests reported from non-exhaustive appear to forage in northern latitudes. To calculate the index of nesting surveys of 27 km of coastline during the All nesting for the SE Atlantic DPS female abundance in Gabon, where 2001/2002 nesting season. occurs along the Atlantic coast of annual aerial surveys of 600 km of In Ghana, nest monitoring occurs on western Africa, from Senegal to Angola, nesting beaches gather emergence data, three beaches: Mankoadze (n = 4 nesting a nesting range of over 7,500 km. we used a remigration interval of 3 females), Ada, and Keta. We were However, the vast majority of nesting years, a clutch frequency of 7.8 clutches unable to calculate the index for Ada occurs in Gabon, Equatorial Guinea per season per female, and estimated and Keta beaches because we only (including Bioko Island), and the that 95 percent of emergences resulted received information on nest averages. Republic of Congo (TEWG 2007; Fretey in nesting (Formia et al. in prep). Our From 2000 to 2017, an annual average et al. 2007, Witt et al. 2009; Tiwari et index of nesting female abundance for of 34 nests were observed on Ada Beach al. 2013). Gabon may have once hosted Gabon (i.e., 8,495 nesting females) is (D. Agyeman, pers. comm., 2018). the largest nesting aggregation in the lower than previous estimates. During the 2006/2007 nesting season, world when it was discovered in the According to Witt et al. (2009), Gabon 481 leatherback nests were counted on early 2000s (Witt et al. 2009), but once hosted the largest leatherback Ada Beach (Allman and Armah 2010). current data indicate much lower levels nesting aggregation in the world, with Over an unspecified time frame, an of nesting (Formia et al. in prep) an estimated 36,185 to 126,480 clutches annual average of 80 nests were compared to those described in Witt et per year (approximately 15,730 to observed on Keta Beach (A. Fuseini, al. (2009). 41,373 nesting females). These estimates pers. comm., 2018).

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In Cameroon (n = 3 nesting females; declining nesting trend contributes to insular beaches. There are multiple Fretey and Nibam unpublished data the extinction risk of this DPS. foraging strategies, including pelagic 2018), Girard et al. (2016) estimated an and coastal, along either side of the Spatial Distribution average of 43 leatherback nests Atlantic Ocean. The genetic diversity, annually, which would equate to 26 The SE Atlantic DPS has a broad along with multiple and diverse nesting females, from 1999 to 2008. In spatial distribution. The nesting range is foraging sites (i.e., coastal and pelagic), Sa˜o Tome´ and Principe (n = 46 nesting centered on Gabon, with nesting and combination of insular and females), Girard et al. (2016) estimated occurring from Senegal to Angola. mainland nesting provide diversity and an average of 78 nests annually from Genetic data available for Gabon and resilience that may reduce the 1999 to 2008, which is similar to our Ghana indicate significant genetic extinction risk of this DPS. differentiation based on mtDNA data, estimate. Present or Threatened Destruction, Nesting occurs on other beaches but weak differentiation based on analysis of nuclear DNA, likely Modification, or Curtailment of Habitat throughout western Africa. However, or Range recent consistent and standardized indicating demographically monitoring data are not available. independent subpopulations connected Modification and loss of habitat is a Sporadic nesting occurs in Senegal by limited gene flow (Dutton et al. threat to the SE Atlantic DPS. Present (Maigret 1978; Dupuy 1986), Republic of 2013). threats include obstructions, erosion, In addition to the extensive nesting The Gambia (Barnett et al. 2004, and light pollution at nesting beaches. range, this DPS also has an expansive Hawkes et al. 2006), Togo (Segniagbeto Future threats include coastal foraging and migratory range, from the 2004), Nigeria (Fretey 2001; Mojisola et construction and development in the coastal waters of Atlantic Africa, across region. al. 2015), Democratic Republic of the pelagic waters of the South Atlantic, Nesting beach obstruction due to logs Congo, (OCPE-ONG 2006), and Angola and along the South American coast is a problem in Gabon, Equatorial (Carr and Carr 1991; Weir et al. 2007). from Brazil to Argentina. While nesting Guinea, and Cameroon (Formia et al. The total index of nesting female along the coast of Africa extends only to 2003). Logs that have broken loose from abundance of the SE Atlantic DPS Angola, recent tag returns and satellite timber rafts of industrial logging (9,198 females) does not reduce the risk telemetry indicate that turtles utilize the operations wash up on the beaches of for environmental variation, genetic waters in Namibia as well (Almeida et Gabon at densities of up to 247 logs/km; complications, demographic al. 2014). Transatlantic movements were logs blocked 30.5 percent of the beach stochasticity, negative ecological first recorded from tag returns of four in Pongara, Gabon, resulting in an feedback, and catastrophes (McElhany leatherback turtles tagged on the nesting estimated 2,111 disrupted or aborted et al. 2000; NMFS 2017). Such beaches of Gabon and recaptured in the nesting attempts (Laurance et al. 2008). abundance provides little resilience to waters of Argentina and Brazil (Billes et In addition, several leatherback turtles buffer losses of individuals. We al. 2006). Satellite telemetry confirmed have died as result of being trapped by conclude that the nesting female that nesting females from Gabon follow logs (Laurance et al. 2008). Pikesley et abundance, as estimated, does not three different post-nesting movement al. (2013) determined that between 1.6 reduce the extinction risk of this DPS. trajectories towards the equatorial percent and 4.4 percent of nesting Productivity Atlantic Ocean, South America, or females could be trapped at beaches southern Africa (Witt et al. 2011). For with high log- and turtle-densities. Based on data collected from the combined foraging areas off Argentina However, Gabon has since banned the largest nesting aggregation (i.e., Gabon), and Elevac¸a˜o do Rio Grande (an export of whole logs. The Gabon Sea the SE Atlantic DPS exhibits a declining elevated offshore area across from Turtle Partnership has carried out log nesting trend. Data collected between Brazil), the mean estimate from western removal efforts for at least one high- the 2002/2003 and 2015/2016 nesting Africa was 84 to 86 percent (45 percent density nesting beach in Pongara seasons (with two years of missing data) Gabon, 41 percent Ghana; Prosdocimi et National Park (Kingere Beach), and a 3 indicated a median trend in nesting km stretch of nesting beach is now ¥ al. 2014). activity of 8.6 percent annually (sd = The wide distribution of foraging virtually free of logs; at the other main 21.9 percent; 95 percent CI = –52.6 to areas likely buffers the DPS against local monitored beaches in Gabon, such as 36.9 percent; f = 0.676; mean annual catastrophes or environmental changes Mayumba and Gamba, logs are not a nesting activities = 35,204). The trend in that could limit prey availability. The major threat (A. Formia, WCS, pers. Gabon is likely representative of the expansive nesting range may buffer the comm. 2019). entire DPS, because the majority of DPS from acute environmental impacts Habitat loss from coastal erosion due nesting occurs there. Additional nest (e.g., storms and singular events) and to to sand mining, harbor building, and trend data are available from the Gran some degree, chronic impacts (e.g., sea irregular current flows has Caldera Scientific Reserve of Bioko level rise and temperature changes). compromised the suitability of long Island, where the number of body pits Thus, the combination of extensive stretches of coastal areas as nesting increased 2.8 percent annually (sd = nesting range, widely distributed sites. This issue is especially prevalent 15.6 percent; 95 percent CI = –27.2 to foraging areas, and population structure between Ghana and Nigeria (Formia et 36.0 percent) from 1996/1997 to 2017/ reduces the extinction risk of the SE al. 2003). Ikaran (2010) found low 2018. Atlantic DPS. hatching/emergence success rates at Regarding productivity parameters, three nesting sites in Gabon: Pointe available information is often from a Diversity Denis (17/16 percent), Mayumba (43/40 limited area and may not be Genetic analyses for the SE Atlantic percent), and Kingere (16/16 percent).In representative of the entire DPS. DPS are limited, but Dutton et al. (2013) addition to predation, the main However, based on available data, the found moderate genetic diversity in identified sources of egg mortality were size of nesting females, clutch size, samples from Gabon and Ghana, beach erosion and inundation (Ikaran hatching success, and incubation period including four new haplotypes unique 2010). appear to be similar to the species’ to western African nesting females. Light pollution modifies nesting averages. We conclude that the Nesting occurs on continental and beach habitat, deterring nesting females

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and disorienting both hatchlings and Formia, Gabon Sea Turtle Partnership, Disease or Predation nesting females. Bourgeois (2009) found pers. comm., 2018). However, elsewhere Information on diseases among that artificial lighting disoriented in the region, poaching occurs at a high leatherback turtles originating in the SE leatherback hatchlings in Pongara rate, or would be reasonably expected to Atlantic is minimal, but an analysis of National Park, Gabon: Hatchlings in 27 return to high levels, if not limited by samples from nesting females in Gabon of the 41 nests (66 percent) studied activities funded through the USFWS’ indicated normal blood chemistry crawled towards artificial lights. Deem Marine Turtle Conservation Fund parameters (Deem et al. 2006). Predation et al. (2007) documented 71 disoriented enacted under the MTCA. These may occur at high rates in some areas, females that crawled directly into the activities reduce poaching through but information is limited. savannah behind the beach and towards increased presence on nesting beaches, Predation of leatherback eggs and/or the artificial lights. Bourgeois et al. beach monitoring, hiring of local hatchlings has been documented for a (2009) concluded that light pollution citizens for participation in the projects, variety of predators, including: Various from Libreville and Pointe Denis, Gabon and raising awareness and providing ants, ghost crabs, monitor lizards is a major threat to nesting females and education to local communities (M. (Varanus niloticius), crows (Corvus hatchlings, which become disoriented Tiwari, NMFS, pers. comm. 2018). albus), mongoose, porcupine (Atherurus and die in the surrounding savannah. Conflicting beliefs about sea turtles africanus), domestic dogs, African civet Urbanization and coastal exist throughout the region. In some cat (Civettictis civetta and Viverra development are rapidly growing threats communities sea turtles are considered civetta), and drills (Mandrillus at some nesting beaches (Girard and divinely provided food, while in others leucophaeus) (summarized from Eckert Honarvar 2017). There is a high they have been historically protected by et al. 2012). In Kingere, Gabon, Ikaran potential for coastal development in indigenous custom, often based on (2010) noted high predation rates of eggs Gabon, including the beaches near stories passed down by ancestors by crabs, lizards, mongooses, small cat Pointe Denis, an important and growing (Barbosa and Regalla 2016; Alexander et species, and ants. Predation was the tourist area (Ikaran 2010). Along with al. 2017). In general, however, poaching main source of egg mortality at three direct habitat loss from coastal is a significant problem throughout the nesting sites in Gabon: Pointe Denis (43 development and urbanization, impacts region. Catry et al. (2009) concluded percent), Mayumba (44 percent), and from pollution and litter are expected to that, in addition to fisheries bycatch, Kingere (51 to 56 percent; Ikaran 2010). increase. poaching of eggs and nesting females is As is common for all sea turtle In Gabon, a network of marine the main threat to sea turtles, including species, leatherback hatchlings likely protected areas was created by decree leatherback turtles, in Guinea-Bissau. In experience predation from various fish 00161/PR in 2017, covering 26 percent many cases ‘‘few if any turtles or nests species as they enter the water and of Gabon’s territorial seas, including a are left alone when found by locals’’ swim towards the open ocean. In-water vast area in front of the most important (Catry et al. 2009). The fat of leatherback predation of juveniles and adults is not nesting beach in Gabon (Mayumba turtles is often used for various well-documented, but there is evidence National Park) that stretches to the outer purported medicinal applications, of shark and killer whale predation. limits of the EEZ. including: Treatment of convulsions Shark predation was determined to be We conclude that a large portion of and malaria (Togo), fever, fainting the cause of one leatherback stranding nesting females, hatchlings, and eggs are spells, liver problems, tetanus (Benin), reported from Central Africa (Parnell et exposed to the reduction and and to induce vomiting (Togo, Benin). al. 2007), while interactions between modification of nesting habitat, as a In one community in the Ivory Coast killer whales and leatherback turtles result of logging, erosion, coastal and parts of Cameroon, leatherback resulting in possible predation has been development, and artificial lighting. turtle fat is applied to wounds in the observed in Namibian waters (Elwen These threats impact the DPS by mouth and is used to massage into and Leeney 2011). reducing nesting and hatching success, painful joints. In northwestern and While all eggs and hatchlings have thus lowering the productivity of the southern Cameroon, it is applied to some exposure to predation, the species DPS. Logging also results in the death of bruises (Fretey et al. 1999). In Togo, compensates for a certain level of nesting females, reducing the some mothers add turtle bones daily to natural predation by producing a large abundance of the population by the baby’s bath water; some believe that number of eggs and hatchlings. For this removing its most reproductively the power of the turtle (especially the DPS, the primary impact is to important individuals. Based on the leatherback) will be transmitted to the productivity (i.e., reduced egg and information presented above, we child through this practice (Segniagbeto hatching success). We conclude that conclude that habitat loss and 2004). predation poses a threat to the SE modification are major and increasing Turtles and eggs are poached Atlantic DPS. threats to the DPS. throughout the nesting range of the DPS. Though most nesting females and eggs Inadequacy of Existing Regulatory are protected in Gabon, poaching is Mechanisms Overutilization for Commercial, widespread in other areas. Poaching of The SE Atlantic DPS is protected by Recreational, Scientific, or Educational nesting females reduces both abundance various regulatory mechanisms. For Purposes (through loss of nesting females) and each, the Team reviewed the objectives Overutilization is a threat to the SE productivity (through loss of of the regulation and to what extent it Atlantic DPS. Although receiving some reproductive potential). Such impacts adequately addresses the targeted threat. legal protections, eggs and turtles are high because they directly remove The harvest of turtles and eggs is nevertheless are poached for the most productive individuals from illegal in most of the nations where the consumption, traditional medicine, and DPS, reducing current and/or future DPS nests. In some cases, however, religious practices. reproductive potential. Egg poaching these protective mechanisms are In Gabon, poaching is limited because reduces productivity. Given the inadequate. In addition, many nesting 78 percent of nesting occurs within moderate exposure and high impact, we beaches are not protected. national parks and human population conclude that the poaching of turtles In Gabon, the harvest of turtles and density along the coast is low (A. and eggs poses a threat to the DPS. eggs is illegal (2011 decree 0164/PR/

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MEF) and much of the nesting beach Fisheries Bycatch Ecosystem (Honig et al. 2007). Mortality habitat (and turtles utilizing that Fisheries bycatch is the primary threat rates were not provided in this study habitat) is protected because of to the SE Atlantic DPS. Leatherback but may range from 25 to 75 percent inclusion in parks as well as being far turtles are captured as bycatch in (Aguilar et al. 1995). The estimates from any city or town. However, low commercial and artisanal fisheries along mostly include turtles from the SE levels of poaching occurs, and the coastal foraging and breeding areas as Atlantic DPS, but telemetry studies threats from encroaching development well as on the high seas. Because of the indicate that the turtles of the much and associated impacts are increasing. overlapping range with the SW Atlantic smaller SW Indian DPS also use this In Congo, wildlife laws prohibit the DPS, this DPS is vulnerable to foraging area (Luschi et al. 2006; hunting and collection of wildlife and interactions with fisheries off the coasts Robinson et al. 2016). Evaluating ICCAT their products, including eggs, between of Brazil, Uruguay, and Argentina, in data, Angel et al. (2014) confirm November 1 and April 31. Turtles are the pelagic waters of the South Atlantic exposure to high longline fishing effort also protected in the Conkaouati-Douli Ocean, and along the coastal waters off and some purse seine effort for the population originating from the SE National Park. However, in areas western Africa. Therefore, the Atlantic Ocean. without permanent beach monitoring, information presented on the fisheries The limited bycatch data available for almost all eggs and nesting individuals bycatch for the SW Atlantic is are collected and eaten (Bal et al. 2007). waters of the western coast of Africa applicable to this DPS. show that other fisheries interact with One of the biggest threats for In the Democratic Republic of Congo, leatherback turtles. Between 2005 and leatherback turtles in Atlantic waters is leatherback turtles are cited under the 2015, artisanal fishing nets in Loango bycatch in artisanal and commercial 1982 Hunting Act for protection. Bay in the Republic of Congo killed a fisheries (Wallace et al. 2010; Riskas and However, there is no post-independence total of 45 leatherback turtles; 0 to 628 Tiwari 2013;). Lewison et al. (2004) legislation protecting sea turtles, and leatherback turtles were captured or there is little commitment to the estimated that 30,000 to 60,000 recaptured annually over that time legislated protections (Fretey 2001). leatherback turtles were taken as period (Bre´heret et al. 2017). An Since 1988, Equatorial Guinea has longline fisheries bycatch in the entire assessment of bycatch in the trawling protected all sea turtles under Law 8/ Atlantic Ocean in 2000. Stewart et al. fisheries in Gabon found that 1988 and Decree 183/87 on fishing (2010) estimated that in West Africa, leatherback turtles represented only 2 (Toma´s et al. 2010). However, the Benin, Togo, and Cameroon had the percent of the bycatch despite being the poaching of eggs and females for local highest average fishing densities, most abundant sea turtle species in consumption and sale has occurred ranging from 11.1 to 6.5 boat-meters/ Gabonese waters; the low rate is 2 (Castroviejo et al. 1994). km , and gillnet densities ranked among possibly because leatherback turtles do the highest on a global scale. Despite In Ghana, the Wildlife Regulations not occur in the section of the water very active artisanal and industrial Act of 1974 prohibits all harvest of eggs column where the trawl net is towed fisheries in the region, overall bycatch and turtles. However, poverty is (Casale et al. 2017). Trawl bycatch in the data are quite sparse or qualitative prevalent, and eggs and sea turtles are waters around Sa˜o Tome´ and Principe (rather than quantitative) in nature, and poached at nesting beaches (Tanner included 4 juvenile leatherback turtles Africa still represents a significant gap 2013). Enforcement is likely inadequate (17 to 21 cm in carapace length) in in bycatch evaluation studies (Wallace because of funding issues, the March 1994 (Fretey et al. 1999). et al. 2010, 2013). Accurate and reliable remoteness of some nesting beaches, While specific information to estimate bycatch data are difficult to achieve, as and cultural practices. overall capture and mortality rates of SE direct observation rates are low (<1 Atlantic leatherback turtles in fisheries Fishery bycatch is the primary threat percent of total fleets) and statistics is not available, it is clear that bycatch to this DPS. While most nations in the from the region’s many small-scale in fisheries, especially gillnets and region have some form of legal fisheries are largely incomplete longlines, are a threat to the DPS across protection for sea turtles, many (Kelleher 2005; Moore et al. 2010; its range. Immature and mature leatherback turtles die from fisheries Wallace et al. 2010). However, several individuals are exposed to high fishing bycatch throughout the range of the studies have concluded that bycatch effort throughout their foraging range DPS. Examples of fisheries legislation rates in the region are high, given the and in coastal waters near nesting include Brazil’s gear restrictions and degree of fishing activity near nesting beaches. Mortality is also high. Nigeria’s requirement to use TEDs in and foraging areas (Lewison et al. 2004; Mortality reduces abundance, by bottom trawls. Moore et al. 2010; Wallace et al. 2010). removing individuals from the In summary, numerous regulatory Along the coasts of Angola, Namibia, population; it also reduces productivity, mechanisms provide some protection to and South Africa, Honig et al. (2007) when nesting females are incidentally leatherback turtles, their eggs, and evaluated turtle bycatch by longline captured and killed. We conclude that nesting habitat throughout the range of fisheries in the Benguela Large Marine fisheries bycatch is a major, and the this DPS. Though the regulatory Ecosystem by using data from observer primary, threat to the SE Atlantic DPS. mechanisms provide some protection to reports, surveys, and specialized trips the turtles, many do not adequately from the coastal nations of South Africa, Vessel Strikes reduce the threat that they were Namibia and Angola. They estimated There is little information regarding designed to address, generally as a bycatch at 672 leatherback turtles vessel strikes for the SE Atlantic DPS, result of limited implementation or annually (based on an annual bycatch but such interactions are a potential, enforcement. Fisheries bycatch, estimate of 4,200 turtles, of which and possibly increasing, threat across at poaching, and habitat loss remain major approximately 16 percent are least a portion of this DPS’s range. In the threats to the DPS despite regulatory leatherback turtles) in the southern and western South Atlantic foraging grounds mechanisms. We conclude that central regions and as many as 5,600 off Brazil, Uruguay, and Argentina, inadequacy of the regulatory leatherback turtles (based on an annual increasing vessel traffic from fishing mechanisms are a threat to the SE bycatch estimate of 35,000 turtles) for vessels, cargo transport, and tourism has Atlantic DPS. the entire Benguela Large Marine been noted (Lo´pez-Mendilaharsu et al.

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2009; Fossette et al. 2014), potentially does not quantify such impacts, ample the Conservation of Migratory Species of increasing the likelihood of vessel information demonstrates that these Wild Animals, Convention on Biological strikes on leatherback turtles. Although threats are ongoing. We conclude that Diversity, Convention on International no specific information is available for pollution is a threat to the DPS. Trade in Endangered Species of Wild the waters off western Africa, any Fauna and Flora, Convention Climate Change economic development along the coast Concerning the Protection of the World is likely to result in an increase in vessel Climate change is a threat to the SE Cultural and Natural Heritage (World traffic. We conclude that vessel strikes Atlantic DPS. The impacts of climate Heritage Convention), FAO Technical are a threat to the SE Atlantic DPS. change include: Increases in Consultation on Sea Turtle-Fishery temperatures (air, sand, and sea Interactions, IAC, MARPOL, IUCN, Pollution surface); sea level rise; increased coastal Memorandum of Understanding The SE Atlantic DPS faces the threat erosion; more frequent and intense Concerning Conservation Measures for of pollution across its extensive range storm events; and changes in ocean Marine Turtles of the Atlantic Coast of throughout the South Atlantic Ocean, currents. Africa, Ramsar Convention on from Africa to South America. As the Sea level rise resulting from climate Wetlands, South-East Atlantic Fisheries ranges of the SW Atlantic and SE change negatively impacts sea turtle Organization, UNCLOS, and UN Atlantic DPSs overlap, they are exposed nesting. Erosion of important nesting Resolution 44/225 on Large-Scale to the same pollutants, which include beaches in Gabon may be at least Pelagic Driftnet Fishing. Although contaminants, marine debris, and ghost partially attributable to sea level rise. numerous conservation efforts apply to fishing gear. Throughout Africa, marine From 1983 through the 2000s, some the turtles of this DPS, they do not and coastal pollution is widespread in areas have lost up to 100 m of beach adequately reduce its risk of extinction. industrial and urban areas, and garbage width, reducing the availability of litters many developed beaches (Formia suitable nesting beach (Gabon Sea Extinction Risk Analysis et al. 2003; Agyekumhene et al. 2017). Turtle Partnership 2018; http:// After reviewing the best available Off the coast of South America, the www.seaturtle.org/groups/gabon/ information, the Team concluded Argentine and Brazilian coastal waters erosion.html). Because leatherback overall that the SE Atlantic DPS is at are increasingly impacted by economic turtles nest lower on the beach than high risk of extinction. The total index activities, such as maritime cargo other sea turtles, their eggs are more at of nesting female abundance is 9,198 transport, tourism, and the discharge of risk of being inundated and destroyed females. Since 2002, the first year that domestic and industrial waste (Lo´pez- by increases in sea level and coastal aerial survey data was collected, nesting Mendilaharsu et al. 2009; Fossette et al. erosion (Boyes et al. 2010). activity has declined by ¥8.6 percent 2014). Changes in sand temperatures are annually in Gabon, the largest nesting The Gulf of Guinea has increasingly likely to impact egg viability and sex aggregation of the DPS, and what was, been the focus of extensive oil determination. Ikaran (2010) found the in 2002, the largest nesting aggregation exploitation activities, following the thermal range of sand over the nesting in the world. This declining trend has discovery of large oil reserves. Drilling season to be adequate for hatchling sex the potential to further lower abundance activities by large oil corporations, with ratios to be mixed or even male and increase the risk of extinction. associated pollution and habitat dominated. In Gabon, the early rainy Nesting and foraging is broadly destruction, are threats to nesting months tend to produce males, while distributed; thus, the population is aggregations in the area (Formia et al. the later, warmer months produce somewhat buffered from stochastic 2003; Agyekumhene et al. 2017). In females, with a tendency towards a net events that could otherwise have 2012/2013, oil spills following the higher production of males. Ikaran catastrophic effects on the entire DPS. dredging of the Port of Pointe-Noire in (2010) considered the nesting beaches of There is a metapopulation structure the Republic of Congo significantly Gabon to be an important male within this DPS, with fine-scale genetic degraded the fauna and flora of Loango producing area. However, based on differentiation between Gabon and Bay, where leatherback turtles occur. predictions of warming trends, he found Ghana. Genetic diversity also appears to However, the ecosystem is believed to that within two decades the ratio could be moderate. Based on the reduced be slowly recovering (Bre´heret et al. skew towards 100 percent female. nesting female abundance and declining 2017). In 2005, a moderate slick of oil The threat of climate change is likely nest trend, we find the DPS to be at risk on the beaches of Mayumba National to modify the nesting conditions for of extinction, likely as a result of past Park in Gabon was observed, although turtles of the DPS, and it is unclear threats. its impacts on turtles are unknown whether they have or can develop the Current threats place the DPS at (Parnell et al. 2007). ability to nest in different locations further risk of extinction. The primary In Nigeria, the main sources of along existing beaches, or on new threat to this DPS is bycatch in pollution include industrial waste, raw/ beaches. Impacts from climate change commercial and artisanal, pelagic and untreated sewage, and pesticides. Oil are likely to range from small, temporal coastal, fisheries, especially coastal exploration, exploitation, and changes in nesting season to large losses gillnet and pelagic longline fisheries. transportation have a significant effect of productivity. Therefore, we conclude Fisheries bycatch reduces abundance by on the environment. Spills of crude and that climate change is a threat to the removing individuals from the refined oil are frequent in the coastal DPS. population. Because several fisheries and marine environment, especially operate near nesting beaches, during periods of very strong ocean Conservation Efforts productivity is also reduced when currents, when they can spread to cover There are numerous efforts to nesting females are prevented from the entire 853 km coastline of Nigeria. conserve the leatherback turtle. The returning to nesting beaches. Thus, It is clear that individuals from the SE following conservation efforts apply exposure and impact of this threat are Atlantic DPS have a high probability of within the range of the SE Atlantic DPS high. Habitat loss or modification is a encountering pollution across their (for a description of each effort, please threat that reduces abundance and range and throughout their lifecycle. see the section on conservation efforts productivity and includes the impacts Although the best available information for the overall species): Convention on of logs, which block access to the

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beaches or trap nesting females and highly vulnerable to threats, given the Mozambique, with low levels of nesting hatchlings. Poaching of turtles and eggs total index of nesting female abundance farther north at Bilene Beach and is also a threat to this DPS, although of 9,198 females. It faces present, Bazaruto Islands (Nel et al. 2015). This most nesting beaches in Gabon are ongoing threats that are likely to create DPS nests at the highest latitude (and somewhat protected because they occur imminent and substantial demographic southernmost location) of all in parks or are far from any towns. risks (i.e., declining trends and reduced leatherback turtles (Saba et al. 2015). Many of the beaches outside Gabon abundance). Though numerous Nesting occurs on long (5 to 15 km), (e.g., Guinea-Bissau) have limited or no conservation efforts apply within the broad (50 to 100 m), silica sand beaches protection. The degree of overutilization range of this DPS, they do not with little vegetation (Botha 2010; Nel et is highly varied across locations, but adequately reduce the risk of extinction. al. 2015; Robinson et al. 2017). The quite extensive in some areas. Funding We conclude that the SE Atlantic DPS beaches are characterized by pristine, from the MTCA has resulted in some is currently in danger of extinction intact dunes that rise up to 100 m above reduction of this threat as conservation throughout its range and therefore meets sea level, interspersed with a few activities, research, and community the definition of an endangered species. dynamic dunes and small, primary involvement results in lower poaching The threatened species definition does dunes (Nel et al. 2015). The beaches are on those beaches. However, poaching not apply because the DPS is at risk of separated by short rocky headlands continues at high levels in other areas. extinction currently (i.e., at present), (Robinson et al. 2017). Subtidal rock Additional threats include: predation rather than on a trajectory to become so formations are dispersed throughout the and disease, inadequate regulatory in the foreseeable future. high energy coastline. Nesting females mechanisms, pollution, and climate approach the beach using strong rip- SW Indian DPS change. Predation can be extensive at currents through obstruction-free areas some specific beaches, but overall it The Team defined the SW Indian DPS (Hughes 1974; Hughes 1996; Botha does not occur at a high level. Pollution as leatherback turtles originating from 2010; Nel et al. 2015). is a persistent and potentially increasing the SW Indian Ocean, north of 47° S, Foraging areas of the SW Indian DPS threat. Ingestion of plastics and east of 20° E, and west of 61.577° E. The include coastal and pelagic waters of the entanglement in marine debris result in western boundary occurs at the SW Indian Ocean and the SE Atlantic injury and reduced health, and southern tip of Africa, approximately Ocean. The DPS is somewhat unique in sometimes mortality. Climate change is where the Agulhas and Benguela that turtles forage in two ocean basins likely to result in reduced productivity Currents meet. The eastern boundary and do not need to undergo long due to greater rates of coastal erosion occurs at the border between Iran and migrations between nesting and foraging and nest inundation, and in some areas, Pakistan, where the Somali Current areas because highly productive nest failure or skewed sex ratios due to begins. These currents, and the cold foraging areas are available adjacent to increased sand temperatures. Vessel waters of the Antarctic Circumpolar nesting beaches or connected to nesting strikes are a threat that is likely to Current, likely restrict the nesting range beaches via fast-moving currents. For increase over time as recreational and of this DPS. example, the warm, fast-flowing commercial vessel activity increases, The range of the DPS (i.e., all Agulhas Current (Lutjeharms 2001; Nel resulting in more opportunity for documented areas of occurrence) et al. 2015) results in high productivity interactions. Though many regulatory extends into the SE Atlantic Ocean, foraging areas near nesting beaches and mechanisms are in place, they do not where leatherback turtles forage in the provides a migratory corridor to distant adequately reduce the impact of logs, highly productive Benguela Current foraging areas. As a result, the SW poaching, and fisheries. Additionally, Large Marine Ecosystem, which occurs Indian turtles have the largest body size, many areas in the region have little or along the western coast of Africa, from largest clutch size, and highest no enforcement of laws protecting Angola to South Africa. Leatherback reproductive output of all leatherback turtles or nests on the beach. turtles also range throughout the waters turtles (Saba et al. 2015). The DPS is relatively data-poor, of eastern Africa (Ross 1985) and Satellite tracking of post-nesting reducing our ability to quantify threats possibly into the Red Sea (Gasparetti et females (n = 27) reveals the use of one for more than a small portion of the al. 1993). Records indicate that the of three post-nesting migratory population. For this reason, the Status species has been observed in the waters corridors: north into the nearby coastal Review Team did not come to of the following nations: Djibouti; waters of the Mozambique channel; consensus regarding the extinction risk Eritrea; French Territories (Reunion south and west (via the Agulhas and analysis for the SE Atlantic DPS. All Island, Mayotte, and Iles Eparses); Benguela Currents) into the pelagic Team members were present to vote on Kenya; Madagascar; Mozambique; waters of the South Atlantic Ocean; or the level of extinction risk. Nine Team Seychelles; Somalia; South Africa; south and east (via the Agulhas Current members concluded with moderate Tanzania; and Yemen (Hamann et al. and Retroflection) into the oceanic confidence that the DPS is at high 2006). Leatherback turtles may occur in eddies in the SW Indian Ocean (Luschi extinction risk due to threats and loss of the waters of the following nations: et al. 2006; Robinson et al. 2016; Harris abundance; their confidence was Bahrain, Kuwait; United Arab Emirates; et al. 2018). Luschi et al. (2006) moderate due to the lack of data on this Oman; and Sudan (Hamann et al. 2006). reviewed satellite telemetry data of 11 DPS. Two team members concluded Leatherback turtles of the SW Indian post-nesting females tagged between with low confidence that the DPS is at DPS nest over a distance of 1996 and 2003 (Hughes et al. 1998; moderate extinction risk; their approximately 900 km, from Cape Vidal, Luschi et al. 2003; Sale et al. 2006); and confidence in this conclusion is low due South Africa to Bazaruto Islands, Robinson et al. (2016) satellite tracked to the lack of data on this DPS. Mozambique (Videira et al. 2011; Nel et 16 post-nesting females tagged between We conclude, consistent with the al. 2015). The vast majority of nesting 2011 and 2013. Evaluating tracking data Team’s overall conclusion, that the SE (80 to 90 percent) occurs in South for 14 post-nesting females between Atlantic DPS is currently in danger of Africa, between Bhanga Nek and 2006 and 2014, Harris et al. (2018) extinction. The decreasing nesting trend Leifeld’s Rock (Nel et al. 2015). In found that leatherback turtles equally (i.e., 8.6 percent annually since 2002) is Mozambique, most nesting occurs from used all three migration corridors. In the at or near a level that make the DPS the southern border to Inhaca Island, other studies, a total of 11 post-nesting

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females migrated a relatively short Mozambique (i.e., 15 females), we total index of nesting female abundance distance (approximately 500 km) to the divided the total number of nests falls within the range of other estimates shallow (less than 50 m depth), coastal between the 2015/2016 and 2017/2018 and is based on the best available data waters of the Sofala Banks (i.e., the nesting seasons (i.e., a 3-year for the DPS at this time. Mozambique Channel), where net remigration interval) by the clutch There are additional published primary productivity and sea surface frequency for South Africa (7 clutches/ estimates for the South Africa temperatures remain elevated year- season; Nel et al. 2013; Saba et al. 2015). monitoring area. Nel et al. (2013) round (n = 4, Sale et al. 2006; n = 7, This is an index for the DPS because identified 2,578 nesting females over 45 Robinson et al. 2016). One post-nesting it only includes available data from years (1965 to 2009), with a mean of female migrated to the similarly recently and consistently monitored 69.4 ± 38.1 nesting females per season hospitable coastal waters of Madagascar nesting beaches. While nesting occurs (or 209 total nesting females) in the (Robinson et al. 2016). Ten post-nesting on beaches that stretch across 900 km of monitoring area. Hughes (1996) reported females tracked to pelagic waters of the South Africa and Mozambique, an annual average of 24 nesting females Atlantic Ocean (n = 6, Sale et al. 2006; consistent and standardized monitoring in the first decade (1976 to 1985) and an n = 4, Robinson et al. 2016). These occurs only across approximately 300 annual average of 86 nesting females in waters are among the most productive km of beaches across the two nations the second decade (1986 to 1995) in the in the world, as a result of strong (Nel et al. 2013; Nel et al. 2015). monitoring area. Hughes (1996) also upwelling (caused by the southeast Furthermore, while nesting is known to reported an annual average of 113 trade winds) and the area’s unique occur at low levels at Inhaca Island and nesting females from 1986 to 1995 in an bathymetry, hydrography, chemistry, Bazaruto Archipelago in Mozambique, extended protected area that includes and trophodynamics (Honig et al. 2007). we did not include these sites because the monitoring area plus another 93 km Five post-nesting females appeared to we did not have data from the most in the St. Lucia Marine Reserve, which track oceanic eddies into the SW Indian recent 3 years. is surveyed periodically. The difference Other estimates of total or annual Ocean (n = 1, Sale et al. 2006; n = 4, between these two averages reflects that nesting female abundance have been Robinson et al. 2016). Luschi et al. most estimates of nesting female published. The IUCN Red List (2003 and 2006) characterized abundance in South Africa are assessment estimated the total number leatherback turtles using this latter minimum estimates because nesting of mature individuals (males and strategy as ‘‘wanderers, ranging over occurs outside the monitoring area. females) at 148 individuals, based on an vast oceanic areas while searching for Thorson et al. (2012) found that annual average of 259 annual nests (Nel et al. their planktonic prey.’’ resightings for leatherback turtles 2013), a 3-year remigration interval (Nel Opportunistically encountered and decreased from the 1960s to 2009, and et al. 2013), and a 3:1 sex ratio (Wallace highly productive eddies likely shaped their modeling indicated that this the circuitous routes of these foraging et al. 2013). Their estimates are based on nesting surveys conducted in South decline was due to decreased detection turtles, which resemble drifters more probabilities (i.e., decreased probability than active swimmers (Luschi et al. Africa, which hosts approximately 80 to 90 percent of nesting, and Mozambique of returning to the monitored portion of 2006; Robinson et al. 2016; Harris et al. the KwaZulu-Natal nesting beach), 2018). Thus, this DPS benefits from the (Wallace et al. 2013; Nel et al. 2015). rather than decreased survival. Based on use of three migratory corridors that all Their estimate is less than our index, satellite tracking of 17 post-nesting provide highly productive foraging despite including mature males and females, Harris et al. (2015) estimates opportunities, with minimal energetic females. The reason for this difference is that approximately 66 percent of cost required to return to waters off because they used an average annual leatherback nesting activity occurs nesting beaches. number of nests that was lower than recent nest counts over the 3-year outside the monitoring area. However, Abundance remigration interval. Nel et al. (2015) considerable inter-annual variability The total index of nesting female estimated the size of the total nesting exists, ranging from less than 30 percent abundance of the SW Indian DPS is 149 population at approximately 100 to over 80 percent, with a median of females. We based this index on two females per season (Nel et al. 2015), approximately 49 percent (Harris et al. nesting aggregations: South Africa based on 2010 data: 375 emergences and 2015). Thus, incomplete beach (Ezemvelo KwaZulu-Natal Wildlife 336 nests in South Africa; and 61 monitoring is a source of uncertainty for (Ezemvelo), unpublished data, 2018) emergences in Mozambique (Videira et this DPS and for our total index of and Mozambique (Centro Terra Viva al. 2011). This estimate (n = 300, based nesting female abundance. Estudos e Advocacia Ambiental (CTV), on a 3 year remigration interval) is For Mozambique, our index of nesting unpublished data, 2018). Our total greater than our index because there females is similar to other published index does not include two were more nests in 2010 compared to estimates, which are generally less than unquantified nesting aggregations in more recent years (2014 to 2016). 20 nesting females (Hamann et al. 2006; Mozambique. To calculate the index of Hamann et al. (2006) estimated Louro 2014; Pereira et al. 2014; nesting female abundance (i.e., 134 approximately 20 to 40 nesting females Fernandes et al. 2018). If we use the females) for the South Africa annually in South Africa and clutch frequency for Ponta Malongane ‘‘monitoring area’’ (i.e., a 52.8 km approximately 10 nesting females (2.25 clutches per season; Louro et al. stretch of beach that has been monitored annually in southern Mozambique. This 2006), which is low for the species, our for decades), we divided the total estimate (n = 90 to 150, based on a 3 index of nesting female abundance is 45 number of nests between the 2014/2015 year remigration interval) is less than females. This clutch frequency may be and 2016/2017 nesting seasons (i.e., a 3- our index, likely as a result of using data underestimated due to females nesting year remigration interval; Hughes 1996; collected over a different time-frame. in distant areas where monitoring does Lambardi et al. 2008; Nel et al. 2013; The difference in estimates likely results not regularly occur. If we use the clutch Saba et al. 2015) by the clutch frequency from using different methods of frequency for South Africa, (7 clutches/ (7 clutches/season; Nel et al. 2013; Saba calculation and different time frames season; Nel et al. 2013; Saba et al. 2015), et al. 2015). To calculate the index of and reflects some uncertainty in the the resulting index of nesting female nesting female abundance in precise number of nesting females. Our abundance for Mozambique (i.e., 15

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nesting females) is closer to published recent, primary data, and we agree with of Angola and Namibia (Girondot 2015; estimates. their characterization of the trend as Robinson et al. 2016; Harris et al. 2018). The total index of nesting female declining or recently declining. Others follow the Agulhas Retroflection abundance of 149 females places the Despite the recent decline in nesting, and deep-sea eddies into the SW Indian DPS at risk for environmental variation, productivity parameters remain Ocean (Luschi et al. 2006; Lambardi et genetic complications, demographic relatively high for the SW Indian DPS, al. 2008; Robinson et al. 2016; Harris et stochasticity, negative ecological which has the largest body size, largest al. 2018). Leatherback turtles, possibly feedback, and catastrophes (McElhany clutch size, and highest reproductive from this DPS, have also been observed et al. 2000; NMFS 2017). These output of all leatherback turtles, likely in the Red Sea, presumably foraging processes, working alone or in concert, due to the close proximity between their (Hamann et al. 2006). The use of various place small populations at a greater nesting beaches and highly productive foraging areas may be influenced by the extinction risk than large populations, foraging areas (Saba et al. 2015). Nel et prevalent currents encountered off the which are better able to absorb losses in al. (2015) reports that most metrics (i.e., nesting beaches (Luschi et al. 2006; individuals. Due to its small size, the female size, egg size, incubation time, Lambardi et al. 2008; Robinson et al. DPS has restricted capacity to buffer and hatching success) are above average 2016). such losses. Given the intrinsic for this DPS. Nesting females produced The wide distribution of foraging problems of small population size, we 1,171 to 53,139 hatchlings each season areas likely buffers the DPS somewhat conclude that the limited nesting female in the South Africa monitoring area against local catastrophes or abundance is a major factor in the between 1965 and 2009, with an average environmental changes that would limit extinction risk of this DPS. of 36,583 to 51,610 hatchlings per prey availability. Nesting occurs along season, which was calculated by one coastline, which is 3,000 km in Productivity multiplying 480 hatchlings per nesting length and may be similarly affected by The SW Indian DPS exhibits a slightly female by 69.4 ± 38.1 nesting females environmental variation and directional decreasing nesting trend. We base our per season (Nel et al. 2013). changes (e.g., sea level rise). Because the conclusion on data consistently The recent nesting decline may reflect DPS is essentially a single nesting collected in a standardized approach in the effects of past and current threats aggregation, it has limited capacity to the 56 km South African monitoring that overwhelm the population’s high withstand other catastrophic events. area (Ezemvelo, unpublished data, productivity metrics. We conclude that Thus, spatial distribution likely has 2018), where nest counts decreased by the slightly declining nest trend places little net effect on the extinction risk of ¥0.3 percent annually (sd = 2.1 percent; the DPS at risk of extinction, which is the SW Indian DPS. 95 percent CI = ¥4.5 to 4.1 percent; f further exacerbated by the limited = 0.557; mean annual nests = 301) nesting female abundance. Diversity between the 1973/1974 and 2016/2017 Within the SW Indian DPS, genetic nesting seasons. The trend in South Spatial Distribution diversity is low, with only two mtDNA Africa is likely representative of the The SW Indian DPS comprises, in haplotypes found in 41 nesting females entire DPS, as 80 to 90 percent of essence, a single nesting aggregation, in South Africa (haplotype diversity = nesting is estimated to occur there with nesting females moving freely 0.298 ± 0.078 and nucleotide diversity (Wallace et al. 2013; Nel et al. 2015) and between South African and = 0.0004 ± 0.0004; Dutton et al. 2013). the 44-year time series is quite robust. Mozambican beaches (Hughes 1996; Nesting habitat is mainly restricted to Our trend estimates yield similar Luschi et al. 2006; Nel et al. 2015). beaches along the same coast, with a results to other published findings for Nesting is limited to a total distance of few nests on Mozambican islands. The the population. The IUCN concluded approximately 900 km along South DPS does not exhibit temporal or that this population has declined African and Mozambican coasts (Nel et seasonal nesting diversity, with most slightly, by 5.6 percent over the past al. 2015). While 80 to 90 percent of nesting occurring between October and three generations, with an annual nesting is concentrated in South Africa, March. The foraging strategies are decline of ¥0.1 percent in South Africa nesting is somewhat concentrated in the diverse, however, with turtles using and ¥0.7 percent in Mozambique southern section of the South African coastal and pelagic waters in the (Wallace et al. 2013). Hamann et al. monitoring area, although most Atlantic and Indian Oceans. Diverse (2006) also identified a declining trend characterize nesting as low density foraging strategies may provide some in the nesting population of the SW throughout South Africa (Hughes 1974; resilience against local reductions in Indian Ocean. Studies focused on the Lambardi et al. 2008; Botha 2010; Nel et prey availability or catastrophic events, South African monitoring area (i.e., the al. 2013; Harris et al. 2015; Nel et al. such as oil spills, by limiting exposure. source of data for our trend analysis), 2015). Low genetic diversity indicates the DPS however, disagree on the whether the The DPS exhibits a broad foraging may lack the raw material necessary for trend has declined recently (Hamann et range that extends into coastal and adapting to long-term environmental al. 2006; Nel et al. 2013) or is stable (Nel pelagic waters of the eastern Atlantic changes, such as cyclic or directional et al. 2015; Saba et al. 2015). The nest and western Indian Oceans (Luschi et changes in ocean environments due to trend may be stable if nesting in al. 2006; Lambardi et al. 2008; Girondot natural and human causes (McElhany et unmonitored areas has increased over 2015). There is limited evidence that al. 2000; NMFS 2017). We conclude that time (Thorson et al. 2012; Harris et al. leatherback turtles may remain in South limited overall diversity increases the 2015). Different datasets lead to African waters throughout the year, as extinction risk of this DPS by reducing different conclusions due to different suggested by year-round fisheries its resilience to threats. methods of calculation, different time bycatch records (Luschi et al. 2003, frames, incomplete monitoring of all 2006; Petersen et al. 2009). Some forage Present or Threatened Destruction, nesting areas, and therefore uncertainty off the coast of Madagascar (Robinson et Modification, or Curtailment of Habitat in the precise number of nesting al. 2016; Harris et al. 2018). Some or Range females. We find that Nel et al. (2013) turtles follow the Agulhas and Benguela Coastal erosion, foot and vehicle provide the best available published Currents into foraging areas in the traffic, and artificial lighting modify the data, which are based on the most southeast Atlantic Ocean, off the coasts available, suitable nesting habitat and

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thus are threats to the SW Indian DPS. predators. Beach driving occurs to a satellite tags between 1996 and 2006 Angel et al. (2014) identifies coastal lesser extent in South Africa. were incidentally or intentionally erosion as the main beach-based threat Recreational beach driving is allowed captured in Mozambique and to this population and one that is likely on a 1.5 km stretch of beach, and Madagascar and likely retained for food to increase with climate change. tourism driving (for concession, or sale (de Wet 2012). In Mozambique, Coastal erosion removes sand from management, and media) involves a eggs and turtles were once legally nesting beaches, inundating nests and maximum of 10 vehicles per night harvested and are now illegally poached destroying eggs. Because leatherback across 40 km of beach (Nel 2006). for consumption (Nel 2012; Wallace et turtles nest lower on the beach than Artificial lighting modifies the quality al. 2013; Fernandes et al. 2018). Turtle other sea turtles, they have greater of nesting beaches because lights over poaching includes turtles taken on the exposure to tidal erosion and deposition land disorient nesting females and beaches and at sea (Williams et al. 2016; (Boyes et al. 2010). At South African hatchlings. Instead of crawling toward Williams 2017). We do not have recent, nesting beaches over a duration of 70 the surf and their marine habitat, they quantitative estimates of egg or turtle days, Boyes et al. (2010) found an crawl further inland, where they may poaching in Mozambique. However, average of 0.62 m deposition (S.D. 0.15 become dehydrated and die or become significant usage has been documented m; range 0.34–0.85 m) and 0.42 m susceptible to predation. Within the 280 at various points in time. Hughes (1995) erosion (S.D. 0.17 m; range 0.14– 0.71 km of coastline within the iSimangaliso reported that nearly every nesting m). Because the average depth of Wetland Park, South Africa, there are female was killed during the civil war leatherback nests was 0.66 m (S.D. 0.19 only four areas of less than 100 m each (1977 to 1992). An estimated 32 m; range 0.15–1.07 m), eggs are at some that contain artificial lighting (Nel loggerhead and leatherback turtles were risk of being exposed and destroyed 2006). We were unable to find data on killed at Ponta Malongane in 11 years (Boyes et al. 2010). Nel et al. (2006) artificial lighting in Mozambique. (Louro 2006). Recent egg and turtle concludes that coastal erosion is a threat The majority of nesting habitat occurs poaching rates in Mozambique have in South Africa, where the high-energy within the 280 km coastline of the been qualitatively described as coastline varies seasonally. During two iSimangaliso Wetland Park in South ‘‘alarming,’’ ‘‘significant,’’ nesting seasons (2009/2010 and 2010/ Africa, which has been a World Heritage ‘‘widespread,’’ ‘‘prominent,’’ and 2011), de Wet (2012) found that 6.3 Site since 1999 (UN Educational, ‘‘prevalent’’ (Fernandes et al. 2015; percent of nests in the South African Scientific and Cultural Organization Williams et al. 2016; Williams 2017; monitoring area were destroyed by 1999; Hughes 2010; Robinson et al. Pereira and Louro 2017; Fernandes et al. erosion. In Bazaruto Archipelago, 2016). From 1979 to 1999, much of the 2017; Fernandes et al. 2018). Nest Mozambique, coastal erosion and rising nesting habitat and nearshore marine monitoring programs in Mozambique sea levels destroyed approximately 12 habitat was protected, first as the St. have provided some protection since the Lucia Marine Reserve, then the percent of nests over 10 seasons of 1990s (Garnier et al. 2012). Pereira et al. Maputaland Marine Reserve (Hughes monitoring (Videira and Louro 2005; (2014) reports that as a result of the 1996). Such protections contributed to Louro 2006). Despite nest loss due to monitoring program at the Ponta do the prevention of dredging a deep water erosion, hatching success remains high Ouro Partial Marine Reserve, where the harbor through turtle nesting beaches in South Africa (70 to 80 percent; Nel majority of nesting in Mozambique ´ and mining heavy minerals in the et al. 2015; Santidrian Tomillo et al. occurs, turtle mortalities are very rare. adjacent dunes (Hughes 2009, 2010). In 2015). Though the introduction of Egg poaching has been reduced in the Casuarina trees do not necessarily Mozambique, the Ponta do Ouro Partial Bazaruto Archipelago, where it was increase the risk of erosion, they Marine Reserve has provided beach and previously prevalent (Louro 2006). obstruct nesting females’ access to and marine habitat protection since 2009. National legislation in Mozambique from beaches and alter nest incubation Additional protection is provided to include: Diploma Legislativo 2627 (7 environments (de Vos et al. 2019). Mozambican nesting beaches in: The August 1965), Forest and Wildlife Evolving in a high-energy coastline Ponto du Ouro—Kosi Bay Transfrontier Regulation (Decree 12/2002 of 6 June environment with seasonal variation has Marine Conservation Area; the Maputo 2002) and Conservation Law (Law 5/ likely provided the DPS with some Special Reserve; the Bazaruto 2017 of 11 May). These laws protect resilience to nesting losses due to Archipelago National Park; and the turtles and eggs and impose fines for coastal erosion. Sea level rise as a result Quirimbas Archipelago National Park. of climate change, however, is likely to However, nest protection only occurs poaching or possession. However, the increase the rate and magnitude of this over nine percent of the Mozambique laws are poorly implemented and natural process. coastline (Videira et al. 2008; Garnier et enforced (Costa et al. 2007; Louro 2006; In Mozambique, Louro (2006) al. 2012). Such protections have Williams et al. 2016; Fernandes et al. describes beach driving as a ‘‘very minimized vehicular traffic at nesting 2018). We conclude that the poaching of serious problem.’’ Tourism and beach beaches in South Africa, but beach turtles and eggs remains a significant driving are increasing in Ponta driving remains a threat in threat in Mozambique. Malongane and Bazaruto Island, nesting Mozambique. Erosion is a threat to Poaching of turtles is also a threat in areas in Mozambique, where there is no nesting beaches in both South Africa Madagascar, where leatherback turtles legislation regarding beach driving and Mozambique. Thus, we conclude caught in gillnets are taken back to local (Louro 2006). Foot and vehicular traffic, that the present modification of nesting villages and consumed, which is for tourism and recreational purposes, habitat is a threat to the SW Indian DPS. documented to have occurred twice in have been found to impact nesting 2016 (Williams 2017). Leatherback beach habitat and turtles in several Overutilization for Commercial, turtles were caught and consumed or ways. Beach activities can deter females Recreational, Scientific, or Educational sold in five of eight Malagasy villages from using a nesting beach. Beach Purposes surveyed between October 2004 and driving causes sand compaction, which Overutilization is a threat to the SW March 2004. Fishers reported that may lower nest success. It also creates Indian DPS (Bourjea 2015; Williams et leatherback turtles were uncommon but ruts that slow hatchlings’ crawl to the al. 2016; Williams 2017). Two of nine large, possibly indicative of mature surf, increasing their vulnerability to leatherback turtles equipped with individuals (Walker and Roberts 2005).

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No leatherback turtles were reported include feral dogs, side-striped jackals, guidelines, however, are rarely enacted caught during a 2007 Malagasy village honey badgers, and ghost crabs (Hughes in full. The ICCAT has adopted a survey (Humber et al. 2010). Although 1996; Nel 2006). In the 1960s, the resolution for the reduction of sea turtle protected by Presidential Decree (2006– removal of feral dogs greatly reduced mortality (Resolution 03–11), 400), fishers target turtles at sea for nest predation. Similarly, jackals were encouraging States to submit data on sea consumption (Ratsimbazafy 2003; Epps once a threat (Hughes 1996). However, turtle interactions, release sea turtles 2006; Humber et al. 2010). Humber et al. nest predation by jackals has not been alive wherever possible, and conduct (2010) report that the Malagasy law is observed for 17 years (R. Nel, pers. research on mitigation measures. The not adequately implemented due to lack comm. April 15, 2019). Nel (2006) responsibility to implement mitigation of enforcement, a reluctance to manage reports current rates of predation as measures remains within each nation, the local, cultural fishery, and the size relatively low. Nel et al. (2013) reports and many nations have not of the coastline (Rakotonirina and Cooke that there is no evidence for significant implemented such measures (Honig et 1994; Okemwa et al. 2005). We beach predation on South African al. 2007). South Africa, Namibia, and conclude that the poaching of turtles beaches. Describing nest predation as Angola signed the Memoranda of remains a significant threat in minimal in South Africa, de Wet (2012) Understanding concerning Conservation Madagascar. found that 15.7 percent of nests were Measures for Marine Turtles of the Egg and turtle poaching does not depredated in the 2009/2010 and 2010/ Atlantic Coast of Africa. Though South appear to be a significant threat in South 2011 nesting seasons; ants and ghost African vessels are required to carry a Africa. Prior to the ban on egg harvest crabs were the main cause of egg dehooker and line-cutter (Honig et al. in 1963, substantial numbers of mortality. During the two seasons, ghost 2007) and has instituted an observer leatherback eggs in South Africa were crabs consumed 3.2 percent of program (Petersen et al. 2009), few other harvested, likely contributing to the hatchlings as they made their way to the at-sea conservation measures have been critically low number of nesting females sea (de Wet 2012). implemented (Honig et al. 2007). For at that time (Nel et al. 2015). Hughes et While all eggs and hatchlings have Taiwanese fishing vessels operating al. (1996) concluded that nesting some exposure to predation, the species within the range of this DPS, Taiwan females were not harvested. As a result compensated for a certain level of has regulations to limit the number of of the ban, and with a lucrative tourism natural predation by producing a large vessels in the area and to require vessels industry centered on the nesting turtles, number of eggs and hatchlings. For this to carry de-hookers. However, bycatch egg and turtle harvest has been nearly DPS, the primary impact is to and mortality remain high (Huang and eliminated (Hughes et al. 1996). Nesting productivity (i.e., reduced egg and Liu 2010). Similarly, though the extent females and hatchlings receive hatching success). We conclude that, of shark nets off South African beaches ‘‘intensive and effective’’ protection, as though much reduced, predation still has been reduced from 44 km in the most nesting beaches fall within the poses a threat to the SW Indian DPS. early 1990s to 23 km in 2007, bycatch iSimangaliso Wetland Park (Nel et al. Inadequacy of Existing Regulatory and mortality continue to occur (Brazier 2015). Such beach protections have Mechanisms et al. 2012), and Nel et al. (2015) been key to recovering the number of The SW Indian DPS is protected to identify bather protection nets, together nesting females to current levels with boat strikes, as the second greatest (Hughes et al. 1996; Saba et al. 2015; some degree by several regulatory mechanisms. For each, we review the threat to the DPS, after longline Nel et al. 2015). We conclude that the fisheries. Regarding shark nets, Brazier poaching of turtles and eggs is not a objectives of the regulation and to what et al. (2012) concludes that bycatch is significant threat in South Africa. extent it adequately addresses the low and rates are stable, but because the Exposure to poaching is low in South targeted threat. Africa, where the majority of females Despite efforts to reduce impacts, leatherback population is small, a nest. Few females nest in Mozambique, fisheries bycatch continues to be the further reduction in bycatch is reducing the DPS’s overall exposure to primary threat to this DPS (Petersen et desirable. Because the offshore longline egg and nesting female poaching during al. 2009; Nel et al. 2013; Wallace et al. fishery contributes more than the shark nesting. However, turtles regularly 2013; Fossette et al. 2014; Angel et al. nets to leatherback mortality, Brazier et forage in the Mozambique Channel, 2014; Nel et al. 2015; Harris et al. 2018). al. (2012) also recommends further where they may be poached along the To minimize the impacts from longline introduction of bycatch reduction coasts of Mozambique and Madagascar. fisheries, the FAO published guidelines techniques in the longline fishery. Poaching of nesting females or post- for sea turtle protection, entitled Because longline threats are nesting females (i.e., on land or at sea) Technical Consultation on Sea Turtle- proportionally large and possibly reduces both abundance (through loss of Fishery Interactions (FAO 2004; Huang increasing, Harris et al. (2018) nesting females) and productivity and Liu 2010). The UN 1995 Code of concludes that bycatch mitigation (through loss of reproductive potential). Conduct for Responsible Fisheries (FAO measures in this industry remain first Such impacts are high because they 2004) provides guidelines for the and most important management action. directly remove the most productive development and implementation of Thus, existing regulations have been individuals from DPS, reducing current national fisheries policies, including inadequate to meet their objectives. and/or future reproductive potential. gear modification (e.g., circle hooks, fish Beach habitat is protected throughout Egg poaching reduces productivity. We bait, deeper sets, and reduced soak a portion of the nesting range of this conclude that overutilization, as a result time), new technologies, and DPS. In South Africa, approximately of poaching of turtles and eggs, poses a management of areas where fishery and 280 km of nesting beaches benefit from threat to the DPS. sea turtle interactions are more severe. intensive and effective protection as The guidelines stress the need for part of the iSimangaliso Wetland Park, Disease or Predation mitigation measures, data on all a World Heritage Site since 1999 (UN While we could not find any fisheries, fishing industry involvement, Educational, Scientific and Cultural information on disease for this DPS, and education for fishers, observers, Organization 1999; Nel et al. 2015). predation is a threat to the SW Indian managers, and compliance officers (FAO iSimangaliso includes 280 km of DPS. In South Africa, nest predators 2004; Honig et al. 2007). These beaches, rocky shores, mangroves, lakes,

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estuaries, and coastal waters out to three education. Despite these efforts, illegal (Honig et al. 2007; Peterson et al. 2009; nautical miles (5 km) and 200 m depth. poaching of eggs and turtles remains Huang and Liu 2010). Regulations prevent coastal prevalent in Mozambique (Fernandes et Harris et al. (2018) found a positive, development and commercial fishing al. 2014) due to limited implementation significant relationship between the within this area. However, Harris et al. and enforcement of the environmental longline fisheries’ extent of overlap with (2015) estimated that 66 percent of legislation (Costa et al. 2007; Louro leatherback migratory corridors and leatherback turtles nest outside of the 2006; Williams et al. 2016; Fernandes et threat intensity (F1,8 = 184.7, P <0.001, protected monitoring area (i.e., only 300 al. 2018). In Madagascar, all sea turtles R2 = 0.95), which was defined as a km of the 900 km nesting area is are protected from exploitation by product of the turtles utilization monitored and protected). In addition, Presidential Decree (2006–400). distribution and the normalized fishing leatherback turtles use coastal waters However, fishers continue to target and effort. They concluded that incidental that are not protected under the marine consume turtles captured at sea capture in longline fisheries was the reserve. In Mozambique, much of the (Ratsimbazafy 2003; Epps 2006; Humber most important offshore threat to nesting habitat is protected, including: et al. 2010). The effectiveness of the leatherbacks and supports the The Ponto du Ouro—Kosi Bay Malagasy law is limited due to lack of hypothesis that longlining is Transfrontier Marine Conservation Area; enforcement, a reluctance to manage the suppressing growth of this DPS (Nel et the Maputo Special Reserve; the local, cultural fishery, and the size of al. 2013; Harris et al. 2018). Harris et al. Bazaruto Archipelago National Park; the coastline (Rakotonirina and Cooke (2018) calculated longline bycatch rates, and the Quirimbas Archipelago National 1994; Okemwa et al. 2005; Humber et al. around Southern Africa, to be 1,500 Park. However, nest protection only 2010). Thus, while regulations to leatherback turtles annually. Though occurs over nine percent of the prevent the harvest of turtles and eggs this estimate likely includes turtles from Mozambique coastline (Videira et al. have been adequate in South Africa, other DPSs (SE Atlantic and NE Indian), 2008; Garnier et al. 2012). Thus, regulatory protections in Mozambique the authors concluded that even low regulations to protect the nesting habitat and Madagascar are inadequate. absolute bycatch has a In summary, numerous regulatory of the DPS have been successful. disproportionately large effect in mechanisms protect leatherback turtles, However, leatherback turtles nesting slowing population growth rates, due to outside these areas receive no eggs, and nesting habitat throughout the the small nesting female abundance of protection. range of this DPS. Though the regulatory the SW Indian DPS (Harris et al. 2018). In addition, South Africa hosts several mechanisms provide some protection to marine protected areas and has the species, many do not adequately Additional reason for concern is that the proposed to add 20 new marine reduce the threat that they were threat intensity of longlining was protected areas to expand protection to designed to address, generally as a especially high in the last 5 years of the five percent of its EEZ (https:// result of limited implementation or study (ICCAT and IOTC data from 2004 www.marineprotectedareas.org.za/). enforcement. As a result, bycatch, to 2013), suggesting that the threat and Two of these were proposed in order to incomplete nesting habitat protection, its impacts on the DPS are increasing protect leatherback marine habitat: The and poaching in Mozambique and (Harris et al. 2018). Throughout the SE 1200 km2 iSimangaliso Marine Madagascar remain threats to the DPS. Atlantic and SW Indian Oceans, Harris Protected Area (off nesting beaches); In summary, we consider the et al. (2018), Wallace et al. (2013), and the 6200 km2 Agulhas Front Marine inadequacy of the regulatory deWet (2012), Thorson et al. (2012), and Protected Area (encompassing core mechanisms to be a threat to the SW Peterson et al. (2009) analyze longline foraging habitat). These initiatives are Indian DPS. bycatch over a large portion of the DPS’s likely to protect leatherback turtles foraging range. Wallace et al. (2013) Fisheries Bycatch within the proposed areas. However, the categorize the longline fishing effort as DPS has a large range that extends well Fisheries bycatch is the primary threat medium to high and conclude that such beyond protected areas. Harris et al. to the SW Indian DPS (Wallace et al. effort leads to a high risk and high (2018) identifies the Mozambique 2013; Fossette et al. 2014; Angel et al. bycatch impact for the SW Indian DPS. Channel as an additional key priority 2014; Nel et al. 2015; Harris et al. 2018). Thorson et al. (2012) used data from the area to protect. Bycatch occurs in commercial and IOTC (1954 to 2009) and South African In South Africa, a 1963 ban on egg artisanal, coastal and pelagic fisheries. fishery (2006 to 2009) in a model of and turtle harvest has been effective in Gear types include: Longline, purse leatherback turtle survival and virtually eliminating overutilization seine, pelagic trawl, shrimp trawl, availability. Their model did not find (Hughes 1996). The current law, gillnets, and beach seines (Honig et al. that leatherback survival declined Regulation 58(7) of the MLRA (1998), 2007; Petersen et al. 2009; Nel et al. during the period when longline fishing provides full protection to sea turtles 2013; Nel et al. 2015). effort increase. However, the authors and their products. In Mozambique, Of all gear types, longline fisheries state that their null result could be national legislation includes: Diploma likely have the largest impact on the explained by an imprecise index of Legislativo 2627 (7 August 1965), Forest DPS (Petersen et al. 2009; Nel et al. longline effort or using newer bycatch and Wildlife Regulation (Decree 12/ 2013; Angel et al. 2014; Nel et al. 2015; rates for the South African longline 2002 of 6 June 2002) and Conservation Harris et al. 2018). Leatherback turtles fishery (i.e., Petersen et al. 2009). For Law (Law 5/2017 of 11 May). These are exposed to longline fisheries example, based on fisheries data from laws protect turtles and eggs and impose throughout their foraging range, 30 South African and Asian pelagic fines for poaching or possession. For including the Benguela Current in the longline vessels operating in the South example, the Forest and Wildlife Atlantic Ocean, the Agulhas Current in African EEZ between 2006 and 2010, De regulation prohibits the killing of turtles the Indian Ocean, and coastal waters off Wet (2012) estimates the mean annual and the possession of their eggs, with South Africa, Mozambique, and bycatch to be 7.8 (±7.8 S.D.) leatherback fines up to US $1,000 (Decree 12/2002 Madagascar (Honig et al. 2007; Peterson turtles, based on 39 leatherback turtle of 6 June 2002; Costa et al. 2007). In et al. 2009; Huang and Liu 2010; Harris captures reported over 5 years. Other 2008, there were at least 13 conservation et al. 2018). Flag states include: South studies estimate bycatch to be higher. programs focusing on protection and Africa, Mozambique, Japan, and Taiwan Based on extrapolations from

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independent observer bycatch reports annually (based on an annual bycatch 2010; SWOT 2017). In 2001, one shrimp from 1998 to 2005 (n = 2,256 sets), estimate of 4,200 turtles, of which trawler captain reported capturing more Peterson et al. (2009) estimates that the approximately 16 percent are than six leatherback turtles since fishing South African pelagic longline fishery leatherback turtles) in the southern and season opened; all were captured alive for tunas and swordfish captures 50 central regions and as many as 5,600 (Gove et al. 2001). Based on 39 leatherback turtles annually, many of leatherback turtles (based on an annual interviews with observers, enforcement which likely belong to the SW Indian bycatch estimate of 35,000 turtles) for officers, and vessel operators, the fleet DPS (the remainder belong to the SE the entire Benguela Large Marine (n = 50) captures approximately 56 (±40) Atlantic DPS). Though most (84 percent) Ecosystem (Honig et al. 2007). These leatherback turtles; the overall estimated were caught alive, Peterson et al. (2009) estimates likely include many mortality rate for bycaught turtles is 14 estimates the long-term survival of leatherback turtles from the much larger percent (Brito 2012). Given the overlap affected turtles at 50 percent (based on SE Atlantic DPS, but telemetry studies between the fishery and an important an estimated range of 25 to 75 percent; indicate that the turtles of the SW foraging area, M. Pereira (CTV, pers. Aguilar et al. 1995). Peterson et al. Indian DPS use this foraging area too comm., 2019) concludes that the (2009) thus estimates total mortality (Luschi et al. 2006; Robinson et al. Mozambican shrimp trawl fishery may from the South African pelagic longline 2016). Evaluating ICCAT data, Angel et be one of the main threats to this DPS. fishery to be 25 turtles annually, or al. (2014) confirms exposure to high The South African shrimp trawl fishery around two percent of the total longline fishing effort but reports that has been reduced to two vessels, with population (based on a total population bycatch of this population is low an average annual bycatch of less than size of 1,200 leatherback turtles), which relative to other leatherback one leatherback (Honig et al. 2007; they conclude is enough to hamper populations. Although Thorson et al. Petersen et al. 2009; Nel et al. 2013). recovery of the SW Indian population. (2012) found that increased fishing Domestic shrimp trawling in Eritrea is Nel et al. (2013) agrees with this effort had no explanatory power considered a major threat to sea turtles, conclusion, citing a 30 year (1965 to regarding changes in leatherback and bycatch is underreported. However, 1995) increasing trend in nesting female survival, other studies identify longline leatherback turtles are relatively rare in abundance that stalled as the longline fisheries as the primary threat to the these waters, as demonstrated by the fishery expanded from 1990 to 1995. DPS (Petersen et al. 2009; Nel et al. foreign trawl fleet, which has 100 Huang and Liu (2010) come to a similar 2013; Angel et al. 2014; Nel et al. 2015; percent observer coverage and bycatch conclusion. They report that the Harris et al. 2018). Based on the weight records indicating 39 leatherback turtles longline fishery operated at a relatively of evidence, we agree with the latter and between 1996 and 2005 (Pilcher et al. low level until 1995, when South conclude that longline fisheries pose a 2006). Africa, Japan, and Taiwan started a joint major threat to the DPS throughout its During a small random sampling venture fishing program. foraging range. exercise in 2013 by onboard observers In the Indian Ocean, Huang and Liu from the Research Division of Eritrea, (2010) evaluated the Taiwanese longline Other fisheries also impact the SW one leatherback turtle (of 48 sea turtles fishery bycatch, and Louro (2006) Indian DPS, possibly resulting in total) was captured and released described illegal longlining in substantial mortalities. However, these (Mebrahtu 2015). On June 20, 2019, the Mozambique waters. Huang and Liu fisheries are not as well studied, and European Union passed a regulation (2010) evaluated observer data from 77 mortality estimates are not available (PE–CONS 59/1/19 Rev 1) that requires trips (4,409 sets) on Taiwanese large- (Honig et al. 2007; Nel et al. 2013). shrimp trawl fisheries to use a turtle scale longline fishing vessels. They Leatherback turtles are caught in excluder device in European Union identified 84 leatherback turtles artisanal and commercial shrimp trawl, waters of the Indian and West Atlantic captured from 2004 to 2008, with 48 pelagic trawl, gillnet, purse seine, and Oceans. mortalities (57 percent; Huang and Liu beach seine fisheries (Honig et al. 2007; Gillnets in Macaneta, Mozambique, 2010). Extrapolating to the entire Petersen et al. 2009; Nel et al. 2013). killed two leatherback turtles during the Taiwanese longline fishery in the Indian Citing Walker (2005) and Rakotonirina 2010 nesting season (Videira et al. 2010) Ocean, they estimated an average (1994), Nel (2013) reports that the and captured one in the 2003 nesting bycatch of 173 leatherback turtles number of sea turtles (all species) season (Louro 2006). In Madagascar, between 2004 and 2007. This number caught in artisanal fisheries of the leatherback turtles are a ‘‘common’’ likely included individuals from the SW Mozambique Channel could exceed bycatch of the set gillnet shark fishery and NE Indian DPSs. In addition to commercial fishery catches. Honig et al. (Robinson and Sauer 2013); mortality is commercial longlining, artisanal (2007) echoes this concern for the likely high given the 24-hour soak time longlining also occurs in the SW Indian Benguela Current Large Marine and propensity for consuming turtle Ocean. Illegal longlining off Ecosystem, citing high mortality rates meat. Purse seine fisheries have a much Mozambique targets sharks and for these fisheries in other regions. The lower impact than longline fisheries leatherback turtles. The level of take and Mozambican shrimp trawl fishery (Angel et al. 2014); two leatherback mortality is unknown. A program called operates in the Sofala Bank of the turtles were captured (alive) between Eyes on the Horizon reports such Mozambique Channel, near leatherback 1995 and 2010 in the Indian Ocean events, when observed (Louro 2006). nesting, migrating, and foraging areas (Clermont et al. 2012). In the EEZ of all In the SE Atlantic Ocean, Honig et al. (Luschi et al. 2006; Robinson et al. Indian Ocean French Territories (mostly (2007) and Angel et al. (2014) evaluate 2016). The fishery supports 50 to 96 from the Mozambique Channel), 40 longline bycatch. Honig et al. (2007) vessels that employ standard otter trawl leatherback turtles were captured in evaluated turtle bycatch by longline nets in a single or quad-net unspecified fisheries from 1996 to 1999; fisheries in the Benguela Large Marine configuration with an average tow-time 92 percent were released alive (Ciccione Ecosystem by using data from observer of three hours (Brito 2012). It does not 2006). reports, surveys, and specialized trips employ TEDs and incidentally captures Shark or bather nets, which are from the coastal nations of South Africa, several (i.e., at least two to six but gillnets installed off beaches in South Namibia and Angola. They estimated possibly many more) leatherback turtles Africa to limit human-shark bycatch at 672 leatherback turtles annually (Louro 2006; Videira et al. interactions, incidentally capture

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leatherback turtles. According to Nel et females are killed. Several studies and entanglement of marine debris are al. (2015), bather protection nets and conclude that bycatch has prevented threats to this DPS. boat strikes together present the second continued population growth and/or In addition, State of the World’s Sea greatest threat to the DPS, after fisheries. contributed to the recent slight decline Turtles (SWOT 2017) identifies Three of nine leatherback turtles in nesting (Petersen et al. 2009; Huang hydrocarbon extraction along the equipped with satellite tags between and Liu 2010; Brazier et al. 2012; Nel et eastern African seaboard, including 1996 and 2006 were caught in shark al. 2013; Harris et al. 2018). We northern Mozambique, as the greatest nets (de Wet 2012). Between 1981 and conclude that fisheries bycatch is the emerging concern for this DPS. They 2008, 150 leatherback turtles were primary threat to the SW Indian DPS. report that the impact of such activities captured (mean = 5.36; SE = 0.60), of remain to be seen (SWOT 2017). Vessel Strikes which 20 were mature females and 39 However associated oil spills are likely were mature males (Brazier et al. 2012). Vessel strikes are a threat to the SW to modify habitat off nesting beaches Total mortality was 62.7 percent, with Indian DPS. According to Nel et al. and reduce prey availability for all life an annual range of 1 to 12 mortalities (2015), vessel strikes and bather stages. Harris et al. (2018) found that the (mean = 3.4; SE = 0.47; Brazier et al. protection nets together present the hydrocarbon industry poses a moderate 2012). Most turtles were captured in second greatest threat to the DPS, after threat to the DPS because of its spatial December, the peak month for nesting, fisheries. Together these threats kill up overlap with migratory corridors which together with the prevalence of to 10 leatherback turtles annually (Nel (second in extent, after longline mature individuals, suggests that et al. 2015). One of 24 leatherback fisheries). They expressed concern over bycatch is dominated by adults from turtles stranded along the South African the expansion of the hydrocarbon nearby nesting and breeding areas coastline between 1972 and 2010 was extraction along the coasts of southern (Brazier et al. 2012). Analyzing these struck by a boat propeller (Nel 2008). Mozambique and northeastern South data over an additional 2 years (1981 to However, additional mortalities or African and the possibility of an oil spill 2010), de Wet (2012) found that 157 injuries may go unnoticed or in these areas (Harris et al. 2018). leatherback turtles (mean = 5.26; SD = unreported. Vessel strikes affect adult Pretorius (2018) identified 28 significant 2.7) were captured in the nets, with a females returning to nest, removing impacts to sea turtles as a result of 62.4 percent mortality rate (mean = 3.3; individuals and their future hydrocarbon exploration and SD = 1.8). reproductive potential. Thus, this threat production; these included: Potential To reduce bycatch mortality in reduces the abundance and productivity water pollution, light pollution, noise longlines, South African regulations of the DPS. We conclude that vessel pollution, and habitat destruction. require vessels to carry a dehooker and strikes pose a threat to the DPS. However, Du Preez et al. (2018) reports line cutter (Honig et al. 2007). To reduce Pollution that metal and metalloid contaminants bycatch in the shark nets, effort was do not appear to be a problem for this reduced from 44 km of nets in the early Pollution includes contaminants, DPS. We conclude that pollution poses 1990s to 23 km in 2007 (Brazier et al. marine debris, and ghost fishing gear. a threat to the DPS. 2012). Despite these efforts, a previously As with all leatherback turtles, Climate Change increasing trend in nesting female entanglement in and ingestion of marine abundance has stalled and ‘‘declined debris and plastics are threats that likely Climate change is a threat to the SW recently’’ (Nel et al. 2013). kill several individuals a year. For six Indian DPS. The impacts of climate Individuals (immature and adult stranded hatchlings and 24 stranded change include: Increases in turtles) of this DPS are exposed to high adults over the past 40 years, the cause temperatures (air, sand, and sea fishing effort throughout their foraging of death was generally unknown. surface); sea level rise; increased coastal range. Estimates of bycatch rates, when However, fishery-related injuries, ghost- erosion; more frequent and intense available, range considerably. For fishing (i.e., entanglement in discarded storm events; and changes in ocean example, Harris et al. (2018) estimated fishing gear), disease, or pollution may currents. the annual longline bycatch rates be responsible (de Wet 2012). Plastic Angel et al. (2014) identifies coastal around Southern Africa to be 1,500 pollution may be a main threat in the erosion as the main beach-based threat leatherback turtles annually; whereas, waters off Mozambique (M. Pereira, to this population and one that is likely de Wet (2012) estimated the mean pers. comm., 2019). Outer accumulation to increase with climate change. Though annual bycatch to be 7.8 (±7.8 S.D.) of the Indian Ocean ‘‘garbage patch’’ coastal erosion is a natural process, sea leatherback turtles. We have annual (Cozar et al. 2014) overlaps with level rise (as a result of climate change) mortality estimates for few individual foraging areas in the Mozambique increases the rate of erosion and the fisheries: n = 25 for South African Channel and occurs in waters offshore amount of beach affected. In Bazaruto longline (Peterson et al. 2009); n = 12 for from nesting areas in South Africa and Archipelago, Mozambique, coastal Taiwanese longline (Huang and Liu Mozambique. Though we were unable erosion and rising sea levels destroyed 2010); n = 1 to 12 for shark nets (Brazier to find ingestion or entanglement data approximately 12 percent of nests over et al. 2012). Adding in other longline for SW Indian leatherback turtles, 51.4 10 seasons of monitoring (Videira and fisheries and additional gear types may percent of gut and fecal samples from Louro 2005; Louro 2006). Because result in more than 100 mortalities loggerhead turtles (n = 74) captured as leatherback turtles nest lower on the annually. These estimates likely include bycatch in the Reunion Island longline beach than other sea turtles, their eggs individuals from other DPSs (i.e., the SE fishery contained marine debris, of are more at risk of being exposed and Atlantic and NE Indian). However, which plastic comprised 96.2 percent destroyed by increases in sea level and because of the small nesting population, (Hoarau et al. 2014). Ryan et al. (2016) coastal erosion (Boyes et al. 2010). even small levels of mortality have the found that 24 of 40 loggerhead turtle Thus, erosion and rising sea level as a potential to slow population growth post-hatchlings had ingested plastics or result of climate change are a threat to (Harris et al. 2018). Mortality reduces other anthropogenic debris. Based on the DPS. abundance, by removing individuals the foraging behavior of leatherback Sand temperatures influence from the population; it also reduces turtles and the proximity of the ‘‘garbage leatherbacks’ egg viability and sex productivity, when potential nesting patch,’’ we conclude that the ingestion determination. Temperatures over 32 °C

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result in death and temperatures below Concerning Conservation Measures for returning to nesting beaches. Exposure 29.2 °C produce only males (Rimblot et Marine Turtles of the Atlantic Coast of and impact of this threat are high. al. 1985; Rimblot-Baly et al. 1986). Africa (Abidjan Memorandum), Poaching is also a threat to the DPS. Egg Temperature probes on South African Convention Concerning the Protection and turtle poaching, while no longer a beaches reveal that nests are already of the World Cultural and Natural threat in South Africa, likely continues close to pivotal temperatures, with an Heritage (World Heritage Convention), in Mozambique. In Madagascar, turtles average of 29.04 °C (S.D. 0.86 °C; range FAO Technical Consultation on Sea are illegally captured at sea and 27.62 to 29.69 °C; Boyes et al. 2010). A Turtle-Fishery Interactions, Indian consumed in local villages. Vessel modeling study suggests that even if Ocean Tuna Commission, The Indian strikes also pose a threat. Vessel strikes South African beaches experience a Ocean Tuna Commission, Indian kill several leatherback turtles each temperature increase of 5 °C, hatching Ocean—South-East Asian Marine Turtle year, including females returning to success and emergence success may not Memorandum of Understanding, beaches to nest. While exposure is low, be significantly reduced (Santidria´n MARPOL, IUCN, Nairobi Convention for impacts are high, affecting both Tomillo et al. 2015). Instead, nesting the Protection, Management and abundance and productivity. Coastal females may shift their nesting season to Development of the Marine and Coastal erosion and beach driving in months (e.g., July through October) Environment of the Eastern African Mozambique modify nesting habitat and when temperature and precipitation Region, Ramsar Convention on are believed to result in minor would be similar to current conditions Wetlands, UNCLOS, and UN Resolution reductions in productivity currently. of the current nesting season (i.e., 44/225 on Large-Scale Pelagic Driftnet However, these threats are likely to October through January). However, the Fishing. Although numerous increase over time as climate change authors cautioned that because nesting conservation efforts apply to the turtles and tourism increases. Climate change females do not change their nesting of this DPS, they do not adequately is likely to result in reduced habits in response to oceanographic reduce its risk of extinction. productivity due to greater rates of conditions, they may not change their Extinction Risk Analysis coastal erosion and nest inundation. nesting habits in response to climate Predation of eggs and hatchlings is also change either (Santidria´n Tomillo et al. After reviewing the best available a threat. However, although predation 2015). In addition, a shift in the nesting information, the Team concluded that has the potential to reduce productivity, season could have impacts beyond the SW Indian DPS is at high risk of the DPS has likely adapted to predation hatching success, such as reduced post- extinction. The DPS exhibits a total by native species, which account for index of nesting female abundance of hatchling survival and suboptimal most of the predation at present. 149 females. Such a limited nesting foraging conditions for post-nesting Ingestion of plastics and entanglement population size places this DPS in females. We therefore conclude that in marine debris are threats to all danger of stochastic or catastrophic increased temperatures may be a threat leatherback turtles, most likely resulting events that increase its extinction risk. to the DPS, and will likely result in in injury and reduced health, though This DPS exhibits a slightly decreasing impacts ranging from nesting season sometimes mortality. Though many nest trend at monitored nesting beaches shifts to significant nest losses. regulatory mechanisms are in place, in South Africa. This declining trend The threat of climate change may they do not reduce the impact of these has the potential to further lower modify the nesting conditions for the threats to levels that allow the DPS to abundance and thereby increase the risk entire DPS. Impacts likely range from continue its previous increasing nesting small, temporal changes in nesting of extinction. With only one nesting trend. season to large losses of productivity. aggregation, the DPS lacks spatial Because we are already seeing small structure, and its genetic diversity is Thus, the Team unanimously impacts due to coastal erosion and sea low. Thus, stochastic events could have concluded, that the SW Indian DPS is at level rise, we conclude that climate catastrophic effects on nesting for the high risk of extinction. The total index change is a threat to the SW Indian DPS. entire DPS, with no potential source of nesting female abundance of 149 subpopulations to buffer losses or females makes the DPS highly Conservation Efforts provide additional diversity. However, vulnerable to threats. We determine, There are numerous efforts to the DPS uses multiple, distant, and consistent with the team’s findings, that conserve the leatherback turtle. The diverse foraging areas, providing some the DPS is currently ‘‘in danger of following conservation efforts apply to resilience against reduced prey extinction.’’ The slightly declining nest the SW Indian DPS (for a description of availability. Based on these factors, we trend and lack of spatial structure and each effort, please see the section on find the DPS to be at risk of extinction, diversity further contribute to its risk of conservation efforts for the overall likely as a result of past threats. extinction. While this small population taxonomic species): African Convention Current (ongoing) threats further had an increasing or stable nesting trend on the Conservation of Nature and contribute the risk of extinction of this for decades, the lack of continued Natural Resources (Algiers Convention), DPS. The primary threat to this DPS is population growth and recent decline Convention on the Conservation of bycatch in commercial and artisanal, may indicate that threats have outpaced Migratory Species of Wild Animals, pelagic and coastal, fisheries. Longline productivity. Past egg and turtle harvest Convention on Biological Diversity, fisheries constitute the greatest threat. initially reduced the nesting female Convention on International Trade in Though poorly studied, other fisheries abundance of this DPS and likely Endangered Species of Wild Fauna and together may have overall mortality confined its nesting habitat to a Flora, Convention on the Conservation rates for affected turtles from this DPS relatively small geographic area, with of European Wildlife and Natural that rival those from longline fisheries. little diversity or spatial structure. Habitats, Convention for the Co- Fisheries bycatch reduces abundance by Currently, fisheries bycatch is the operation in the Protection and removing individuals from the primary present, ongoing threat. It Development of the Marine and Coastal population. Because several fisheries reduces abundance and productivity Environment of the West and Central operate near nesting beaches, (i.e., imminent and substantial African Region (Abidjan Convention) productivity is also reduced when demographic risks) by removing mature and Memorandum of Understanding nesting females are prevented from and immature individuals from the

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population at rates exceeding foraging range extends throughout the in East Java; and one to three nesting replacement. Though numerous Bay of Bengal, south of Sri Lanka, and females annually on three beaches in conservation efforts apply to this DPS, along the west coast of Sumatra, Bali. There are also rare reports of they do not adequately reduce the risk Indonesia, as indicated by satellite nesting in the Philippines (Lucero et al. of extinction. We conclude that the SW telemetry data and fisheries reports 2011; Arguelles 2013), Vietnam, and Indian DPS is in danger of extinction (NMFS and FWS 2013). Nesting females Malaysia. In Myanmar, nesting is rare, throughout its range and therefore meets at Little Andaman Island likely use a and only one confirmed nesting event the definition of an endangered species. variety of foraging areas and have been has been recorded in recent years (i.e., The threatened species definition does tracked to: South and east of the December 2016; Platt et al. 2017). not apply because the DPS is at risk of Andaman and Nicobar Islands; along Historically, there may have been extinction currently (i.e., at present), the coast of Sumatra; beyond Cocos nesting in Bangladesh, but no current rather than on a trajectory to become so (Keeling) Island towards Western reports exist (Hamann et al. 2006). within the foreseeable future. Australia; and across the Indian Ocean towards Madagascar and the African Malaysia once hosted the DPS’s NE Indian DPS continent (Namboothri et al. 2012; largest nesting aggregation (Chan and The Team defined the NE Indian DPS Swaminathan et al. 2017; Swaminathan Liew 1996). It is now considered as leatherback turtles originating from et al. 2019). Stranding data also indicate functionally extinct or extirpated the NE Indian Ocean, south of 71° N, the use of diverse foraging areas: 15 (Pilcher et al. 2013), as a result of east of 61.577° E, and west of 120° E. individuals stranded or were caught in continuous, large-scale egg harvest and The western boundary occurs at the fishing gear along the mainland coast of fisheries bycatch (Chan and Liew 1996; border between Iran and Pakistan, India (Shanker 2013). Leatherback Eckert et al. 2012). The major nesting where the Somali Current begins. This turtles have also stranded along the site in Malaysia, Rantau Bang in current, and the cold waters of the coasts of Mindanao, Philippines and Terengganu, decreased drastically from Antarctic Circumpolar Current, likely Pakistan (Firdous 2006; Lucero et al. 10,000 nests in the 1950s to 10 or fewer restrict the nesting range of this DPS. 2011). ° nests in the 2010s (reviewed by Eckert We placed the eastern boundary at 120 et al. 2012), and to one or no nests E to approximate the Wallace and Abundance annually, more recently. The number of Huxley lines, which are established The total index of nesting female nesting females in Vietnam has also biogeographic barriers to gene flow abundance of the NE Indian DPS is 109 decreased dramatically, from between Indian and Pacific Ocean females. We based this total index on populations of numerous species. While the nesting aggregations at South and approximately 500 nesting females in the genetic differences between the NE West Bays, Little Andaman Island, India the 1960s to two to three nests in 2005 Indian and West Pacific DPSs (K. Shanker pers. comm., 2018). Our and 2007 (The Chu and Nguyen 2015). demonstrate discreteness, genetic total index does not include 14 In the late 1970s, females nested in sampling is unavailable from areas unquantified nesting aggregations in multiple locations of Thailand, where the nesting range of the DPSs Bangladesh, India, Indonesia, Malaysia, including: along the airport beach in likely meet, preventing us from defining Myanmar, Sri Lanka, Thailand, Changwat Phuket; in the Laem Phan Wa the boundary more specifically. Philippines, and Vietnam. To calculate marine reserve; and in coastal The range of the DPS (i.e., all areas of the index of nesting female abundance, Changwan Phangnga (Bain and documented occurrence) extends we divided the total number of nests at Humphry 1980). Settle (1995) recorded throughout the Indian Ocean and South and West Bays, Little Andaman about 30 nests on the Phuket and possibly into the Pacific Ocean. Records Island between the 2015/2016 and 2017/ Phangnga coastlines from 1992 to 1993. indicate that the species occurs in the 2018 nesting seasons (i.e., a 3-year Aureggi et al. (1999) found nine nests waters of the following nations: India, remigration interval; Andrews 2002) by between 1997 and 1998, during a survey Sri Lanka, Bangladesh, Myanmar, the clutch frequency (3.8 clutches/ of Phra Thong Island in the south. Thailand, Malaysia, Indonesia, Vietnam, season; Andrews 2002; Eckert et al. Our total index of nesting female China, and Philippines (Hamann et al. 2015). This number represents an index abundance (109 females) places the DPS 2006). Given the range of the DPS, of abundance for this DPS, and is likely at risk for environmental variation, to be an underestimate, because it only leatherbacks may also occur in the genetic complications, demographic waters of Pakistan, Australia, Brunei, includes available data from recently stochasticity, negative ecological Cambodia, Philippines, and Taiwan. and consistently monitored nesting feedback, and catastrophes (McElhany Leatherback turtles of the NE Indian beaches. Additional nesting occurs at DPS nest on beaches scattered other locations but is unquantified. et al. 2000; NMFS 2017). These throughout the NE Indian Ocean. The Published estimates of total nesting processes, working alone or in concert, largest abundance of nesting occurs on female abundance are not available for place small populations at a greater beaches of the Andaman and Nicobar this DPS. The IUCN Red List assessment extinction risk than large populations, Islands in India. The sandy beaches of did not provide an estimate of the total which are better able to absorb losses in the Andaman and Nicobar Islands number of mature individuals because individuals. Due to its small size, the consist of soft limestone formed of coral monitoring was not sufficient (Tiwari et DPS has restricted capacity to buffer and shell (Lal 1976; Bandopadhyay and al. 2013). Currently, the largest nesting such losses. Historic abundance Carter 2017). A moderate amount of aggregations occur in the Andaman and estimates indicate that the DPS was nesting occurs in Sri Lanka, and even Nicobar Islands of India. Nesting in Sri once much larger. The current less occurs in Thailand and Sumatra, Lanka may consist of about 100 to 200 abundance is likely a result of past and Indonesia (Hamann et al. 2006; Nel nesting females per year, and low levels current threats, which we describe 2015). of nesting occur in Thailand and below. Given the intrinsic problems of Information on this DPS is limited, Sumatra, Indonesia (Hamann et al. small population size, we conclude that but foraging appears to occur 2006; Nel 2012). Low and scattered the limited nesting female abundance is throughout the Indian Ocean (Andrews nesting occurs in Indonesia: 1 to 14 a major factor in the extinction risk of et al. 2006; Hamann et al. 2006). The nesting females annually at Alas Purwo this DPS.

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Productivity Diversity al. 2006). Intense coastal development, Genetic diversity of the NE Indian stemming from the tourism industry, The NE Indian DPS has exhibited a occurs in Bangladesh without drastic population decline with DPS is potentially relatively high, based on analyses of samples collected from environmental review (Pilcher 2006), extirpation of its largest nesting resulting in the alteration of sand dunes aggregation in Malaysia. Nest counts the previously large, but now functionally extinct, nesting aggregation and other activities that reduce the from Malaysia exhibited a steep decline quality of nesting habitat (Islam 2002; of 17.9 percent annually (sd = 4.2 in Malaysia (Dutton et al. 1999, 2007); genetic diversity has not been assessed Islam et al. 2011). In Vietnam, percent; 95 percent CI = ¥25.5 to ¥8.4 increasing tourism is expected to result at other nesting sites. The diversity of percent; f = 0.998; mean annual nests = in coastal development on the beaches nesting sites is low, given that the 1,166) over the 44-year period of data of Son Tra Peninsula, QuanLan, and majority of the nesting currently occurs collection (1967 to 2010). The drastic Minh Chau (Ministry of Fisheries 2003). on islands (Sivasundar and Prasad decline of nests observed in Malaysia is In addition, most Vietnam beaches are 1996). We conclude that existing likely representative of the overall trend affected by a large amount of marine diversity provides little resilience to the for the DPS given the magnitude of debris (e.g., glass, plastics, polystyrenes, DPS. historical abundance for that site and floats, nets, and light bulbs), which can the high confidence in the trend Present or Threatened Destruction, entrap turtles and impede nesting estimate. Modification, or Curtailment of Habitat activity. Artificial lighting modifies the quality Despite the dramatic population or Range of nesting beaches because lights over decline, driven by the extirpation of the Erosion, coastal development, and land disorient nesting females and largest nesting aggregation (i.e., artificial lighting have destroyed or hatchlings. Instead of crawling toward Malaysia), productivity parameters are modified the available, suitable nesting the surf and their marine habitat, they similar to the species averages. habitat and thus are threats to the NE crawl further inland, where they may However, we have a low degree of Indian DPS. become dehydrated and die or are Erosion reduces the available nesting confidence in these estimates due to susceptible to predation. Nests moved to limited monitoring of existing nesting habitat for the DPS. Some erosion hatcheries as part of conservation efforts aggregations. We conclude that the NE occurs as a result of natural disasters. In may be subject to inadequate hatchery Indian DPS exhibits a declining nesting 2004, a major earthquake occurred off practices, which have resulted in trend, which increases its extinction the west coast of Sumatra, Indonesia, skewed sex ratios and low hatching risk. resulting in the 2004 tsunami, which success (Chan and Liew 1996; destroyed many of the beaches that once Spatial Distribution Kapurisinghe 2006; Rajakaruna et al. hosted over 1,000 nests (Subramaniam 2013; Phillott et al. 2018). For the NE Indian DPS, nesting is et al. 2009). As a result of the tsunami, Some areas are protected. Of the 306 limited to a few, scattered nesting the width of the coastline was reduced islands in the Andaman and Nicobar beaches. Currently, the majority of the by one meter, severely modifying the Islands of India, 94 are designated as nesting occurs on beaches of the beaches of South Bay, Little Andaman wildlife sanctuaries, six of which are Andaman and Nicobar Islands and Sri Island, and resulting in very low national parks, and two of which are Lanka, with small numbers of nests on leatherback nesting in 2005 and 2006 marine national parks (Andrews et al. the western coast of Thailand, Sumatra, (Namboothri 2010). The tsunami also 2006). In Sri Lanka, in 2006, sea turtle and Java (Nel et al. 2015). caused drastic changes at other sanctuaries were established at Rekawa leatherback nesting beaches (Alfred et (4.5 km stretch) and Godawaya (3.8 km Spatial structure is unknown but al. 2005; Ramachandran et al. 2005; presumed to be low. There are no stretch), where high frequency Murugan 2005; Andrews et al. 2006). It leatherback nesting is observed; the area estimates of genetic population caused erosion at some beaches and is bounded 500 meters towards the sea structure within this DPS because accretion at others, especially in the and 100 meters towards the land from published genotypes only exist for Andaman and Nicobar Islands, which the high tide level in both sites (Phillott Malaysia (Dutton et al. 1999, 2007). lie closest to the epi-center of the et al. 2018). Although laws protect sea Genetic samples were taken from earthquake and host the largest numbers turtles throughout Sri Lanka, most nesting females at Little Andaman of nesting females in the DPS nesting areas are not protected and Island from 2008 through 2010, but the (Subramaniam et al. 2009). In addition, hence, local communities can disturb results are not yet available (Namboothri the beaches in Indonesia are being lost nesting beaches by removing sand, et al. 2010). due to erosion from high tides and lighting the beaches, and cutting the The wide distribution of foraging monsoons (Obermeier 2002). beach vegetation (Phillott et al. 2018). In areas likely buffers the DPS somewhat Sand mining and tourism-related Malaysia, turtle sanctuaries have been against local catastrophes or development are the main threats to established in Terengganu, Sabah, and environmental changes that would limit nesting habitat (Fatima et al. 2011). Sarawak. However, nesting habitat prey availability. Remaining nesting is While we were unable to find specific modification and destruction continue limited to a few, scattered but broadly information regarding sand mining, in many areas. distributed nesting sites. The largest coastal development is increasing in Sri We conclude that nesting females, nesting aggregations are clustered, thus Lanka, India, and Bangladesh. The hatchlings, and eggs are exposed to the rendering the DPS susceptible to beaches of Sri Lanka are under high reduction and modification of nesting environmental catastrophes (e.g., threat from tourism development (e.g., habitat, as a result of erosion, coastal tsunamis), and directional changes (e.g., large hotels and restaurants), urban and development, and artificial lighting. sea level rise). Thus, despite widely industrial development, and artificial These threats impact the DPS by distributed foraging areas, the somewhat lighting (Kapurisinghe 2006). Along the reducing nesting and hatching success, limited nesting distribution increases mainland of India, granite blocks and thus lowering its productivity. The most the extinction risk of the NE Indian embankments prevent turtles from abundant remaining nesting DPS. approaching many beaches (Andrews et aggregations are protected from

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development, but they experience high regularly exported from Tamil Nadu, Inadequacy of Existing Regulatory rates of erosion; other nesting beaches India, to Sri Lanka, and then to other Mechanisms are subject to anthropogenic threats. nations such as the United States, Turtles of the NE Indian DPS are Thus, we conclude that habitat loss and Singapore, and Belgium (Kuriyan 1950; protected by several regulatory modification pose a threat to the NE Chari 1964; Shanmughasundarun 1968 mechanisms. For each, we review the Indian DPS. as cited in Agastheesapillai and objectives of the regulation and to what Overutilization for Commercial, Thiagarajan 1979). extent it adequately addresses the Recreational, Scientific, or Educational Exposure to egg and turtle poaching targeted threat. Nearly all nations that Purposes remains high throughout the range of host nesting aggregations have Overutilization is a threat to the NE the DPS. Poaching of nesting females or legislation to protect sea turtles. Indian DPS. The harvest of turtles and post-nesting females at sea reduces both In India, the leatherback turtle is eggs led to the historical decline of the abundance (through loss of nesting included on Schedule I, Part II of the DPS, and poaching continues in several females) and productivity (through loss Wildlife (Protection) Act, 1972 (Entry No. 11) updated by Wild Life areas (Phillott et al. 2018). of reproductive potential). Such impacts (Protection) Amendment Act, 2002 (No. Regular, nearly complete egg harvest are high because they directly remove caused the functional extinction of the 16 of 2003). India also bans the hunting the most productive individuals from and trade of wild animals (India once large nesting aggregation in the DPS, reducing current and future Malaysia (Chan and Liew 1996). In the National Report to CMS, 1991 and reproductive potential. Egg harvest 1994). However, the indigenous people early 1960s, the Terengganu, Malaysia reduces productivity only, but, as nesting beaches were leased to the of the Andaman and Nicobar Islands are previously demonstrated within this highest bidder, and nearly all exempt from these laws. India has DPS, can have devastating population- leatherback eggs were harvested. In the regulations to require TEDs and 1980s, the State Fisheries Department level impacts. We conclude that minimize fisheries interactions; and tried to buy back about 10 percent of the overutilization, as a result of egg and much of the Andaman and Nicobar harvested eggs to be incubated in a turtle harvest, poses a major threat to Islands are protected as wildlife hatchery (Siow and Moll 1982; Chan the NE Indian DPS. sanctuaries, including two marine national parks (Andrews et al. 2006). and Liew 1996; Stiles 2009). However, Disease or Predation such efforts could not prevent the In Indonesia, Order No. 301/1991 lists extirpation. Excessive egg harvest, both While we could not find any leatherback turtles as a protected legal and illegal, also caused declines in information on disease for this DPS, the species. Pursuant to the Act of 10 India, Sri Lanka, and Thailand (Ross best available data indicate that August 1990 on the Conservation of 1982). predation is a threat to the NE Indian Living Resources and Their Ecosystems, The harvest of turtles and eggs DPS. Multiple predators prey on eggs it is prohibited to kill, capture, possess, transport, trade in or export protected continues but has not been quantified and hatchlings at several nesting animals whether alive or dead, or parts (Nel 2012). In Sri Lanka, almost all eggs beaches (Andrews 2000). During a 2016 are taken from the beach and sold at of such animals. The taking, survey of the Nicobar Islands, markets or to hatcheries for ecotourism destruction, trade or possession of the (Kapurusinghe 2000, 2006; Rajakaruna approximately 57 percent (n = 1,223) of eggs or nests of protected animals are et al. 2013; Phillott et al. 2018). The leatherback nests were lost to also prohibited (ECOLEX 2003). There conservation benefit provided by depredation by feral dogs, water are no habitat protections and no hatcheries in Sri Lanka is debatable monitor lizards, or feral pigs (Sus regulations to minimize fisheries (Phillott et al. 2018) because they do not domesticus; Swaminathan et al. 2017). interactions or require TEDs in follow the hatchery practices In the South Bay of Great Nicobar Indonesia. established by the IUCN (Hewavisenthi Island, wild boars and dogs prey on In Sabah, Malaysia, the leatherback 1994; IUCN 2005; Namboothri et al. eggs, while fiddler crabs, dogs, and turtle is not listed as a totally protected 2012; Rajakaruna et al. 2013; Phillott et raptors prey on hatchlings (Sivakumar or partially protected species in the al. 2018). Egg harvest also continues in 2002). Sivasundar and Prasad (1996) Wildlife Conservation Enactment (No. 6 Thailand. Commercial egg harvest is documented that Asian water monitor of 1997). In Sarawak, Malaysia, illegal in the Andaman and Nicobar lizards took 68.6 percent of leatherback leatherback turtles have been fully Islands, and in the Andaman Islands, a nests in the Andaman Islands. In Sri protected since 1958. Under the ban on hunting and harvesting of turtles Lanka, egg predators include feral dogs, Wildlife Protection Ordinance 1998, all came into force in 1977. However, the water and land monitor lizards, jackals, marine turtles in Malaysia are protected original inhabitants of the Andaman and wild boars, mongooses, and ants. Egg from hunting, killing, capture, sale, Nicobar Islands are exempt from the predation by feral pigs is a major threat import, export, possession of any Indian Wildlife Protection Act (Shanker in Indonesia (Maturbongs et al. 1993; animal, recognizable part or derivative and Andrews 2004), and Namboothri et Maturbongs 1995, 1996; Sivasundar and or any nest, except in accordance with al. (2012) observed intense egg harvest Prasad 1996). the permission in writing of the at Delgarno, Trilby, and East Turtle Controller of Wildlife for scientific or Islands. In Myanmar, despite A large number of eggs and hatchlings educational purposes or for the regulations prohibiting the consumption are exposed to predation. Though protection or conservation of a species of turtle meat and eggs (Hamann et al. leatherback turtles produce a large (Tisen and Bali 2002). The nesting 2006), there is illegal trade of turtles number of eggs and hatchlings, beach at Rantau Abang, Terengganu is caught at sea, including leatherback published rates of predation (57 to 69 protected. However, the nesting turtles (Murugan 2007). In Sri Lanka, percent) are high. The predation of eggs aggregation that once used this beach the historically high direct take of and hatchlings mainly impacts has been extirpated. In 1994, the waters turtles at sea has been reduced productivity. We conclude that surrounding 38 offshore islands of (Kapurushinghe 2006). Records indicate predation poses a threat to the NE Peninsular Malaysia and Labuan that turtle meat and parts were once Indian DPS. became protected as marine parks. In

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addition, one national park in Sarawak, of the regulatory mechanisms is a threat unspecified fisheries from 1996 to 1999; three in Sabah, and one state park in to the NE Indian DPS. 92 percent were released alive (Ciccione Terengganu protect coastal and marine 2006). Fisheries Bycatch ecosystems (Malaysia National In Thailand, one of the main causes Biodiversity Policy 1998). Additional Fisheries bycatch is a threat to the NE of decline in the turtle population is habitat protections include: The Turtle Indian DPS. Capture in gillnet, trawl, bycatch in trawl, drift gillnet, and purse Trust Ordinance 1957; Land Code 1958; purse seine, and longline fisheries is a seine fisheries. The rapid expansion of Turtle Protection Rules 1962; Fisheries significant cause of leatherback fishing operations is largely responsible Prohibited Areas under section 61 of the mortality for this DPS (Wright and for the increase in adult turtle mortality Fisheries Act 1985; and the Wildlife Mohanty 2002; Hamann et al. 2006; due to bycatch (Settle 1995). Protection Ordinance 1998 (Tisen and Project GloBAL 2007; Bourjea et al. In Malaysia, the Fisheries Act of 1985 Bali 2002). The use of TEDs will be 2008; Abdulqader 2010; Wallace et al. prohibited capture of sea turtles by any required in Malaysia by 2020. 2010). type of fishery. However, this merely In Myanmar, the Burma Wildlife Gillnet fisheries pose a major threat to reduced the reporting of interactions Protection Act 1936 (Act No. VII of the DPS. A survey conducted at 16 main (Yeo et al. 2011 in Dutton et al. 2011). 1936) requires licenses to hunt, possess, fishing ports in Sri Lanka estimated that The 1991 Regulations prohibit fishing in sell, or buy wild animals with closed 431 leatherback turtles were caught in waters adjacent to Rantau Abang during gillnets between 1999 and 2000 hunting seasons (FAOLEX 2003). The the leatherback nesting season (Chan (Kapurusinghe and Cooray 2002). In Burma Wildlife Protection Rules of 1941 1993). Malaysia, Chan et al. (1988) reported an states that the import or export of any We conclude that juveniles and adults average of 742 and 422 sea turtles, most are exposed to high fishing effort reptile (including parts or products) into of which were leatherback turtles, throughout their foraging range and in or from Myanmar is prohibited. caught in drift gillnets and bottom coastal waters near nesting beaches. In Pakistan, the leatherback turtle is longlines, respectively. In Bangladesh, Mortality rates are likely high, protected in Baluchistan, Azad Kashmir gillnets, set bag nets, trawl nets, seine especially in areas where turtle meat is and Sind (Baluchistan Wildlife nets, hook and line and other net types consumed. Mortality reduces Protection Act 1974 No.19/1974; The of gear capture turtles (Hossain and Hoq abundance, by removing individuals Azad Jammu and Kashmir Wildlife Act 2010). Gillnet and purse seine fisheries from the population. It also reduces 1975 No.23/1975; The Sindh Wildlife are common off the coasts of the productivity, when nesting females are Protection Ordinance 1972 No.5/1972). Andaman and Nicobar Islands, where incidentally captured and killed. We Possession, transport, and/or national the largest nesting aggregations occur conclude that fisheries bycatch is a trade are prohibited or regulated (Shanker and Pilcher 2003; Chandi et al. major threat to the NE Indian DPS. (ECOLEX 2003). 2012). In Sri Lanka, the leatherback turtle is Trawl fisheries also pose a large threat Pollution protected under the Fauna and Flora to the DPS. In India, TEDs are required Pollution includes contaminants, Protection Ordinance (Sri Lanka for trawl nets. However, fishers are marine debris, and ghost fishing gear. National Report to CMS 1994), which reluctant to use them (Murugan 2007). Ghost fishing gear can drift in the ocean makes it an offense to kill, wound, harm Trawl fishing is also common in and fish unattended for decades and kill or take a turtle, or to use a noose, net, Bangladesh, and the use of TEDs is not numerous individuals (Wilcox et al. trap, explosive or any other device for required (Ahmed et al. 2006). 2013). The main sources of ghost fishing those purposes, to keep in possession a Longline fisheries occur in coastal gear are gillnet, purse seine, and trawl turtle (dead or alive) or any part of a and pelagic waters. Huang and Liu fisheries (Stelfox et al. 2016). In one turtle, to sell or expose for sale a turtle (2010) evaluated observer data from 77 collection event, volunteers collected or part of a turtle, or to destroy or take trips (4,409 sets) on Taiwanese large- over 600 nets, ropes, and buoys from turtle eggs. The minister of Fisheries scale longline fishing vessels in the India, Maldives, Oman, Pakistan, Sri and Aquatic Resources may also Indian Ocean. They identified 84 Lanka, and Thailand (Stelfox et al. prohibit or regulate the import and leatherback turtles captured from 2004 2016). Though educational programs export of turtles or their derivatives to 2008, with 48 mortalities (57 percent; created in 2014 focus on reusing and (Parliament of the Democratic Socialist Huang and Liu 2010). Extrapolating to recycling fishing gear, the threat Republic of Sri Lanka 1993). The the entire Taiwanese longline fishery in continues throughout the range of the nesting beach in Yala Reserve is also the Indian Ocean, they estimated an DPS. Ghost nets in the Maldives protected. average bycatch of 173 leatherback primarily drift from fisheries in the Bay In Thailand, the Leatherback Turtle is turtles between 2004 and 2007. This of Bengal (e.g., Sri Lanka and India; protected under the Animals Protection number likely includes individuals from Stelfox et al. 2016). Around the Act B.D 2535 (The Zoological Park both the SW and NE Indian DPSs (Louro Andaman and Nicobar Islands and Sri Organization 2003). 2006). In Vietnam, longline fisheries Lanka, plastics and other garbage are In summary, numerous regulatory continue to capture leatherback turtles. washed from polluted beaches and mechanisms protect leatherback turtles, However, a circle hook program has inland waters to the sea, where they can their eggs, and nesting habitat been implemented to minimize the kill or harm sea turtles through throughout the range of this DPS. impact (WWF 2013). ingestion or entanglement Although these regulatory mechanisms Purse seine fisheries have a much (Kapurusinghe 2006; Das et al. 2016). provide some protection, many do not lower impact than longline fisheries Pollution has been identified as a main adequately reduce the threat that they (Angel et al. 2014); two leatherback threat to sea turtles in Iran (Mobaraki were designed to address, generally as a turtles were captured (alive) between 2007) and Pakistan (Firdous 2001). result of limited implementation or 1995 and 2010 in the Indian Ocean However, no specific information about enforcement. As a result, bycatch, (Clermont et al. 2012). In the EEZ of all the type of pollution was provided. In nesting habitat protection, and legal and Indian Ocean French Territories (mostly Gujarat, India, increased port and illegal harvest remain threats to the from the Mozambique Channel), 40 shipping traffic have resulted in oil DPS. We conclude that the inadequacy leatherback turtles were captured in spills and the release of other

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pollutants, such as fertilizers and Environmental Team, The Centre for factors, we find the DPS to be at risk of cement (Sunderraj et al. 2006). Heavy Herpetology/Madras Crocodile Bank extinction as a result of past threats. metals and E. coli were found at Trust, Convention on the Conservation Current threats further contribute to relatively high levels in the waters of of Migratory Species of Wild Animals, the risk of extinction of this DPS. Major Malaysia (including Terengganu) and in Convention on Biological Diversity, threats to the DPS include fisheries the pancreases and livers of leatherback Convention on International Trade in bycatch and the harvest of turtles and turtles (Caurant et al. 1999; Ngah et al. Endangered Species of Wild Fauna and eggs. There are not many nests to 2012). It is not known how these Flora, Convention Concerning the exploit, but evidence suggests that if pollutants affect leatherback physiology Protection of the World Cultural and such nests are found by humans, the (Jakimska et al. 2011). Natural Heritage (World Heritage eggs are at risk of being harvested. Egg As with all leatherback turtles, Convention), FAO Technical harvest led to the extirpation of the entanglement in and ingestion of marine Consultation on Sea Turtle-Fishery largest nesting aggregation (i.e., debris and plastics are threats that likely Interactions, The Indian Ocean Tuna Malaysia), and current overexploitation kill several individuals a year. However, Commission, Indian Ocean—South-East occurs in Thailand, Vietnam, and Sri data specific to this DPS were not Asian Marine Turtle Memorandum of Lanka. The poaching of turtles is also a available. We conclude that pollution is Understanding, MARPOL, IUCN, threat in Myanmar. Fisheries bycatch is a threat to the NE Indian DPS, albeit Memorandum of Agreement between a major threat, with turtles being with effects that are unquantifiable on the Government of the Republic of the captured in trawl and gillnet fisheries in the basis of the best available Philippines and the Government of Malaysia, India, Thailand, Sri Lanka, information. Malaysia on the Establishment of the Bangladesh, and Indonesia. Erosion on the Andaman and Nicobar Islands, as a Climate Change Turtle Island Heritage Protected Area, Memorandum of Understanding on result of tsunami damage, has Climate change is a threat to the NE Association of South East Asian Nations significantly reduced available nesting Indian DPS. A significant rise in sea Sea Turtle Conservation and Protection, habitat. Additional habitat level would further reduce nesting The Memorandum of Understanding of modifications include coastal habitat, which is already affected by a Tri-National Partnership between the development and artificial lighting, as a erosion. The DPS is also likely to be Government of the Republic of result of increases in tourism. Pollution affected by increases in sand Indonesia, the Independent State of and climate change are threats that temperatures (Hawkes et al. 2009; Papua New Guinea and the Government likely affect the DPS by reducing Poloczanska et al. 2009). Sand of Solomon Islands, National Sea Turtle abundance and productivity, though the temperatures prevailing during the Conservation Project in India, Ramsar best available data do not allow for middle third of the incubation period Convention on Wetlands, UNCLOS, and quantification of those effects. Though determine the sex of hatchling sea UN Resolution 44/225 on Large-Scale many regulatory mechanisms are in turtles (Mrosovsky and Yntema 1980). Pelagic Driftnet Fishing. Although place, they do not reduce the impact of Incubation temperatures near the upper numerous conservation efforts apply to threats to levels that ensure the end of the tolerable range produce only the turtles of this DPS, they do not continued existence of the DPS. We conclude, consistent with the female hatchlings, while incubation adequately reduce its risk of extinction. temperatures near the lower end of the team’s findings, that the NE Indian DPS tolerable range produce only males. As Extinction Risk Analysis is currently in danger of extinction. Its temperatures increase, incubation low nesting female abundance makes temperatures may exceed the thermal After reviewing the best available the DPS highly vulnerable to threats. tolerance for embryonic development, information, the Team concluded that Dramatic declines in over the past thus increasing embryo and hatchling the NE Indian DPS is at high risk of several decades contribute to our mortality. extinction. The once large nesting concern over the continued persistence In addition, the frequency and aggregation in Malaysia is now of the DPS. Past egg and turtle harvest intensity of severe storm events and functionally extirpated. The total index initially reduced the nesting female cyclones in the Bay of Bengal are of nesting female abundance is 109 abundance of this DPS and likely predicted to increase with climate females at all monitored beaches. This confined its nesting habitat to a few change (Balaguru et al. 2014). estimate is likely low because several island beaches, with little diversity and Climate change is likely to modify nesting sites were not included in the reduced spatial distribution. The nesting conditions for the entire DPS. calculation due to lack of consistent, present, ongoing threats include: Impacts likely range from small changes standardized monitoring over multiple overutilization (i.e., turtle and egg in nesting metrics to large losses of and entire nesting seasons. Still, the low harvest); fisheries bycatch; loss of productivity. As the DPS is already nesting female abundance places this habitat; and predation. Overutilization experiencing nesting habitat loss due to DPS at risk of stochastic or catastrophic and fisheries bycatch reduces coastal erosion, we conclude that events that increase its extinction risk. abundance and productivity (i.e., climate change is a threat to the NE The DPS once exhibited much greater imminent and substantial demographic Indian DPS. nesting female abundance, which has risks) by removing mature and dramatically declined in recent decades. immature individuals from the Conservation Efforts It currently exhibits a slightly declining population at rates exceeding There are numerous efforts to nest trend at monitored nesting beaches replacement. The loss of nesting habitat conserve the leatherback turtle. The in India. The DPS exhibits average and predation (of eggs) reduces following conservation efforts apply to productivity metrics, such as body size, productivity and the DPS’s ability to the NE Indian DPS (for a description of clutch size and frequency. Though it recover to its previous abundance. each effort, please see the section on exhibits some spatial distribution and Though numerous conservation efforts conservation efforts for the overall diversity, with multiple foraging sites apply to this DPS, they do not species): Association of Southeast Asian and relatively high genetic diversity at adequately reduce the risk of extinction. Nations Ministers on Agriculture and the sampled locations, nesting only We conclude that the NE Indian DPS is Forestry, Andaman and Nicobar Island occurs on islands. Based on these in danger of extinction throughout its

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range and therefore meets the definition Fiji, Vanuatu, Australia, New Caledonia, Solomon, and Coral Seas, towards of an endangered species. The New Zealand, Line Islands, and Kiribati Southern Hemisphere temperate and threatened species definition does not (Harrison et al. 2018). Foraging occurs tropical foraging areas in the Tasman apply because the DPS is at risk of in seven ecoregions: South China/Sulu Sea, East Australian Current, and extinction currently (i.e., at present), and Sulawesi Seas, Indonesian Seas, western South Pacific Ocean (Benson et rather than on a trajectory to become so East Australian Current Extension, al. 2011; Harrison et al. 2018; Jino et al. within the foreseeable future. Tasman Front, Kuroshio Extension of 2018). Genetic analyses of leatherback the Central North Pacific, equatorial turtles caught in fisheries off Peru and West Pacific DPS Eastern Pacific, and California Current Chile indicates that approximately 15 The Team defined the West Pacific Extension (Benson et al. 2011). percent of sampled individuals originate DPS as leatherback turtles originating Individuals demonstrate fidelity to these from the West Pacific DPS, likely winter from the West Pacific Ocean, south of foraging areas, likely as a result of their nesting females that have migrated 71° N, north of 47° S, east of 120° E, and post-hatchling dispersal patterns and across the Southern Hemisphere to the west of 117.124° W. The northern and nesting season (Benson et al. 2011; productive waters off South America southern boundaries reflect the highest Gaspar et al. 2012; Gaspar and Lalire (Donoso and Dutton 2010; NMFS latitude occurrences of leatherback 2017; Harrison et al. 2018). unpublished data 2018). It is unclear turtles in each hemisphere (Goff and Leatherback turtles of the West Pacific what proportion of the West Pacific DPS Lien 1988; Carriol and Vader 2002; DPS nest in tropical and subtropical might utilize this area and how McMahon and Hayes 2006; Shillinger et latitudes primarily in Indonesia, Papua important it might be to this DPS. al. 2008; Benson et al. 2011; Eckert et New Guinea, and Solomon Islands, and Leatherback turtles migrate through al. 2012). We placed the western a lesser extent in Vanuatu (Dutton et al. and forage in the waters of the boundary at 120° E to approximate the 2007; Benson et al. 2007a; Benson et al. Philippines (Benson et al. 2007a, 2011; Wallace and Huxley lines, which are 2007b; Benson et al. 2011). The majority MRF 2010, 2014). In 2005, Salinas et al. established biogeographic barriers to of nesting occurs along the north coast (2009) found a female in San Fernando gene flow between Indian and Pacific of the Bird’s Head Peninsula, Papua (close to El Nido) that had been Ocean populations of numerous species. Barat, Indonesia at Jamursba-Medi and previously tagged at Jamursba-Medi in While the genetic differences between Wermon Beaches (Dutton et al. 2007). A July 2003. The Marine Research the Northeast Indian and West Pacific recent discovery of a previously Foundation (MRF) utilized aerial DPSs demonstrate discreteness, genetic undocumented nesting area on Buru transects to assess leatherback foraging sampling is unavailable from areas Island, Maluku Province, Indonesia area use in Palawan waters and off the where the nesting ranges of the DPSs (WWF 2018) suggests that additional coast of Borneo (MRF 2010, 2014). They likely meet, preventing us from defining undocumented nesting habitats may found leatherback turtles (n = 28 in the boundary more specifically. We exist on other remote or infrequently 2010 and 2013/2014) foraging in placed the eastern boundary at the surveyed islands of the western Pacific nearshore waters around the NE and SE border between the United States and Ocean. This DPS nests year round, and coasts of Palawan, potentially linked to Mexico to reflect the DPS’s wide exhibits a bimodal nesting strategy large jellyfish aggregations from foraging range throughout the Pacific whereby a proportion of females nest February to May, and overlapping with Ocean. We chose this border because during November through February (i.e., high density fishing activity in Taytay the West Pacific DPS crosses the ocean ‘‘winter’’ nesting females) and other Bay, off NE Palawan (MRF 2010, 2014). to forage in the eastern Pacific Ocean, females nest May through September Additionally, numerous leatherback including in waters of the United States, (i.e., ‘‘summer’’ nesting females; Benson turtle marine sightings, strandings, and whereas the East Pacific DPS forages et al. 2007a; Benson et al. 2007b; Dutton fishery bycatch (typically entangled in primarily off the coasts of Central and et al. 2007; Tapilatu and Tiwari 2007; gillnet gear) exist for locations South America. The two DPSs overlap Benson et al. 2011). throughout the Philippines including in foraging habitats off waters of Chile Nesting beach habitats throughout the Marine Wildlife Watch of the local and Peru (Donoso and Dutton 2010). West Pacific are generally dynamic, NGO, Marine Wildlife Watch of the The range of the DPS (i.e., all areas of high profile beaches associated with Philippines, from 2010 to 2018 occurrence) extends throughout the deep water approaches and strong (Bagarinao 2011; Cruz 2006; MRF 2010; Pacific Ocean with specific coastal and waves. Beaches can be quite narrow as MWWP unpublished data 2018). pelagic areas in the Indo-Pacific basin in parts of the Solomon Islands or Papua providing important foraging and New Guinea, or broad as in the case of Abundance migratory habitats. Documented nesting Jamursba-Medi, Indonesia during the The total index of nesting female occurs on beaches of the following summer months. Nesting females appear abundance of the West Pacific DPS is nations: Indonesia, Papua New Guinea, to prefer coarse-grained sand free of 1,277 females. We based this total index Solomon Islands, and Vanuatu. rocks, coral, or other abrasive substrates on two nesting aggregations in Leatherback turtles of the West Pacific (reviewed by Eckert et al. 2012). Jamursba-Medi and Wermon, Indonesia DPS migrate through the EEZs of at least While West Pacific leatherback turtles (Tapilatu et al. 2013; Tiwari et al. in 32 nations including in the U.S. EEZs of do not have distinct ‘‘migratory prep). Our total index does not include California and Hawaii, spending corridors,’’ several areas are considered 18 unquantified nesting aggregations in between 45 and 78 percent of the year ‘‘areas of passage’’ used by turtles Indonesia, Papua New Guinea, Solomon on the high seas (Harrison et al. 2018). traveling between nesting and foraging Islands, and Vanuatu. To calculate the Of the 32 nations, the West Pacific DPS locations, and there is clear separation index of nesting female abundance (723 migrates through at least 18 nations or of migratory and foraging destinations females) for Jamursba-Medi (i.e., a 18 territories of the western and based on nesting season (Benson et al. km stretch of beach that has been southwestern Pacific Ocean: Indonesia, 2007a, b; Benson et al. 2011; Harrison et monitored since 1981), we divided the Papua New Guinea, Solomon Islands, al. 2018). Post-nesting, winter nesting total number of nests between the 2015/ Philippines, Malaysia, Vietnam, Japan, females from Papua New Guinea, 2016 and 2017/2018 nesting seasons Palau, Micronesia, Marshall Islands, Indonesia, and Solomon Islands migrate (i.e., a 3-year remigration interval) by Northern Mariana Islands and Guam, through the Halmahera, Bismarck, the clutch frequency (5.5 clutches per

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season; Tapilatu et al. 2013). We estimates of abundance in this DPS initiated on three north coast beaches of performed a similar analysis for data carry substantial uncertainty. Buru Island (totaling 10 km) which from Wermon (index = 554 females), a In Indonesia, aerial surveys provided documented 203 nests, and preliminary 6 km beach that has been monitored the first indication of leatherback data indicates that there might be two since 2002. nesting in Papua (i.e., Irian Jaya; Salm nesting peaks: May through July and Based on the Tapilatu et al. (2013) 1982). At that time, Salm (1982) did not November through February (WWF study, the IUCN Red List assessment provide location details out of concern 2018). Nesting activity in other areas of estimated the total number of mature that public disclosure prior to Indonesia are known or suspected, but individuals (including females and protection would be detrimental. unquantified (Dutton et al. 2007; males) utilizing Jamursba-Medi and Follow-up studies during the 1980s and Tapilatu 2017). Wermon beaches to be 1,438 leatherback 1990s indicated that a large nesting In Papua New Guinea, the majority of turtles (Tiwari et al. 2013). The IUCN population was located along the coastal known nesting activity occurs during estimate includes males and thus is beaches of northern Papua or Papua the winter months (November to higher than ours. Curtis et al. (2015) Barat, Bird’s Head Peninsula (Bhaskar February) along the Huon Coast on the provided a minimum annual nesting 1985). Systematic monitoring of northeastern coast of the Morobe female estimate of 318 females (or 954 leatherback turtles began during the Province, where 576 females were total nesting female abundance over a 3- early 1990s, primarily in the form of tagged between 1999 and 2013 (Pilcher year remigration interval). Dutton et al. annual nest counts (Hitipeuw et al. 2006, 2008, 2009, 2010, 2011, 2012, 2013; Pilcher and Chaloupka 2013). (2007) estimated that 1,113 females may 2007). On the Bird’s Head Peninsula of have nested annually, or conservatively Aerial surveys along the Huon Coast in Papua Barat, nesting occurs mainly at 2,700 total nesting females, in the entire January and December between 2004 Jamursba-Medi and Wermon, where a western Pacific population. At that time, and 2006 documented 276 nests, with total of 1,371 nesting females were they estimated 75 percent of the an estimate of 500 nests per season tagged between 2002 and 2011 (Tapilatu population originated from Bird’s Head (Benson et al. 2007b; Dutton et al. 2007). et al. 2013). The primary nesting season Peninsula (or approximately 2,025 During the Huon Coast Leatherback at Jamursba-Medi occurs during the females; Dutton et al. 2007). Our total Turtle Project, which took place summer (May to September), while index is within the range of published between 2005 and 2012, an average of nesting occurs year round at Wermon estimates of abundance for this DPS, 258 nests were laid per season (range: with a small peak in July and primary taking into account differences in 193 to 527) at seven beaches which survey methods over time, and is based nesting activity during the winter, comprised approximately 35 km of on the best available data for the DPS at between November and February nesting habitat along the Huon Coast this time. (Hitipeuw et al. 2007). Historically, (Pilcher 2013; WPRFMC 2015). One Within the nesting range of this DPS, approximately 60 percent of nesting challenge in estimating nesting activity nest monitoring activities have occurred activity occurs at Jamursba-Medi with in Papua New Guinea is that leatherback relatively recently, with standardized 40 percent of activity at Wermon site fidelity appears to be variable, with methods in Papua Barat first (Tapilatu et al. 2013). While a few some satellite tagged animals seen implemented in 2002 (Hitipeuw et al. females have been documented nesting visiting a number of areas during one 2007; Tapilatu et al. 2013). Outside the at both beaches during a nesting season nesting season (Benson et al. 2007b). Bird’s Head Peninsula, monitoring has (Tapilatu et al. 2013), the vast majority For example, a number of Huon Coast been sporadic, opportunistic, and of females do not appear to utilize both nesting females visited other nearby spatially limited because the region is Jamursba-Medi and Wermon Beaches beaches and east-facing beaches of the vast, remote, and logistically during a single nesting season (Tapilatu Huon Peninsula, including Bougainville challenging to access. Often nesting and Tiwari 2007; Tapilatu et al. 2013; and Woodlark Islands during a single beaches are located far from towns or Lontoh 2014). Based on nest counts and nesting season (Benson et al. 2007b). cities, where there are no roads to, or clutch frequency per season (mean = 5.5 Therefore, for assessment purposes, we ¥ electricity in, adjacent villages. Cultural +/ 1.6 nests per female), consider the Huon Coast to be one and socio-economic dynamics confound approximately 464 to 612 females nesting beach complex. monitoring programs, which are nested at Jamursba-Medi and Wermon Additional nesting activity occurs in dependent upon fiscal sponsorship, in 2011 (Tapilatu et al. 2013). other areas of Papua New Guinea, such incentives, community buy-in, and the Additional low-level nesting activity in as along the north coast of the Madang degree of familiarity of local Indonesia occurs in the Manokawari Province and on several islands communities with concepts of region of the Bird’s Head Peninsula to including Manus, Long, New Britain, sustainability or conservation (Kinch the east of the Jamursba-Medi and Bougainville, New Ireland, and 2006; Gjersten and Pakiding 2012). Wermon Beaches (Suganuma et al. Normanby (Prichard 1982; Spring 1982; While Jamursba-Medi and Wermon 2012). Between 2008 and 2011, 84 to Benson et al. 2007b; Dutton et al. 2007). beaches have been monitored fairly 135 nests were recorded, or a mean of In these areas nesting activity has not consistently over time, less is known about 117 nests annually (Suganuma et been quantified via standardized or about the status and trends of nesting al. 2012). However, survey effort was consistent methods, but information has beaches in Papua New Guinea, Solomon limited and not consistent across years been obtained via community surveys, Islands, and Vanuatu. Records are and may underestimate total nesting aerial surveys, or rapid assessments. further confounded by changes in place activity. Further it is unknown whether Nesting occurs primarily in the winter names and jurisdictional boundaries interchange occurs between turtles months, although low-level year-round over recent decades (e.g. the Indonesian nesting in the Manokawari region and nesting may also occur (Spring 1982; province formerly known as Irian Jaya is those of the Bird’s Head Peninsula Dutton et al. 2007). Approximately 50 currently two provinces of Papua and index beaches. In 2016, nesting activity nests may be laid annually along the Papua Barat). Village names or location was identified in Central Maluku at north coast of the Madang Province descriptions have also changed over Buru Island, west of Bird’s Head (Benson et al. 2007b; TIRN 2017). The time, and geographic coordinates were Peninsula. In 2017, a monitoring Islands of New Britain and Bougainville not recorded historically. Therefore, all program to quantify nesting activity was may host approximately 140 to 160

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nests per year, respectively (Benson et 2010b). At Rendova Island during the Watch of the Philippines). On July 15, al. 2007b; Dutton et al. 2007; Kinch et 2003/2004 winter nesting season, 235 2013, at Barangay Yawah, Legazpi City, al. 2009). On Bougainville Island, aerial leatherback turtle nests were recorded, Albay, NAVFORSOL (the Philippines surveys conducted during the 2005 and and during the 2009/2010 season, 79 Naval facility) personnel observed a 2007 nesting seasons documented a nests were laid (Pilcher 2010b; Goby et leatherback nesting, but the eggs failed mean of 68 nests (range: 41 to 107 nests) al. 2010). Likely the most to hatch. On August 6, 2013 at Camp or an extrapolated estimate of 160 to 415 comprehensive surveys occurred from Picardo beach, Barangay, Eastern Samar, nests per year (Dutton et al. 2007; September 1, 2012 to April 30, 2013 (91 a nesting event was aborted due to Benson et al. 2007b). In 2009, a one patrols, 3 days per week), which disturbance on the beach, but according week full-island ground survey documented a total of 74 nests (TDA to the social media report (i.e., a (conducted by boat and foot) recorded 2013). During the 2017/2018 winter Facebook post), the female was tagged 46 leatherback nests (Kinch et al. 2009). nesting season, 29 nests were and led back to sea (MWWP In the Solomon Islands nesting documented (Solomon Islands unpublished 2018). Given the low-site activity is distributed throughout the Community Conservation Partnership fidelity of the turtles in this DPS country with the majority of nesting 2018 unpublished data). The (Benson et al. 2007b), it is not surprising activity at Sasakolo and Litogarhira community on Vangunu Island that leatherbacks might distribute nests beaches on Isabel Island, and on documented a total of 23 nests and 11 among various areas throughout the Rendova and Tetepare Islands in the females between June 2011 and July region. The total index of nesting female Western Province (Pita 2005; Dutton et 2014 (Jino et al. 2018). Nesting occurred abundance of the West Pacific DPS (i.e., al. 2007; Benson et al. 2018a). The during two distinct seasons from May to 1,277 females) places it at risk for nesting season occurs primarily during July and from November to January, and environmental variation, genetic winter (November through February), of the females tagged, one nested complications, demographic although some year-round nesting has successfully six times and another stochasticity, negative ecological been documented (Pilcher 2010b; nested five times (Jino et al. 2018). The feedback, and catastrophes (McElhany Williams et al. 2014; Jino et al. 2018; other nine turtles were only observed et al. 2000; NMFS 2017). These TNC-Solomon Islands 2018 nesting once or twice, and it is likely processes, working alone or in concert, unpublished). Leatherback turtle that either some nesting events were not recorded or the females nested on place small populations at a greater monitoring was begun by the Solomon extinction risk than large populations, Island Department of Fisheries in 1989 surrounding unmonitored beaches (Jino et al. 2018). On Malaita Island at which are better able to absorb impacts (Pita 2005). Between 1999 and 2006, an to habitat or losses in individuals. Due estimated 640 to 700 nests were laid Waisurione beach, nesting activity occurs during the summer (June to to its small size, the DPS has restricted annually in the Solomon Islands, capacity to buffer such losses. Given the representing approximately eight August), but only a few females were determined to use the area, with five intrinsic problems of small population percent of the total western Pacific size, we conclude that the nesting leatherback nesting at that time (Dutton and seven nests documented in 2014 and 2015, respectively (Williams et al. female abundance is a major factor in et al. 2007). At Sasokolo Beach, Isabel the extinction risk of this DPS. Island, during a 54 day monitoring 2014). period between November 28, 2000 and Nesting occurs in low numbers at Productivity January 21, 2001, 132 nests were other islands in the western Pacific The West Pacific DPS exhibits a documented with an additional 35 nests Ocean. In Vanuatu, 30 to 40 nests are declining nesting trend. We conducted present when monitoring began laid annually on Epi and Ambrym trend analyses for the two index beaches (Ramohia et al. 2001). Between Islands (Dutton et al. 2007; Petro et al. in Indonesia, which were the only two December 27, 2006 and January 2, 2007, 2007; WSB 2011), although fewer nests beaches with 9 or more recent years of aerial surveys provided seasonal (n = 15) were documented during the standardized data, with the most recent estimates of 207 nests laid on Isabel 2014/2015 nesting season (WSB 2016). data collection in 2014 or more recently Island, and an additional 312 nests on Leatherback turtles have been reported (the standards for conducting a trend other islands (Benson et al. 2018a). A in Fiji (Rupeni et al. 2002; NMFS and analysis in this report). The median January 2011 site visit resulted in 315 USFWS 2013; Jino et al. 2018), but these trend in annual nest counts estimated nests identified at Sasakolo and accounts involved foraging or in-water for Jamursba-Medi (data collected from Litogahira (Tiwari 2011 unpublished). capture of animals, and it is unclear if 2001 to 2017) was ¥5.7 percent Recently, nesting activity has also been historic reports included nesting annually (sd = 5.4 percent; 95 percent documented at the southeastern side of activity (Guinea 1993; Benson et al. CI = ¥16.2 to 5.3 percent; f = 0.867; Isabel, where approximately 52 females 2013). Historical nesting records also mean annual nests = 2,063). While data may nest annually (TNC-Solomons 2018 exist for the eastern coast of are available for the period starting in unpublished). Since 2002, the Tetepare Queensland, in New South Wales, and 1999, the best available information Descendants’ Association (TDA) has in the Northern Territories from indicates that beach monitoring and monitored nesting activity December to February (Dobbs 2002; nest protection practices improved in opportunistically in the Solomon Limpus 2009). However, current 2001; therefore, we used the time series Islands, where approximately 30 to 50 information was not available at the starting in 2001. For Wermon (data leatherback nests are laid seasonally on time of the study, and no nests have collected from 2006 to 2017, excluding two beaches (Goby et al. 2010). Between been observed since 1995 despite 2002–2005 and 2013–2015 due to low or July 1, 2012 and April 30, 2013, TDA regular monitoring (Flint et al. 2012). insufficient effort), the median trend undertook 257 beach surveys and found Since the 1980s, there have also been was ¥2.3 percent annually (sd = 8.4 44 leatherback nests (TDA 2013). While reports of leatherback turtles nesting in percent; 95 percent CI = ¥19.8 to 14.9 monitoring efforts may be ongoing, data the Philippines (Cruz 2006; MRF 2010). percent; f = 0.643; mean annual nests = management and analysis remains a key Of recent reports, two documented cases 1,010). As Jamursba-Medi and Wermon challenge for these isolated have been confirmed by sea turtle currently represent approximately 75 communities (TDA 2013; Pilcher experts (i.e., staff of the Marine Wildlife percent of nesting for this DPS, we

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consider these declining trends to be Tapilatu et al. (2013) found a significant specifically or the Huon Coast at large. representative of the entire DPS. decline in nesting at Wermon from Hirth et al. (1993) undertook the most Our trend data for Indonesia yield 2,994 nests in 2002 to 1,096 nests in standardized survey at that time and similar results to other published 2011 (62.8 percent total or 11.6 percent recorded 76 nests and 34 females findings. The IUCN Red List assessment annual rate of decline). Unfortunately, nesting at ‘‘Piguwa’’ (i.e., Maus Buang) found a decreasing trend of ¥7 percent no monitoring activities occurred at on 725 meters of beach during a 15-day annually (Tiwari et al. 2013). Tapilatu et Wermon between 2013 and 2015 due to period in December 1989. During the al. (2013) identified a ¥5.5 percent community discord, which prevented Huon Coast leatherback turtle nesting annual rate of decline at Jamursba-Medi beach access. Between 2006 and 2017, beach program, an average of 35 and 114 between 1984 and 2011 and a ¥11.6 nesting has continued to decline at nests were laid annually during the 4- percent annual rate of decline at approximately 2.3 percent (Tiwari et al. month nesting season in this similar Wermon between 2002 and 2011. in prep). However, there may have been area at Labu Tale and Busama beaches, Between 1986 and 2010, Benson et al. a slight increase in recent nesting, respectively (Pilcher 2013; WPRFMC (2013) highlighted drastic declines in similar to Jamursba-Medi (Tiwari et al. 2015). Kamiali Beach lies approximately the annual number of nests at Jamursba- in prep). 30 km south of the city of Lae. In 1996, Medi and Wermon. Additionally, a 27- Local residents stated that leatherback the Kamiali Wildlife Management Area year aerial survey study indicates a turtles were the dominant sea turtle was declared a protected area for decline in the number of leatherback species nesting in Maokawari prior to leatherback turtles, and the harvest of turtles foraging off central California the 1980s, but that the population has nests was prohibited along 2 km of (Benson et al. 2018b). From 1995 to declined significantly since the 1990s beach. In 1999, village rangers began 2003, an estimated 12 to 379 individuals due to village development and opportunistic tagging of nesting females (mean = 178) foraged in this area exploitation of turtles and eggs (Tapilatu at Kamiali. A community-based nesting (Benson et al. 2007), while from 2004 to et al. 2017). beach monitoring program was 2017, an estimated 23 to 112 individuals Data collection in Papua New Guinea established in 2003, which soon grew foraged in this area, representing a spanned 8 years and ended prior to into the Huon Coast Leatherback Turtle decline of 5.6 percent annually (Benson 2014. Because these data did not meet Conservation Program (Benson et al. et al. 2018b). our criteria for ‘‘recent,’’ we did not 2007b; Pilcher and Chaloupka 2013; At Jamursba-Medi, nesting data have perform a trend analysis, but included Kinch 2006). By 2005, monitoring been collected for some years since a bar graph in the Status Review Report. activities expanded from Kamiali Beach 1981. However, no data were collected In Papua New Guinea, nesting activity (approximately 7 km) to seven beaches during many years in the mid-1980s and along the Huon Coast was relatively encompassing approximately 35 km of late 1990s (Tapilatu et al. 2013). There stable between 2005 and 2013, with 193 nesting beaches, which included an is considerable uncertainty in the early to 527 nests per year (mean annual nests agreement by participating villages to no estimates, with over 4,000 nests = 258) and with most nesting activity longer harvest eggs (Kinch 2006; Pilcher estimated in 1981, 14,522 nests in 1984, occurring at two primary areas, Busama 2013). Of these seven beaches, Kamiali and a dramatic drop to 3,261 nests in and Kamiali (Pilcher 2013; Benson et al. was the nesting beach with the longest 1985 (Tapilatu et al. 2013). It is unclear 2015; WPRFMC 2015). Given the running, most consistent monitoring if there was sampling inconsistency exchange of females and evidence of within the Huon Coast nesting beach between years or if there was an actual multiple beach use among females in complex. At Kamiali, 194 females were decline in nesting activity. However, if Papua New Guinea (Benson et al. tagged between 1999 and 2012, and an analyses are based on the 1984 data, 2007b), we consider the Huon Coast to average of 77 nests laid per winter during which the greatest number of be one nesting area and not individual nests was recorded, there was a 78.3 nesting beaches. Though there have nesting season between 2005/2006 and percent decline over the past 27 years been several independent studies of 2012/2013 (Pilcher 2010, 2011, 2012, (1984 to 2011), or 5.5 percent annual abundance over time, we determined 2013; Pilcher and Chaloupka 2013). rate of decline (Tapilatu et al. 2013). that these data are inadequate to While we are unable to interpret an Alternatively, if analysis is based on incorporate into a trend analysis overall trend from these studies, 2005 to 2011 when the Tapilatu et al. because these data do not meet our anecdotal reports from villagers and (2013) study ensued, nesting activity criteria (i.e., nest count data consistently historic information indicates that declined 29 percent from 2,626 nests (in collected in a standardized approach for leatherback nesting activity was 2005) to 1,596 nests (in 2011; Tapilatu at least 9 years). For historical significantly greater in past decades et al. 2013). Since the Tapilatu et al. perspective, leatherback turtle nesting (Benson et al. 2007b, 2015; Hirth et al. (2013) study, University of Papua along the Huon Coast was first 1993; Kinch 2006; Bellagio Sea Turtle scientists have continued to engage with identified south of the city of Lae near Conservation Initiative 2008). local communities to monitor nesting the Buang River, at an area likely In the Solomon Islands, it is not activity. The overall nesting trend has between Labu Tale and Busama villages possible to estimate nesting trends due continued to decline by 5.6 percent per (i.e., Maus Buang or Buang-Buassi; to non-standardized methods and year between 2003 and 2017. However, Bedding and Lockhart 1989; Quinn and opportunistic monitoring efforts over there appears to be an increase in Kojis 1985; Hirth et al. 1993). Estimates time. Available datasets cannot be nesting since 2013 (Tiwari et al. in of leatherback turtle nesting at Maus compared due to differences in prep). Buang during the 1980s ranged from methodology and do not meet our The first comprehensive surveys at five to 10 turtles per night from criteria (i.e., nest count data consistently Wermon beach in 2002 found almost as November to January (Quinn and Kojis collected in a standardized approach for many nests laid on Wermon as on 1985) or 300 nests laid annually at least 9 years). Historically, nesting Jamursba-Medi (Hitipeuw et al. 2007). (Bedding and Lockhart 1989). Quinn was reported at more than 15 beaches in At that time, it was hypothesized that and Kojis (1985) estimated that 300 to the Solomon Islands, which may have the decline at Jamursba-Medi may have 500 females may nest annually in Papua totaled several hundred nests per season been offset by an increase at Wermon New Guinea, although it is unclear if (McKeown 1977; Vaughan 1981). (Hitipeuw et al. 2007). However, estimates were for the Maus Buang area Currently, nesting activity occurs

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primarily in eight locations (Pita 2005; Aerial surveys conducted between Transition Zone; equatorial currents; Dutton et al. 2007; Benson et al. 2018a; 2004 and 2007 identified Indonesia, and central California ecoregion Jino et al. 2018). However, due to the Papua New Guinea and Solomon (Benson et al. 2011; Lontoh 2014; remoteness of these areas and lack of Islands as the core nesting areas for the Harrison et al. 2018; Jino et al. 2018). systematic surveys, and likely DPS (Benson et al. 2007a; Benson et al. Different strategies result in additional undocumented nesting 2007b; Benson et al. 2011; Benson et al. demographic differences within the DPS beaches, additional low numbers of 2018b). During the nesting season, which may affect productivity and nesting leatherback turtles are likely to nesting females generally stayed within reproductive output. For example, exist in Solomon Islands. For example, 300 km or less of these nesting beaches, leatherback turtles that exploit distant nesting activity was recently identified although a few females were temperate foraging habitats (e.g., central on Vanugnu Island, where 23 nests were documented visiting multiple beaches California) may require multiple years recorded and 11 females nested between during a nesting season (Benson et al. of seasonal foraging before returning to 2011 and 2014 (Jino et al. 2018). 2007b). Distributing nesting activity nesting beaches, due to greater energetic Additionally, it is unknown to what among various habitats may help to demands. In contrast, leatherback turtles extent females use multiple beaches buffer some of the population from exploiting geographically closer, year- throughout the Solomon Islands, or impacts at a single nesting area, but the round prey resources in more tropical those in Papua New Guinea, and what majority of females utilize one nesting habitats (e.g., Sulu Sulawesi and South proportion of females nest in the area during a nesting season (Benson et China Seas) may remigrate annually summer versus winter (Benson et al. al. 2011). (Lontoh 2014). 2007b; Jino et al. 2018; TNC-Solomons Migration and foraging strategies vary The DPS also exhibits genetic 2018 unpublished). While we are unable based on nesting season, likely due to population structure. While mtDNA to interpret an overall trend, local prevailing offshore currents and analyses of 106 samples from Indonesia, villagers indicate that leatherback seasonal monsoon-related effects Papua New Guinea, and Solomon nesting was greater in past decades experienced by the turtles as hatchlings Islands did not detect genetic (Bellagio Sea Turtle Conservation (Gaspar et al. 2012). The lack of differentiation among nesting Initiative 2008; Benson et al. 2007b; crossover among seasonal nesting aggregations (Dutton et al. 2007), Benson et al. 2015). populations suggests that leatherback microsatellite DNA analyses indicate In Vanuatu, anecdotal information turtles develop fidelity for specific fine-scale genetic structure (Dutton suggests that nesting has declined over foraging regions, likely based on 2019; NMFS SWFSC unpublished data). time (Petro et al. 2007). During the juvenile dispersal patterns (Benson et The wide distribution and variance in 2010/2011 winter nesting season, 41 al. 2011; Gaspar et al. 2012; Gaspar and foraging strategies likely buffers the DPS nests were laid at Votlo Beach, Epi Lalire 2017). Oceanic currents help to to some degree against local Island, and, during the 2014/2015 structure the spatial and temporal catastrophes or environmental changes nesting season, three females laid 15 distribution of juveniles and lead them that would limit prey availability. The nests (WSB 2011, 2016). It is not to foraging and developmental habitats distribution of nesting beaches possible to estimate nest trends due to (e.g., the North Pacific Transition Zone) throughout four countries, although non-standardized methods and and to undertake seasonal migrations primarily concentrated in three, helps to opportunistic monitoring efforts over seeking favorable oceanic habitats/ buffer the entire DPS from major time, which render existing data temperatures and abundant foraging environmental catastrophes, because incomparable and do not meet our resources, such as the central California disturbances are not likely to similarly criteria (i.e., nest count data consistently ecoregion (Gaspar and Lalire 2017). affect all countries during the same collected in a standardized approach for Inter-annual or long-term variability in seasons. Additionally, the fine-scale at least 9 years). dispersal patterns can influence genetic structure among nesting In addition to an overall declining population impacts or resilience to aggregations is indicative of nest trend, the West Pacific DPS regional or Pacific Ocean perturbations metapopulation dynamics, which may exhibits low reproductive output (i.e., (e.g., exposure to fisheries, ENSO also provide the DPS with some low hatching success), due in part to a events, etc.). Stable isotopes, linked to resilience. combination of past and current threats particular foraging regions, confirm Diversity (e.g., beach erosion, predation, and nesting season fidelity to specific beach temperatures). foraging regions (Seminoff et al. 2012). The West Pacific DPS exhibits genetic The DPS exhibits low productivity Size differences are also apparent, with diversity, with six haplotypes identified (i.e., low hatching success), and the slightly larger adults appearing to in 106 samples from Solomon Islands, overall nest trend is declining, likely exploit distant temperate foraging Papua Barat Indonesia, and Papua New due to anthropogenic and habitats regardless of nesting season Guinea (Dutton 2006; Dutton et al. 2007; environmental impacts at nesting (Benson et al. 2011; Lontoh 2014). Dutton and Squires 2008). This may beaches and in foraging habitats (Tiwari Summer nesting females forage in provide the DPS with the raw material et al. 2013). We conclude that the Northern Hemisphere habitats in Asia necessary for adapting to long-term declining nest trend and low and the Central North Pacific Ocean, environmental changes, such as cyclic reproductive output place the DPS at while winter nesting females forage in or directional changes in ocean elevated extinction risk, especially tropical waters of the Southern environments due to natural and human given the low nesting female Hemisphere in the South Pacific Ocean causes (McElhany et al. 2000; NMFS abundance. (Benson et al. 2011; Harrison et al. 2017). The population also exhibits 2018). This variance in foraging strategy temporal nesting diversity, with various Spatial Distribution results in a foraging range that covers proportions of the population nesting The West Pacific DPS nests much of the Pacific Ocean: Tasman Sea; during different times of the year throughout four countries with a broad, East Australian Current; eastern and (summer versus winter) which helps to diverse foraging range. It exhibits western South Pacific Ocean; increase resilience to environmental metapopulation dynamics and fine-scale Indonesian, Sulu and Sulawesi, and impacts. The foraging strategies are also population structure. South China Seas; North Pacific diverse, with turtles using seven

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ecoregions of the Pacific Ocean. Diverse address the impact of inundation and nesting and hatching success, which has foraging strategies likely provide some beach erosion. been documented throughout the resilience against local reductions in Beach erosion is also a threat to nests nesting range of the DPS (NMFS and prey availability or catastrophic events, in Papua New Guinea, where strong USFWS 2013; Bellagio Sea Turtle such as oil spills or typhoons, by storms and tidal surges result in Conservation Initiative 2008). While limiting exposure from a single event to substantial erosion and changes to West Pacific leatherback turtles have only a portion of the DPS. We conclude beaches throughout the Huon Coast. For undoubtedly evolved to sustain changes that diversity within the DPS provides example, much of the Labu Tale nesting in beach habitats given their proclivity it with some level of resilience to beach was lost to erosion during the to select highly dynamic and typically threats. 2012/2013 nesting season (Pilcher narrow beach habitats, and therefore at 2013). The differences in beach width the population level can sustain some Present or Threatened Destruction, along the Huon Coast place some level (albeit unquantified level) of nest Modification, or Curtailment of Habitat beaches at more risk of inundation and loss. However, the increasing frequency or Range erosion, such as Kamiali Beach, which of storms and high water events perhaps The destruction or modification of is half the width and significantly as a result of climate change can result habitat is a threat to this DPS. Primary narrower than Busama Beach (Pilcher in increased and perhaps unnatural loss impacts to nesting beaches include 2008). At Kamiali, the average distance of nests. Such impacts may lower the erosion and ocean inundation, which of nests to the sea was 3.2 m, compared productivity of the DPS. Based on the may be caused by natural processes. to 6.2 m at Busama; the distances to the information presented above, we Nesting beaches of the West Pacific vegetation line were comparable across conclude that habitat loss and DPS are dynamic, high profile beaches sites (1.3 m and 1.7 m, respectively; modification is a threat to the DPS. that are subject to erosion, such as Pilcher 2013). during King Tides (naturally occurring, In Vanuatu, there has been low Overutilization for Commercial, predictable highest tides), which are hatching success in some years due to Recreational, Scientific, or Educational common seasonal occurrences. In storms, floods, and high water (Petro et Purposes Indonesia, the Bird’s Head Peninsula al. 2007; WSB 2016). The primary threat to the West Pacific beaches are also subject to seasonal In recent years, management and DPS is the harvest (both legal and patterns of erosion and accretion. conservation practices have included illegal) of leatherback turtles and their Changes in the currents brought on by relocating erosion-prone nests to bolster eggs. Leatherback turtles are protected monsoons beginning in September hatchling production. However, these by regulatory mechanisms in all four cause major erosion at Jamursba-Medi projects are funding-dependent nations where the DPS nests, but laws that often removes the entire beach, throughout the range of the West Pacific are largely ignored and not consistently making the habitat unsuitable for DPS. At Jamursba-Medi, ‘‘doomed’’ enforced. This is due to the extreme nesting until accretion begins again in nests (i.e., those that are likely to be lost remoteness of beaches, customary and March (Hitipieuw et al. 2007). This to erosion or inundation) are sometimes traditional community-based ownership natural erosion has been documented to relocated to a more stable section of of natural resources (which includes sea impact many nests at Jamursba-Medi beach; 15 nests were relocated during turtles), and overall lack of institutional (Hitipeuw et al. 2007). Arguably, the 2017 summer nesting season (Tiwari capacity and funding for enforcement. western Pacific leatherbacks have been et al. in prep.). At Wermon, nests are Furthermore, the cultural and socio- dealing with such changes in beach relocated to avoid erosion and tidal economic dynamics in these nations habitats over time, and a turtle’s long inundation, and increasingly due to confound community buy-in and reproductive lifespan in general is Ipomea root invasion (Tiwari et al. in conservation efforts (Kinch 2006; designed to sustain nest loss during a prep), but beach management activities Gjersten and Pakiding 2012; von Essen few bad years or seasons. For example, are project-dependent. At Wermon et al. 2014). Additionally, there are during the 2003/2004 nesting season, 80 during the 2017/18 winter nesting nuances related to indigenous harvest percent of marked nests at Jamursba- season, nests could not be relocated (and the definition thereof), some of Medi (Warmamedi beach) washed away because of the lack of permission from which is permitted in these nations. before they hatched (Hitipeuw et al. the beach owners, and all but three Turtle poaching affects both nesting 2007). However, given the low nests washed away (Tiwari et al. in females on beaches and turtles in their abundance of the population, the loss prep). In Papua New Guinea, 22 of 47 foraging habitats (Bellagio Sea Turtle (or continued loss over time) of nests is nests (47 percent) at Kamiali beach were Conservation Initiative 2008; Kinch a concern. relocated to protect them from storm 2009; Suarez and Starbird 1996; Tiwari At Wermon, the inundation of nests surge and erosion during the 2011/2012 et al. 2013; WWF 2018). Turtle poaching from high tides is a threat during the nesting season, and 41 percent of nests has been documented in all four winter months. During the 2008/2009 were relocated during the 2009/2010 countries where this DPS nests. Egg winter nesting season, 26 percent of season (Pilcher 2012). In the Solomon poaching is a well-documented threat nests laid at Wermon were inundated by Islands, efforts to relocate ‘‘doomed’’ (past and current) and is widespread tidal activity (Wurlianty and Hitipeuw nests is an ongoing and necessary throughout the range of the DPS 2009). During the 2004/2005 nesting management strategy to help bolster (Bellagio Sea Turtle Conservation season, 23 percent of nests were lost to hatchling production, given that a large Initiative 2008; NMFS and USFWS inundation (Wurlianty and Hitipeuw proportion of nests are inundated or 2013; Tiwari et al. 2013; Tapilatu et al. 2005). During the 2003/2004 nesting have very low hatching success (Goby et 2017). season, 10.7 percent of all nests at al. 2010; TDA 2013; Jino et al. 2018). In Indonesia, the poaching of turtles Wermon were below the high water A large, significant portion of nests and eggs continues to occur, though egg mark and were subsequently washed (i.e., 10.7 percent to nearly all) are harvest and exploitation of females has away by high tides (Hitipeuw et al. exposed to the reduction and been minimized at Jamursba-Medi and 2007). Tapilatu and Tiwari (2007) modification of nesting habitat, as a Wermon beaches due to the presence of stressed that any management plan result of erosion and inundation. This monitoring programs and educational developed for Papua will need to threat impacts the DPS by reducing outreach. Large-scale egg poaching

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occurred at Jamursba-Medi between Most concerning perhaps is that some of percent (Pilcher 2009, 2011, 2013; 1980 and 1993, whereby approximately the turtle meat harvested may be WPRFMC 2015). The Project ended in 4 to 5 boats per week (from May to commercially sold as dried meat (i.e., 2013, and unfortunately egg harvest August) collected 10,000 to 15,000 eggs leatherback ‘‘jerky’’ locally known as resumed since there was no incentive per boat (Tapilatu et al. 2013). dendeng), which is illegal to sell and for communities to maintain their no- Commercial egg harvest has been inconsistent with indigenous traditional harvest agreements (John Ben, Huon effectively eliminated since beach practices. Of four genetic samples Coast Leatherback Turtle Project, pers. monitoring was established at that acquired in 1995 from turtles harvested comm., 2020). beach in 1993 (Hitipeuw et al. 2007). in the Kei Islands, three were assigned In Vanuatu and the Solomon Islands, However, recent survey efforts indicate to Birds Head Indonesian region and the the poaching of females and collection that most, if not all, sea turtle eggs fourth sample was not definitive (66 of eggs is also well documented (including leatherback turtles) are percent probability, with 34 percent (Bellagio Sea Turtle Conservation poached at other Bird’s Head Peninsula probability to Solomon Islands), Initiative 2008; NMFS and USFWS beaches and sold in local markets although it could also be from the 2013). In Vanuatu, MacKay et al. (2014) (Tapilatu et al. 2017). At Buru Island, Indian Ocean or from an undetermined reported the harvest of five nesting Indonesia, between 2016 and 2017, location (NMFS SWFSC unpublished females between 1999 and 2008. eight females were poached (WWF data 2018). However there is a general 2018), and over the past 20+ years, three In Papua New Guinea, turtle and egg understanding that nesting females were typically harvested (Petro et al. 2007). to five nesting females have likely been poaching is a major threat despite the Of the 315 nests documented on Isabel taken annually (J. Wang, NMFS, pers. fact that leatherback turtles have been Island, Solomon Islands during a comm., 2018). In 2017, 114 of 203 protected since the 1976 Fauna January 2011 site visit at Sasokolo and leatherback nests were harvested at (Protection and Control) Act. The illegal Litogahira beaches, the majority of nests Buru Island (WWF 2018). In 2018, due take of both eggs and turtles likely had been poached (Tiwari 2011 to education provided by the newly continues throughout the country due to unpublished data). Historically, nearly established WWF program on Buru lack of community-based awareness, all nesting females and eggs were Island, local community-based efforts in reliance on traditional community- poached on Redova for consumption four villages now prohibit female and based practices, institutional capacity, (Tiwari 2011 unpublished data). In egg harvest. While protective laws exist and law enforcement (Bellagio Sea in Indonesia, enforcement is largely response, financial incentive programs Turtle Conservation Initiative, 2008). have been established to protect nests lacking in areas where monitoring The killing of nesting females has also programs do not exist. and females whereby villagers are paid been well documented throughout a financial reward for each nest that In Indonesia, foraging leatherback Papua New Guinea (Bellagio Sea Turtle hatches successfully (TDA 2013). On turtles are also harvested in the waters Conservation Initiative 2008; Kinch Vangunu Island, 10 to 20 nesting of the Kei Islands, Maluku Province, 2009; Pilcher 2013). For example, at females were poached annually, in where a recognized indigenous Bougainville Island, surveys of addition to near-total egg collection subsistence harvest of immature and community members identified that 21 (Jino et al. 2018). In response to adult turtles (average size 145 to 170 nesting females were poached during declining population trends, the cm; range 52 to 203 cm) occurs and has the last decade (Kinch 2009). However, community declared a moratorium on likely been a key feature of the local the harvest of eggs is likely the most the harvest of leatherback turtles in traditional culture for centuries prolific threat in Papua New Guinea. If 1999 (Jino et al. 2018), and a community (Compost 1980; Hamman et al. 2006; unprotected, egg harvest (compounded incentive program providing financial Hitipeuw and Lawalata 2006, 2008). by intense dog predation described awards has helped to reduce harvest Within the Kei Islands, customary law below) resulted in the loss of 70 to 100 pressure (TDA 2013). Despite these (‘‘hak adat’’) authorizes a ritual percent of nests (Quinn and Kojis 1985; efforts and protective legislation, the leatherback turtle hunt in the nine Hirth 1993; Bellagio Sea Turtle poaching of females and eggs likely villages of the traditional kingdom of Conservation Initiative 2008; Pilcher persists throughout the Solomon Islands the Nufit people. Starbird and Suarez 2013). For example, during a one week (TDA 2013: Tiwari 2011 unpublished; (1994) brought attention to this hunt survey in January 2009 at Bougainville MacKay et al. 2014). when they reported that approximately Island, almost 100 percent of the 46 Within the West Pacific DPS, many 200 turtles were harpooned in three documented nests were poached (Kinch nesting females, foraging turtles, and months (October to December) of 1994, 2009). It is likely that near total egg eggs are exposed to both illegal with as many as 13 taken in one day. collection occurred throughout the poaching and legal harvest. The taking Over the past three decades, sporadic Huon Coast between World War II and of turtles reduces abundance. The taking monitoring efforts have estimated that the establishment of the Huon Coast of nesting females reduces both up to 100 individuals are harvested Leatherback Turtle Monitoring and abundance and productivity. Such annually (Suarez and Starbird 1996; Conservation Program in 2003 (Bellagio impacts are high because they directly Hitipeuw and Lawalata 2008; WWF Sea Turtle Conservation Initiative 2008; remove the most productive individuals 2018). At one point, it was assumed that Pilcher and Chaloupka 2013; Pilcher from the DPS, reducing current and/or harvest pressure had declined and was 2013). The Huon Coast Project, which future reproductive potential. Egg no longer an issue (NMFS and USFWS operated between 2003 and 2013, harvest reduces productivity; the 2013). However, recent surveys indicate helped to reduce egg and turtle harvest persistent, and near-total (at some that harvest continues, with due to program involvement and locations) collection of eggs guarantees conservative estimates of 431 turtles community incentive funds received in that future population recruitment (i.e., killed over an 8-year period (an average exchange for non-harvest agreements nesting female abundance) will be of 53.9 turtles annually), typically (Pilcher 2013). As a result of the reduced or eliminated. Given the between August to February (Hitipeuw program, hatchling production (i.e., declining nesting trend and current and Lawalata 2008), and at least 103 percent of eggs yielding hatchlings) nesting female abundance of this DPS, turtles harvested in 2017 (WWF 2018). increased from zero to approximately 60 the continued and unregulated poaching

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or harvest of leatherback turtles and bamboo grids over nests to prevent dogs In Indonesia, all sea turtles are eggs is unsustainable. Further, the from preying on the eggs (Pilcher 2006; protected by law, but there are harvest of approximately 100 foraging 2009). This, along with efforts to reduce allowances for indigenous peoples leatherback turtles annually at the Kei egg harvest by humans, resulted in (although indigenous provisions are not Islands, Indonesia is likely an increased hatching production from clearly defined). The 1990 Government unsustainable practice given the current zero to approximately 60 percent Regulation Act number 5 concerning the low abundance of the population. We between 2006 and 2013, with over 2,300 Conservation of the Natural Resources conclude that overutilization is a major, nests saved producing approximately and the Ecosystem, makes the trade of and the primary, threat to the West 100,000 hatchlings (Pilcher 2009; 2011; protected wildlife illegal, and those Pacific DPS, accelerating its risk of 2013; WRFMC 2015). However, this found liable can be punished to a extinction. project ended in 2013, and it is maximum of 5-year prison term and fined 100 million Indonesia Rupiah Disease or Predation unknown if egg protection continues, or if nest predation has resumed. (approximately 6,500 USD). The While we could not find any In this DPS, a large proportion of eggs protection of all sea turtle species information on disease for this DPS, are exposed to predation, especially by (Government Regulation No. 7 on predation of eggs is a major and well- dogs and pigs. Predation primarily Preserving Flora and Fauna Species) documented threat to the West Pacific results in the loss of eggs, and the came into effect in 1999 (Zainudin et al. DPS, likely second to poaching (i.e., impact of this threat is a reduction of 2007). The use of protected wildlife is nests not taken by humans are typically productivity. Though leatherback turtles allowed for the purposes of research, predated; Bellagio Sea Turtle generally produce a large number of science, and rescue of the wildlife itself. Conservation Initiative 2008). eggs and hatchlings, predation is While the trade and exploitation of In Indonesia, predation of eggs by widespread throughout the range of the turtles is illegal in Indonesia, there still feral pigs, feral dogs, and monitor exists a documented harvest of green lizards has been documented, with feral DPS, and in some areas, predation rates are as high as 100 percent. We conclude turtles in Bali, which contributes to pig predation being the most public confusion regarding sea turtle detrimental (Hitipeuw and Maturbongs that predation poses a threat to the West Pacific DPS. protections (Westerlaken 2016). 2002; Tapilatu and Tiwari 2007; In Papua New Guinea, the leatherback Bellagio Sea Turtle Conservation Inadequacy of Existing Regulatory turtle is the only species protected Initiative 2008). Nest predation by Mechanisms under the 1976 Fauna (Protection and domestic and/or feral dogs has been Control) Act, which makes killing of The West Pacific DPS is protected by recorded in both Jamursba-Medi and leatherback turtles or taking of several regulatory mechanisms. For Wermon. Predation of nesting females leatherback turtle eggs illegal, with fines each, we review the objectives of the by crocodiles has also been documented of 500 to 1000 kina (approximately 100 regulation and to what extent it at Wermon beach (Bellagio Sea Turtle to 300 USD). Any person who buys or adequately addresses the targeted threat. Conservation Initiative 2008; UNIPA, sells or offers for sale, or has in pers. comm., 2018). At Jamursba-Medi, Leatherback turtles are protected by possession leatherback turtle eggs or between June and July of 2005, 29.3 legislation in all four of the nations meat can also be fined. The Act makes percent of nests were destroyed by pigs where the West Pacific DPS nests provisions for persons with customary (Tapilatu and Tiwari 2007). Intensive (Indonesia, Papua New Guinea, rights to take turtles, but states that sea management effort at Jamursba-Medi Solomon Islands, and Vanuatu). It is turtles cannot be taken, killed, or sold reduced feral pig predation of nests to generally illegal to harvest leatherback from May through July (Kinch 2006). five percent during the 2016 and 2017 turtles and their eggs. However, laws are This is typically the nesting season for nesting seasons (Tiwari et al. in prep). not typically enforced or followed given hard-shelled sea turtle species, but Feral pigs and dogs depredated 17.5 customary marine tenure systems that leatherback turtles nest primarily during percent of all nests at Wermon during dictate near-shore rights. Lack of the winter months (November to the 2003 and 2004 winter nesting season enforcement or implementation of February). As with most Melanesian (Hitipeuw et al. 2007). At Wermon, 21 protective laws may be due to: Overall countries, lands are locally-owned and percent of nests were lost to predation lack of in-country institutional capacity managed, and the national government during the 2004/2005 nesting season and funding for enforcement; the has little influence outside major cities (Wurlianty and Hitipeuw 2005). At Buru extreme remoteness of beaches; (Kinch 2006). Island in 2017, 16 nests were lost to customary marine tenure or traditional The Solomon Islands Fisheries Act predation by dogs, wild boar, lizards, or community-based ownership of natural (1993) regulations protect nesting turtles saltwater crocodiles (WWF 2018). resources in these nations (which and eggs during the breeding season In Papua New Guinea, predators of includes sea turtles; Kinch 2006; (June to August and November to eggs include feral dogs, monitor lizards, McDonald 2006) and regulatory January); prohibit the sale, purchase, or and ghost crabs (Kinch 2009). government-led legislation, which may export of sea turtle species or their Depredation of nests by village dogs was be incompatible with traditional parts; and contain specific protections determined to be an intense threat to practices (von Essen et al. 2014). There for leatherback turtles. In the Solomon nests, with dogs consuming all nests are also nuances related to indigenous Islands, more than 85 percent of the laid during the 2003/2004 and 2004/ harvest (and the definition thereof), land is held under customary (locally- 2005 nesting seasons at Kamiali beach which is not prohibited in these nations. managed) marine tenure, and the vast (Pilcher 2006; I. Kelly, NMFS, pers. As a result, most leatherback nesting majority of the population still lives in comm., 2018). Predation of nesting beaches with the exception of Jamursba- rural areas making a living from the females by crocodiles has also been Medi and Wermon (i.e., beaches with natural resources on those lands. For documented in a number of locations in established long-term monitoring centuries, communities have practiced Papua New Guinea (Bellagio Sea Turtle programs) are not currently protected traditional models of resource Conservation Initiative 2008; Kinch (or only minimally protected) from stewardship, making implementation 2009). To protect nests, Huon Coast harvest or poaching of eggs, nesting and enforcement of national regulations communities developed and placed females, or other anthropogenic threats. nearly impossible. Instead, natural

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resource governance must originate analysis of the sea turtle conservation 2015). Wetherall et al. (1993) estimated from chiefs and village leaders, which measure found a very small percentage that over 750 leatherback turtles were requires extensive educational outreach of shallow-set fisheries to be in killed in Japanese, Korean, and to encourage traditional approaches that compliance, with less than one percent Taiwanese driftnet fisheries during the may be supported by legal or ‘modern’ of Western and Central Pacific Ocean 1990 to 1991 season, with potentially enforcement measures (McDonald longline effort implementing mitigation 5,000 to 10,000 leatherback turtles 2006). measures, even though approximately bycaught between the late 1970s and Fisheries Regulations under the 20 percent of longline effort consists of 1992. Based on current knowledge of Vanuatu Fisheries Act (2009) prohibit shallow sets (Clarke 2017). Further, movement patterns (Benson et al. 2011), the take, harm, capture, disturbance, many RFMO members are not meeting the majority of these bycaught turtles possession, sale, purchase of or the five percent observer coverage would have originated from western interference with any turtle nest (or any requirement resulting in limited bycatch Pacific nesting beaches after their boreal turtle in the process of nesting) and the reporting (Clarke 2017). summer nesting period. Thus, high seas import, or export of green, hawksbill, In summary, regulatory mechanisms driftnet fishery bycatch was likely a and leatherback turtles or their products exist to protect leatherback turtles and significant contributor to the population (shell, eggs, or hatchlings). The Act also their eggs throughout the range of this declines observed at nesting beaches prohibits the possession of turtles in DPS. However, most are inadequate to during the 1980s and 1990s (Benson et captivity. A person may apply in reduce the threat that they were al. 2015). writing to the Director of Fisheries for designed to address due to a lack of Many nations are involved in longline an exemption from all or any of these implementation or enforcement or fishing in the Pacific Ocean, where two provisions for the purposes of carrying inclusion of provisions for indigenous types of vessels are used: (1) Large out customary practices, education, harvest. Regulations are also misaligned distant-water freezer vessels that and/or research. Similar to Papua New with established traditional practice and undertake long (months) voyages and Guinea and the Solomon Islands, management systems. As a result, operate over large areas of the region; natural resource governance in Vanuatu poaching and bycatch remain major and (2) smaller offshore vessels with ice is best directed, realized, and threats to the DPS. In summary, we or chill capacity that typically implemented at the community level consider the inadequacy of the undertake trips of about one month. and not via national legislation. regulatory mechanisms to be a threat to Target species are yellowfin, bigeye, Fortunately, traditional practices are the DPS. albacore tuna, and swordfish. The total experiencing a renaissance in Vanuatu annual number of longline vessels in the Fisheries Bycatch and may complement current regulatory western and central Pacific region has marine resource management efforts Fishery bycatch in coastal and pelagic fluctuated between 3,000 and 6,000 for (Hickey et al. 2006). fisheries is a major threat to the West the last 30 years, including the 100 to Throughout the foraging range of the Pacific DPS, which is exposed to 140 vessels in the Hawaii longline DPS, there are numerous regulatory domestic and international fisheries fisheries (NMFS 2018). mechanisms that protect turtles within throughout its extensive foraging range. the DPS. These include: RFMOs such as At-sea bycatch of leatherback turtles has Pelagic Fisheries the Western and Central Pacific been documented for a variety of gillnet International longline fisheries are Fisheries Commission (WCPFC) and the and longline fisheries in the Pacific characterized by inconsistent reporting IATTC and fisheries management Ocean, but little is known about the and traditional gear configurations, regulations in 32 nations where this total magnitude or full geographic including J-style hooks with squid bait, DPS may occur (Harrison et al. 2018). extent of mortality. Satellite telemetry which result in higher interaction and The WCPFC adopted a Sea Turtle studies have identified movements and mortality rates than for modified gear Conservation and Management Measure revealed fidelity to foraging regions of (Beverly and Chapman 2007; Lewison et (CMM 2008–03) to mitigate the impacts the DPS, specifically in habitats of the al. 2004; Swimmer et al. 2017). For on turtles from commercial shallow-set North Pacific Ocean, southwestern example, the Taiwan and China tuna fisheries operating in the Western and Pacific Ocean, and Indo-Pacific tropical longline fisheries are estimated to have Central Pacific Ocean. The measure seas (Bailey et al. 2012; Benson et al. bycatch rates several times higher than included the adoption of FAO (2009) 2011, Seminoff et al. 2012; Roe et al. Hawaii longline fisheries (Bartram and guidelines to reduce sea turtle mortality 2014). The summer nesting component Kaneko 2008; Chan and Pan 2012). through safe handling practices and to of the population exhibits strong site Analyzing multi-national turtle bycatch reduce bycatch by implementing one of fidelity to the central California foraging data from 1990 to 2004, Molony (2005) three methods by January 2010. The area (Benson et al. 2011) which puts found that the purse seine fishery and three methods to choose from are: (1) them at risk during migrations of the deep, shallow, and albacore longline Use only large circle hooks with offsets interacting with U.S. and international fisheries (operating between 15° N and of ≤10°; (2) use whole finfish bait; or (3) pelagic longline fleets operating 31° S) take an average of about 100 use any other mitigation plan or activity throughout the Central and North leatherback turtles annually. Lewison et that has been approved by the Pacific Oceans. For example, several of al. (2004) collected fish catch data from Commission. This sea turtle the turtles tagged in Papua Barat, 40 nations and turtle bycatch data from conservation measure is specific to self- Indonesia were known or suspected to 13 international observer programs to identified shallow-setting, swordfish- have been killed in fisheries operating estimate global longline bycatch of targeting fleets. It does not apply to the off Japan, Philippines, and Malaysia loggerhead and leatherback turtles in international Pacific longline deep-set (Benson et al. 2011). 2000. In the Pacific Ocean, they tuna-targeting fisheries, which comprise Historically, significant leatherback estimated 1,000 to 3,200 leatherback the majority of the longline fisheries and bycatch was documented in the North turtle (juvenile and adult) mortalities are also known to interact with Pacific high seas driftnet fishery, which from pelagic longlining in 2000 leatherback turtles (Lewison et al. 2004; expanded rapidly during the late 1970s (Lewison et al. 2004). Using effort data Beverly and Chapman 2007; Roe et al. but was banned in 1992 by a UN from Lewison et al. (2004) and bycatch 2014; Wallace et al. 2013). Technical resolution (summarized in Benson et al. data from Molony (2005), Beverly and

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Chapman (2007) estimated sea turtle only to shallow-set swordfish fisheries (Zainudin et al. 2007). Leatherback longline bycatch to be approximately 20 (Clarke 2017). turtles are known to migrate through percent of that estimated by Lewison et While bycatch in pelagic shallow-set and forage within Philippine waters al. (2004), approximately 200 to 640 swordfish-targeting longline fisheries (Benson et al. 2011), and in 2014, aerial leatherback turtles annually. These has received the most attention to date, surveys observed leatherback turtles estimates include turtles from the East comparable studies for deep-set tuna- foraging in high density fishing areas and West Pacific DPS. While the results targeting fisheries are not available due (130 to 381 boats; MRF 2010, 2014). of each of these studies may be feasible, to the more complex nature of these Leatherback turtles have also stranded the Lewison et al. 2004 estimates were fisheries. There may be fewer dead or injured on Philippine beaches based on available data at that time (i.e., interactions because deep-set fisheries as a result of fishery interactions, less than 30 percent of longline fishing (operating at depths more than 60 m) typically with gillnet gear (Bagarinao effort) that was skewed toward fishing generally have lower bycatch rates, but 2011; Cruz 2006; MRF 2010; MWWP fleets with relatively better management they also have higher mortality rates 2018 unpublished). In Malaysia, bycatch and data reporting systems, and hence than shallow-set gear (Lewison et al. studies using an interview-based extrapolations may have overestimated 2004; Kaplan 2005; Gilman et al. 2007). approach revealed that four leatherback interaction rates (Clarke et. al. 2014). Pelagic deep-set tuna-targeting fisheries turtles were caught in gillnets the prior However, Beverly and Chapman (2007) cannot be ignored because they also year (Pilcher et al. 2008). applied different catch per unit effort have the potential to interact with Fisheries operating out of Australia (CPUE) estimates in calculations leatherback turtles and constitute four and New Zealand may result in high differentiated between deep-set and times greater effort than shallow-set bycatch and mortality rates for the shallow-set fisheries which have fisheries yet do not have RFMO gear winter nesting component of the DPS different interaction rates and, hence, mitigation requirements (Clarke 2017). that migrates into the Southern their estimates may be more realistic. Wallace et al. (2013), and a global Hemisphere (MacKay et al. 2014; review based on that study (FAO 2014), Despite scientific evidence showing Harrison et al. 2018). In Australia, some categorized longline and gillnet fisheries that use of circle hooks and finfish bait bycatch records exist for pelagic interactions with West Pacific significantly reduces leatherback turtle longline fisheries (Robins et al. 2002; leatherback turtles as high risk but low bycatch rates in longline fisheries Stobutzki et al. 2006), prawn trawls off impact for longline and gillnet gear, (Gilman et al. 2007; Swimmer et al. Queensland and Northern Territory, likely due to insufficient data from this gillnet fisheries off Queensland and 2017), nations are not required to use data-poor region. Bycatch in small-scale Tasmania, and pot gear off Tasmania this hook/bait combination. The WCPFC coastal fisheries has been a significant (Limpus 2009). Gillnet sea turtle Sea Turtle Conservation and contributor to population declines in bycatch is reported as widespread and Management Measure (CMM 2008–03) many regions (Kaplan 2005; Peckham et includes anecdotal reports of only applies to fleets using shallow-set al. 2007; Alfaro-Shigueto et al. 2011), leatherback turtles taken in Tasmanian gear targeting swordfish. Additionally, yet there is a significant lack of tuna gillnet fisheries (Limpus 2009). observer program coverage levels in information from coastal and small- Between 2004 and 2014, the WCPFC longline fisheries have not scale fisheries, especially from the Australian shallow-set fishery had an reached the required five percent Indian Ocean and Southeast Asian estimated 29 to 178 leatherback coverage rate, resulting in limited region (Lewison et al. 2014). interactions, based on two to 10 bycatch reporting and likely observations (average = 4.6 interactions) Southeast Asian Fisheries underreporting (Clarke 2017). Further, and four to 10 percent observer coverage existing sea turtle mitigation measures Waters of Southeast Asia are heavily (MacKay et al. 2014). These data are are currently only being applied to fished by a variety of gillnets, trawls, similar to bycatch information approximately one percent of shallow- fish traps, and a range of different hook extrapolated from interviews with set longline fisheries in the Convention and line gears, involving hundreds of Australian fishers (Robins et al. 2002) Area, even though approximately 20 thousands of fishers (FAO 2011). The which identified 162 leatherback turtles percent of the longline effort consists of West Pacific DPS nests, migrates, and interactions in 2001 (MacKay et al. shallow-sets (Clarke 2017). forages throughout this densely 2014). Australia has a sea turtle A workshop convened to assess the populated and heavily exploited coastal mitigation plan for its Eastern Tuna and effectiveness of WCPFC’s Sea Turtle region (Bellagio Sea Turtle Conservation Billfish Fishery which sets ‘‘trigger Conservation and Management Measure Initiative 2008; Benson et al. 2011; level’’ interaction rates of ≤0.0048 found limited reductions in interactions Lewison et al. 2014; Roe et al. 2014; turtles per 1,000 hooks for each turtle and mortalities (Clarke 2017). Fishery Harrison et al. 2018). species or 0.0172 turtles per 1,000 hooks observer data collected between 1989 There are few quantitative estimates overall (DAFF 2009 in Clarke et al. and 2015 of 34 purse seine and longline of fisheries interactions near nesting 2014). In 2013, Australia reported that fleets across the Pacific documented a beaches of this DPS, and existing reports the trigger levels had been exceeded for total of 2,323 sea turtle interactions, of provide only brief snapshots of impacts the third year in a row and as a which 331 were leatherback turtles or are outdated. In Indonesia, between consequence the Australian Fisheries (Clarke 2017). Two bycatch hotspot 1980 and 1993, shark gillnets off the Management Authority required that areas were identified: One in central nesting beaches of Jamursba-Medi killed shallow-set vessels in these fisheries use North Pacific (which likely reflects the two to three nesting females weekly large circle hooks consistent with the 100 percent observer coverage in the (Tapilatu et al. 2013). As a member of WCPFC sea turtle measure (CMM 2008– Hawaii shallow-set longline fishery) and the WCPFC and the IOTC, Indonesia 03; Clarke et al. 2014). a second hotspot in eastern Australia must comply with reporting In New Zealand, records document (Clarke 2017). However, analysis of the requirements and conservation 288 instances of stranding or data also found that overall measures as required by these RFMOs. commercial and recreational bycatch of conservation benefits would have been In 2006, of the 85 sea turtle interactions leatherback turtles from 1892 to 2015 greater had mitigation measures also observed in 539 sets on 10 tuna longline (Godoy et al. 2016). New Zealand’s been applied to deep-set gear and not vessels, 3 were adult leatherback turtles surface longline fishery captured 90

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leatherback turtles between 2008 and additional times since reopening in mortalities) over a 5-year period (NMFS 2015 (Godoy et al. 2016). This is likely 2004: In 2006, after reaching the hard 2013). an underestimate because data were cap for loggerhead turtle interactions (n In addition, nine fixed gear fisheries based on low observer coverage (5.8 = 17); in 2011, after reaching the hard operate off the U.S. West Coast, percent overall), with limited observer cap for leatherback turtle interactions (n including the Federally-managed overage during the peak time of = 16); and in 2018 under a stipulated sablefish pot fishery and the state- leatherback abundance in New Zealand settlement after the Ninth Circuit Court managed California Dungeness crab waters (January to March). Strandings of Appeals held that NMFS’ no jeopardy fishery. Since 2008, only one can also provide opportunities for determination for loggerheads in the leatherback interaction has been researchers to identify fisheries 2012 biological opinion (9th Circuit documented in the sablefish fishery interactions. MacKay et al. (2014) 2017) was arbitrary and capricious. See (NMFS 2013). The state-managed identified 19 mortalities in New Turtle Island Restoration Network v. Dungeness crab fishery may be a newly Zealand and 29 mortalities in Australia. U.S. Dep’t. of Commerce, 878 F.3d 725 emerging threat: Two documented Although the cause of most strandings (9th Cir. 2017). Since 2004, leatherback leatherback entanglements in pot gear was often unknown, leatherback turtles turtle interactions in the shallow-set (mainline or surface buoy) occurred in have been found entangled in crab pot component of the fishery have been 2015 and 2016. Fishing effort was high, gear and monofilament fishing nets and reduced by 84 percent from 0.03 to 0.01 and the fishery had shifted into the ropes. Longline fishing is concentrated BPUE as a result fisheries regulations Central California region, which off southern Queensland and New (Swimmer et al. 2017). Between 2004 overlaps somewhat with leatherback South Wales, Australia and is the and 2017, there have been 99 total foraging habitat (S. Benson, NMFS, pers. suspected cause of 41 percent of leatherback turtle interactions in the comm., 2018). In 2019, the State of strandings (n = 12). In Victoria, shallow-set fishery (or approximately 8 California settled with a non-profit Tasmania and South Australia, 61 turtles annually), based on 100 percent organization in response to a complaint percent of strandings (n = 17) involved observer coverage (WPRFMC 2018). that the commercial Dungeness crab suspected entanglement in inshore Between 2002 and 2016, an estimated fishery was taking leatherback sea fishing gear and crab pots (MacKay et al. 168 interactions may have occurred in turtles (and other large whales) without 2014). the Hawaii deep-set fishery (or authorization under section 10 of the approximately 12 annually), based on ESA. The California Dungeness crab U.S. Pacific Pelagic Fisheries an extrapolation of data collected at a fishery closed in mid-April 2019 as part Detailed bycatch data are available for level of 20 percent observer coverage of the settlement agreement and again U.S.-managed pelagic fisheries (WPRFMC 2018). Observer coverage of on May 15, 2020 (just the Central operating in the central and eastern the American Samoa longline fishery Management Area), due to significant Pacific Ocean due to regulatory has varied over time from 5 to 40 risk of marine life entanglement. The mandates and high levels of observer percent and has had an estimated 59 northern part of California remains open coverage. Longline fisheries, based out interactions between 2010 and 2017 until mid-July unless CDFW decides to of Hawaii and American Samoa, may (WPRFMC 2018). take further management action (i.e., if interact with foraging turtles of the West The U.S. tuna purse seine fishery risks to large whales and/or leatherbacks Pacific DPS. However, only two operating in the Western and Central is elevated in that area). interactions involved individuals of the Pacific Ocean anticipates up to 11 East Pacific Pelagic Fisheries East Pacific DPS in 1995 and 2011 (P. leatherback turtle interactions annually Dutton, NMFS, pers. comm., 2018). (NMFS 2006). However, the fishery had The West Pacific DPS has a vast trans- Prior to 2001, the Hawaii longline fewer interactions, with approximately Pacific range. Some individuals forage fishery was estimated to capture about 16 leatherback turtle interactions in the East Pacific Ocean, where 110 leatherback turtles annually, between 2008 and 2015 based on leatherback turtles are caught in resulting in approximately 9 annual observer coverage ranging from 20 to fisheries of Peru and Chile (Donoso and mortalities (McCracken 2000). Since 100 percent (NMFS unpublished data). Dutton 2010; Alfaro-Shigueto et al. 2005, the fishery has reduced its From 1990 to 2009, there were 24 2007, 2011, 2018). Of 59 leatherback estimated mortality to seven leatherback observed leatherback turtle interactions turtles caught in East Pacific fisheries, turtles annually, and data confidence in the California drift gillnet fishery an estimated 15 percent of individuals increased significantly due to increased based on 15.6 percent per year observer sampled originated from the West observer coverage (NMFS 2018). The coverage (Martin et al. 2015). Genetic Pacific DPS (Dutton et al. 2000; Donoso fishery was closed in 2001 under court analyses indicated that almost all and Dutton 2010). Information compiled order and re-opened in 2004 as two originated from the West Pacific DPS by IATTC on sea turtle interactions with separate fisheries: A shallow-set (Dutton et al. 1999; NMFS SWFSC pelagic longline fisheries operating in swordfish-targeting fishery and a deep- unpublished). In 2001, NMFS the East Pacific is limited, given that set tuna-targeting fishery. Management implemented regulations (i.e., a large requirements for longline observer requirements include: Gear modification time/area closure in Central California) coverage of five percent was only (e.g., circle hooks and fin-fish bait) and that reduced interactions by implemented in January 2013 (Clarke et handling measures designed to reduce approximately 80 to 90 percent, with al. 2014). Additional information on sea turtle bycatch rates and post- only two leatherback turtle interactions East Pacific fisheries are presented in hooking mortality in both fisheries; an (both alive) observed based on 20 to 30 the bycatch section for the East Pacific annual hard-cap limit on the number of percent observer coverage since DPS. allowable interactions in the shallow-set regulations were implemented (NMFS fishery; 100 percent observer coverage West Coast Region unpublished). Drift Summary of Fisheries Bycatch in the shallow-set fishery; and 20 gillnet fishing is prohibited annually We conclude that individuals of this percent observer coverage in the deep- from August 15 to November 15 within DPS are exposed to high fishing effort set fishery (50 CFR 665 (Subparts A–C); the California leatherback turtle throughout their foraging range, in NMFS 2012, 2014, 2015). The shallow- conservation area. Currently, NMFS coastal waters near nesting beaches, and set fishery has been closed three anticipates up to 10 interactions (or 7 when migrating to and from nesting

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beaches, though very little fisheries data 79,000 (45,000 to 129,000) tonnes in the season or at few locations. While are available for coastal areas. Bycatch Great Pacific Garbage Patch, a 1.6 leatherback turtles have undoubtedly rates in international pelagic and coastal million km2 of subtropical waters evolved to sustain such natural impacts, fisheries are high, and these fisheries between California and Hawaii. This the increasing frequency of have limited management regulations figure is four to 16 times greater than environmental events as a result of a despite hotspots of high interactions in previously reported. Entanglement in changing climate, which can affect the Southeast Asia (Lewison et al. 2004, ghost fishing gear is also a concern frequency and intensity of high tides 2014; Alfaro-Shigueto et al. 2011; (Gilman et al. 2016), and derelict nets and large storms, may hamper Wallace et al. 2013; Clarke 2017). made up approximately 46 percent by productivity and conservation activities Annual interaction and mortality piece, and 86 percent by weight, of (Goby et al. 2010; S. Benson, NMFS, estimates are only available for U.S.- debris floating in this area (Lebreton et pers. comm., 2018). Such events may managed pelagic fisheries, which al. 2018). The highest risk areas within pose additional threats by depositing operate under extensive fisheries the range of the West Pacific DPS where marine debris on nesting beaches and in regulations that are designed to animals may encounter significant occupied waters. The 2011 Japan minimize the capture and mortality of amounts of debris includes the north tsunami and the 2006 Indonesian endangered and threatened sea turtles Pacific gyre, the South China Sea, and earthquake and resulting tsunami likely (NMFS 2013; Swimmer et al. 2017; off of the east coast of Australia (Schuler deposited large amounts of debris (i.e., NMFS 2018). Mortality reduces et al. 2015). However, Wedemeyer- millions of tons) into the foraging and abundance, by removing individuals Strombel et al. (2015) found no plastics migrating habitats of the DPS (Hafner et from the population; it also reduces in the gastrointestinal tracts of two al. 2014; NOAA 2015). We conclude productivity, when nesting females are leatherback carcasses from American that natural disasters pose a potential killed. We conclude that fisheries Samoan and Hawaiian longline fisheries threat to the West Pacific DPS. bycatch is a major threat to the West from 1993 to 2011. Clukey et al. (2017) Climate Change Pacific DPS. found no plastics in the gastrointestinal tracts of three leatherback carcasses Climate change is a threat to the West Vessel Strikes from Pacific longline fisheries captured Pacific DPS. A warming climate and Vessel strikes are a threat to the West between 2012 and 2016. However, it is rising sea levels can impact leatherback Pacific DPS. Between 1981 and 2016, very difficult to obtain dead leatherback turtles through changes in beach there were 11 documented vessel strikes turtles to study these effects, and given morphology, increased sand in central California (NMFS West Coast the great amount of plastics within temperatures leading to a greater Region, unpublished data 2018). Many environment, such results may incidence of lethal incubation vessel strikes are not reported, and underestimate ingestion impacts. temperatures, changes in hatchling sex turtles are not recovered. Few studies of pollutants and their ratios, and the loss of nests or nesting The range of the DPS overlaps with effect on leatherback turtles were habitat due to beach erosion (Benson et many high-density vessel traffic areas. available within the range of this DPS. al. 2015). Though the potential for exposure is Harris et al. (2011) found the heavy Elevated egg incubation temperatures high, we are only aware of 11 vessel metal exposure in leatherback turtles can lead to mortality. During the 2009/ strikes in recent decades. Vessel strikes foraging off the coast of California to be 2010 nesting season at the Huon Coast resulting in mortality would lower the nine times higher than the St. Croix (Papua New Guinea), Pilcher (2010) abundance of the DPS. However, nesting population, although levels found higher incubation temperatures available data does not support were not expected to be lethal. We do (32 to 33 °C) in exposed nests compared characterizing this as a high or moderate not know if there were sub-lethal to shaded nests (29 to 30 °C). Sea turtles impact. We conclude that vessel strikes effects. Stewart et al. (2011) found that exhibit temperature-dependent sex pose a threat to the DPS, albeit of less PCBs are more likely to be transferred determination. The incubation concern than other impacts such as from females to their eggs than from the temperature determines sex ratios and overutilization and fisheries environment to eggs. the duration of incubation (i.e., interactions. Given the large amount of marine thermosensitive period). Along the debris within the range of the DPS, we Huon Coast, incubation duration Pollution expect exposure to be high for all life decreased during the nesting season as Pollution includes contaminants, stages despite low sample sizes of beach temperatures warmed. During the marine debris, and ghost fishing gear. leatherback turtles with ingested marine 2006/2007 nesting season, nests laid in Leatherback turtles can ingest small debris. Potential impacts include death November hatched in 61.8 ± 4.2 days, debris, causing internal damage and and injury. However, quantitative and nests laid in February hatched in blockage. Larger debris can entangle estimates of such impacts are not 55.8 ± 3.4 days (n = 171 nests; animals, leading to reduced mobility, available. We conclude that pollution Steckenreuter et al. 2010). Assuming starvation, and death. Given the amount may be a threat to the DPS. that hatchlings were male at of floating debris in the Pacific Ocean temperatures less than 29.2 °C and (Lebreton et al. 2018), marine debris has Natural Disasters female at temperatures greater than 30.5 the potential to be a significant threat to The best available scientific and °C, Steckenreuter et al. (2010) estimated the DPS. Presently available data do not commercial data indicate that natural that only 7.7 percent of the hatchlings allow for quantifying the precise extent disasters are a threat to the DPS but do were female, indicating a highly male- of the threat. not allow the impact to be quantified. skewed sex ratio. However, given the Leatherback turtles feed exclusively Natural disasters within the range of Pilcher (2010) results, sex ratios are on jellyfish and other gelatinous this DPS include: Tsunamis, typhoons, likely variable over time and space. organisms and as a result may be prone earthquakes, and flash floods. Such Climatic change may also alter rainfall to ingesting plastics resembling their environmental events are periodic, with levels, which may cool beaches and food source (Schuyler et al. 2013). localized impacts that do not persist offset increases in sand temperature. At Lebreton et al. (2018) estimated plastic over time. These events may reduce nest Wermon, the sand is black, yet beach debris accumulation to be at least incubation and hatching success in one temperatures are lower, perhaps because

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peak nesting coincides with the Conservation Efforts structure, with nesting aggregations monsoon season (Tapilatu and Tiwari There are numerous efforts to distributed throughout four nations. 2007). Sand temperatures fluctuate conserve the leatherback turtle. The Nesting occurs during two seasons ° between 28.6 and 34.9 C at Jamursba- following conservation efforts apply to (winter and summer), with year-round Medi and between 27.0 and 32.7 °C at turtles of the West Pacific DPS (for a nesting at some locations and uses Wermon (Tapilatu and Tiwari 2007). description of each effort, please see the multiple foraging areas, throughout the Hatching success of nests undisturbed section on conservation efforts for the Pacific Ocean. Thus, the DPS has some by feral pig predation was significantly overall species): Convention on the resilience to stochastic events and lower in Jamursba-Medi (25.5 percent) Conservation of Migratory Species of environmental perturbations at nesting than Wermon (47.1 percent). Although Wild Animals, Convention on Biological beaches and foraging areas. However, its there was significant variation between Diversity, Convention on International abundance and declining trends place beaches, Tapilatu and Tiwari (2007) Trade in Endangered Species of Wild the DPS at risk of extinction as a result concluded that high sand temperatures Fauna and Flora, Convention for the of past threats. may exceed the thermal tolerance of Protection of the Marine Environment Current threats also contribute to the leatherback embryos, resulting in high and Coastal Area of the South-East risk of extinction of this DPS. The embryo mortality and low hatching Pacific (Lima Convention), Convention overutilization of turtles and eggs, as a success at Jamursba-Medi. Further, for the Conservation and Management of result of legal and illegal harvest, is the Tapilatu and Tiwari (2007) concluded Highly Migratory Fish Stocks in the primary threat to this DPS, reducing abundance and productivity. that high average sand temperatures Western and Central Pacific Ocean Abundance and productivity are further may suggest a female-biased population (WCPF Convention), Convention for the reduced by fisheries bycatch. Juvenile at Jamursba-Medi. However, the mean Protection of the Natural Resources and ± Environment of the South Pacific and adult turtles are taken by numerous, incubation period of 61.5 4.7 days international, coastal, and pelagic (Tapilatu and Tiwari 2007) was similar Region, Convention Concerning the Protection of the World Cultural and fisheries throughout the extensive, pan- to the length of incubation recorded in Pacific foraging range of the DPS. Papua New Guinea during the cooler Natural Heritage (World Heritage Convention), Eastern Pacific Predation (especially by dogs and pigs) November period, which Steckenreuter reduces productivity at high rates. et al. (2010) suggested produced a male- Leatherback Network, Eastern Tropical Pacific Marine Corridor Initiative, FAO Erosion and inundation result in habitat biased sex ratio. Technical Consultation on Sea Turtle- loss and modification that reduces Tapilatu et al. (2013b) found that the Fishery Interactions, IAC, MARPOL, productivity and contributes to low daily average sand temperatures during IUCN, The Memorandum of hatching success. Additional threats the boreal summer (from 2005 to 2012) Understanding of a Tri-National include: Pollution, vessel strikes, and ranged from 26.5 to 34.9 °C, suggesting Partnership between the Government of natural disasters. Climate change is an the production of female-biased sex the Republic of Indonesia, the increasing threat that results in reduced ratios and potentially lower hatching Independent State of Papua New Guinea productivity. Though many regulatory success. Further, histological and the Government of Solomon mechanisms exist, they do not examination of dead hatchlings from Islands, Ramsar Convention on adequately reduce threats. both summer and winter nesting Wetlands, RFMOs, Secretariat of the We conclude, consistent with the seasons from 2009 to 2019 produced a Pacific Regional Environment team’s findings, that the West Pacific female-biased sex ratio, which is Programme, UNCLOS, and UN DPS is at risk of extinction. Its nesting consistent with the relatively warm Resolution 44/225 on Large-Scale female abundance makes the DPS highly thermal profiles of the nesting beaches Pelagic Driftnet Fishing. Although vulnerable to threats. The declining (Tapilatu et al. 2013b). Additional numerous conservation efforts apply to nesting trend further contributes to its impacts of climate change include the turtles of this DPS, they do not risk of extinction. While the DPS has increased sea level rise and storm adequately reduce its risk of this DPS, spatial structure and diversity, the frequency, resulting in greater nest they do not adequately reduce its risk of resilience provided by those factors is inundation and beach erosion. As sea extinction. likely to be eroded by the reduced and declining abundance. Past egg and turtle level rises, King Tides are likely to have Extinction Risk Analysis a greater effect on nests. Climate change harvest reduced the abundance and may also affect prey availability. Saba et After reviewing the best available productivity of this DPS and remains a al. (2007, 2012) identified a correlation information, the Team concluded that primary threat. Fisheries bycatch is also between the reproductive frequency of the West Pacific DPS is at high risk of a primary threat that reduces abundance the East Pacific DPS and ENSO events. extinction. The DPS exhibits a total by removing mature and immature individuals from the population. Because the West DPS also forages in index of nesting female abundance of 1,277 females at two currently Predation is also a major threat to the East Pacific Ocean, it too may be monitored beaches over the most recent productivity. Though numerous exposed to variability in productivity. remigration interval. These beaches may conservation efforts apply to this DPS, The threat of climate change is likely represent 75 percent of total DPS they do not adequately reduce the risk to modify the nesting and foraging nesting activity. This abundance makes of extinction. We conclude that the conditions for turtles of the DPS. the DPS vulnerable to stochastic or West Pacific DPS is in danger of Impacts are likely to affect productivity. catastrophic events that increase its extinction throughout its range and Negative impacts and low hatching extinction risk. This DPS exhibits low therefore meets the definition of an success due to high beach temperatures hatching success and decreasing nest endangered species. The threatened and coastal erosion have already been and population trends due to past and species definition does not apply documented and are likely to become current threats, which are likely to because the DPS is currently in danger worse, and thus we conclude that further lower abundance and increase of extinction (i.e., at present), rather climate change is a threat to the West the risk of extinction. The DPS exhibits than on a trajectory to become so within Pacific DPS. genetic diversity and metapopulation the foreseeable future.

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East Pacific DPS Nesting is generally bound between 10° nearshore foraging habitats along the ° The Team defined the East Pacific N and 20 N, falling within the coast of Central America, which DPS as leatherback turtles originating northeast corner of the Intertropical represents highly productive areas when from the East Pacific Ocean, north of 47° Convergence Zone. The nesting beaches compared with oceanic areas. S, south of 32.531° N, east of 117.124° share similarly warm temperatures, Researchers have hypothesized that W, and west of the Americas. In the moderate annual rainfall, and seasonal high bycatch along the coastal areas of south, the cold waters of the Antarctic dynamics (Saba et al. 2012). In general, Central and South America could have Circumpolar Current likely restrict the nesting beach habitat for leatherback extirpated a coastal migratory nesting range of this DPS. We placed the turtles is associated with deep water phenotype in this population (Saba et al. 2007). Recently, Harrison et al. northern and western boundaries at the and strong waves and oceanic currents, (2018) determined that post-nesting border between the United States and but shallow water with mud banks are females from Las Baulas National Park Mexico because this DPS forages also used by leatherback turtles. spent 78.2 percent of their time on the primarily in the East Pacific Ocean, off Beaches with coarse-grained sand and high seas, 17.8 percent of their time in the coasts of Central and South free of rocks, coral, or other abrasive Costa Rica’s EEZ, and 3.7 percent of America. substrates also appear to be selected by their time around the Galapagos Islands. The range of the DPS (i.e., all leatherback turtles (reviewed by Eckert In summary, preferred foraging areas documented areas of occurrence) is et al. 2012). Foraging areas of the East Pacific DPS for the East Pacific DPS are centered in the eastern Pacific Ocean characterized by low sea surface include coastal and pelagic waters of the but may include distant waters for temperatures and high mesoscale southeastern Pacific Ocean. Leatherback foraging, as demonstrated by a turtle variability. Post-nesting females migrate turtles are widely dispersed on the high satellite-tracked to waters off the Tonga relatively quickly through areas that seas throughout the eastern Pacific Trench and a turtle captured by the contain the strong equatorial currents as Ocean (Shillinger et al. 2008). They also Hawaii longline fishery, genetically well as high chlorophyll-a forage in coastal areas off the coast of assigned to the population we refer to in concentrations, likely because of the Peru and Chile (Alfaro-Shigueto et al. this finding as the East Pacific DPS (P. strong currents. While swimming speed 2007; Eckert 1997; Donoso and Dutton Dutton, NMFS, pers. comm., 2018). was significantly higher in areas of high 2010). Using satellite telemetry, Records indicate that the DPS occurs in chlorophyll levels, the association the waters of the following nations: Morreale et al. (1996) tracked the between these two variables was weak Chile; Colombia; Costa Rica; Ecuador; El movements of eight post-nesting females (Shillinger et al. 2008). Once past this Salvador; France (Clipperton Island); and identified a persistent southbound area, they appear to forage in the Guatemala, Honduras; Mexico; migration corridor from Las Baulas southern part of their range in the South Nicaragua; Panama; Peru; and the National Park toward the Galapagos Pacific Subtropical Convergence, where United States (Hawaiian Islands) Islands. Eckert (1997) found a similar there is a sharp gradient in primary (Wallace et al. 2013). pattern, tracking seven post-nesting production. In this area, Ekman Leatherback turtles of the East Pacific females from Mexiquillo in a similar upwelling may accelerate the transport DPS nest primarily on beaches in direction; while three continued to the of nutrients and consequently increase Mexico, Costa Rica, and Nicaragua. In same foraging habitat as the Costa Rican prey availability. Seasonally, Mexico, where the largest nesting nesting females, four shifted their leatherback turtles from the East Pacific aggregations occur, nesting beaches are movements away from the South DPS foraged at higher southerly found in 11 states, over 7,828 kilometers American coast, when a strong El Nin˜ o latitudes during the austral summer as far north as Baja California Sur (Sarti caused a warm water anomaly. (November to February), which may 2002). The following beaches in Mexico Additional tracking of 46 post-nesting reflect seasonal patterns in prey host approximately 40 to 50 percent of females from Las Baulas National Park abundance during higher latitudes total nesting for the nation: Mexiquillo over a 3-year period (2004/2005 to 2006/ (Bailey et al. 2012). (Michoaca´n), Tierra Colorada 2007) confirmed the persistent (Guerrero), and Cahuita´n, Chacahua, migratory corridor (Shillinger et al. Abundance and Barra de la Cruz (Oaxaca; Gaona 2008). The turtles navigated the The total index of nesting female Pineda and Barraga´n Rocha 2016). In equatorial current system, south to abundance for the East Pacific DPS is Costa Rica, approximately 75 percent of around 5° S latitude and negotiated the 755 females. We based this total index nesting occurs within the Parque strong alternating eastward-westward on 13 nesting aggregations in: Mexico Nacional Marino Las Baulas flows of the equatorial current, (Mexican Commission for Natural (Guanacaste Province) at three nesting swimming predominantly in a Protected Areas; L. Sarti, CONANP, beaches: Playa Ventanas; Playa Grande; southward direction and moving rapidly pers. comm. 2018); Costa Rica and Playa Langosta (based on recent through the productive equatorial (Santidria´n Tomillo et al. 2017; abundance estimates from 2011–2015; region. They then dispersed throughout Leatherback Trust 2018); and Nicaragua Santidria´n Tomillo et al. 2017). In the South Pacific Gyre ecosystem, (FFI 2018). Our total index does not Nicaragua, small numbers of leatherback which is characterized by low include several unquantified nesting turtles nest on Playa Salamina-Costa phytoplanktonic biomass. The South aggregations in Mexico, Costa Rica, and Grande and Veracruz de Acayo Pacific Gyre contains ample Nicaragua. To calculate the index of (Chacocente Wildlife Refuge) (FFI 2018). mesoplankton forage base, as nesting female abundance for nesting Rare nesting events have been demonstrated by tuna longline fisheries beaches in Mexico (i.e., 572 females), we documented in Guatemala (n = 6), El effort in the eastern tropical Pacific added the total number of nesting Salvador (n = 4), and Panama (n = 4), Ocean (Shillinger et al. 2008). Of the 46 females between the 2013/2014 and with none in Honduras (Sarti et al. turtles, only one leatherback moved into 2016/2017 nesting seasons (i.e., a 4-year 1999). coastal foraging areas, which had been remigration interval; L. Sarti, CONANP, Generally, the nesting season starts in documented earlier by Eckert (1997). pers. comm., 2018) at each beach. We October and ends in March (Santidria´n During the course of the tracking performed a similar calculation for Tomillo et al. 2007; Eckert et al. 2012). duration, this female occupied Costa Rica (n = 165 females). To

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calculate the index of nesting female (summarized in Santidria´n Tomillo et estimated in Pacific Mexico from a 1980 abundance in Nicaragua (i.e., 20 al. 2017), although the recent nesting at aerial survey ((Pritchard 1982). females), we divided the total number of other beaches may lower this However, this estimate was derived nests between the 2014/2015 and 2017/ percentage. These beaches include: from a brief aerial survey and may have 2018 nesting seasons (i.e., a 4-year Naranjo, Cabuyal, Nombre de Jesu´ s, been an overestimate (Pritchard 1996)), remigration interval; Santradia´n Tomillo Ostional, and Caletas. The longest data indicating that this population at one et al. 2007) by the clutch frequency (7.2 set was provided for Naranjo, which has time had the capacity for a much larger clutches/season; Santradia´n Tomillo et been intermittently covered from 1971 nesting population. Therefore, the al. 2007). to 2015. Limited nesting has been current nesting female abundance is This number represents an index of documented at Playa Coyote and at likely an indicator of past and current nesting females for this DPS because it Playa Caletas, which is a high energy threats, and given the intrinsic problems only includes available data from eight kilometer beach located on the of small population size, elevates the recently and consistently monitored Nicoya Peninsula (Squires 1999). Given extinction risk of this DPS. nesting beaches. While rare or sporadic the lack of nesting events for Caletas in Productivity nesting may occur on other beaches, recent years, it may no longer host consistent and standardized monitoring leatherback nesting, despite the fact that The East Pacific DPS exhibits a only occurs at these beaches, which are the Playa Caletas/Ario National Wildlife decreasing nest trend since monitoring for the most part protected. Refuge was created in 2004 to protect began, with a 97.4 percent decline since Our total index of nesting female leatherback turtles (Gaos et al. 2008). the 1980s or 1990s, depending on the abundance is similar to published In Nicaragua, leatherback turtles nest nesting beach (Wallace et al. 2013). abundance estimates for this DPS. The at three beaches. Salamina Costa Grande Despite intense conservation efforts, the IUCN Red List assessment estimated the and Veracruz de Acayo (in the Rio decline in nesting had not been reversed total number of mature individuals Escalante Chacocente Wildlife Refuge) as of 2011 (Benson et al. 2015). We (males and females) at 633 turtles, based host the most nesting and have been found a declining nest trend at some of first on dividing the average annual subject to the most consistent the remaining, small nesting number of nests (n = 926) by the monitoring. Small numbers of females aggregations. Abundance at Las Baulas, estimated clutch frequency (n = 7.2, also nest at Juan Venado National Costa Rica (previously the single largest Reina et al. 2002) to obtain an average Reserve, which is not consistently nesting aggregation) at its peak was annual number of nesting females. This monitored (V. Gadea, FFI, personal seven times the current abundance at value was then multiplied by the communication, 2018). Playa Barra de la Cruz/Playa Grande, average remigration interval (n = 3.7 Nesting is rare in other nations (Sarti Mexico (currently the largest nesting years, Reina et al. 2002; Santidria´n et al. 1999). Nesting is very uncommon aggregation). From 1988/1989 to 2015/ Tomillo et al. 2007) to obtain a total in Ecuador with one record of a female 2016, the number of nesting females at number of adult females that included attempting to nest (according to local Las Baulas declined ¥15.5 percent nesting as well as non-nesting turtles. In reports) in Atacames, a province of annually (sd = 3.8 percent; 95 percent order to account for adult males, the Esmeraldas (Salas 1981). Sarti et al. CI = ¥23.1 to ¥7.8 percent; f = 0.998; authors assumed that the sex ratio of (1999) reported six nests at Playa mean annual nests = 315). hatchlings produced on nesting beaches Puntilla, El Salvador, but overall nesting In recent decades (after a historical in the East Pacific (approximately 75 is low and/or unknown throughout the decline), nest counts have increased at percent female, or 3:1 female:male ratio) nation. In Guatemala, nesting is rare, some beaches in Mexico. The Playa reflected the natural adult sex ratio with reports by Sarti et al. (1999) Tierra Colorada nest trend has increased (Wallace et al. 2013). A more recent recording only eight nests during an by 0.6 percent annually (sd = 8.9 analysis of primary sex ratios that entire season, and more recently, zero to percent; 95 percent CI = ¥17.1 to 18.9 included multiple years of data and six nests per year along the Pacific coast percent; f = 0.536; mean annual nests = considered hatching success (i.e., lower of Guatemala (Muccio and Flores 2015). 153) between the 1996/1997 and 2016/ in hot nests) estimated primary sex Past nesting sites included Hawai beach, 2017 nesting seasons. Over the same ratios at Playa Grande, Costa Rica as La Candelaria, Taxico, Santa Rosa, and time period, nesting at Playa Barra de la approximately 85 percent female the zone adjacent to the border with El Cruz/Playa Grande increased by 9.5 (Santidria´n Tomillo et al. 2014). In Salvador, as reported by Chaco´n- percent annually (sd = 8.0 percent; 95 Mexico, the female to male ratio is Chaverri (2004). Although nesting has percent CI = ¥6.5 to 25.8 percent; f = closer to 1.1:1 (A. Barragan, Kutzari, been documented at Barqueta National 0.918; mean annual nests = 122). In pers. comm., 2019). Refuge, little is known about nesting in contrast, nest counts at Cahuita´n In Mexico, the beaches included in Panama (Chaco´n-Chaverri 2004). decreased from 1997/1998 through our total index represent approximately Our total index of nesting female 2016/2017, with a median trend of ¥4.3 70 to 75 percent of total nesting in that abundance (755 females) places the DPS percent annually (sd = 9.7 percent; 95 nation (Gaona Pineda and Barragan at risk for environmental variation, percent CI = ¥22.1 to 17.6 percent; f = Rocha 2016). However, our total index genetic complications, demographic 0.716; mean annual nests = 123). does not include nesting females from stochasticity, negative ecological We lack adequate data on nesting in Agua Blanca (40 km in Baja California); feedback, and catastrophes (McElhany Nicaragua to estimate trends. Playa Ventura (6 km), Playa San et al. 2000; NMFS 2017). These Our trend analysis yields similar Valentı´n (21 km), Piedra de processes, working alone or in concert, results to other published findings. The Tlacoyunque (44 km in Guerrero), and place small populations at a greater IUCN Red List assessment concluded La Tuza (16 km in Oaxaca) (Sarti et al. extinction risk than large populations, that this subpopulation is decreasing 2007). These beaches are not regularly which are better able to absorb losses in and has declined by ¥97.4 percent over monitored for nesting, which is thought individuals. Due to its small size, the the past three generations (Wallace et al. to be rare or of low abundance (L. Sarti, DPS has relatively little capacity to 2013). The number of nests at Mexico CONANP, pers. comm., 2018). buffer such losses. Historical abundance nesting beaches has declined In Costa Rica, 75 percent of nesting estimates were much greater (e.g., precipitously in recent decades (Benson occurred at Las Baulas National Park 75,000 leatherback nesting females et al. 2013). Historically, Mexico hosted

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the largest leatherback turtle nesting 1981, 100 turtles nested in a single night between nesting beaches may occur aggregation in the world, with 75,000 on Playa El Mogote (Arauz 2002). An during or between nesting seasons and nesting females estimated during an aerial survey of Playa El Mogote during may depend on the distance between aerial survey in 1980 ((Pritchard 1982). the 1998/1999 nesting season revealed a nesting sites, which can be fairly large, However, this estimate was derived nesting density of 0.72 turtles per especially in Mexico. For example, the from a brief aerial survey and may have kilometer (Sarti et al. 1999 in Arauz distance between Tierra Colorada and been an overestimate (Pritchard 1996)). 2002). During the 2000/2001 nesting Cahuita´n is 25 kilometers, and up to Prior to that aerial survey, Marquez et season, community members near Playa 18.7 percent of nesting females visit al. (1981) reported that the nesting El Mogote reported that 210 leatherback both beaches within a season (average of beach of San Juan Chacahua (Oaxaca) nests had been deposited. That number nine percent). Mexiquillo is located was the most important nesting site in decreased to 29 nests during the 2001/ approximately 475 kilometers from the Mexico, with approximately 2,000 2002 nesting season (Arauz 2002). At closest other nesting beach (Tierra females nesting each season. Playa Veracruz 48 nesting females were Colorada), and researchers found no Researchers also identified Tierra identified between 2002 and 2010 interchange of females within seasons. Colorada and Mexiquillo as important (Urteaga et al. 2012). Between 2002 and However, a few females were found to nesting sites, with approximately 3,000 2014, Salazar et al. (2019) recorded 340 nest in either Mexiquillo and/or Tierra to 5,000 nests per season. Monitoring of nests, indicating a downward trend. Colorado between seasons (Sarti et al. the nesting assemblage at Mexiquillo Considering the best available data, 2007). has been continuous since 1982. During nesting has declined in Nicaragua. In Costa Rica, nesting females move the mid-1980s, more than 5,000 nests Nesting females of the East Pacific among the three nesting beaches of Las per season were documented along 4 km DPS are generally smaller and produce Baulas National Park, within and of this nesting beach. By 1993, less than fewer eggs per clutch than turtles from between seasons, particularly between 100 nests were counted along the entire other leatherback populations (Sarti et Playa Grande and Playa Langosta, 18 km beach (Sarti 2002). According to al. 2007; Piedra et al. 2007; Santidria´n although researchers study both Playa Sarti et al. (1996), nesting declined at Tomillo et al. 2007). For example in Grande and Playa Ventanas in this location at an annual rate of over 22 Mexico, nesting females have a mean combination. According to data percent from 1984 to 1995. Researchers size of 144 cm CCL and 62 eggs per gathered over 10 years of research (mid from the National University of Mexico clutch; the average total fecundity per 1990s through the mid-2000s), an recorded 3,000 to 5,000 nests annually females was estimated to be 341 eggs average of 71 percent of females nested from 1982 to 1989 at primary nesting per season, with a maximum of 744 eggs only on Playa Grande, 10 percent nested beaches, with sharp declines observed deposited in a season (Sarti et al. 2007). only on Playa Langosta, and 18 percent in 1993 to 1994 at the nesting sites at The low productivity parameters, nested on both beaches in a given Mexiquillo, Tierra Colorada, Chacahua drastic reductions in overall nesting season. In other seasons, females have and Barra de la Cruz. These early female abundance, and current declines been shown to shift and nest primarily reports were generally snapshots (e.g., in nesting place the DPS at risk of on a different beach. Within two local unpublished data) of leatherback extinction, especially given the limited seasons, 82 percent of nesting females at nesting activity in Mexico, until 1995, nesting female abundance. Playa Langosta also nested at Playa Grande and 100 percent of nesting when a more coordinated conservation Spatial Distribution effort took shape in the form of females at Playa Langosta within three complete nesting surveys for the entire The DPS is characterized by seasons occasionally also nested at Pacific coast of Mexico (Eckert 1997). In somewhat continuous and low density Playa Grande (Santidria´n Tomillo et al. 1995, ‘‘Proyecto Laud’’ (Leatherback nesting across long stretches of beaches 2007). At the less abundant nesting Project) was formed to estimate the along the coast of Mexico and Central beaches in Costa Rica, the exchange rate population size using comprehensive America. Santidria´n Tomillo et al. between females ranged between 7 and surveys. In 1995 and 1996, Proyecto (2017) found a contraction of the Costa 28 percent. For example, at Ostional, 12 Laud estimated approximately 1,100 Rica’s overall nesting distribution since out of the 43 identified females were females nesting throughout Mexico; the the 1990s. observed at least once at other sites (28 next two seasons, they estimated The best available genetic data percent), while at Naranjo, 4 out of 21 between 236 and 250 nesting females, indicate a high degree of connectivity identified females were also observed at and declines continued. Currently, among nesting aggregations. Dutton et other beaches (19 percent). At Cabuyal, based on data from 2014 through 2018 al. (1999) did not find any genetic 2 out of 15 turtles were observed at (preliminary) between 100 and 250 differentiation between nesting other beaches (13 percent), while 1 out females nest at all the protected beaches populations in Mexico (Playa of 15 females at Caletas were observed in Mexico. Mexiquillo) and Costa Rica (Playa elsewhere (7 percent) (Santidria´n In Costa Rica, the number of nesting Grande) based on analysis of mtDNA Tomillo et al. 2017). females per season declined from 1,367 control region sequences. Additional The foraging range of the DPS extends females in 1988 to 117 females in 1998 analyses of mtDNA sequences and into coastal and pelagic waters of the (Spotila 2000). While there were nuclear DNA (microsatellites) from southeastern Pacific Ocean. Individuals increases in the number of nesting three index nesting beaches in Mexico forage in the Pacific Gyre ecosystem and females during the 1999/2000 season also failed to find genetic differentiation along the coasts of Peru and Chile, with (224 females) and 2000/2001 season (Barragan and Dutton 2000; Dutton et al. variation resulting from the location of (397 females), the population has shown unpublished). upwelling and ENSO effects. a steady decline, with less than 30 Based on monitoring of tagged nesting Researchers have hypothesized that nesting females in recent years (i.e., females, researchers documented female high bycatch along the coastal foraging through 2016; The Leatherback Trust interchange between nesting beaches phenotype in this population (Saba et 2018). within Mexico and within Costa Rica. al. 2007). Recently, Harrison et al. In Nicaragua, 108 leatherback turtles However, only one interchange has been (2018) determined that post-nesting nested on Playa Chacocente from documented between Mexico and Costa females from Las Baulas National Park October to December, 1980; in January Rica (Sarti et al. 2007). Interchange spent 78.2 percent of their time on the

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high seas, 17.8 percent of their time in Park, and in adjacent areas, has resulted natural protected areas (turtle Costa Rica’s EEZ, and 3.7 percent of in the loss of nesting beach habitat in sanctuaries), which helped protect their time around the Galapagos Islands. addition to the removal of much of the nesting habitat. Subsequently, in 2003, Multiple nesting and foraging natural beach vegetation. As a result, three of the index beaches (Mexiquillo, distributions likely help to buffer the erosion has increased and led to other Tierra Colorada, and Cahuita´n) were DPS against local catastrophes or environmental damages to sand that are listed as Ramsar Sites, which are environmental changes that would associated with human development, wetland sites designated to be of otherwise modify nesting habitat or including significant changes to international importance under the limit prey availability. Nesting elevation, water content, particle size, Ramsar Convention. aggregations are largely connected. pH, salinity, organic content and At Veracruz de Acayo beach in However, there is less exchange among calcium carbonate content (Clune and Nicaragua, Salazar et al. (2019) note that distant nesting beaches. Foraging turtles Paladino 2008). Within the past two while conservation efforts has reduced are vulnerable to perturbations in ocean decades, beachfront development in the the threat of poaching, the conditions due to climate change, town of Tamarindo (across Tamarindo establishment of tourism-focused ENSO, and the Pacific Decadal Bay from Playa Grande) has resulted in coastal development that do not comply Oscillation. the degradation of nesting beach habitat, with the existence of management plans could threaten the nesting habitat. Diversity including: Pollution from artificial light, solid and chemical wastes, beach While nesting beaches within this The East Pacific DPS exhibits genetic erosion, unsustainable water DPS are generally remote and/or diversity, as demonstrated by moderate consumption, and deforestation. Hotels protected due to monitoring and to high mtDNA haplotypic diversity (h in this area have replaced a significant existence of national parks and wildlife = 0.66–0.71; Dutton et al. 1999). Such leatherback nesting area at Playa refuges, nesting females, hatchlings, and diversity likely provides the DPS with Tamarindo, which hosted significant eggs at Las Baulas National Park (Costa some capacity for adapting to long-term nesting in the 1970s and 1980s (Wallace Rica) nesting beaches are exposed to the environmental changes, such as cyclic and Piedra 2012). Playa Langosta, which modification of nesting habitat, as a or directional changes in ocean is just across from Tamarindo, is result of development. This threat environments due to natural and human inundated with lights and noise from impacts the DPS by reducing nesting causes (McElhany et al. 2000; NMFS the town (Wallace and Piedra 2012). and hatching success, thus lowering the 2017). Nesting habitat is mainly Currently, development has been productivity of the DPS. We conclude restricted to mainland beaches along the curtailed due mainly to water issues that habitat loss and modification is a same coast. The DPS does not exhibit (i.e., drought). Any additional threat to the East Pacific DPS. temporal or seasonal nesting diversity, development would damage the current Overutilization for Commercial, with most nesting occurring between hydrology. The Leatherback Trust, a Recreational, Scientific, or Educational October and March. This limits local nonprofit working at Las Baulas Purposes resilience. For example, short-term National Park, has acquired some spatial and temporal changes in the The harvest of nesting females and properties to prevent development, but environment are likely to affect all eggs was the primary cause of the property costs have increased over time. nesting females in a particular year. The historical decline in abundance of the At Las Baulas National Park, 10 percent foraging strategies are somewhat East Pacific DPS. Since then, laws have of nests were being inundated by tidal diverse, with turtles foraging in coastal been passed to protect eggs and turtles. flows. To mitigate this threat, nests at and oceanic waters. However, most However, poaching still occurs. risk of tidal inundation were relocated turtles forage in the East Pacific Ocean, In Mexico, Sarti et al. (2007) to another site on the same beach or into where they are similarly exposed to the attributed the decline of nesting females a hatchery. Hatchling production effects of climate change, ENSO, or the to the killing of adult females and slightly increased due to the Pacific Decadal Oscillation. Thus, the intensive egg harvest. Adult females establishment of the hatchery, where DPS has limited resilience. were historically killed at nesting approximately two percent of hatchlings beaches and in open waters (Sarti et al. Present or Threatened Destruction, were produced from 1998 to 2004 1994; Sarti et al. 1998). Since 1990, the Modification, or Curtailment of Habitat (Santidria´n Tomillo et al. 2007). We harvest of turtles and eggs has been or Range conclude that coastal development in prohibited by national legislation. The destruction or modification of Costa Rica is a threat to this DPS. However, poaching pressure remains habitat is a threat at many nesting In Mexico, the extent of development high wherever beach patrols do not beaches used by turtles of the East near nesting beaches is generally low, occur (Santidria´n Tomillo et al. 2017). Pacific DPS. Foraging habitat has also given the remoteness of the beaches in For example, Mexiquillo produced been characterized as marginal, Baja California and on the mainland. hatchlings every season in the 1980s. particularly in the eastern tropical Reviewing the location of these nesting However, even with efforts to protect Pacific Ocean (pelagic environment) due beaches, we found very few roads or the nests in place, 60 to 70 percent of to relatively low productivity. Coastal development nearby. The main nesting the total number of clutches were habitat, which is normally associated beaches remain somewhat isolated, with poached. Nichols (2003) notes that with high productivity, may have been very few roads or development adjacent leatherback turtles were once harvested marginalized due to high levels of to the nesting beaches. Thus, there is off Baja California, but their meat is now interactions with coastal artisanal limited threat due to artificial lighting considered inferior for human fisheries. and generally little to no beach driving consumption. At present, leatherback Development threatens the DPS by except perhaps that associated with turtles are not generally captured for modifying the preferred beach habitat monitoring efforts (L. Sarti, CONANP, their meat or skin, but the poaching of for nesting. Sustained and substantial pers. comm., 2018). In 2002, the nesting females has been known to development along the northern and Commission for Natural Protected Areas occur on beaches such as Piedra de southern ends of the nesting beach at designated two of the index beaches Tlacoyunque, Guerrero (Sarti et al. Playa Grande in Las Baulas National (Mexiquillo and Tierra Colorada) as 2000).

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Although poaching of turtles and eggs Herna´ndez et al. 2007; Eckert et al. fibropapillomatosis has been described has been consistently reduced over the 2012). In Playa Grande, Costa Rica, as a major epizootic disease in hard years, it still occurs at high levels. fewer females were produced in shelled turtles. A fibropapilloma tumor Effective conservation and protection translocated nests; cooler nests due to a (in regression) was found on one nesting depends on human presence at the lower number of metabolizing embryos female at Mexiquillo, Mexico in 1997 nesting beaches (Santidria´n Tomillo et may have reduced hatchling success (Huerta et al. 2002). Various bacteria al. 2017). Without such protection, (Sieg et al. 2011). have also been documented in poaching is likely to escalate. This may In Nicaragua, prior to protection in leatherback eggs. Soslau et al. (2011) have occurred at one of the primary the early 2000s, poachers took nearly sampled eggs laid on a Costa Rican nesting beaches (Mexiquillo), where 100 percent of the nests at the three beach to determine if bacteria were monitoring and conservation has not nesting beaches. Nesting beach contributing to the low hatching rate (50 taken place in recent years due to safety protection has occurred at Veracruz percent). The bacteria identified (i.e., concerns (L. Sarti, CONANP, pers. since 2002, Juan Venado since 2004, species of the Bacillus, Pseudomonas, comm., 2018). Since the mid-1990s, and Salamina since 2008. An average of and Aeromonas genera) are known Proyecto Lau´ d has been relocating ten community team members (mostly pathogens to humans and may account clutches (usually within 1–2 hours of ex-poachers) monitor beaches for developmental arrest of the turtle deposition) to protected fenced areas seasonally. From 2002 to 2010, up to embryo (Soslau et al. 2011). and releasing hatchlings in different 420 nests were recorded and an Numerous predators prey on East areas of the beach. These efforts are estimated 94 were protected (Urteaga et Pacific leatherback turtles throughout intended to protect the eggs from al. 2012). While Veracruz de Acayo and their life stages. Eggs and hatchlings are poachers/predators and the hatchlings Salamina are protected at 100 percent, eaten by crabs, ants, birds, reptiles, from predators (Sarti et al. 2007). Isla Juan Venado is not permanently mammals, and fish (Eckert et al. 2012). In Costa Rica, the population decline monitored. Therefore, poaching is likely In Costa Rica, during the 1993/1994 was predominantly caused by egg to occur. Poaching occurs at high levels nesting season, several nests were lost to harvest. Ninety percent of eggs were at other beaches, such as Playa El predation and infestation by maggots collected on one of the major nesting Mogote. During the 2001/2002 nesting (Schwandt et al. 1996). In the Nicoya beaches, Playa Grande, a decade or more season, 23 of 29 nests were poached (79 Peninsula, on the Pacific coast of Costa prior to the reduction of nesting females percent), and the remaining six nests Rica, Squires (1999) documented (Santidria´n Tomillo et al. 2007). In the were protected in a hatchery (Arauz evidence of potential nest predation by 1950s, there were few nesting females at 2002). Due to the high level of poaching dogs, coyote, and raccoon. Predation of Playa Grande (Wallace and Piedra in this area, when possible, researchers hatchlings by dogs and raccoons has 2012). In the late 1960s and early 1970s, from Flora & Fauna International increased in Playa Grande due to an the number of nesting turtles increased relocated 98 nests between 2002 and increase in development in the area (P. to more than 100 nesting females 2004. However, these nests had a low Santridia´n Tomillo, The Leatherback nightly (Wallace and Piedra 2012). In emergence rate (22 percent; Urteaga and Trust, pers. comm., 2019). the early 1970s, newly constructed Chaco´n 2008). For adult turtles, principal predators roads provided access to people from Extensive and prolonged effects of at sea include killer whales, crocodiles distant villages and cities, and egg comprehensive egg harvest have (Pritchard 1981), and sharks, while harvest increased to more than 90 depleted the leatherback population in nesting females are taken by crocodiles percent by the late 1970s (Wallace and Costa Rica and Mexico, with egg harvest (Bedding and Lockhart 1989), tigers, and Piedra 2012). Such high levels of egg levels of nearly 90 percent for about two jaguars (Pritchard 1971). Sarti et al. harvest persisted for nearly two decades decades (Sarti et al. 2007; Santidria´n (1994) observed a lone male killer whale (Wallace and Saba 2009). Despite Tomillo et al. 2008; Wallace and Saba feeding on a single gravid female near protection of nesting beaches at Las 2009). Currently, nesting females and Michoaca´n, Mexico, apparently Baulas National Park, illegal poaching of eggs of the East Pacific DPS are exposed consuming only certain parts of the eggs still occurs, though rarely. The to poaching. Though efforts have turtle and discarding others (e.g., female black market for eggs remains strong; reduced the levels of poaching of both reproductive organs). In summary, eggs, local bars throughout Guanacaste and eggs and nesting turtles, egg poaching hatchlings, and some adults are exposed elsewhere continue to offer shots of raw remains high and affects a large to predation. For this DPS, the primary sea turtle egg yolks accompanying beer proportion of the DPS. Poaching of impact is to productivity (i.e., reduced or liquor (Wallace and Piedra 2012). nesting females reduces both abundance egg and hatching success). Predation on In 1991, the Parque Nacional Marino (through loss of nesting females) and nesting females, while rare, reduces Las Baulas was created and productivity (through loss of abundance and productivity. Nest subsequently ratified by law in 1995. reproductive potential). Such impacts predation is mitigated through screening The Park consists of three leatherback are high because they directly remove of nests, relocation of nests to hatcheries nesting beaches: Playa Grande, Playa the most productive individuals from and releasing hatchlings in safer areas of Ventanas, and Playa Langosta. The DPS, reducing current and/or future the beach, and protecting nesting establishment of the park ensured reproductive potential. Egg harvest females from large predators such as increased protection at all three nesting reduces productivity only, but over a dogs and jaguars (Sarti et al. 2007); some beaches, greatly reducing egg poaching long period of time, this also reduces of these efforts are funded through the in the area. Poaching of eggs was recruitment and thus abundance. Given MTCA. We conclude that predation is a reduced from 90 percent prior to 1990/ the high exposure and impacts, we threat to the East Pacific DPS. 1991, to 50 percent in 1990/1991, 25 conclude that overutilization, as a result Inadequacy of Existing Regulatory percent in 1991 through 1993, and near of poaching, poses a major threat to the Mechanisms 0 percent in 1993/1994 (Santridia´n DPS. Tomillo et al. 2007). To mitigate Several international regulatory poaching, nests are often relocated. Disease or Predation mechanisms apply to turtles in this However, relocation may reduce Little is known about diseases and DPS. The IAC, in particular, prohibits hatching success (reviewed in parasites in leatherback turtles, although the harvest of turtles and eggs. CITES

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limits all international trade of the and (3) waste management, control of bait). Despite results in both the Atlantic species. There are also international pollution, and disposal of debris at sea. and Pacific longline fleets showing that efforts to reduce fisheries bycatch. In 2015, the Eastern Pacific use of circle hooks/fish bait significantly In 2015, at the 7th Conference of the Leatherback Network (also known as La reduced leatherback bycatch rates Parties, the IAC resolved to prioritize Red de la Tortuga Lau´ d del Oce´ano (Swimmer et al. 2017), nations are not conservation actions in their work Pacifico (Red Lau´ d OPO) required to use this hook/bait programs that would help ‘‘reverse the (www.savepacificleatherbacks.org)) was combination. In 2017, at an IATTC sea critical situation of the leatherback sea formed to address the critical need for turtle bycatch reduction workshop, the turtle in the Eastern Pacific.’’ regional coordination of East Pacific United States presented findings on Specifically, parties were urged to: (1) leatherback conservation actions to longline bycatch reduction and Submit leatherback bycatch information track conservation priorities and proposed a stronger resolution that annually to the IAC Secretariat; (2) progress at the population level. This would require use of this methodology. improve leatherback turtle fishery network has brought together However, some nations resisted, and the monitoring efforts through the use of on- conservationists, researchers, resolution did not move forward for board observers; (3) report annually on practitioners and government consideration at the annual IATTC the measures they have taken to reduce representatives from 22 institutions meeting. leatherback bycatch in their fisheries; across nine East Pacific nations with Throughout the world, illegal, (4) enhance leatherback nest monitoring varying priorities, capacities and unreported, and unregulated (IUU) and protection to increase hatchling historical experiences in leatherback fishing leads to underestimates of survival and protect nesting beach research and conservation to contribute bycatch. In Mexico, there is a lack of habitat; (5) foster safe handling and to shared activities, projects, and goals. effective fisheries governance, resulting release of incidentally bycaught Through these efforts, Red Lau´ d OPO in highly uncertain fishery statistics. For leatherback turtles in fisheries; and (6) now has mutually-agreed upon example, from 1950 to 2010, total agree to a five-year strategic plan mechanisms for sharing information and fisheries catch, including estimated IUU containing key activities related to the data, as well as standardized protocols catch and discarded bycatch, was nearly resolution (CIT–COP7–2015–R2). The for nesting beach monitoring and twice as high as the official statistics strategic plan was patterned after the bycatch assessments/fishing practices. (Cisneros-Montemayor et al. 2013). The Convention for the Protection of Regional Action Plan for Reversing the Thus, the bycatch threat of commercial Natural Resources and Environment of Decline of the Eastern Pacific fisheries in Mexico may be higher than Leatherback (http:// the South Pacific, also known as the currently estimated. savepacificleatherbackturtles.org) and Noumea Convention, has been in force included measures to reduce fisheries since 1990 and includes 26 Parties (as In addition, several international bycatch of adult and subadult of 2013). The purpose of the Convention treaties and/or regulatory mechanisms leatherback turtles, the identification of is to protect the marine environment protect East Pacific leatherback turtles. high risk areas with fisheries and and coastal zones of the South-East While no single law or treaty can be 100 leatherback turtles, the identification Pacific, and beyond that area, the high percent effective at minimizing and protection of important areas for seas up to a distance within which anthropogenic impacts to sea turtles in leatherback turtle survival in different pollution of the high seas may affect these areas, there are several life stages, the elimination of any that area. international conservation agreements consumption and illegal use of In 2015, the IATTC passed a and laws in the region that, when taken leatherback turtles, and nesting site resolution that requires large longline together, provide a framework within protection. vessels fishing in the eastern tropical which sea turtle conservation advances As mandated by the 1994 North Pacific Ocean to carry observers. can be made (Frazier 2012). In addition American Agreement for Environmental Cooperating parties that have to protection provided by local marine Cooperation, the Commission for documented interactions with sea reserves throughout the region, sea Environmental Cooperation (CEC) turtles in their longline fleet are turtles may benefit from the following encourages Canada, the United States, required to maintain at least five percent broader regional effort: (1) The Eastern and Mexico to adopt a continental observer coverage and provide an Tropical Pacific (ETP) Marine Corridor approach to the conservation of flora annual report to the IATTC. (CMAR) Initiative supported by the and fauna. In 2003, this mandate was Unfortunately, the forms used by governments of Costa Rica, Panama, strengthened as the three North observers to report incidents are not Colombia, and Ecuador, which is a American nations launched the standardized, so in some cases, the voluntary agreement to work towards Strategic Plan for North American reports did not include species sustainable use and conservation of Cooperation in the Conservation of identification, condition of the released marine resources in these nations’ Biodiversity. The North American turtles, and location of the interactions, waters; (2) the ETP Seascape Program Conservation Action Plan (NACAP) and the five percent minimum coverage managed by Conservation International initiative began as an effort promoted by is often not met. Nations without that supports cooperative marine the three nations, through the CEC, to reported bycatch of sea turtles simply management in the ETP, including facilitate the conservation of marine and provided a statement to that effect. In implementation of the CMAR; (3) the terrestrial species of common concern. the few reports we reviewed, IATTC and its bycatch reduction efforts In 2005, the CEC supported the leatherback turtles comprised some of through resolutions on sea turtles, development of a NACAP for Pacific the bycatch in the eastern tropical observer coverage, etc.; (4) the IAC, leatherback turtles by Canada, the Pacific Ocean, but there were few which is designed to lessen impacts on United States, and Mexico. Identified details on the events (C. Fahy, NMFS, sea turtles from fisheries and other actions in the plan addressed three main pers. comm., 2018). In 2007, the IATTC human impacts; and (5) the Permanent objectives: (1) Protection and passed a resolution requiring nations to Commission of the South Pacific (Lima management of nesting beaches and conduct research on sea turtle bycatch Convention), which has developed an females; (2) reducing mortalities from reduction measures in their longline Action Plan for Sea Turtles in the bycatch throughout the Pacific Basin; fleets (e.g., use of circle hooks and fish Southeast Pacific.

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Most nations within the range of the east into the Gulf of Nicoya in Costa industrial longline fleets on leatherback East Pacific DPS have laws prohibiting Rica, and north to coastal habitats turtles (e.g., Spotila et al. 1996, 2000). the harvest of turtles and eggs. This within 30 kilometers offshore from In their global study of sea turtle applies to nesting turtles and those southern Nicaragua. The marine areas bycatch, where available, Wallace et al. captured at sea. National laws in Mexico adjacent to this protected boundary are (2013) found that longline bycatch had (1990 Presidential Decree), Costa Rica not managed under any type of status a low impact, but that net bycatch had (2002 Presidential Decree N°8325: The (Shillinger et al. 2010). Fisheries within a high impact on the East Pacific RMU. Law of Protection, Conservation, and Costa Rica and Nicaragua’s EEZ include The impact of local artisanal fleets Recuperation of Marine Turtles), and trawl, gillnet and longline that continue (using gillnets and longlines) that fish Nicaragua (Law No. 651 and Ministrial to operate. closer to shore is less documented. Resolution No. 043–2005) protect In summary, numerous regulatory In Mexico, leatherback turtles wash to nesting females and eggs and nesting mechanisms exist to protect leatherback shore entangled in longlines and beaches. However, poaching remains a turtles, eggs, and nesting habitat driftnet, indicating interaction and major threat. Although laws prohibit the throughout the range of this DPS. mortality (Sarti et al. 2007). Ortiz- harvest of turtles in Peru, fishermen Although the regulatory mechanisms Alvarez et al. (2019) conducted a consume leatherback turtles bycaught in provide some protection to the species, bycatch survey across 48 different ports small-scale fisheries (Alfaro-Shigueto et many do not adequately reduce the (933 fishers) in Mexico, Nicaragua and al. 2011), indicating inadequate threat that they were designed to Costa Rica between October 2016 and enforcement of existing laws. In other address, generally as a result of limited July 2017 in an effort to improve the nations where leatherback turtles of this implementation or enforcement. As a understanding of leatherback bycatch in DPS are bycaught, the turtles are result, bycatch, incomplete nesting artisanal fisheries, particularly where data are lacking. The surveys released and not retained (e.g., Chile; habitat protection, and poaching remain represented on average over 30 percent Donoso and Dutton 2010). threats to the DPS. We conclude that the of the fishing fleet per port for both Several protected areas have been inadequacy of existing regulatory Nicaragua and Costa Rica and 6 percent established throughout the range of the mechanisms is a threat to the East per port for Mexico. In Mexico, where DPS. Most of the nesting beaches in Pacific DPS. Mexico and Costa Rica are protected gillnets were the most frequently from egg and turtle poaching, with Fisheries Bycatch reported gear, fishers (n = 709) reported an estimated bycatch of 300 leatherback effective monitoring to ensure low Bycatch in commercial and levels of poaching. Poaching likely turtles in the previous year, with 65 recreational fisheries, both on the high continues at unprotected and remote percent in ‘‘good condition;’’ 76 percent seas and off the coasts, is the primary beaches, and at those that contain an of fishers released turtles alive (three threat to the East Pacific DPS. This extensive coastline that is difficult to percent consumed or sold the turtles). threat affects the DPS by reducing the monitor and protect. Protected nesting Estimated average bycatch rates per abundance of all life stages of the DPS beaches in Mexico include: Mexiquillo vessel were 1.0 for Costa Rica and (with the likely exception of hatchlings). (until 2013); Playa de Tierra Colorada, Nicaragua and 2.3 for Mexico. In Costa Playa Cahuita´n, Playa San Juan, Bahia Integrating catch data from over 40 Rica, leatherback turtles were primarily de Chacahua, and Playa Barra de la nations and bycatch data from 13 caught in longlines and released alive; Cruz. Protected nesting beaches in Costa international observer programs, 75 percent of the Costa Rican fishermen Rica include: Las Baulas National Park Lewison et al. (2004) estimated the reported that bycaught leatherback (Playa Grande, Playa Langosta, and numbers of leatherback turtles taken turtles were in ‘‘good condition.’’ In Playa Ventanas), Naranjo (National globally by pelagic longliners to be more Nicaragua, where gillnets were the most Park), Cabuyal (under no official than 50,000 leatherback turtles in just frequently reported gear, 18 percent of management category), Nombre De Jesu´ s one year (2000). With over half of the fishers reported that leatherback turtles (under no official management total fishing effort (targeting tuna and were in ‘‘good condition;’’ 76 percent of category), Ostional (wildlife refuge), and swordfish) occurring in the Pacific fishers released turtles alive (six percent Caletas (wildlife refuge). Protected Ocean, an estimated 20,000 to 40,000 consumed or sold the turtles; Ortiz- nesting beaches in Nicaragua include: leatherback turtles interacted with Alvarez et al. (2019). Salamina-Costa Grande, Veracruz de longline fishing during the year studied. Recent surveys of 765 Ecuadorian, Acayo (Chacocente Wildlife Refuge). Fishing effort was highest in the central Peruvian, and Chilean fishermen (at 43 Marine protected areas also exist. The South Pacific Ocean (south of Hawaii), ports, representing 28 to 63 percent of waters of the Las Baulas National Park, which overlaps with the foraging range ports) reported the following which represents a hotspot for inter- of this DPS. Because observers are in leatherback interaction rates (as a nesting females and breeding males, are place on only a fraction of longline percentage of total interactions with sea protected out to 22.2 km as a no-take vessels in the eastern tropical Pacific turtles): 2.81 percent of 40,480 zone for all fishing activity. However, Ocean, and a requirement came into interactions (32.5 percent mortality) in satellite telemetry data for nesting effect only recently through an IATTC Ecuador, 14.87 of 5,828 interactions females at these beaches over three resolution, these estimates are likely a (50.8 percent mortality) in Peru, and seasons revealed that the turtles move minimum. More recently, Molony 27.83 percent of 170 interactions (3.2 well outside these boundaries during (2005) and Beverly and Chapman (2007) percent mortality) in Chile (Alfaro- their inter-nesting period, which makes estimated sea turtle longline bycatch to Shigueto et al. 2018). Mortality rates them vulnerable to fisheries outside the be approximately 20 percent of that reported for all sea turtles were 3.2 park (Shillinger et al. 2010). Data from estimated by Lewison et al. (2004), or percent in Chile, 32.5 percent in 44 females that were tagged off Las approximately 200 to 640 leatherback Ecuador, and 50.8 percent in Peru Baulas National Park revealed a high turtles annually. Where tuna species are (Alfaro-Shigueto et al 2018). use habitat within 6 nm from the targeted, bycatch of turtles in the deep- The swordfish gillnet fisheries in Peru nesting beaches, but overall revealed a set longline gear often results in and Chile may have contributed to the generally large range, covering over mortality due to drowning. Additional decline of the DPS. The decline in the 33,000 km2, from the Nicoya Peninsula, studies indicate the high impact of nesting population at Mexiquillo

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occurred at the same time that effort Researchers noted that the meat was were the most common species caught doubled in the Chilean driftnet fishery used to support separate demands: (n = 284), with the majority (n = 282) (Eckert 1997). Using data collected from Fishermen families’ consumption, local released alive. Leatherback turtles were Frazier and Montero (1990) regarding trade, and ‘‘special’’ orders from Lima caught primarily between 24° S and leatherback takes in a swordfish gillnet (Quispe et al. 2019). Using data from 38° S (furthest south was 38°39′ S and fishery from one port in Chile (San shore-based and on-board observers, 84°15′ W) in less than 4 percent of the Antonio), and extrapolating to other Alfaro-Shigueto et al. (2011) estimated sets with an overall mean of 0.0268 ports in Chile and Peru, with an the mean annual leatherback bycatch as turtles per one thousand hooks. Size increased level of effort observed follows: 40 turtles (with a range of 37 to estimates revealed both juveniles and through the mid-1990s, Eckert (2007) 44) in the driftnet fishery, with 80 adults. Fishermen were trained to use estimated that a minimum of 2,000 percent released alive; six turtles (with the best practices for de-hooking, leatherback turtles were killed annually a range of 3 to 9) in the dolphinfish disentangling, and releasing sea turtles, by the combined swordfish fishing longline fishery, all released alive; and which likely increased the survival rate operations (only gillnet) off Peru and 26 turtles (with a range of 24 to 27) in of leatherback turtles (Donoso and Chile. After some fleets switched from the shark longline fishery, all released Dutton 2010). Researchers recently large mesh gillnet to longline to target alive. Alfaro-Shigueto et al. (2015) presented information on the incidental swordfish, this estimate has declined by assessed the bycatch of leatherback capture of sea turtles in industrial and at least an order in magnitude. Research turtles in driftnet vessels in northern artisanal longlines, gillnets and artisanal conducted in the Chilean large-mesh Peru (through at-sea monitoring) and espinel (i.e., small-scale handline or gillnet fishery to reduce bycatch of central Peru (shore-based monitoring). longline) fisheries all targeting marine mammals and sea turtles From December 2013 to November swordfish off Chile (Za´rate et al. 2019). indicates that less than five leatherback 2014, 31 leatherback turtles were Over an 8-year period (2006–2014), 182 turtles have interacted with the fishery captured, of which 13 died. Interactions leatherbacks were documented as (on observed vessels) since 2014, and all occurred primarily with juveniles and bycatch (mortality of bycaught turtles were released alive (C. Fahy, NMFS, subadults (mean CCL was 125.1 ± 14.8). was not reported). Over this study pers. comm., 2018). Nearshore driftnets from San Jose period, 44 percent of turtles were caught in industrial longline, 28 percent in In Peru, the capture of leatherback (northern Peru) captured 20 leatherback artisanal espinel, 17 percent in gillnets turtles has been prohibited since 1976, turtles (five dead). At least one animal and 11 percent in artisanal longline although retention of bycaught was butchered, indicating that even (with sea turtle species undefined). leatherback turtles continues (FAO animals caught alive may be killed, Researchers noted that while observer 2004). From 1985 to 1999, based on despite Peruvian laws restricting such coverage in the industrial longline fleet field books, diaries, specimen data practices. Approximately 3,000 net has been generally high (>70 percent of sheets, fishery statistics files and vessels fish along the coast of Peru, but total fishing trips), the monitoring unpublished reports, 30 leatherback only a fraction were included in this study (Alfaro-Shigueto et al. 2015). coverage of artisanal espinel and gillnets turtles were captured in fisheries (in is very low (<3 percent). Thus, these Alfaro-Shigueto et al. 2007). From July Efforts are being made to patrol nets to reduce bycatch, conduct extensive estimates of bycatch can be considered 2000 to November 2003, observers at 8 minimal. While the number of ports, from Mancora in northern Peru to education and outreach, and increase regulation and enforcement (Alfaro- industrial and artisanal vessels has Morro Sama in the south, reported 133 declined (from 12 vessels in 2001 to 3 leatherback turtles caught by artisanal Shigueto et al. 2015). A review of information collected from official vessels in 2014, the number of artisanal fishing gear, with 76 percent caught in espinel and gillnet vessels has not gillnets and 24 percent caught in statistics, literature, and surveys of beaches and dumpsites revealed that the declined, remaining around 90 vessels longlines targeting fish, sharks, and rays ´ size of captured leatherback turtles (Zarate et al. 2019). (Alfaro-Shigueto et al. 2007). Of the total We conclude that juvenile and adult declined over the years. In 1987, the caught, 41.4 percent (n = 55) were life stages of the East Pacific DPS are mean CCL of captured leatherback released alive and 58.6 percent (n = 78) exposed to high fishing effort were retained for human consumption. turtles was 117 ± 10.65 cm, while in ± throughout their foraging range and in Of the leatherback turtles retained and 2005, the mean CCL was 109.27 14.4, coastal waters near nesting beaches. measured (n = 6), the size ranged from possibly indicating overexploitation due Mortality is also high in some fisheries, 98 to 123 cm curved carapace length to systematic and sustained harvests, with reported mortality rates of up to 58 ˜ (CCL), indicating that both subadults particularly during El Nino years percent due in part to the use of gillnets and adults are encountered by artisanal (Campos et al. 2009). Greater captures of and as well as consumption of bycaught fisheries off Peru. Researchers recently all sea turtles, including leatherback turtles in Peru. As noted above, there assessed and quantified sea turtle turtles, occurred during periods of El have been efforts by individual nations mortality levels in one fishing village in Nin˜ o, when turtles are more likely to be and regional fishery management central-southern Peru (San Andre´s) found in more coastal waters (where organizations to mitigate and reduce the through sampling dump sites (97.3 there is increased artisanal fishery threat of bycatch, but those efforts have percent) and strandings (2.7 percent) activity) due to environmental not been successful at ameliorating the over a 5-year period (2009 to 2014). Of variability and availability of jellyfish in risks. We conclude that fisheries 953 carapaces recorded, leatherbacks those areas (Campos et al. 2009). bycatch remains a major threat to the comprised only 1.4 percent of sea turtles In Chile, a commercial fishery was East Pacific DPS. (n = 13). However, this study still established in 2001 that permitted confirmed that they were consumed or longlining for swordfish (shallow-set) Pollution sold for human consumption. With a with the condition that all vessels were Pollution is a threat to the East Pacific mean CCL of 113.0 cm (range: 80 to 135, required to take an observer on board to DPS. Pollution includes contaminants, n = 10), 70 percent of the leatherbacks collect information on bycatch. Between marine debris, and ghost fishing gear. were juveniles and 30 percent were sub- 2001 and 2005, over 10 million hooks The South Pacific Garbage Patch, adults. There were no adults. were observed, and leatherback turtles discovered in 2011 and confirmed in

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2017, contains an area of elevated levels analyzed the samples for metals and hatchlings (Saba et al. 2012). Saba et al. of marine debris and plastic particle other toxicants to explore the (2008) found that a shift from 1 °C to pollution, most of which is concentrated relationship between pollution and ¥1 °C in the El Nin˜ o sea surface within the ocean’s pelagic zone and in hatching success for 30 females. Metal temperature anomaly resulted in a five- area where leatherback turtles forage for levels were highly variable, but there fold increase in leatherback remigration many years of their life. The area is were no significant differences within probabilities at Playa Grande. Such located within the South Pacific Gyre, and between groups of females, and large-scale regime shifts are likely to which spans from waters east of none of the pesticides tested were affect the entire DPS. Productivity is Australia to the South American present in the samples (Sill et al. 2008). positively (La Nin˜ a) or negatively (El continent and as far north as the Overall, the study found no relationship Nin˜ o) impacted. Wallace et al (2006) Equator. between metal concentrations and hypothesize that prey availability Given the amount of floating debris in hatching success. The researchers related to ENSO exacerbates the effects the Pacific Ocean (Lebreton et al. 2018), postulated that eggs may take up some of fisheries bycatch mortality, resulting marine debris has the potential to be a metals from the nest environment and in declining trends. Because of the small significant threat to the East Pacific deposit other metals in the egg shell, as abundance of the DPS, extended El Nin˜ o leatherback population. The precise unhatched eggs contained more nickel, events are likely to pose a threat to the impact cannot be quantified using the copper, and cadmium and contained East Pacific DPS. best available data. Leatherback turtles significantly less iron, manganese and Climate Change subsist primarily on jellyfish and other zinc than dead hatchlings (Sill and gelatinous zooplankton and may be Paladino 2008). Climate change is a threat to the East prone to ingesting plastics resembling As with all leatherback turtles, Pacific DPS. The impacts of climate their food source (Mrosovsky 1981; entanglement in and ingestion of marine change include: Increases in Schuler et al. 2013, 2015). Dead debris and plastics is a threat that likely temperatures (air, sand, and sea leatherback turtles have been found kills several individuals a year. surface); sea level rise; increased coastal choked on plastic bags, and phthalates However, data are not available because erosion; more frequent and intense derived from plastics have been found most affected turtles are not observed. storm events; and changes in in leatherback egg yolk (Lebreton et al. Given the amount of pollution turtles oceanographic regimes and currents. 2018). are exposed to throughout their lifetime, Climate projections assessed by the Prior to the early 1990s, high seas this has the potential to be a significant IPCC indicate that Central America is driftnet fisheries freely operated in the threat to the East Pacific leatherback very likely (defined as 90 to 99 percent Pacific Ocean and interacted with population, although the impact cannot probability; IPCC 2007) to become thousands of sea turtles. Researchers be quantified using the best available warmer and likely (defined as 66 to 90 estimated that over 1,000 leatherback data. We conclude that pollution is a percent probability; IPCC 2007) to turtles were taken by the combined threat to this DPS. become drier by 2100 (Saba et al. 2012). fleets of Japan, Korea, and Taiwan In addition, climate variability is likely during a one-year period (Wetherall Oceanographic Regime Shifts to change the strength and frequency of 1997). However, because genetic The East Pacific DPS is affected by El Nin˜ o events, although there is less analyses of Pacific leatherback turtles oceanographic regime shifts. In the scientific consensus on the frequency were relatively new at that time, the eastern equatorial Pacific Ocean, and magnitude of changes to these data does not indicate the nesting beach reductions in productivity parameters events. A climate-forced population origin of those bycaught leatherback are primarily associated with ENSO, dynamics model developed by Saba et turtles. In 1992, a UN moratorium during which sex ratios become biased al. (2012) showed sea surface banned high seas driftnet fisheries, so up to 100 percent female (Santidria´n temperatures to be highly correlated that active large scale driftnets no longer Tomillo et al. 2014). There is also an with large phytoplankton productivity pose a threat to leatherback turtles. effect on hatching and emergence throughout a 100-year projection to the However, numerous discarded driftnets success in North Pacific Costa Rica year 2100. Relative to a stable nesting continue to entangle and drown (Santidria´n Tomillo et al. 2012): During population given mean surface air leatherback turtles in a phenomenon El Nin˜ o years, hatching success is very temperatures and precipitation from known as ‘‘ghost fishing’’ (Gilman et al. low due to dry and hot conditions on 1975 to 1999, Saba et al. (2012) 2016), the nesting beaches and is high during estimated that the nesting population at In 2007, the IATTC passed a La Nin˜ a events due to increased Playa Grande would decline at a rate of resolution pertaining to sea turtle precipitation in this area. La Nin˜ a 7 (±1) percent per decade over the next bycatch in purse seine and longline events are characterized by high century of climate change under a fisheries which primarily target tuna. In phytoplankton productivity, cooler sea scenario which considered increasing order to address the marine debris and surface temperatures, enhanced emissions from 2000 to 2100 (A2 potential interactions with sea turtles in precipitation in northwestern Costa scenario). Similar declines occurred for the eastern tropical Pacific Ocean, Rica, and cooler air temperatures. These other scenarios (Special Report on fishermen are required to disentangle factors lead to increases in the biomass Emissions Scenarios 2007). The nesting sea turtles entangled in fish aggregating and distribution of gelatinous population was projected to remain devices, even if the device does not zooplankton, the primary food of stable up until around 2030 but reduced belong to the vessel. leatherback turtles. Foraging success 75 percent by the year 2100. Hatching Only a few studies of levels or effects and the frequency of reproduction are success and emergence rates, which of toxins on leatherback turtles have enhanced following such periods of would decrease associated with 2.5 °C examined effects to their health and high primary productivity (Saba et al. warming of the nesting beaches, served fitness, as well as any effects to eggs and 2007). Nesting seasons that follow the as a primary driver of the decline. hatchlings. Sill et al. (2008) sampled La Nin˜ a events, result in peaks in the Santidria´n Tomillo et al. (2012) non-viable leatherback eggs and number of nesting females, higher than developed a similar climate forcing hatchlings that died in the egg chamber average hatching success and emergence model, which considered projected at Las Baulas National Park. Researchers rates, and a larger proportion of male changes associated with El Nin˜ o events

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and demonstrated that hatching success population declines. As mentioned UNCLOS, and UN Resolution 44/225 on would decline from approximately 42 to previously, the preferred foraging Large-Scale Pelagic Driftnet Fishing. 18 percent by 2100, while emergence habitat of eastern Pacific is Although numerous conservation efforts rates would decline between characterized by relatively low sea apply to the turtles of this DPS, they do approximately 76 to 29 percent. The surface temperatures and low levels of not adequately reduce its risk of authors concluded that even with chlorophyll-a. Using information extinction. protection at the primary nesting derived from satellite tracked Extinction Risk Analysis beaches in Costa Rica, with the general leatherback turtles, which established warming of Central America in the near migratory pathways and core foraging After reviewing the best available future, the chances of a new nesting area habitat (as summarized in Shillinger et information, the Team concluded that emerging with more ideal conditions al. 2008), in combination with the East Pacific DPS is at high risk of (i.e., cooler and wetter) is unlikely generalized additive mixed models, extinction. The DPS exhibits a total (Santidria´n Tomillo et al. 2012). researchers were able to project that index of nesting female abundance of Increasing sand temperature is an between 2001 and 2100, there would be 755 females at monitored beaches. Such existing threat to the DPS. The long- a net loss of the core foraging habitat of a limited nesting population size makes term data set on leatherback turtles the DPS. The loss was predicted to be this DPS vulnerable to stochastic or nesting at Playa Grande, Costa Rica a 15 percent decline over the next catastrophic events that increase its indicates reduced emergence success, century (Willis-Norton et al. 2014). extinction risk. This DPS exhibits a skewed sex ratios, and increased Depending on whether this population decreasing nest trend, which along with hatchling mortality as a result of is able to shift their preferred migratory lower than-average productivity metrics, increased sand temperature (Santidria´n routes and foraging habitat over time has the potential to further reduce Tomillo et al. 2015). From 2004 to 2013, (which is unclear), remigration intervals abundance and increase the risk of primary sex ratios fluctuated between a may shorten or lengthen, which could extinction. The nesting range is minimum sex ratio of 41 percent influence reproductive productivity. somewhat limited to the Pacific Central females (and the only year with a male- Climate change is a threat to the East American coast, with little diversity biased hatchling production) to 100 Pacific DPS that affects nesting females among sites. Thus, stochastic events percent females produced during two (e.g., remigration interval and fitness), could have catastrophic effects on seasons (Santidria´n Tomillo et al. 2014). their progeny (e.g., hatching success, nesting for the entire DPS, with no Low emergence success and low embryonic development, and distant subpopulations to buffer losses hatchling output (i.e., higher mortality feminization of hatchlings), and foraging or provide additional diversity. Most as a result of high sand temperatures) subadult and adult leatherback turtles. foraging occurs in the eastern Pacific were associated with a strongly biased Detrimental impacts of increased sand Ocean, which is subject to female ratio, because these resulted temperatures have already occurred and oceanographic regimes shifts that from female-producing high are likely to continue or worsen. expose the DPS to low-productivity temperatures. Variability in these results Foraging areas will also be impacted via events. Based on these demographic occur during and between nesting changes in ocean productivity, sea factors, we find the DPS to be at risk of seasons, largely due to highly variable surface temperatures, and availability of extinction as a result of past threats. climatic conditions in northwestern prey. Current threats also contribute to the Costa Rica, resulting in ‘‘boom-bust’’ risk of extinction of this DPS. Fisheries Conservation Efforts cycles in leatherback hatchling bycatch is the major threat, capturing, production and primary sex ratios (in There are numerous efforts to and often killing, turtles throughout Santidria´n Tomillo et al. 2014). Sand conserve the leatherback turtle. The their foraging areas, thus reducing temperatures are projected to continue following conservation efforts apply to abundance. There are few mechanisms to increase, which will likely result in turtles of the East Pacific DPS (for a in place, including internationally a further decline in the number of description of each effort, please see the through the IATTC or other bilateral or hatchlings produced (Santidria´n section on conservation efforts for the international instruments and through Tomillo et al. 2014). An increase in the overall species): Convention on the monitoring and enforcement of coastal percentage of females could potentially Conservation of Migratory Species of fisheries laws, to mitigate or reduce benefit the productivity of the DPS in Wild Animals, Convention on Biological bycatch. Overutilization is also a major the short-term. However, any such Diversity, Convention on International threat. Historically, harvest of turtles benefits would be tempered by the Trade in Endangered Species of Wild and eggs reduced the once high associated lower emergence and Fauna and Flora, Convention for the abundance of turtles to current low hatchling success rates. Relocation of Protection of the Marine Environment levels. The poaching of eggs continues, sea turtle clutches that may be and Coastal Area of the South-East reducing productivity, especially at ‘‘doomed’’ due to high sand Pacific (Lima Convention), Convention unprotected beaches, where egg temperatures and inundation is a for the Conservation and Management of collection may reach 100 percent and common conservation practice, Highly Migratory Fish Stocks in the nesting females may also be at risk of particularly at areas with warming Western and Central Pacific Ocean poaching. The effects of climate change, beaches. However, relocation is not (WCPF Convention), Convention including the observed and predicted always possible and is also associated Concerning the Protection of the World increase in frequency and strength of with lower emergence and hatchling Cultural and Natural Heritage (World ENSO events (i.e., oceanographic regime success rates. Heritage Convention), Eastern Pacific shifts), are threats to this DPS, given its In addition to climate change Leatherback Network, Eastern Tropical restricted foraging range and the influencing the nesting beach habitat of Pacific Marine Corridor Initiative, FAO vulnerability of nesting beaches to high eastern Pacific leatherback turtles, the Technical Consultation on Sea Turtle- sand temperatures and low levels of impacts of a warming ocean may also Fishery Interactions, IAC, MARPOL, rainfall, which affect sex ratios and affect the environmental variables of IUCN, Ramsar Convention on Wetlands, emergence and hatching success (i.e., their pelagic migratory and foraging RFMOs, Secretariat of the Pacific productivity). Additional threats habitat, which may further increase Regional Environment Programme, include: Habitat loss and modification;

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predation; and pollution. Development the key information from the DPS- site characteristics within a geographic modifies nesting habitat. However, most specific sections as well as an location (MacKay et al. 2014). beaches are protected throughout the evaluation of the demographic factors Foraging areas are generally nesting range. Though many regulatory affecting the overall species. characterized by zones of upwelling, mechanisms are in place, they do not As explained in the Background including off the edges of continents, adequately reduce the impact of these section, the leatherback turtle was where major currents converge, and in threats. Further, it is important to note originally listed as endangered in 1970 deep-water eddies (Saba 2013). that efforts (e.g., relocation) to protect under the precursor to the ESA and was Important foraging areas include but are and mitigate threats from the harvest of carried forward as an ‘‘endangered not limited to: upwelling off the west turtles and eggs, predation, and species’’ when the ESA became coasts of North and South America environmental impacts related to effective. The Services designated the (Benson et al. 2011; Roe et al. 2014); erosion and lethal temperatures are nesting beaches at Sandy Point, St. Benguela Current Marine Ecosystem dependent upon the presence of Croix (43 FR 43688; September 26, (Honig et al. 2007); and Canadian waters monitoring or management programs. 1978) and surrounding marine waters on the Scotian Shelf (James et al. 2005a, Some of these are dependent on funding (44 FR 17710; March 23, 1979) as 2006b, 2007b). critical habitat. NMFS designated from the MTCA. Even when undertaken, Abundance these efforts may not be successful. additional marine habitat along 41,914 We determine, consistent with the square miles (108,558 square km) of the Adding together the total indices of Team’s findings, that the East Pacific U.S. West Coast as critical habitat (77 nesting female abundance for all DPSs, DPS is currently in danger of extinction. FR 4170; January 26, 2012). The the total index of nesting female Its nesting female abundance and Services issued the recovery plans for abundance for the species is 32,174 declining trend make the DPS highly leatherback turtles in the U.S. females. This number, however, should vulnerable to threats. Though numerous Caribbean, Atlantic, and Gulf of Mexico be considered as a compilation of seven conservation efforts apply to this DPS, (1991) and U.S. Pacific (1998; https:// populations ranging in size from 27 to they do not adequately reduce the risk www.fisheries.noaa.gov/action/ 20,659 nesting females because nesting of extinction. We conclude that the East recovery-plans-leatherback-sea-turtle). female exchange does not occur Pacific DPS is currently in danger of The species has the widest between DPSs. extinction throughout its range and distribution of any reptile, with a global Comparisons with historical accounts therefore meets the definition of an range extending from 71° N, based on an of nesting female abundance are endangered species. The threatened at-sea capture off Norway (Carriol and complicated by the discovery of new species definition does not apply Vader 2002) to 47° S, based on an at-sea nesting beaches over time, changes in because the DPS is currently at risk of sighting off New Zealand (Eggleston remigration intervals and/or clutch extinction (i.e., at present), rather than 1971; Eckert et al. 2012). The species frequency, and modified observational on a trajectory to become so within the has several thermoregulatory effort. Abundance estimates for even foreseeable future. adaptations to allow such a large large nesting beaches were not available latitudinal range, maintain its core prior to 1950 (Rivalan et al. 2006), Leatherback Turtle, Overall Species temperature while foraging, and avoid several large nesting beaches were not The petition under review sought overheating during nesting. These discovered until the 1960s or later specifically to identify the NW Atlantic include its large size, low metabolic (NMFS and USFWS 2013), and population of leatherback sea turtles as rates, countercurrent heat exchange at monitoring efforts were variable over a separate DPS and assign it a different the base of its limbs, and peripheral time. Pritchard’s 1971 global estimate of status from the global listing. As insulation (Frair et al. 1972; Greer et al. 29,000 to 40,000 nesting females explained throughout this finding, we 1973; Paladino et al. 1990; Fossette et al. included a maximum estimate (i.e., have determined that seven leatherback 2009; Bostrom et al. 2010; Eckert et al. 40,000 nesting females) based on the populations would satisfy the tests for 2012; Casey et al. 2014; reviewed in assumption that large nesting recognition under our DPS Policy (i.e., Wallace and Jones 2015). aggregations had yet to be discovered that they are discrete from one another Nesting is restricted to mainly tropical (Pritchard 1971); this estimate did not and significant to the overall species), or subtropical beaches. However, include large nesting female abundances and we have referred to these nesting also occurs on temperate from the East Pacific and SE Atlantic hypothetically, for purposes of our beaches of the SW Indian Ocean Oceans. At that time, the nesting analysis only, as DPSs. This includes (Pritchard and Mortimer 1999). Nesting aggregation at Terengganu, Malaysia the NW Atlantic DPS. However, we usually occurs on high-energy beaches nesting population was thought to be have also determined that, even if these (Pritchard 1976), resulting in high rates one of the largest; however it has since populations were formally recognized as of natural erosion. The primary factors been extirpated (Chan and Liew 1996). DPSs through a listing process under the influencing shoreline suitability for In 1982, Pritchard revised his initial Act, each of the DPSs would have the nesting appear to be a lack of abrasive global estimate to 115,000 nesting same status as the overall species, substrate material, a deep-water females, based largely on the nesting which is currently listed throughout its approach to minimize energy beaches in Pacific Mexico (n = 75,000; range (globally) as endangered. Nothing expenditure needed to reach nesting Pritchard 1982). However, the 1982 in the petition or in the best available sites, and proximity to oceanic currents estimate was extrapolated from a brief information we have reviewed has led that can facilitate hatchling dispersal aerial survey and may have been an us to conclude that there is any basis to (Eckert et al. 2012). Leatherback turtles overestimate (Pritchard 1996). When the disturb the long-standing global listing, appear to prefer wide, long beaches with Mexico nesting population collapsed, which remains in effect and is a steep slope, deep rock-free sand, and Spotila (1996) estimated the total global unaffected by this finding. For an unobstructed deep water or soft- estimate to be 34,500 nesting females, completeness, here we present an bottom approach (Pritchard and with a range of 26,200 to 42,900 nesting overview of current information Mortimer 1999; Eckert et al. 2015). As females. However, this estimate did not pertaining to the status of the overall a result, it has been proposed that the include the nesting aggregation in species, including a summary of some of choice of nesting location is based on Gabon, which in 2002 was identified as

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the largest in the world at that time, Spatial Distribution people living within 60 km of the sea. with tens of thousands of nesting The species occurs over a broad This will place significant additional females (Witt et al. 2009). Recent data spatial range, in tropical and temperate pressure on coastal habitats. Coastal development and associated indicate less than 9,000 nesting females waters worldwide, from 71° N to 47° S activities cause accelerated erosion rates in Gabon (Formia in progress). Thus, we (Goff and Lien 1988; Carriol and Vader and interruption of natural shoreline find that leatherback nesting female 2002; McMahon and Hayes 2006; migration (National Research Council abundance has declined rapidly in Shillinger et al. 2008; Wallace et al. 1990). Numerous beaches are eroding several populations. Our total index of 2010; Benson et al. 2011; Eckert et al. nesting female abundance for the due to both natural (e.g., storms, sea 2012). It nests and forages across a wide level changes, waves, shoreline geology) species, which does include the largest spatial range, which provides some nesting aggregations from all DPSs, is and anthropogenic (e.g., development degree of resilience against local and expansion, construction of armoring lower than previous estimates by at least impacts to nesting and foraging areas. 10,000 females. structures, groins, jetties, marinas, The DPSs are reproductively isolated coastal development, inlet dredging) Species go extinct through the loss of with little to no gene flow connecting populations. Therefore, the loss of any factors. Such shoreline erosion has led them. However, within some DPSs there and will continue to lead to a loss of of these populations (which we refer to is fine-scale population structure in this finding hypothetically as DPSs) nesting habitat for leatherback turtles (Dutton et al. 1999; Dutton et al. 2003; and potential loss of nests from would increase the extinction risk of the Dutton et al. 2013; Molfetti et al. 2013). species. Most of the DPSs exhibit total inundation. Erosion or inundation and These subpopulations exhibit accretion of sand above incubating nests indices of nesting female abundances metapopulation dynamics, which make that place them at risk for appear to be the principal abiotic factors a DPS more resilient to stochastic and that negatively affect incubating egg environmental variation, genetic environmental changes. It is likely that complications, demographic clutches in some areas (Dow et al. 2007; all DPSs once exhibited such dynamics, USFWS 1999; NMFS and USFWS 2013). stochasticity, negative ecological given the ephemeral, high-energy Shoreline structuring can also feedback, and catastrophes (McElhany beaches where they nest and their physically prevent females from et al. 2000; NMFS 2017). The current regional, but not necessarily beach- reaching suitable nesting habitat or total index of nesting female abundance specific, philopatry (Dutton et al. 1999; prevent them from returning to sea for the species reflects the impact of Dutton et al. 2013). However, the (Witherington et al. 2011). threats that have affected the species to reduction of nesting aggregations within Low hatching success, relative to this point. This reduced abundance a DPS has likely reduced or removed other sea turtle species, is characteristic renders it particularly vulnerable to this structure, and the associated of many leatherback populations despite threats and contributes to its extinction resilience, in some DPSs and in the high fertility rates (reviewed by Bell et risk. overall species. al. 2003; Eckert et al. 2012). Nest Productivity Diversity relocation is undertaken as a conservation measure in some locations Nest trends are decreasing across the Relative to other sea turtle species, the when erosion (or poaching and species, except at the least abundant leatherback turtle has low genetic predation) threaten the viability of a nesting aggregation in Brazil (i.e., the SE diversity and shallow mtDNA nest. However, studies have found that Atlantic DPS), with a total index of 27 coalescence (Dutton et al. 1999), hatching success of nests in hatcheries nesting females, which is increasing by reflecting its recent global radiation, i.e., or nests relocated to another area of a 4.8 percent annually. Current nest Post-Pleistocene expansion from a beach is lower than in situ nests trends are declining at rates ranging refugium in the Indian Ocean (Dutton et (reviewed in Herna´ndez et al. 2007; from ¥0.3 percent (within the SW al. 1999). As a species, it uses diverse Eckert et al. 2012). In addition, nest Indian DPS) to ¥9.3 percent (the overall and widely distributed nesting and relocation results in altered sand decline for the NW Atlantic DPS). forage areas. Differences in size at temperatures, which influences the sex Historical declines are even larger. maturity, remigration rate, clutch ratio of hatchlings produced (Sieg et al. Aerial surveys of nesting beaches in frequency, and clutch size likely reflect 2011). Mexico detected declines from over environmental variability among DPSs Coastal development and expansion 70,000 nesting females in 1982 to fewer (Saba et al. 2008; Saba et al. 2015). The also contributes to habitat degradation than 250 in 1998, with an annual age of the species and its flexible use of via artificial lighting (i.e., light mortality rate of 22.7 percent (Spotila multiple foraging and nesting areas pollution). The presence of artificial 2000) and an overall decline of 97.4 indicate that the species has some lighting on or adjacent to nesting percent in three generations (Wallace et resilience to stochastic and beaches alters the behavior of nesting al. 2013). The Terengganu, Malaysia environmental changes. females (often deterring nesting) and is nesting aggregation has declined by 17.9 often fatal to post-nesting females and percent annually from 1967 to 2010. It Present or Threatened Destruction, emerging hatchlings, when they are was been reduced to less than one Modification, or Curtailment of Habitat attracted to terrestrial light sources and percent of its original size between the or Range drawn away from the water 1950s and 1995 (Chan and Liew 1996) The destruction or modification of (Witherington 1992; Sella et al. 2006; and is now considered functionally nesting habitat is a threat to most Witherington et al. 2014). As hatchlings extirpated. Significant declines in leatherback turtles, and in some areas, head toward lights or meander along the nesting have been documented for other this threat is major, as a result of beach, their exposure to predators and populations (Benson et al. 2015). development, erosion, or obstruction likelihood of desiccation are greatly Declining nesting trends reflect the from logs. By the year 2025, the UN increased. Artificial lighting may also impact of threats that have been Educational, Scientific and Cultural affect hatchlings that successfully find operating on the species, and these Organization (2001) forecasts that the water, causing them to be trends increase the extinction risk of the human population growth and misoriented after entering the surf zone species. migration will result in 75 percent of or while in nearshore waters.

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The modification of nesting habitat subadult and adult turtles. Predation on promote enforcement; and/or lack of generally results in loss of productivity eggs and hatchlings is common and legally-binding requirements. Lack of for the species, as a result of reductions reduces productivity of the species; implementation or enforcement by some in nest and hatching success. In predation on subadults and adults is nations may make them less effective addition, several DPSs experience less prevalent but reduces abundance than if they were implemented in a nesting beach habitat modifications when it occurs. Predation is a threat to more consistent manner across the (e.g., artificial lighting, logs, and other the species, and for some DPSs, it is a target region. A thorough discussion of obstructions) that result in the death of major threat. this topic is available in the 2002 nesting females and hatchlings. special issue of the Journal of Inadequacy of Existing Regulatory Therefore, abundance is also reduced, International Wildlife Law and Policy: Mechanisms posing an even greater threat to the International Instruments and Marine continued existence of the turtles of the Numerous regulatory mechanisms Turtle Conservation (Hykle 2002). DPS. The loss and modification of provide certain protections to sea turtles Additional information on national, nesting habitat poses a major threat to at the international, regional, national, regional, and local protection is the species. and local levels. For example, the provided in the prior sections of this harvest of sea turtles and their eggs is finding relating to each individual DPS. Overutilization for Commercial, prohibited by regional conventions and In summary, numerous regulatory Recreational, Scientific, or Educational national laws. Fisheries bycatch is also mechanisms protect leatherback turtles, Purposes addressed, although not eggs, and nesting habitat throughout the Historically, the harvest of turtles and comprehensively, by several range of the species. Although the eggs was the primary threat to the international and national instruments regulatory mechanisms provide some species, leading to the loss of severe and/or governing bodies. However, as protection, many do not adequately depletion of many nesting aggregations we detail below and has been discussed reduce the threat that they were worldwide (Spotila et al. 1996). At one in prior sections reviewing each designed to address, generally as a point in time, egg harvest was individual DPS, these measures are result of limited implementation or ubiquitous with all nests taken at many often poorly implemented or enforced, enforcement. As a result, bycatch, beaches (Chan and Liew 1996; Sarti et resulting in inadequate protections incomplete nesting habitat protection, al. 2007; reviewed by Eckert et al. 2012). against the threats they are designed to and poaching remain threats to the For the NW Atlantic, NE Indian, and ameliorate. species. We conclude that the West Pacific DPSs, legal harvest of turtle In some nations (e.g., South Africa) inadequacy of the regulatory and/or eggs continues. Despite laws in sea turtles were among the first species mechanisms is a threat to the many countries, the poaching of eggs to receive legal protections and have leatherback turtle. continues at most nesting beaches, been the focus of concentrated ranging in severity from minor at conservation efforts. However, current Fisheries Bycatch monitored or protected beaches to near regulatory mechanisms often fall short Fisheries bycatch is the primary threat 100 percent harvest at unmonitored of preventing further population to leatherback turtles (Crowder 2000; beaches. Nesting females, and turtles declines and ensuring persistence Spotila et al. 2000; Lewison et al. 2004; caught at sea, continue to be poached (Eckert et al. 2012). For many nations Wallace et al. 2011; Wallace et al. 2013; for their meat, eggs, and fat in many the regulations in place are inadequate Angel et al. 2014). It is a primary threat locations (Eckert et al. 2012). As (usually due to lack of enforcement and to all DPSs. Leatherback turtles are described in detail in the prior sections implementation) to address the impacts susceptible to bycatch in a wide range evaluating the status of each individual of a wide range of anthropogenic of fisheries, from large scale commercial DPS, the harvest of eggs and turtles is activities that directly injure and kill to artisanal. Gear types that affect a threat to each and to the species turtles, disturb eggs, disrupt necessary leatherbacks include: longlines, purse overall, and for the NE Indian and West behaviors, and alter terrestrial and seines, driftnets, gillnets, trawls, pots/ Pacific DPSs, it is a primary threat. The marine habitats used by the species. In traps, and pound nets (Gray and Diaz legal and illegal harvest of turtles and many areas, regulations for the harvest 2017). Turtles often drown after eggs poses a threat to the species. of turtles and eggs are inadequate due to becoming entangled in nets and other a lack of enforcement. In some areas, the gear or become injured and possibly die Disease or Predation regulation of fisheries bycatch do not as a result of hooking or interactions We do not have adequate information adequately reduce associated mortality. with the gear. While bycatch in pelagic on disease to assess its impact on the Fishery observer coverage is often shallow-set swordfish longline fisheries species. However, we have enough inadequate to accurately estimate has received the most attention to date, information to conclude that predation leatherback bycatch. small-scale coastal fisheries occur is clearly a threat. Numerous species Due in part to their worldwide worldwide, employing over 99 percent prey on leatherback eggs and hatchlings. distribution and highly migratory of the world’s 51 million fishers (FAO Eckert et al. (2012) provide an nature, combined with nesting site 2011). exhaustive list of the documented fidelity, leatherback turtles require Bycatch data are most commonly predators for each life stage and area. international, national, regional, and collected by trained observers on fishing For eggs, common predators include local protection. Hykle (2002) and vessels or via surveys or interviews ants, ghost crabs, monitor lizards, Tiwari (2002) reviewed the value of (Lewison et al. 2015). Though often the crows, mongoose, domestic and feral some international instruments and best available data on bycatch, observer dogs, and feral pigs (Eckert et al. 2012). concluded that they vary in their data generally cover less than five For hatchlings, common predators effectiveness. Often, international percent of fisheries’ total effort include the terrestrial predators listed treaties do not realize their full potential (Finkbeiner et al. 2011) and are rarely above as well as numerous species of because: They do not include all key available for small-scale fisheries carnivorous fish, including sharks. nations; do not specifically address sea (Wallace et al. 2013; Lewison et al. Sharks and killer whales, and in some turtle conservation; are handicapped by 2015). The use of different metrics also areas jaguars and crocodiles, prey on the lack of a sovereign authority to makes the data difficult to compare

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among fisheries, gear types, and regions differ. Wallace et al. (2013) defined high in waters off Brazil and western Africa. (Lewison et al. 2015). Therefore, bycatch impact as follows: A weighted These high pressure fishing areas are estimates of bycatch and resulting median bycatch per unit effort (BPUE) not comparable to those identified by mortality often underestimate the greater than or equal to one; median Roe et al. (2014), who used a different magnitude of this threat. mortality rate greater than or equal to methodology, but both studies identify Furthermore, IUU fishing is a 0.5; and affecting adult or subadult high risk areas within each ocean basin. significant yet unquantified threat to sea turtles. They found that longline Additional bycatch information that turtles worldwide. In addition to killing bycatch had a high impact on SW we have set out in prior sections and injuring turtles, it undermines Atlantic, SE Atlantic, and SW Indian specific to each DPS applies to our national and regional efforts to estimate RMUs and that net bycatch had a high consideration of the risk to the overall fisheries bycatch. IUU fishing represents impact on the NW Atlantic and East species. In summary, fisheries bycatch up to 26 million tonnes of fish caught Pacific RMUs (Wallace et al. 2013). is a threat that is encountered by annually (http://www.fao.org/iuu- Integrating catch data from over 40 numerous juvenile and adult fishing/en/). We have no estimates of nations and bycatch data from 13 leatherback turtles. Mortality rates are the impacts to leatherback turtles from international observer programs, often high, and individuals that are IUU fishing, though interaction and Lewison et al. (2004) estimated the released may experience injuries or mortality rates are likely high because of numbers of leatherback turtles taken by sublethal effects associated with the magnitude of this additional fishing pelagic longliners to be more than entanglement, submergence, or pressure and because it is unregulated. 50,000 leatherback turtles in just one handling. Fisheries bycatch reduces Generally, leatherback turtles do not year (2000). With over half of the total abundance, and when it prevents attempt to consume the bait associated fishing effort (targeting tuna and nesting females from returning to with fishing gear, as other sea turtles do, swordfish) occurring in the Pacific nesting beaches, reduces productivity as but become entangled in fishing gear Ocean, an estimated 20,000 leatherback well. Fisheries bycatch is the primary (Lewison et al. 2015). Longline fisheries turtles interacted with longline fishing threat to the leatherback species. involve the deployment of a horizontal gear, with 1,000 to 3,200 mortalities in Vessel Strikes main line and vertical branchlines with 2000 (Lewison et al. 2004). However, baited hooks, which may entangle Beverly and Chapman (2007) estimated Vessel strikes pose a threat to the leatherback turtles. Bycatch reduction sea turtle longline bycatch mortality to species throughout its range. As mature measures include using circle hooks, be approximately 20 percent of that individuals move from oceanic foraging finfish bait, minimizing soak times, and estimated by Lewison et al. (2004), or areas into coastal waters to reproduce, limiting mainline length (Angel et al. approximately 200 to 640 leatherback they are exposed to a greater 2014; https://www.fisheries.noaa.gov/ turtle mortalities annually. We consider concentration of vessels. Vessel strikes national/bycatch/fishing-gear-pelagic- the estimate of Beverly and Chapman off nesting beaches may injure or kill longlines#risks-to-sea-turtles). Purse (2007) to be more realistic, considering these individuals, reducing the seines capture schools of fish in a the low nesting females abundance of abundance and productivity of the DPS. vertical wall of netting that can be Pacific leatherback turtles, and because Most vessel strikes likely go unnoticed closed at the bottom (https:// Beverly and Chapman (2007) combined or unreported, making this threat www.fisheries.noaa.gov/national/ the effort data from Lewison et al. (2004) potentially much more significant that bycatch/fishing-gear-purse-seines); with bycatch data from Molony (2005) documented occurrences would suggest. bycatch rates are generally much lower that differentiated between deep-set and Vessel strikes are a threat to the than longline bycatch rates (Angel et al. shallow-set fisheries (which have leatherback species. 2014). Leatherback turtles also become different interaction rates). Pollution entangled and drowned in drift or set In the Pacific Ocean, Roe et al. (2014) gillnets (https://www.fisheries.noaa.gov/ predicted leatherback turtle bycatch We define pollution as including national/bycatch/fishing-gear-gillnets). hotspots by comparing the satellite contaminants, marine debris, and ghost Gillnets can be devastating to tracks of 135 adult turtles with longline or derelict fishing gear. Such leatherback populations when set near fishing effort. The greatest bycatch risk interactions are likely to go unnoticed nesting beaches and represent the occurred adjacent to primary nesting and unreported and thus likely present primary threat to leatherback turtles in beaches of the West Pacific DPS. a more significant impact than some areas (e.g., Trinidad; Eckert and Bycatch risk was also high in the South documented occurrences would suggest. Eckert 2005). Trawl fisheries drag nets Pacific Gyre, where the East Pacific DPS Leatherback turtles of all life stages are along the substrate or through the water forages. Expanding on this study, a vulnerable to oil spills, on land and at column and can capture and drown sea study of observer data from 34 sea, where exposure to oil and turtles. Although TEDs may mitigate swordfish-targeting shallow-set longline dispersants occurs via contact (i.e., this threat, they are not always required fleets found there were 331 leatherback physical fouling), inhalation, or or used in all areas. Vertical lines turtle interactions between 1989 and ingestion (reviewed by Stacy et al. in extending and/or connecting pot and 2015 (Clarke 2017). Clarke (2017) press). trap gear with surface buoys commonly identified two bycatch hotspot areas: Marine debris is ubiquitous entangle and can kill leatherback turtles. Central North Pacific Ocean and eastern throughout the range of the species. Longline and net fisheries are often Australia (Clarke 2017). Marine debris includes plastics the greatest threats to leatherback In the Atlantic Ocean, Fossette et al. (including plastic bags), microplastics, turtles. In a global study of sea turtle (2014) compared leatherback telemetry derelict fishing gear (e.g., ghost nets and bycatch, Wallace et al. (2013) compiled data to longline fishing effort data from other discarded or lost gear), and other data (n = 239 records) published ICCAT to identify nine areas in which man-made materials. Leatherback turtles between 1990 and 2011 to compare gear leatherback turtles are exposed to may directly consume floating plastics, types (longline, net, and trawl) and their bycatch associated with high longline mistaking it for their gelatinous prey or impacts to leatherback RMUs, which are fishery pressure. The high pressure accidentally ingest plastics while similar to the DPSs discussed in this fishing areas include foraging areas in foraging. In particular, plastic bags rule, though their exact boundaries the North and South Atlantic Ocean and appear similar to jellyfish in the marine

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environment, inappropriately triggering Gelatinous prey have relatively low annually between 1993 and 2010. the sensory cue to feed (Schuyler et al. energy content, requiring leatherback Climate model projections exhibit a 2014; Nelms et al. 2016). Plastic bags turtles to consume large quantities to wide range of plausible scenarios for have been found during necropsy of meet metabolic demands (Heaslip et al. both temperature and precipitation over stranded leatherback turtles, and 2012; Jones et al. 2012). Leatherback the next several decades. The global phthalates derived from plastics have turtles likely maximize their caloric mean surface temperature change for the been found in leatherback egg yolk intake by aligning their foraging period 2016 to 2035 relative to 1986 to (Lebreton et al. 2018). Mrosovsky et al. behavior to prey distribution 2005 will likely be in the range of (2009) reviewed 408 necropsy records abundance. Foraging areas are generally 0.3 ° to 0.7 °C (medium confidence; from 1885 to 2007 and found evidence characterized by zones of upwelling, IPCC 2014). The global ocean of plastic in the gastrointestinal tract of including off the edges of continents, temperature will continue to warm, and 34 percent of leatherback turtles, where major currents converge, and in increases in seasonal and annual mean including some cases in which the deep-water eddies (Saba 2013). Some of surface temperatures are expected to be plastic obstructed the passage of food these areas experience oceanographic larger in the tropics and Northern through the gut. The most commonly regime shifts that alter water Hemisphere subtropics (i.e., where identified items were plastic bags, temperature, downwelling, Ekman leatherback turtles nest; IPCC 2014). fishing lines, twine, and fragments of upwelling, sea surface height, Under Representative Concentration mylar balloons. Ghost or derelict fishing chlorophyll-a concentration, and Pathway 8.5, the change in global mean gear include discarded or lost nets, line, mesoscale eddies (Bailey et al. 2013; sea level rise for the mid- and late 21st and other gear. Ghost fishing gear can Benson et al. 2011). These shifts alter century relative to the reference period drift in the ocean and fish unattended prey availability, and thus productivity of 1986 to 2005 is projected to be 0.30 for decades and kill numerous parameters (e.g., remigration rates, meters higher from 2046 to 2065 and individuals (Wilcox et al. 2013). The clutch size, and clutch frequency), for 0.63 meters higher from 2081 to 2100, main sources of ghost fishing gear are leatherback turtles. Some DPSs are not with a rate of sea level rise during 2081 gillnet, purse seine, and trawl fisheries affected by such shifts because they to 2100 of 8 to 16 millimeters annually (Stelfox et al. 2016). Marine debris have access to diverse foraging areas, (medium confidence; IPCC 2014). affects leatherback turtles via ingestion such as: coastal and pelagic waters; For all sea turtles, including or entanglement and can reduce food subtropical, temperate, and boreal leatherback turtles, a warming climate intake and digestive capacity, cause waters; and ephemeral eddies (Neeman and rising sea levels are likely to result distress and/or drowning, expose turtles et al. 2015). Such flexibility allows the in changes in beach morphology, to contaminants, and in some cases leatherback turtle to consume large increased sand temperatures leading to cause direct mortality (Mrosovsky et al. amounts of prey at various locations a greater incidence of lethal incubation 2009; NMFS and USFWS 2013). In throughout the year. temperatures, changes in hatchling sex terms of microplastics, all samples We conclude that natural disasters ratios, and the loss of nests and nesting analyzed from all species (including and oceanographic regime shifts are habitat due to beach erosion (Benson et leatherbacks) had microplastics evident threats to the species, affecting some but in their gastro-intestinal tracts (Duncan not all populations, depending on the al. 2015; Hamann et al. 2013). et al. 2018). Given the increase of location of nesting and foraging areas. Leatherback turtles are most likely to be pollution entering the marine These threats reduce productivity by affected by climate change at nesting environment over the past 30 years or reducing nesting, nesting habitat, and beaches due to warming temperatures, approximately 5.2 to 19.3 million nest and hatching success. sea level rise, and storm events and due to oceanic changes that are likely to tonnes per year (Lebreton et al. 2018), Climate Change we conclude that pollution is a threat to alter foraging and migration. Warming the species. Climate change is a threat that affects temperatures and increased leatherback turtles of all life stages and precipitation at nesting beaches affect Natural Disasters and Oceanographic within all DPSs. A warming climate and reproductive output including hatching Regime Shifts rising sea levels can impact leatherback success, hatchling emergence rate, and Leatherback turtles are susceptible to turtles through changes in beach hatchling sex ratios (e.g., Hawkes et al. the impacts of natural disasters and morphology, increased sand 2009). Sea level rise results in a oceanographic regime shifts as a result temperatures leading to a greater reduction or shift in available nesting of their nesting and foraging incidence of lethal incubation beach habitat, an increased risk of preferences. Nesting usually occurs on temperatures, changes in hatchling sex erosion and nest inundation (e.g., Boyes high-energy beaches that are inherently ratios, and the loss of nests or nesting et al. 2010), and reduced nest success unstable (Pritchard 1976) and which are habitat due to beach erosion (Benson et (Fish et al. 2005; Fuentes et al. 2010; susceptible to natural erosion. The al. 2013). Fonseca et al. 2013). Increased primary factors influencing shoreline Impacts from climate change, frequency and severity of storm events suitability for nesting appear to be a lack especially due to global warming, are impact nests and nesting habitat, thus of abrasive substrate material, a deep- already being observed and are likely to reducing nesting and hatching success water approach to minimize energy become more apparent in future years (e.g., Van Houtan and Bass 2007; expenditure needed to reach nesting (IPCC 2007a). In its Fifth Assessment Fuentes and Abbs 2010). Changes in sites, and proximity to oceanic currents Report, the IPCC (2014) stated that the productivity affect the abundance and that can facilitate hatchling dispersal globally averaged combined land and distribution of forage species, resulting (Eckert et al. 2012). Leatherback turtles ocean surface temperature data has in changes in the foraging behavior and nest lower on the beach than other shown a warming of 0.85 °C from 1880 distribution of leatherback turtles (e.g., species, exposing their nests to erosion to 2012. The mean rate of globally Saba et al. 2008, 2012) as well as and inundation. Storm events, King averaged sea level rise was 1.7 changes in leatherback fitness and Tides, tsunamis, and hurricanes can millimeters annually between 1901 and growth. Changes in water temperature destroy or modify preferred nesting 2010, 2.0 millimeters annually between lead to a shift in range and changes in beaches of some DPSs. 1971 and 2010, and 3.2 millimeters phenology (timing of nesting seasons,

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timing of migrations) and different jellyfish abundance since 1970 contracted states were ‘‘to undertake to threat exposure (e.g., Saba et al. 2008, represents an actual increase or is a adopt the measures necessary to ensure 2012). phase of an oscillation (Condon et al. conservation, utilization and Increasing sand temperatures will 2012). Therefore, the effects of climate development of soil, water, floral and alter the thermal regime of incubating change on productivity are uncertain. faunal resources in accordance with nests, resulting in altered sex ratios and As described in prior sections with scientific principles and with due reduced hatching output (Hawkes et al. respect to each individual population, regard to the best interests of the 2009). Leatherback turtles exhibit some impacts from climate change have people.’’ The Algiers Convention temperature-dependent sex already been observed. At several recently has undergone revision, and its determination (reviewed by Binckley nesting beaches, increased erosion objectives are to enhance environmental and Spotila 2015), whereby phenotypic occurs, and sex ratios are severely protection, foster conservation and sex is determined by temperatures skewed toward females. Beach erosion sustainable use of natural resources, and experienced during the thermosensitive reduces productivity. Although the harmonize and coordinate policies in period of egg incubation. A 1:1 sex ratio skew toward females could increase these fields with a view to achieving is produced when this pivotal productivity in the short-term, it is often ecologically rational, economically temperature lies between 29.2 and 30.4 correlated with low hatching success. sound, and socially acceptable °C for leatherback turtles in Malaysia, For these reasons, climate change is a development policies and programs. 29.2 and 29.8 °C in French Guiana/ threat to the species. Additional information is available at Suriname, and 29.2 and 29.5 °C in Conservation Efforts http://www.unep.ch/regionalseas/legal/ Pacific Costa Rica (Binckley and Spotila afr.htm. 2015). Warmer temperatures produce The ESA requires the Services to Atlantic Sea Turtle Network (ASO): more female embryos (Mrosovsky et al. make their listing determinations solely Created in 2003 to foster greater 1984; Hawkes et al. 2007), but on the basis of the best scientific and collaboration in southern Brazil, temperatures over 32 °C are likely to commercial data available, after Uruguay, and Argentina for the result in death. As temperatures conducting a status review, and after protection of sea turtles and their continue to increase, emergence rates taking into account those efforts, if any, habitats. ASO represents dozens of local decrease (Santidria´n Tomillo et al. being made by any State or foreign and regional NGOs and government 2015), removing any advantage of nation to protect the species, whether by agencies as well as hundreds of increased female production. Santidria´n predatory control, protection of habitat community members. ASO and its Tomillo et al. (2015) conclude that and food supply, or other conservation partners have significantly advanced leatherback turtles may not survive if practices, within any area under its policies to protect sea turtles from temperatures rise as projected by jurisdiction, or on the high seas (16 fisheries interactions, which is one of current climate change models. U.S.C. 1533 (b)(1)(A)). In addition, the the most severe threats in the region. Increases in precipitation might Services published a policy for the Brazil plays a major role in South temporarily reduce the temperatures at evaluation of domestic conservation American (and global) sea turtle some nesting beaches thereby mitigating efforts which have yet to be conservation and research, and it serves some impacts relative to increasing sand implemented or to show effectiveness as an example to other countries. Projeto temperatures. (68 FR 15100; March 28, 2003). We did TAMAR, a partnership of the Centro Beach erosion and nest inundation not identify any conservation efforts TAMAR/ICMBio, government agencies, already threaten leatherback nesting that required such evaluation for and Fundaca˜o Pro´ TAMAR, has been habitat globally. Sea level rise is likely leatherbacks (i.e., the conservation active since 1980. Today, the group to increase the number of nests lost to efforts reviewed are international in carries out sea turtle research and erosion and inundation. Such loss of nature or have already been conservation from 22 stations on the nests is especially problematic in areas implemented to a sufficient degree that coast and the offshore islands of Brazil. prone to storm events, which are likely they have a track record of being Another NGO based in the southern to increase in intensity and duration, effective or not being effective). Several Brazilian state of Rio Grande do Sul, and in areas where coastal development conservation efforts have been called NEMA has been collecting impedes natural shoreline migration. previously discussed in prior sections systematic sea turtle stranding data Climate change is also likely to alter evaluating regulatory mechanisms with since 1990. Those data have been the productivity in some marine respect to each DPS. Therefore, the list instrumental to conservation efforts in environments, which could affect below describes only those conservation Brazil and have shown that southern leatherback prey availability. With efforts that have not been previously Brazil has the highest stranding rates for reports on the increasing incidence of discussed and that apply generally to loggerheads in the western Atlantic jellyfish blooms in some locations, there the leatherback species rather than Ocean. is the perception that jellyfish being clearly associated with a Association of Southeast Asian abundance is increasing globally particular population. We considered Nations (The ASEAN) Ministers on (Condon et al. 2012), which could result these efforts prior to making our listing Agriculture and Forestry (AMAF): A in more prey for leatherback turtles determination. After reviewing these Memorandum of Understanding (MoU) (Hawkes et al. 2009). However, after efforts, we concluded that they have on ASEAN sea turtle conservation was analyzing all available long-term been somewhat effective, in that they created in 1999. From this, a Sea Turtle datasets on jellyfish abundance, Condon have prevented this endangered species Conservation and Protection Program et al. (2012) found that there is no from going extinct. However, these and Work plan has developed; research robust evidence for a global increase in efforts have not reduced the threats to and monitoring activities have also been jellyfish. Rather, jellyfish populations a level at which protections under the produced regionally (Kadir 2000). The undergo larger, worldwide oscillations ESA are no longer necessary. objectives of this Memorandum of with an approximate 20-year periodicity African Convention on the Understanding, initiated by ASEAN, are (Condon et al. 2012). Additional Conservation of Nature and Natural to promote the protection, conservation, monitoring is needed to determine Resources (Algiers Convention): replenishing, and recovery of sea turtles whether the weak linear trend in Adopted in September 1968, the and their habitats based on the best

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available scientific evidence, taking into of key countries, including Canada, West and Central African Region account the environmental, socio- China, Indonesia, Japan, Mexico, Oman, (Abidjan Convention): The Abidjan economic and cultural characteristics of and the United States. Under the CMS, Convention covers the marine the Parties. It currently has nine two Memoranda of Understanding environment, coastal zones, and related signatory states in the South East Asian (MOUs) apply to leatherback turtles: inland waters from Mauritania to Region (http://document.seafdec.or.th/ The MOU concerning Conservation Namibia. The Abidjan Convention projects/2012/seaturtles.php). Measures for Marine Turtles of the countries are Angola, Benin, Cameroon, Andaman and Nicobar Island Atlantic Coast of Africa and the MOU Cape Verde, Congo, Cote d’Ivoire, Environmental Team (ANET): A on the Conservation and Management of Democratic Republic of Congo, division of the Centre for Herpetology/ Marine Turtles and their Habitats of the Equatorial Guinea, Gabon, Gambia, Madras Crocodile Bank Trust has been Indian Ocean and South-East Asia. Ghana, Guinea, Guinea-Bissau, Liberia, conducting surveys and monitoring Additional information is available at Mauritania, Namibia, Nigeria, Sao Tome since 1991. Over the last few years, http://www.cms.int. and Principe, Senegal, Sierra Leone, and conservation and monitoring of sea Convention on Biological Diversity Togo. The Abidjan Convention is an turtles in these islands has been carried (CBD): The primary objectives of this agreement for the protection and by Dakshin Foundation and Indian international treaty are: (1) The management of the marine and coastal Institute of Science in collaboration conservation of biological diversity, (2) areas that highlights sources of with ANET, centered around a the sustainable use of its components, pollution, including pollution from leatherback monitoring program on and (3) the fair and equitable sharing of ships, dumping, land-based sources, Little Andaman Island. A multi- the benefits arising out of the utilization exploration and exploitation of the sea- institution stakeholder platform for of genetic resources. This Convention bed, and pollution from or through the marine conservation, including has been in force since 1993 and had atmosphere. The Convention also government and non- governmental 193 Parties as of March 2013. While the identifies where co-operative agencies, was established by these Convention provides a framework environmental management efforts are groups to facilitate the conservation of within which are broad conservation needed. These areas of concern include marine turtles and other endangered objectives, it does not specifically coastal erosion, specially protected species (Tripathy et al. 2012). The Trust, address sea turtle conservation (Hykle areas, combating pollution in cases of along with the Wildlife Institute of India 2002). Additional information is emergency and environmental impact and Ministry of Environment and available at http://www.cbd.int. assessment. Forests, produced a series of manuals on Convention on International Trade in sea turtle conservation, management Endangered Species of Wild Fauna and Convention for the Protection and research to help forest officers, Flora (CITES): Known as CITES, this Management and Development of the conservationists, NGOs and wildlife Convention was designed to regulate Marine and Coastal Environment of the enthusiasts conduct sea turtle international trade in a wide range of Eastern African Region (Nairobi conservation and research programs wild animals and plants. CITES was Convention): The Nairobi Convention (ANET, 2003 as cited in Shanker and implemented in 1975 and currently has was signed in 1985 and came into force Andrews 2004). A consolidated manual 183 Parties. Although CITES has been in 1996. This instrument ‘‘provides a has been produced to achieve these effective at minimizing the international mechanism for regional cooperation, goals by Dakshin Foundation and the trade of sea turtle products, it does not coordination and collaborative actions, Trust (Tripathy et al. 2012). limit legal harvest within countries, nor and enables the Contracting Parties to Central American Regional Network: does it regulate intra-country commerce harness resources and expertise from a This collaborative effort created the of sea turtle products (Hykle, 2002). The wide range of stakeholders and interest national sea turtle network in each leatherback turtle is included (since groups towards solving interlinked country of the region, as well as the 1977) in CITES Appendix I, which bans problems of the coastal and marine development of first hand tools, such as trade, including individuals and environment.’’ Parties are responsible a regional diagnosis, a 10-year strategic products, except as permitted for for ‘‘the conservation and wise plan, a manual of best practices, and exceptional circumstances, not to management of the sea turtle four regional training and information include commercial purposes (Lyster populations frequenting their waters workshops for people in the region (e.g., 1985). Additional information is and shores [and] agree to work closely Chaco´n and Arauz, 2001). This initiative available at http://www.cites.org. together to improve the conservation is managed by stakeholders in various Convention on the Conservation of status of the sea turtles and the habitats sectors (private, non-governmental and European Wildlife and Natural Habitats: upon which they depend.’’ The Western governmental) across the region. Also known as the Bern Convention, the Indian Ocean-Marine Turtle Task Force, Convention on the Conservation of goals of this instrument are to conserve which was created under the Nairobi Migratory Species of Wild Animals wild flora and fauna and their natural Convention and the IOSEA, plays a role (CMS): This Convention, also known as habitats, especially those species and in sea turtle conservation. This is a the Bonn Convention or CMS, is an habitats whose conservation requires technical, non-political working group international treaty that focuses on the the cooperation of several States, and to comprised of specialists from eleven conservation of migratory species and promote such cooperation. The countries: Comoros, France (La their habitats. As of December 2018, the Convention was enacted in 1982 and Re´union), Kenya, Madagascar, Convention had 127 Parties, including currently includes 51 European and Mauritius, Mozambique, Seychelles, Parties from Africa, Central and South African States and the European Union. Somalia, South Africa, United Kingdom America, Asia, Europe, and Oceania. Additional information is available at and Tanzania, as well as representatives While the Convention has successfully http://www.coe.int/t/dg4/ from inter-governmental organizations, brought together about half the cultureheritage/nature/bern/default_ academic, and non-governmental countries of the world with a direct en.asp. organizations within the region. interest in sea turtles, it has yet to Convention for the Co-operation in Additional information is available at realize its full potential (Hykle 2002). Its the Protection and Development of the http://www.unep.org/ membership does not include a number Marine and Coastal Environment of the NairobiConvention.

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Convention for the Protection of the stock recovery. The objective of the measures to protect and conserve Marine Environment of the North-East recovery action plan series is not only habitat of threatened species of animals Atlantic: Also called the OSPAR to assist Caribbean governments in the and plants of scientific or aesthetic Convention, this 1992 instrument discharge of their obligations under the value. The World Heritage Convention combines and updates the 1972 Oslo SPAW Protocol, but also to promote a currently includes 31 marine sites. Convention against dumping waste in regional capability to implement Additional information is available at the marine environment and the 1974 science-based sea turtle management http://whc.unesco.org/en/ Paris Convention addressing marine and conservation programs. Additional conventiontext. pollution stemming from land-based information is available at http:// Convention for the Conservation and sources. The convention is managed by www.cep.unep.org/about-cep/spaw. Management of Highly Migratory Fish the OSPAR Commission, which is Convention on Nature Protection and Stocks in the Western and Central comprised of representatives from 15 Wildlife Preservation in the Western Pacific Ocean (WCPF Convention): The signatory nations (Belgium, Denmark, Hemisphere (Washington or Western convention entered into force on 19 Finland, France, Germany, Iceland, Hemisphere Convention): Elements of June 2004. The WCPF Convention Ireland, Luxembourg, The Netherlands, the Convention include the protection draws on many of the provisions of the Norway, Portugal, Spain, Sweden, of species from human-induced UN Fish Stocks Agreement [UNFSA] Switzerland, and United Kingdom), as extinction, the establishment of while, at the same time, reflecting the well as the European Commission, protected areas, the regulation of special political, socio-economic, representing the European Community. international trade in wildlife, special geographical and environmental The mission of the OSPAR Convention measures for migratory birds and characteristics of the western and ‘‘. . . is to conserve marine ecosystems stressing the need for co-operation in central Pacific Ocean (WCPO) region. and safeguard human health in the scientific research and other fields are The WCPFC Convention seeks to North-East Atlantic by preventing and all elements of wildlife conservation. address problems in the management of eliminating pollution; by protecting the Additional information is available at high seas fisheries resulting from marine environment from the adverse http://www.oas.org/juridico/english/ unregulated fishing, over-capitalization, effects of human activities; and by treaties/c-8.html. excessive fleet capacity, vessel re- contributing to the sustainable use of Convention for the Protection of the flagging to escape controls, the seas.’’ Leatherback turtles are Marine Environment and Coastal Area insufficiently selective gear, unreliable included on the OSPAR List of of the South-East Pacific (Lima databases and insufficient multilateral Threatened and/or Declining Species Convention): This Convention’s cooperation in respect to conservation and Habitats, used by the OSPAR signatories include all countries along and management of highly migratory the Pacific Rim of South America from Commission for setting priorities for fish stocks. Panama to Chile. Among other resource Convention for the Prohibition of work on the conservation and protection management components, this Fishing with Long Driftnets in the South of marine biodiversity. Additional Convention established protocol for the Pacific: This regional convention, also information is available at http:// conservation and management of known as the Wellington Convention, www.ospar.org. protected marine resources. Stemming was adopted in 1989 in Wellington, Convention for the Protection and from this Convention is the Commision New Zealand, and entered into force in Development of the Marine Permanente del Pacifico Sur (CPPS) that 1991. The objective of the Convention is Environment of the Wider Caribbean has developed a Marine Turtle Action ‘‘to restrict and prohibit the use of drift Region: Also called the Cartagena Plan for the Southeast Pacific that nets in the South Pacific region in order Convention, this instrument that outlines a strategy for protecting and to conserve marine living resources.’’ benefits turtles of the Northwest recovering marine turtles in this region. Additional information is available at Atlantic leatherback DPS, has been in Convention for the Protection of the http://www.mfat.govt.nz/Treaties-and- place since 1986 and currently has 38 Natural Resources and Environment of International-Law/01-Treaties-for- member states and territories. Under the South Pacific Region (Noumea which-NZ-is-Depositary/0-Prohibition- this Convention, the component that Convention): This Convention has been of-Fishing.php. relates to leatherback turtles is the in force since 1990 and currently Eastern Pacific Leatherback Network: Protocol Concerning Specially Protected includes 26 Parties. The purpose of the Also known as La Red de la Tortuga Areas and Wildlife (SPAW) that has Convention is to protect the marine Lau´ d del Oce´ano Pacifico (Lau´ d OPO) been in place since 2000. The goals are environment and coastal zones of the (www.savepacificleatherbacks.org) was to encourage Parties ‘‘to take all South-East Pacific within the 200-mile formed to address the critical need for appropriate measures to protect and area of maritime sovereignty and regional coordination of East Pacific preserve rare or fragile ecosystems, as jurisdiction of the Parties and, beyond leatherback conservation actions well as the habitat of depleted, that area, the high seas up to a distance necessary to track conservation threatened or endangered species, in the within which pollution of the high seas priorities and progress at the population Convention area.’’ The SPAW protocol may affect that area. Additional level. Led by Fauna & Flora has partnered with WIDECAST to information is available at http:// International, this network has brought develop a program of work on sea turtle www.unep.org/regionalseas/ together conservationists, researchers, conservation, which has helped many of programmes/nonunep/pacific/ practitioners and government the Caribbean nations to identify and instruments/default.asp. representatives from 22 institutions prioritize their conservation actions Convention Concerning the Protection across nine East Pacific countries with through Sea Turtle Recovery Action of the World Cultural and Natural varying priorities, capacities and Plans. Each recovery action plan Heritage (World Heritage Convention): historical experiences in leatherback summarizes the known distribution of The World Heritage Convention was research and conservation to contribute sea turtles, discusses major causes of signed in 1972 and, as of November to shared activities, projects, and goals. mortality, evaluates the effectiveness of 2007, 185 states were parties to the Through these efforts, Lau´ d now has existing conservation laws, and Convention. The instrument requires mutually-agreed upon mechanisms for prioritizes implementing measures for parties to take effective and active sharing information and data, as well as

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standardized protocols for nesting beach information, see http://www.iattc.org/ marine turtle populations. This monitoring and bycatch assessments/ PDFFiles/Resolutions/IATTC/_English/ collaboration is achieved through the fishing practices. C-07-03-Active_Sea%20turtles.pdf. collective implementation of an The Eastern Tropical Pacific Marine The International Commission for the associated Conservation and Corridor (CMAR) is a regional and cross- Conservation of Atlantic Tunas (ICCAT) Management Plan. Currently, there are border initiative for the conservation has adopted a resolution for the 33 Signatory States. The United States and sustainable use of the region’s reduction of sea turtle mortality became a signatory in 2001. The IOSEA marine and coastal resources. Its (Resolution 03–11), encouraging States has an active sub-regional group for the objective is to sustainably manage to submit data on sea turtle interactions, Western Indian Ocean, which has biodiversity through ecosystem based release sea turtles alive wherever improved collaboration amongst sea management and the development of possible, and conduct research on turtle conservationists in the region. regional intergovernmental strategies mitigation measures. It calls for Further, the IOSEA website provides with support of non-governmental implementing the FAO Guidelines for reference materials, satellite tracks, on- organizations and international sea turtles, avoiding encirclement of sea line reporting of compliance with the cooperation agencies. turtles by purse seiners, safely handling Convention, and information on all United Nations’ Food and and releasing sea turtles, and reporting international mechanisms currently in Agricultural Organization (FAO) on interactions. The Commission does place for the conservation of sea turtles. Technical Consultation on Sea Turtle- not have any specific gear requirements Finally, at the 2012 Sixth Signatory of Fishery Interactions: While not a true applicable to longline fisheries. ICCAT States meeting in Bangkok, Thailand, international instrument for is currently undertaking an ecological the Signatory States agreed to conservation, the 2004 FAO of the UN’s risk assessment to better understand the procedures to establish a network of technical consultation on sea turtle- impact of its fisheries on sea turtle sites of importance for sea turtles in the fishery interactions was groundbreaking populations. For more information see IOSEA region (http:// in that it solidified the commitment of http://www.iattc.org/. Other www.ioseaturtles.org). the lead UN agency for fisheries to international fisheries organizations that Inter-American Convention for the reduce sea turtle bycatch in marine may influence leatherback turtle Protection and Conservation of Sea fisheries operations. Recommendations recovery include the Southeast Atlantic Turtles (IAC): This Convention is the from the technical consultation were Fisheries Organization (http:// only legally binding international treaty endorsed by the FAO Committee on www.seafo.org) and the North Atlantic dedicated exclusively to sea turtles and Fisheries (COFI) and called for the Fisheries Organization (http://nafo.int). sets standards for the conservation of immediate implementation by member These organizations regulate trawl these endangered animals and their nations and Regional Fishery fisheries in their respective Convention habitats with a large emphasis on Management Organizations (RFMOs) of areas. Given that sea turtles can be bycatch reduction. The Convention area guidelines to reduce sea turtle mortality incidentally captured in these fisheries, is the Pacific and the Atlantic waters of in fishing operations, developed as part both organizations have sea turtle the Americas. Currently, there are 15 of the technical consultation. Currently, resolutions calling on their Parties to Parties. The United States became a all five of the tuna RFMOs call on their implement the FAO Guidelines on sea Party in 1999. The IAC has worked to members and cooperating non-members turtles as well as to report data on sea adopt fisheries bycatch resolutions, to adhere to the 2009 FAO ‘‘Guidelines turtle interactions. carried out workshops on Caribbean sea to Reduce Sea Turtle Mortality in The Indian Ocean Tuna Commission turtle conservation, and established Fishing Operations,’’ which describes (IOTC) is playing an increased role in collaboration with other agreements all the gear types sea turtles could turtle conservation. Resolution 05/08, such as the Convention for the interact with and the latest mitigation superseded by Resolution 09/06 on Sea Protection and Development of the options. The Western and Central Turtles, sets out reporting requirements Marine Environment of the Wider Pacific Fisheries Commission (http:// related to interactions with sea turtles Caribbean Region and the International www.wcpfc.int) has the most protective and accordingly provides an executive Commission for the Conservation of measures (CMM 2008–03), which follow summary per species for adoption at the Atlantic Tunas. Additional information the FAO guidelines and ensure safe Working Party on Ecosystem and By- is available at http:// handling of all captured sea turtles. catch and then subsequently at the www.iacseaturtle.org. Fisheries deploying purse seines, to the Scientific Committee. In 2011, IOTC International Convention for the extent practicable, must avoid developed a ‘‘Sea Turtle Identification Prevention of Pollution from Ships encircling sea turtles and release Card’’ to be distributed to all longliners (MARPOL): The MARPOL Convention entangled turtles from fish aggregating operating in the Indian Ocean is a combination of two treaties adopted devices. Longline fishermen must carry (www.iotc.com). In 2012, the Indian in 1973 and 1978 to prevent pollution line cutters and use dehookers to release Ocean Tuna Commission (IOTC) began of the marine environment by ships sea turtles caught on a line. Longliners requiring its 31 contracting Parties to from operational or accidental causes. must either use large circle hooks, report sea turtle bycatch and to use safe The 1973 treaty covered pollution by whole finfish bait, or mitigation handling and release techniques for sea oil, chemicals, and harmful substances measures approved by the Scientific turtles on longline vessels. in packaged form, sewage and garbage. Committee and the Technical and Indian Ocean—South-East Asian The 1978 MARPOL Protocol was Compliance Committee. Marine Turtle Memorandum of adopted at a Conference on Tanker Inter-American Tropical Tuna Understanding (IOSEA): Under the Safety and Pollution Prevention which Convention (IATTC) has enacted a auspices of the Convention of Migratory included standards for tanker design resolution to mitigate the impact of tuna Species, the IOSEA memorandum of and operation. The 1978 Protocol fishing vessels on sea turtles by understanding provides a mechanism incorporated the 1973 Convention as it reducing bycatch, injury, and mortality for States of the Indian Ocean and had not yet been in force and is known of sea turtles. The IATTC has also South-East Asian region, as well as as the International Convention for the developed a memorandum of other concerned States, to work together Prevention of Marine Pollution from understanding with the IAC. For more to conserve and replenish depleted Ships, 1973, as modified by the Protocol

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of 1978 relating thereto (MARPOL 73/ promotes the conservation and turtles conservation (Choudhury et al., 78). The 1978 Convention went into management of Western Pacific 2001). force in 1983 (Annexes I and II). The leatherback turtles at nesting sites, North American Agreement for Convention includes regulations aimed feeding areas and migratory routes in Environmental Cooperation: As at preventing and minimizing accidental Indonesia, Papua New Guinea and mandated by the 1994 North American and routine operations pollution from Solomon Islands. This is done through Agreement for Environmental ships. Amendments passed since have the systematic exchange of information Cooperation, the Commission for updated the convention. and data on research, population and Environmental Cooperation (CEC) International Union for Conservation migratory routes monitoring, nesting encourages Canada, the United States, of Nature (IUCN): The IUCN Species sites and feeding areas management and Mexico to adopt a continental Programme assesses the conservation activities for Western Pacific approach to the conservation of flora status of species on a global scale. This leatherback turtles and by enhancing and fauna. In 2003, this mandate was assessment provides objective, scientific public awareness of the importance of strengthened as the three North information on the current status of conserving these turtles and their American countries launched the threatened species. The IUCN Red List critical habitats. http:// Strategic Plan for North American of Threatened Species provides awsassets.wwf.or.id/downloads/mou_ Cooperation in the Conservation of taxonomic, conservation status and trinationalpartneshipagreement_ Biodiversity. The North American distribution information on plants and clean.pdf. Conservation Action Plan (NACAP) animals that have been globally Memorandum of Understanding initiative began as an effort promoted by evaluated using the IUCN Red List Concerning Conservation Measures for the three countries, through the CEC, to Categories and Criteria. This system is Marine Turtles of the Atlantic Coast of facilitate the conservation of marine and designed to determine the relative risk Africa (Abidjan Memorandum): This terrestrial species of common concern. of extinction, and the main purpose of MOU was concluded under the auspices In 2005, the CEC supported the the IUCN Red List is to catalogue and of the Convention on the Conservation development of a NACAP for Pacific highlight those plants and animals that of Migratory Species of Wild Animals leatherbacks by Canada, the United are facing a higher risk of global (CMS) and became effective in 1999. States, and Mexico. Identified actions in extinction (i.e., those listed as Critically The MOU area covers 26 Range States the plan addressed three main Endangered, Endangered and along the Atlantic coast of Africa objectives: (1) protection and management of nesting beaches and Vulnerable). Additional information is extending approximately 14,000 km available at http://www.iucnRed females; (2) mortality reduction from from Morocco to South Africa. The goal List.org/about. bycatch throughout the Pacific Basin; of this MOU is to improve the Marine Turtle Conservation Act and (3) waste management, control of conservation status of marine turtles (MTCA): The MTCA is a key element of pollution, and disposal of debris at sea. sea turtle protection in the United States along the Atlantic Coast of Africa. It Ramsar Convention on Wetlands: The and internationally. This Act authorizes aims at safeguarding six marine turtle Convention on Wetlands, signed in a dedicated fund to support marine species—including the leatherback Ramsar, Iran, in 1971, is an turtle conservation projects in foreign turtle—that are estimated to have intergovernmental treaty, which countries, with emphasis on protecting rapidly declined in numbers during provides the framework for national nesting populations and nesting habitat. recent years due to excessive action and international cooperation for Additional information is available at exploitation (both direct and incidental) the conservation and wise use of https://www.fws.gov/international/ and the degradation of essential wetlands and their resources. Currently, wildlife-without-borders/marine-turtle- habitats. This includes the protection of there are 158 parties to the convention, conservation-fund.html. the life stages from hatchlings through with 1,752 wetland sites, including Memorandum of Agreement between adults with particular attention paid to important marine turtle habitat. the Government of the Republic of the the impacts of fishery bycatch and the Additional information is available at Philippines and the Government of need to include local communities in http://www.ramsar.org. Malaysia on the Establishment of the the development and implementation of Secretariat of the Pacific Regional Turtle Island Heritage Protected Area: conservation activities. However, Environment Programme (SPREP): Through a bilateral agreement, the despite this agreement, killing of adult SPREP’s turtle conservation program Governments of the Philippines and turtles and harvesting of eggs remains seeks to improve knowledge about sea Malaysia established The Turtle Island rampant in many areas along the turtles in the Pacific through an active Heritage Protected Area (TIHPA), made Atlantic African coast. Additional tagging program, as well as maintaining up of nine islands (6 in the Philippines information is available at http:// a database to collate information about and 3 in Malaysia). The following www.cms.int/species/africa_turtle/ sea turtle tags in the Pacific. SPREP priority activities were identified: AFRICAturtle_bkgd.htm. supports capacity building throughout management-oriented research, the National Sea Turtle Conservation the central and southwest Pacific. establishment of a centralized database Project in India: Launched in 1998 with SPREP established an action plan for the and information network, appropriate the aim of protecting Lepidochelys Pacific Islands (http://www.sprep.org/). information awareness programs, a olivacea, but it also has conservation South-East Atlantic Fisheries marine turtle resource management and and protection strategies for all the other Organization (SEAFO): SEAFO manages protection program, and an appropriate turtle species nesting in the country. fisheries activities in the Southeast ecotourism program (Bache and Frazier This project was undertaken by the Atlantic high seas area, excluding tunas 2006). Indian government to oversee: Surveys, and billfish. SEAFO adopted Resolution Memorandum of Understanding of a monitoring programs, fisheries 01/06, ‘‘to Reduce Sea Turtle Mortality Tri-National Partnership between the interactions, community and NGO in Fishing Operations,’’ in 2006. The Government of the Republic of participation, awareness raising and Resolution requires Members to: (1) Indonesia, the Independent State of education, research support, and other Implement the FAO Guidelines; and (2) Papua New Guinea and the Government support for regional and international establish on-board observer programs to of Solomon Islands: This agreement co-operation and collaboration for sea collect information on sea turtle

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interactions in SEAFO-managed resolution, for the elimination of all primary threat to the species is bycatch fisheries. This Resolution is not legally high seas driftnets by 1992. Additional in commercial and artisanal, pelagic and binding. Additional information is information is available at http:// coastal, fisheries. Fisheries bycatch available at http://www.seafo.org. www.un.org/documents/ga/res/44/ reduces abundance by removing South Atlantic Association: In the a44r225.htm. individuals from the population. southwest Atlantic, the South Atlantic Although numerous conservation Because several fisheries operate near Association is a multinational group efforts apply to the species, they do not nesting beaches, productivity is also that includes representatives from adequately reduce its risk of extinction reduced when nesting females are Brazil, Uruguay, and Argentina and for the reasons discussed previously. prevented from returning to nesting meets bi-annually to share information Extinction Risk Analysis beaches. The harvest of eggs and turtles and develop regional action plans to is also a major threat to the species. address threats including bycatch The best available information is Illegal poaching occurs throughout the (http://www.tortugasaso.org/). At the consistent with the species’ current range of the species, and harvest is legal national level, Brazil has developed a ‘‘endangered’’ listing. The species but poorly documented in some nations. national plan for sea turtle bycatch exhibits a global total index of nesting The loss and modification of nesting reduction that was initiated in 2001 female abundance of 32,060 females at habitat is another major threat, reducing (Marcovaldi et al. 2002). This national monitored beaches. This number is productivity and, in some instances, plan includes various activities to lower than historical estimates of abundance, when nesting females die as mitigate bycatch, including time-area nesting female abundance (n = 115,000, a result of artificial lighting or restrictions of fisheries, use of bycatch Pritchard 1982; and n = 34,500, Spotila obstructions preventing them from reduction devices, and working with 1996), which did not include the large, returning to sea. Predation results in the fishermen to successfully release live- but then unknown, Gabon nesting loss of eggs and hatchlings, reducing captured turtles. In Uruguay, all sea aggregation. Limited nesting female productivity of the species. Additional turtles are protected from human abundance is a major source of concern threats that occur throughout the range impacts, including fisheries bycatch, by for most DPSs, whose small population of the species include vessel strikes, presidential decree (Decreto sizes place them in danger of stochastic pollution, marine debris, oil and gas Presidencial 144/98). or catastrophic events that increase exploration, and climate change. United Nations Convention on the extinction risk. The limited nesting Natural disasters and oceanographic Law of the Sea (UNCLOS): To date, 155 female abundance increases the regime shifts are threats in some areas. countries, including most mainland extinction risk of the species. Though many regulatory mechanisms countries lining the western Pacific, and The species also exhibits declining are in place, they do not adequately the European Community have joined in nesting trends for all but one of the reduce the impact of these threats. the convention. The United States has DPSs. With the exception of the DPS Based on our review of the best signed the treaty and abides by some with the smallest index of nesting available scientific and commercial provisions, but the Senate has not female abundance (i.e., SW Atlantic data, we find nothing that is ratified it. Aside from its provisions DPS, with 27 nesting females), the DPSs inconsistent with the leatherback defining ocean boundaries, the are declining at rates of 0.3 to 9.3 species’ current listing as an endangered convention establishes general percent annually. Even low levels of species. In sum, the best available obligations for safeguarding the marine decline are a threat for DPSs with information is consistent with the environment through mandating limited nesting female abundance, and current listing status of the leatherback sustainable fishing practices and nesting declines of approximately nine sea turtle as an endangered species protecting freedom of scientific research percent (i.e., NW and SE Atlantic DPSs) throughout its range. The threatened on the high seas. Additional information are unsustainable. Total declines of 97 species definition does not apply is available at http://www.un.org/Depts/ and 99 percent have occurred within the because the species is currently in los/index.htm. East Pacific and NE Indian DPSs, danger of extinction (i.e., at present), United Nations’ Food and respectively, since nesting was first rather than on a trajectory to become so Agricultural Organization (FAO): The identified and quantified for these within the foreseeable future. FAO published guidelines for sea turtle populations. The declining trends in protection, entitled Technical nesting increase the extinction risk of Final Determination Consultation on Sea Turtle-Fishery the species. The Services determined that the best Interactions (FAO 2005). The UN 1995 The species exhibits broad nesting available scientific and commercial Code of Conduct for Responsible and foraging ranges. However, information would support recognizing Fisheries (FAO 2004) provides metapopulation dynamics have likely seven populations as DPSs (including guidelines for the development and been reduced, with reductions in the NW Atlantic) because they meet the implementation of national fisheries abundance and the loss of some nesting discreteness and significance criteria for policies, including gear modification aggregations. The species also DPSs. However, we found that—even (e.g., circle hooks, fish bait, deeper sets, demonstrates little genetic diversity, were they to be recognized and listed and reduced soak time), new relative to other sea turtle species. separately—all DPSs meet the definition technologies, and management of areas Although the species demonstrates of an endangered species because they where fishery and sea turtle interactions some resilience to threats, overall we are in danger of extinction throughout are more severe. The guidelines stress find it to be at risk of extinction, due to all of their ranges. The leatherback turtle the need for mitigation measures, data limited abundance and declining is currently listed throughout its range on all fisheries, fishing industry nesting trends, which reflect the as an endangered species. Replacing this involvement, and education for fishers, cumulative impacts of threats that have listing with seven endangered DPSs observers, managers, and compliance acted on the species in the past (and in would not be consistent with officers (FAO 2004). many cases continue to act on the Congressional guidance to use the United Nations Resolution 44/225 on species). authority to list DPSs ‘‘sparingly’’ while Large-Scale Pelagic Driftnet Fishing: In Current threats continue to place the encouraging the conservation of genetic 1989, the UN called, in a unanimous species in danger of extinction. The diversity (see Senate Report 151, 96th

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Congress, 1st Session). Such guidance In addition, focused conservation efforts a Final Information Quality Bulletin for clearly indicates that the Services have have been, and will continue to be, Peer Review, establishing minimum some discretion to determine whether or applied at scales smaller than the peer review standards, a transparent not to recognize DPSs that would species-level. For example, FWS’ process for public disclosure of peer require disaggregating an existing listing Marine Turtle Conservation Fund review planning, and opportunities for even where those populations can be provides funding to partners in foreign public participation. The OMB Bulletin, shown to meet the discreteness and nations to protect leatherback turtles implemented under the Information significance tests of the DPS Policy. and their nesting habitats; projects Quality Act (Pub. L. 106–554), is After determining that all seven include efforts to monitor and protect intended to enhance the quality and populations would have the same status leatherback turtles in Indonesia and credibility of the Federal government’s as the overall species, we next Gabon (https://www.fws.gov/ scientific information and applies to considered whether there was any international/wildlife-without-borders/ influential or highly influential reason to nevertheless replace the global marine-turtle-conservation-fund.html). scientific information disseminated on (range-wide) listing with individual Similarly, Pacific leatherback turtles are or after June 16, 2005. To satisfy our listings for the seven DPSs. We highlighted under NMFS’ Species in the requirements under the OMB Bulletin, conclude that disaggregating the global Spotlight: Survive to Thrive initiative, listing is not warranted. It would be which directs attention and resources to we obtained independent peer review of inconsistent with Congressional highly-at-risk species (https:// the Status Review Report by guidance and run counter to the www.fisheries.noaa.gov/topic/ independent scientists with expertise in conservation purposes of the Act to endangered-species- leatherback turtle biology, endangered disaggregate the current listing into conservation#species-in-the-spotlight). species listing policy, and related fields. DPSs, because those DPSs would have For these reasons, the Services have All peer reviewer comments were the same listing status as the whole determined that replacing the existing addressed prior to the publication of the currently. Disaggregating this listing global listing with separate listings for Status Review Report and this finding. would bring about significant individual DPSs is not warranted. References Cited complications and possible public Although the best available data confusion without any meaningful indicates that the populations meet the A complete list of references is corresponding conservation benefit. criteria for significance and available upon request to the NMFS Replacing the range-wide listing with discreteness, we find that it would not Office of Protected Resources (see seven DPSs having the same status further the purposes of the Act to ADDRESSES). would not provide leatherback turtles recognize and list seven DPSs separately with an overriding conservation benefit, as endangered under the ESA. The Authority as all members are currently protected current global listing of the species The authority for this action is the to the fullest extent under the ESA as an remains in effect. Endangered Species Act of 1973, as endangered species. Section 7 We conclude that the petitioned consultations already consider the actions, to identify the NW Atlantic amended (16 U.S.C. 1531 et seq.). effects of an action on individuals and population as a DPS and list it as a Samuel D. Rauch III, populations to determine whether a threatened species under the ESA, are Deputy Assistant Administrator for Federal agency has insured that its not warranted. This is a final action, Regulatory Programs, National Marine action is not likely to jeopardize the and, therefore, we are not soliciting Fisheries Service. continued existence of the species. Even public comments. Aurelia Skipwith, if the species were disaggregated into DPSs, this change would not be Peer Review Director, U.S. Fish and Wildlife Service. expected to result in different In December 2004, the Office of [FR Doc. 2020–16277 Filed 8–7–20; 8:45 am] substantive outcomes in consultations. Management and Budget (OMB) issued BILLING CODE 3510–22–P

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Part III

Department of Health and Human Services

Centers for Medicare & Medicaid Services 42 CFR Part 412 Medicare Program; Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2021; Final Rule

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DEPARTMENT OF HEALTH AND Catie Cooksey, (410) 786–0179, for determined by the IRF to have HUMAN SERVICES information about the IRF payment specialized training and experience in policies and payment rates. inpatient rehabilitation to conduct 1 of Centers for Medicare & Medicaid Kadie Derby, (410) 786–0468, for the 3 required face-to-face visits with Services information about the IRF coverage the patient per week, provided that such policies. duties are within the non-physician 42 CFR Part 412 SUPPLEMENTARY INFORMATION: practitioner’s scope of practice under [CMS–1729–F] applicable state law. There are no Availability of Certain Information updates in this final rule to the IRF RIN 0938–AU05 Through the Internet on the CMS Quality Reporting Program (QRP). Website Medicare Program; Inpatient The IRF PPS Addenda along with B. Waiver of the 60-Day Delayed Rehabilitation Facility Prospective other supporting documents and tables Effective Date for the Final Rule Payment System for Federal Fiscal referenced in this final rule are available Year 2021 The United States is responding to an through the internet on the CMS website outbreak of respiratory disease caused at https://www.cms.gov/Medicare/ AGENCY: Centers for Medicare & by a novel (new) coronavirus that has Medicare-Fee-for-Service-Payment/ Medicaid Services (CMS), HHS. now been detected in more than 190 ACTION: Final rule. InpatientRehabFacPPS. We note that in previous years, each locations internationally, including in SUMMARY: This final rule updates the rule or notice issued under the IRF PPS all 50 States and the District of prospective payment rates for inpatient has included a detailed reiteration of the Columbia. The virus has been named rehabilitation facilities (IRFs) for various regulatory provisions that have ‘‘SARS-CoV–2’’ and the disease it Federal fiscal year (FY) 2021. As affected the IRF PPS over the years. That causes has been named ‘‘coronavirus required by statute, this final rule discussion, along with detailed disease 2019’’ (abbreviated ‘‘COVID– includes the classification and background information for various 19’’). weighting factors for the IRF prospective other aspects of the IRF PPS, is now Due to CMS prioritizing efforts in payment system’s case-mix groups and available on the CMS website at https:// support of containing and combatting a description of the methodologies and www.cms.gov/Medicare/Medicare-Fee- the COVID–19 PHE, and devoting data used in computing the prospective for-Service-Payment/InpatientRehab significant resources to that end, as payment rates for FY 2021. This final FacPPS. discussed and for the reasons discussed rule adopts more recent Office of I. Executive Summary in section XIII. of this final rule, we are Management and Budget statistical area hereby waiving the 60-day requirement delineations and applies a 5 percent cap A. Purpose and determining that the IRF PPS final on any wage index decreases compared This final rule updates the rule will take effect 55 days after to FY 2020 in a budget neutral manner. prospective payment rates for IRFs for issuance. This final rule also amends the IRF FY 2021 (that is, for discharges C. Summary of Major Provisions coverage requirements to remove the occurring on or after October 1, 2020, post-admission physician evaluation and on or before September 30, 2021) as In this final rule, we use the methods requirement and codifies existing required under section 1886(j)(3)(C) of described in the FY 2020 IRF PPS final documentation instructions and the Social Security Act (the Act). As rule (84 FR 39054) to update the guidance. In addition, this final rule required by section 1886(j)(5) of the Act, prospective payment rates for FY 2021 amends the IRF coverage requirements this final rule includes the classification using updated FY 2019 IRF claims and to allow, beginning with the second and weighting factors for the IRF PPS’s the most recent available IRF cost report week of admission to the IRF, a non- case-mix groups (CMGs) and a data, which is FY 2018 IRF cost report physician practitioner who is description of the methodologies and data. This final rule adopts more recent determined by the IRF to have data used in computing the prospective OMB statistical area delineations and specialized training and experience in payment rates for FY 2021. This final applies a 5 percent cap on any wage inpatient rehabilitation to conduct 1 of rule adopts more recent Office of index decreases compared to FY 2020 in the 3 required face-to-face visits with Management and Budget (OMB) a budget neutral manner. This final rule the patient per week, provided that such statistical area delineations and applies also amends the IRF coverage duties are within the non-physician a 5 percent cap on any wage index requirements to remove the post- practitioner’s scope of practice under decreases compared to FY 2020 in a applicable state law. admission physician evaluation budget neutral manner. This final rule requirement and codifies existing DATES: These regulations are effective also amends the IRF coverage documentation instructions and on October 1, 2020. requirements to remove the post- guidance. In addition, this final rule Applicability dates: The updated IRF admission physician evaluation amends the IRF coverage requirements prospective payment rates are requirement and codifies existing to allow non-physician practitioners to applicable for IRF discharges occurring documentation instructions and perform some of the weekly visits, on or after October 1, 2020, and on or guidance. In addition, this final rule provided that such duties are within the before September 30, 2021 (FY 2021). amends the IRF coverage requirements non-physician practitioner’s scope of FOR FURTHER INFORMATION CONTACT: to allow, beginning with the second practice under applicable state law. Gwendolyn Johnson, (410) 786–6954, week of admission to the IRF, a non- for general information. physician practitioner who is D. Summary of Impact

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TABLE 1—COST AND BENEFIT

Provision description Transfers

FY 2021 IRF PPS payment rate up- The overall economic impact of this final rule is an estimated $260 million in increased payments from date. the Federal Government to IRFs during FY 2021.

II. Background determining the standard payment percentage (LIP), and high-cost outlier conversion factor. adjustments. Beginning with the FY A. Statutory Basis and Scope We applied the relative weighting 2006 IRF PPS final rule (70 FR 47908 Section 1886(j) of the Act provides for factors to the standard payment through 47917), the market basket index the implementation of a per-discharge conversion factor to compute the used to update IRF payments was a PPS for inpatient rehabilitation unadjusted prospective payment rates market basket reflecting the operating hospitals and inpatient rehabilitation under the IRF PPS from FYs 2002 and capital cost structures for units of a hospital (collectively, through 2005. Within the structure of freestanding IRFs, freestanding inpatient hereinafter referred to as IRFs). the payment system, we then made psychiatric facilities (IPFs), and long- Payments under the IRF PPS encompass adjustments to account for interrupted term care hospitals (LTCHs) (hereinafter inpatient operating and capital costs of stays, transfers, short stays, and deaths. referred to as the rehabilitation, furnishing covered rehabilitation Finally, we applied the applicable psychiatric, and long-term care (RPL) services (that is, routine, ancillary, and adjustments to account for geographic market basket). Any reference to the FY capital costs), but not direct graduate variations in wages (wage index), the 2006 IRF PPS final rule in this final rule medical education costs, costs of percentage of low-income patients, also includes the provisions effective in approved nursing and allied health location in a rural area (if applicable), the correcting amendments. For a education activities, bad debts, and and outlier payments (if applicable) to detailed discussion of the final key other services or items outside the scope the IRFs’ unadjusted prospective policy changes for FY 2006, please refer of the IRF PPS. A complete discussion payment rates. to the FY 2006 IRF PPS final rule. of the IRF PPS provisions appears in the For cost reporting periods that began The regulatory history previously original FY 2002 IRF PPS final rule (66 on or after January 1, 2002, and before included in each rule or notice issued FR 41316) and the FY 2006 IRF PPS October 1, 2002, we determined the under the IRF PPS is available on the final rule (70 FR 47880), and we final prospective payment amounts CMS website at https://www.cms.gov/ provided a general description of the using the transition methodology Medicare/Medicare-Fee-for-Service- IRF PPS for FYs 2007 through 2019 in prescribed in section 1886(j)(1) of the Payment/InpatientRehabFacPPS/ the FY 2020 IRF PPS final rule (84 FR Act. Under this provision, IRFs index?redirect=/InpatientRehabFacPPS/ 39055 through 39057). transitioning into the PPS were paid a . Under the IRF PPS from FY 2002 blend of the Federal IRF PPS rate and through FY 2005, the prospective the payment that the IRFs would have B. Provisions of the PPACA Affecting payment rates were computed across received had the IRF PPS not been the IRF PPS in FY 2012 and Beyond 100 distinct CMGs, as described in the implemented. This provision also FY 2002 IRF PPS final rule (66 FR allowed IRFs to elect to bypass this The Patient Protection and Affordable 41316). We constructed 95 CMGs using blended payment and immediately be Care Act (PPACA) (Pub. L. 111–148) rehabilitation impairment categories paid 100 percent of the Federal IRF PPS was enacted on March 23, 2010. The (RICs), functional status (both motor and rate. The transition methodology Health Care and Education cognitive), and age (in some cases, expired as of cost reporting periods Reconciliation Act of 2010 (Pub. L. 111– cognitive status and age may not be a beginning on or after October 1, 2002 152), which amended and revised factor in defining a CMG). In addition, (FY 2003), and payments for all IRFs several provisions of the PPACA, was we constructed five special CMGs to now consist of 100 percent of the enacted on March 30, 2010. In this final account for very short stays and for Federal IRF PPS rate. rule, we refer to the two statutes patients who expire in the IRF. Section 1886(j) of the Act confers collectively as the ‘‘Patient Protection For each of the CMGs, we developed broad statutory authority upon the and Affordable Care Act’’ or ‘‘PPACA’’. relative weighting factors to account for Secretary to propose refinements to the The PPACA included several a patient’s clinical characteristics and IRF PPS. In the FY 2006 IRF PPS final provisions that affect the IRF PPS in FYs expected resource needs. Thus, the rule (70 FR 47880) and in correcting 2012 and beyond. In addition to what weighting factors accounted for the amendments to the FY 2006 IRF PPS was previously discussed, section relative difference in resource use across final rule (70 FR 57166), we finalized a 3401(d) of the PPACA also added all CMGs. Within each CMG, we created number of refinements to the IRF PPS section 1886(j)(3)(C)(ii)(I) of the Act tiers based on the estimated effects that case-mix classification system (the (providing for a ‘‘productivity certain comorbidities would have on CMGs and the corresponding relative adjustment’’ for fiscal year (FY) 2012 resource use. weights) and the case-level and facility- and each subsequent FY). The We established the Federal PPS rates level adjustments. These refinements productivity adjustment for FY 2021 is using a standardized payment included the adoption of the OMB’s discussed in section VI.B. of this final conversion factor (formerly referred to Core-Based Statistical Area (CBSA) rule. Section 1886(j)(3)(C)(ii)(II) of the as the budget-neutral conversion factor). market definitions; modifications to the Act provides that the application of the For a detailed discussion of the budget- CMGs, tier comorbidities; and CMG productivity adjustment to the market neutral conversion factor, please refer to relative weights, implementation of a basket update may result in an update our FY 2004 IRF PPS final rule (68 FR new teaching status adjustment for IRFs; that is less than 0.0 for a FY and in 45684 through 45685). In the FY 2006 rebasing and revising the market basket payment rates for a FY being less than IRF PPS final rule (70 FR 47880), we index used to update IRF payments, and such payment rates for the preceding discussed in detail the methodology for updates to the rural, low-income FY.

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Sections 3004(b) of the PPACA and The Grouper software produces a five- submitted on paper are available at section 411(b) of the Medicare Access character CMG number. The first http://www.cms.gov/manuals/ and CHIP Reauthorization Act of 2015 character is an alphabetic character that downloads/clm104c25.pdf. (Pub. L. 114–10, enacted on April 16, indicates the comorbidity tier. The last Section 3 of the ASCA operates in the 2015) (MACRA) also addressed the IRF four characters are numeric characters context of the administrative PPS. Section 3004(b) of PPACA that represent the distinct CMG number. simplification provisions of HIPAA, reassigned the previously designated A free download of the Grouper which include, among others, the section 1886(j)(7) of the Act to section software is available on the CMS requirements for transaction standards 1886(j)(8) of the Act and inserted a new website at http://www.cms.gov/ and code sets codified in 45 CFR part section 1886(j)(7) of the Act, which Medicare/Medicare-Fee-for-Service- 160 and part 162, subparts A and I contains requirements for the Secretary Payment/InpatientRehabFacPPS/ through R (generally known as the to establish a quality reporting program Software.html. The Grouper software is Transactions Rule). The Transactions (QRP) for IRFs. Under that program, also embedded in the iQIES User tool Rule requires covered entities, including data must be submitted in a form and available in iQIES at https:// covered health care providers, to manner and at a time specified by the www.cms.gov/medicare/quality-safety- conduct covered electronic transactions Secretary. Beginning in FY 2014, section oversight-general-information/iqies. according to the applicable transaction 1886(j)(7)(A)(i) of the Act requires the Once a Medicare Part A FFS patient standards. (See the CMS program claim application of a 2 percentage point is discharged, the IRF submits a memoranda at http://www.cms.gov/ reduction to the market basket increase Medicare claim as a Health Insurance ElectronicBillingEDITrans/ and listed in factor otherwise applicable to an IRF Portability and Accountability Act of the addenda to the Medicare (after application of paragraphs (C)(iii) 1996 (HIPAA) (Pub. L. 104–191, enacted Intermediary Manual, Part 3, section and (D) of section 1886(j)(3) of the Act) on August 21, 1996)—compliant 3600). for a FY if the IRF does not comply with electronic claim or, if the The MAC processes the claim through the requirements of the IRF QRP for that Administrative Simplification its software system. This software FY. Application of the 2 percentage Compliance Act of 2002 (ASCA) (Pub. L. system includes pricing programming point reduction may result in an update 107–105, enacted on December 27, called the ‘‘Pricer’’ software. The Pricer that is less than 0.0 for a FY and in 2002) permits, a paper claim (a UB–04 software uses the CMG number, along payment rates for a FY being less than or a CMS–1450 as appropriate) using the with other specific claim data elements such payment rates for the preceding five-character CMG number and sends it and provider-specific data, to adjust the FY. Reporting-based reductions to the to the appropriate Medicare IRF’s prospective payment for market basket increase factor are not Administrative Contractor (MAC). In interrupted stays, transfers, short stays, cumulative; they only apply for the FY addition, once a MA patient is and deaths, and then applies the involved. Section 411(b) of the MACRA discharged, in accordance with the applicable adjustments to account for amended section 1886(j)(3)(C) of the Act Medicare Claims Processing Manual, the IRF’s wage index, percentage of low- by adding paragraph (iii), which chapter 3, section 20.3 (Pub. L. 100–04), income patients, rural location, and required us to apply for FY 2018, after hospitals (including IRFs) must submit outlier payments. For discharges the application of section an informational-only bill (type of bill occurring on or after October 1, 2005, 1886(j)(3)(C)(ii) of the Act, an increase (TOB) 111), which includes Condition the IRF PPS payment also reflects the factor of 1.0 percent to update the IRF Code 04 to their MAC. This will ensure teaching status adjustment that became prospective payment rates. that the MA days are included in the effective as of FY 2006, as discussed in hospital’s Supplemental Security the FY 2006 IRF PPS final rule (70 FR C. Operational Overview of the Current Income (SSI) ratio (used in calculating 47880). IRF PPS the IRF LIP adjustment) for FY 2007 and D. Advancing Health Information As described in the FY 2002 IRF PPS beyond. Claims submitted to Medicare Exchange final rule (66 FR 41316), upon the must comply with both ASCA and admission and discharge of a Medicare HIPAA. The Department of Health and Human Part A fee-for-service (FFS) patient, the Section 3 of the ASCA amended Services (HHS) has a number of IRF is required to complete the section 1862(a) of the Act by adding initiatives designed to encourage and appropriate sections of a Patient paragraph (22), which requires the support the adoption of interoperable Assessment Instrument (PAI), Medicare program, subject to section health information technology and to designated as the IRF–PAI. In addition, 1862(h) of the Act, to deny payment promote nationwide health information beginning with IRF discharges occurring under Part A or Part B for any expenses exchange to improve health care and on or after October 1, 2009, the IRF is for items or services for which a claim patient access to their health also required to complete the is submitted other than in an electronic information. The Office of the National appropriate sections of the IRF–PAI form specified by the Secretary. Section Coordinator for Health Information upon the admission and discharge of 1862(h) of the Act, in turn, provides that Technology (ONC) and CMS work each Medicare Advantage (MA) patient, the Secretary shall waive such denial in collaboratively to advance as described in the FY 2010 IRF PPS situations in which there is no method interoperability across settings of care, final rule (74 FR 39762 and 74 FR available for the submission of claims in including post-acute care. 50712). All required data must be an electronic form or the entity To further interoperability in post- electronically encoded into the IRF–PAI submitting the claim is a small provider. acute care settings, CMS continues to software product. Generally, the In addition, the Secretary also has the explore opportunities to advance software product includes patient authority to waive such denial in such electronic exchange of patient classification programming called the unusual cases as the Secretary finds information across payers, providers Grouper software. The Grouper software appropriate. For more information, see and with patients, including developing uses specific IRF–PAI data elements to the ‘‘Medicare Program; Electronic systems that use nationally recognized classify (or group) patients into distinct Submission of Medicare Claims’’ final health IT standards such as the Logical CMGs and account for the existence of rule (70 FR 71008). Our instructions for Observation Identifiers Names and any relevant comorbidities. the limited number of Medicare claims Codes (LOINC), the Systematized

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Nomenclature of Medicine (SNOMED), On May 1 2020, ONC and CMS IRF PPS proposed rule (85 FR 22065, and the Fast Healthcare Interoperability published the final rules, ‘‘21st Century 22069 through 22073). Resources (FHIR). In addition, CMS and Cures Act: Interoperability, Information • Update the IRF PPS payment rates ONC established the Post-Acute Care Blocking, and the ONC Health IT for FY 2021 by the proposed market Interoperability Workgroup (PACIO) to Certification Program,’’ 1 (85 FR 25642) basket increase factor, based upon the facilitate collaboration with industry and ‘‘Patient Access and most current data available, with a stakeholders to develop FHIR standards Interoperability’’ 2 (85 FR 25510) to proposed productivity adjustment that could support the exchange and promote secure and more immediate required by section 1886(j)(3)(C)(ii)(I) of reuse of patient assessment data derived access to health information for patients the Act, as described in section V. of the from the minimum data set (MDS), and healthcare providers through the FY 2021 IRF PPS proposed rule (85 FR inpatient rehabilitation facility patient use of standards-based application 22065, 22073 through 22075). assessment instrument (IRF–PAI), long programming interfaces (APIs) that • Adopt the revised OMB term care hospital continuity enable easier access to electronic health delineations, the proposed IRF wage assessment record and evaluation information. The CMS Interoperability index transition, and the proposed (LCDS), outcome and assessment and Patient Access rule also finalizes a update to the labor-related share for FY information set (OASIS) and other new regulation under the Conditions of 2021 in a budget-neutral manner, as sources. Participation for hospitals (85 FR described in section V. of the FY 2021 The Data Element Library (DEL) 25584), including CAHs and psychiatric IRF PPS proposed rule (85 FR 22065, continues to be updated and serves as hospitals, which will require these 22075 through 22080). • the authoritative resource for PAC providers to send electronic patient Describe the calculation of the IRF assessment data elements and their event notifications of a patient’s standard payment conversion factor for associated mappings to health IT admission, discharge, and/or transfer to FY 2021, as discussed in section V. of standards. The DEL furthers CMS’ goal appropriate recipients, including the FY 2021 IRF PPS proposed rule (85 applicable post-acute care providers and FR 22065, 22080 through 22081). of data standardization and • interoperability. These interoperable suppliers. These notifications can help Update the outlier threshold data elements can reduce provider alert post-acute care providers and amount for FY 2021, as discussed in burden by allowing the use and suppliers when a patient has been seen section VI. of the FY 2021 IRF PPS exchange of healthcare data, support in the ED or admitted to the hospital, proposed rule (85 FR 22065, 22084 provider exchange of electronic health supporting more effective care through 22085). • Update the cost-to-charge ratio information for care coordination, coordination across settings. We invite (CCR) ceiling and urban/rural average person-centered care, and support real- providers to learn more about these CCRs for FY 2021, as discussed in time, data driven, clinical decision important developments and how they section VI. of the FY 2021 IRF PPS making. Standards in the Data Element are likely to affect IRFs. proposed rule (85 FR 22065, 22085 Library (https://del.cms.gov/DELWeb/ III. Summary of Provisions of the through 22086). pubHome) can be referenced on the Proposed Rule • Amend the IRF coverage CMS website and in the ONC requirements to remove the post- Interoperability Standards Advisory In the FY 2021 IRF PPS proposed admission physician evaluation (ISA). The 2020 ISA is available at rule, we proposed to update the IRF requirement as discussed in section VII. https://www.healthit.gov/isa. prospective payment rates for FY 2021. of the FY 2021 IRF PPS proposed rule In the September 30, 2019 Federal We also proposed to adopt more recent (85 FR 22065, 22086 through 22087). Register, CMS published a final rule, Office of Management and Budget • Amend the IRF coverage ‘‘Medicare and Medicaid Programs; statistical area delineations and apply a requirements to codify existing Revisions to Requirements for Discharge 5 percent cap on any wage index documentation instructions and Planning’’ (84 FR 51836) (‘‘Discharge decreases compared to FY 2020 in a guidance as discussed in section VIII. of Planning final rule’’), that revises the budget neutral manner. We also the FY 2021 IRF PPS proposed rule (85 discharge planning requirements that proposed to amend the IRF coverage FR 22065, 22087 through 22088). hospitals (including psychiatric requirements to remove the post- • Amend the IRF coverage hospitals, long-term care hospitals, and admission physician evaluation requirements to allow non-physician inpatient rehabilitation facilities), requirement and codify existing practitioners to perform certain critical access hospitals (CAHs), and documentation instructions and requirements that are currently required home health agencies, must meet to guidance. Additionally, we proposed to to be performed by a rehabilitation participate in Medicare and Medicaid amend the IRF coverage requirements to physician, if permitted under state law, programs. The rule supports CMS’ allow non-physician practitioners to as discussed in section IX. of the FY interoperability efforts by promoting the perform certain requirements that are 2021 IRF PPS proposed rule (85 FR exchange of patient information currently required to be performed by a 22065, 22088 through 22090). between health care settings, and by rehabilitation physician. • Describe the method for applying ensuring that a patient’s necessary The proposed policy changes and the reduction to the FY 2021 IRF medical information is transferred with updates to the IRF prospective payment increase factor for IRFs that fail to meet the patient after discharge from a rates for FY 2021 are as follows: the quality reporting requirements as hospital, CAH, or post-acute care • Update the CMG relative weights discussed in section X. of the FY 2021 services provider. For more information and average length of stay values for FY IRF PPS proposed rule (85 FR 22065, on the Discharge planning requirements, 2021, in a budget neutral manner, as 22090). please visit the final rule at https:// discussed in section IV. of the FY 2021 www.federalregister.gov/documents/ IV. Analysis of and Responses to Public 2019/09/30/2019-20732/medicare-and- Comments 1 https://www.govinfo.gov/content/pkg/FR-2020- medicaid-programs-revisions-to- 05-01/pdf/2020-07419.pdf. We received 2,668 timely responses requirements-for-discharge-planning- 2 https://www.govinfo.gov/content/pkg/FR-2020- from the public, many of which for-hospitals. 05-01/pdf/2020-05050.pdf. contained multiple comments on the FY

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2021 IRF PPS proposed rule (85 FR publication of the final rule, we would We note that, as we typically do, we 22065). We received comments from use such data to determine the FY 2021 updated our data between the FY 2021 various trade associations, inpatient CMG relative weights and average IRF PPS proposed and final rules to rehabilitation facilities, individual length of stay values in the final rule. ensure that we use the most recent physicians, therapists, clinicians, health We proposed to apply these data available data in calculating IRF PPS care industry organizations, health care using the same methodologies that we payments. This updated data reflects a consulting firms, individual have used to update the CMG relative more complete set of claims for FY 2019 beneficiaries, and beneficiary groups. weights and average length of stay and additional cost report data for FY The following sections, arranged by values each FY since we implemented 2018. To calculate the appropriate subject area, include a summary of the an update to the methodology to use the budget neutrality factor for use in public comments that we received, and more detailed CCR data from the cost updating the FY 2021 CMG relative our responses. reports of IRF provider units of primary weights, we use the following steps: acute care hospitals, instead of CCR data Step 1. Calculate the estimated total V. Update to the Case-Mix Group from the associated primary care amount of IRF PPS payments for FY (CMG) Relative Weights and Average hospitals, to calculate IRFs’ average 2021 (with no changes to the CMG Length of Stay Values for FY 2021 costs per case, as discussed in the FY relative weights). As specified in § 412.620(b)(1), we 2009 IRF PPS final rule (73 FR 46372). Step 2. Calculate the estimated total calculate a relative weight for each CMG In calculating the CMG relative weights, amount of IRF PPS payments for FY that is proportional to the resources we use a hospital-specific relative value 2021 by applying the changes to the needed by an average inpatient method to estimate operating (routine CMG relative weights (as discussed in rehabilitation case in that CMG. For and ancillary services) and capital costs this final rule). example, cases in a CMG with a relative of IRFs. The process used to calculate Step 3. Divide the amount calculated weight of 2, on average, will cost twice the CMG relative weights for this final in step 1 by the amount calculated in as much as cases in a CMG with a rule is as follows: step 2 to determine the budget relative weight of 1. Relative weights Step 1. We estimate the effects that neutrality factor of 0.9970 that would account for the variance in cost per comorbidities have on costs. maintain the same total estimated discharge due to the variance in Step 2. We adjust the cost of each aggregate payments in FY 2021 with and resource utilization among the payment Medicare discharge (case) to reflect the without the changes to the CMG relative groups, and their use helps to ensure effects found in the first step. weights. that IRF PPS payments support Step 3. We use the adjusted costs from Step 4. Apply the budget neutrality beneficiary access to care, as well as the second step to calculate CMG factor from step 3 to the FY 2021 IRF provider efficiency. relative weights, using the hospital- PPS standard payment amount after the We proposed to update the CMG specific relative value method. application of the budget-neutral wage relative weights and average length of Step 4. We normalize the FY 2021 adjustment factor. stay values for FY 2021. As required by CMG relative weights to the same In section VI.D. of this final rule, we statute, we always use the most recent average CMG relative weight from the discuss the use of the existing available data to update the CMG CMG relative weights implemented in methodology to calculate the standard relative weights and average lengths of the FY 2020 IRF PPS final rule (84 FR payment conversion factor for FY 2021. stay. For FY 2021, we proposed to use 39054). In Table 2, ‘‘Relative Weights and the FY 2019 IRF claims and FY 2018 Consistent with the methodology that Average Length of Stay Values for IRF cost report data. These data are the we have used to update the IRF Revised Case-Mix Groups,’’ we present most current and complete data classification system in each instance in the CMGs, the comorbidity tiers, the available at this time. Currently, only a the past, we proposed to update the corresponding relative weights, and the small portion of the FY 2019 IRF cost CMG relative weights for FY 2021 in average length of stay values for each report data are available for analysis, but such a way that total estimated CMG and tier for FY 2021. The average the majority of the FY 2019 IRF claims aggregate payments to IRFs for FY 2021 length of stay for each CMG is used to data are available for analysis. We also are the same with or without the determine when an IRF discharge meets proposed that if more recent data changes (that is, in a budget-neutral the definition of a short-stay transfer, become available after the publication of manner) by applying a budget neutrality which results in a per diem case level the proposed rule and before the factor to the standard payment amount. adjustment. TABLE 2—RELATIVE WEIGHTS AND AVERAGE LENGTH OF STAY VALUES FOR THE REVISED CASE-MIX GROUPS

Relative weight Average length of stay CMG CMG description No No (M = motor, A = age) Tier 1 Tier 2 Tier 3 comorbidity Tier 1 Tier 2 Tier 3 comorbidity tier tier

0101 ... Stroke M >=72.50 ...... 1.0314 0.8818 0.8182 0.7830 10 10 10 9 0102 ... Stroke M >=63.50 and M <72.50 ...... 1.3174 1.1262 1.0451 1.0001 13 13 12 11 0103 ... Stroke M >=50.50 and M <63.50 ...... 1.6846 1.4401 1.3363 1.2789 15 16 15 14 0104 ... Stroke M >=41.50 and M <50.50 ...... 2.1886 1.8710 1.7361 1.6615 19 19 18 18 0105 ... Stroke M <41.50 and A >=84.50 ...... 2.4829 2.1226 1.9696 1.8850 23 23 21 20 0106 ... Stroke M <41.50 and A <84.50 ...... 2.8525 2.4385 2.2628 2.1655 26 24 23 23 0201 ... Traumatic brain injury M >=73.50 ...... 1.1495 0.9399 0.8443 0.7891 10 11 10 10 0202 ... Traumatic brain injury M >=61.50 and M <73.50 ..... 1.4440 1.1807 1.0606 0.9913 12 14 12 12 0203 ... Traumatic brain injury M >=49.50 and M <61.50 ..... 1.7411 1.4235 1.2787 1.1952 15 15 14 14 0204 ... Traumatic brain injury M >=35.50 and M <49.50 ..... 2.1669 1.7718 1.5915 1.4876 20 19 17 16 0205 ... Traumatic brain injury M <35.50 ...... 2.7369 2.2377 2.0101 1.8788 32 24 21 18 0301 ... Non-traumatic brain injury M >=65.50 ...... 1.2263 0.9941 0.9185 0.8514 11 11 10 10 0302 ... Non-traumatic brain injury M >=52.50 and M 1.5711 1.2737 1.1768 1.0908 14 14 13 12 <65.50.

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TABLE 2—RELATIVE WEIGHTS AND AVERAGE LENGTH OF STAY VALUES FOR THE REVISED CASE-MIX GROUPS— Continued

Relative weight Average length of stay CMG CMG description No No (M = motor, A = age) Tier 1 Tier 2 Tier 3 comorbidity Tier 1 Tier 2 Tier 3 comorbidity tier tier

0303 ... Non-traumatic brain injury M >=42.50 and M 1.8808 1.5247 1.4087 1.3058 16 16 15 14 <52.50. 0304 ... Non-traumatic brain injury M <42.50 and A >=78.50 2.1101 1.7105 1.5805 1.4650 19 18 16 16 0305 ... Non-traumatic brain injury M <42.50 and A <78.50 2.3049 1.8685 1.7264 1.6002 21 20 17 17 0401 ... Traumatic spinal cord injury M >=56.50 ...... 1.3684 1.1612 1.0460 0.9718 12 12 12 11 0402 ... Traumatic spinal cord injury M >=47.50 and M 1.7807 1.5110 1.3611 1.2646 16 16 14 15 <56.50. 0403 ... Traumatic spinal cord injury M >=41.50 and M 2.1371 1.8135 1.6336 1.5177 20 20 18 17 <47.50. 0404 ... Traumatic spinal cord injury M <31.50 and A 3.6185 3.0706 2.7660 2.5698 29 35 32 26 <61.50. 0405 ... Traumatic spinal cord injury M >=31.50 and M 2.7444 2.3288 2.0978 1.9490 25 26 22 21 <41.50. 0406 ... Traumatic spinal cord injury M >=24.50 and M 3.5969 3.0522 2.7494 2.5544 34 31 28 28 <31.50 and A >=61.50. 0407 ... Traumatic spinal cord injury M <24.50 and A 4.1070 3.4850 3.1394 2.9166 46 36 32 32 >=61.50. 0501 ... Non-traumatic spinal cord injury M >=60.50 ...... 1.3097 1.0178 0.9609 0.8875 13 12 11 10 0502 ... Non-traumatic spinal cord injury M >=53.50 and M 1.6273 1.2646 1.1939 1.1028 14 14 13 12 <60.50. 0503 ... Non-traumatic spinal cord injury M >=48.50 and M 1.8899 1.4687 1.3866 1.2807 16 16 15 14 <53.50. 0504 ... Non-traumatic spinal cord injury M >=39.50 and M 2.2506 1.7491 1.6513 1.5252 21 19 18 17 <48.50. 0505 ... Non-traumatic spinal cord injury M <39.50 ...... 2.9362 2.2819 2.1543 1.9899 28 24 22 21 0601 ... Neurological M >=64.50 ...... 1.3673 1.0293 0.9649 0.8770 12 11 10 10 0602 ... Neurological M >=52.50 and M <64.50 ...... 1.7016 1.2809 1.2008 1.0915 14 13 12 12 0603 ... Neurological M >=43.50 and M <52.50 ...... 2.0214 1.5216 1.4264 1.2965 16 15 15 14 0604 ... Neurological M <43.50 ...... 2.3456 1.7657 1.6552 1.5045 20 18 17 16 0701 ... Fracture of lower extremity M >=61.50 ...... 1.2473 1.0115 0.9585 0.8811 11 12 11 10 0702 ... Fracture of lower extremity M >=52.50 and M 1.5595 1.2647 1.1985 1.1016 14 14 13 12 <61.50. 0703 ... Fracture of lower extremity M >=41.50 and M 1.8956 1.5373 1.4568 1.3390 17 16 15 15 <52.50. 0704 ... Fracture of lower extremity M <41.50 ...... 2.1660 1.7566 1.6646 1.5300 19 18 17 17 0801 ... Replacement of lower-extremity joint M >=63.50 .... 1.1268 0.9068 0.8121 0.7564 10 10 9 9 0802 ... Replacement of lower-extremity joint M >=57.50 1.3248 1.0661 0.9548 0.8893 12 11 11 10 and M <63.50. 0803 ... Replacement of lower-extremity joint M >=51.50 1.4799 1.1909 1.0666 0.9934 12 13 12 11 and M <57.50. 0804 ... Replacement of lower-extremity joint M >=42.50 1.7056 1.3726 1.2293 1.1449 14 15 13 13 and M <51.50. 0805 ... Replacement of lower-extremity joint M <42.50 ...... 1.9874 1.5994 1.4324 1.3341 17 17 15 14 0901 ... Other orthopedic M >=63.50 ...... 1.2111 0.9651 0.9133 0.8273 11 11 10 10 0902 ... Other orthopedic M >=51.50 and M <63.50 ...... 1.5078 1.2015 1.1371 1.0301 13 13 12 12 0903 ... Other orthopedic M >=44.50 and M <51.50 ...... 1.7744 1.4139 1.3382 1.2122 15 15 14 14 0904 ... Other orthopedic M <44.5 ...... 2.0373 1.6235 1.5365 1.3918 17 17 16 15 1001 ... Amputation lower extremity M >=64.50 ...... 1.2960 1.0863 0.9748 0.9004 12 13 11 11 1002 ... Amputation lower extremity M >=55.50 and M 1.6010 1.3419 1.2042 1.1123 14 15 13 13 <64.50. 1003 ... Amputation lower extremity M >=47.50 and M 1.8708 1.5681 1.4072 1.2997 16 17 15 14 <55.50. 1004 ... Amputation lower extremity M <47.50 ...... 2.2049 1.8481 1.6585 1.5318 18 19 17 16 1101 ... Amputation non-lower extremity M >=58.50 ...... 1.2999 1.1583 1.0117 0.9810 12 11 11 13 1102 ... Amputation non-lower extremity M >=52.50 and M 1.7367 1.5476 1.3517 1.3107 14 13 14 14 <58.50. 1103 ... Amputation non-lower extremity M <52.50 ...... 1.9515 1.7390 1.5188 1.4728 17 13 15 14 1201 ... Osteoarthritis M >=61.50 ...... 1.4251 0.9495 0.9495 0.8718 11 10 10 10 1202 ... Osteoarthritis M >=49.50 and M <61.50 ...... 1.7907 1.1930 1.1930 1.0954 13 14 13 12 1203 ... Osteoarthritis M <49.50 and A >=74.50 ...... 2.0815 1.3867 1.3867 1.2734 15 14 16 14 1204 ... Osteoarthritis M <49.50 and A <74.50 ...... 2.1877 1.4575 1.4575 1.3383 15 15 15 15 1301 ... Rheumatoid other arthritis M >=62.50 ...... 1.1277 0.9311 0.8839 0.7847 9 11 10 9 1302 ... Rheumatoid other arthritis M >=51.50 and M 1.5429 1.2740 1.2094 1.0737 12 13 13 12 <62.50. 1303 ... Rheumatoid other arthritis M >=44.50 and M 1.7786 1.4686 1.3941 1.2377 14 15 14 14 <51.50 and A >=64.50. 1304 ... Rheumatoid other arthritis M <44.50 and A >=64.50 2.0617 1.7024 1.6161 1.4347 14 17 16 16 1305 ... Rheumatoid other arthritis M <51.50 and A <64.50 2.0876 1.7237 1.6363 1.4527 15 16 16 16 1401 ... Cardiac M >=68.50 ...... 1.1456 0.9392 0.8477 0.7585 10 10 10 9 1402 ... Cardiac M >=55.50 and M <68.50 ...... 1.4391 1.1799 1.0650 0.9529 13 13 11 11 1403 ... Cardiac M >=45.50 and M <55.50 ...... 1.7474 1.4326 1.2931 1.1570 15 15 13 13 1404 ... Cardiac M <45.50 ...... 2.0524 1.6827 1.5188 1.3590 18 17 16 14 1501 ... Pulmonary M >=68.50 ...... 1.2905 1.0335 0.9655 0.9262 11 11 10 10 1502 ... Pulmonary M >=56.50 and M <68.50 ...... 1.5913 1.2744 1.1906 1.1421 13 13 12 12 1503 ... Pulmonary M >=45.50 and M <56.50 ...... 1.8476 1.4796 1.3823 1.3261 16 14 13 13 1504 ... Pulmonary M <45.50 ...... 2.1421 1.7154 1.6027 1.5375 22 16 15 14

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TABLE 2—RELATIVE WEIGHTS AND AVERAGE LENGTH OF STAY VALUES FOR THE REVISED CASE-MIX GROUPS— Continued

Relative weight Average length of stay CMG CMG description No No (M = motor, A = age) Tier 1 Tier 2 Tier 3 comorbidity Tier 1 Tier 2 Tier 3 comorbidity tier tier

1601 ... Pain syndrome M >=65.50 ...... 0.9889 0.9889 0.8919 0.8028 9 10 11 9 1602 ... Pain syndrome M >=58.50 and M <65.50 ...... 1.1078 1.1078 0.9991 0.8992 10 11 11 11 1603 ... Pain syndrome M >=43.50 and M <58.50 ...... 1.3538 1.3538 1.2209 1.0989 12 14 13 13 1604 ... Pain syndrome M <43.50 ...... 1.7201 1.7201 1.5513 1.3963 13 15 17 15 1701 ... Major multiple trauma without brain or spinal cord 1.3910 1.0912 0.9919 0.9032 12 13 11 11 injury M >=57.50. 1702 ... Major multiple trauma without brain or spinal cord 1.6988 1.3328 1.2115 1.1031 15 14 13 13 injury M >=50.50 and M <57.50. 1703 ... Major multiple trauma without brain or spinal cord 2.0140 1.5799 1.4362 1.3077 18 16 15 15 injury M >=41.50 and M <50.50. 1704 ... Major multiple trauma without brain or spinal cord 2.2279 1.7478 1.5888 1.4466 17 19 17 16 injury M >=36.50 and M <41.50. 1705 ... Major multiple trauma without brain or spinal cord 2.4447 1.9179 1.7434 1.5873 23 20 18 17 injury M <36.50. 1801 ... Major multiple trauma with brain or spinal cord in- 1.2381 0.9821 0.8820 0.8180 14 13 10 10 jury M >=67.50. 1802 ... Major multiple trauma with brain or spinal cord in- 1.5767 1.2506 1.1232 1.0418 13 15 12 12 jury M >=55.50 and M <67.50. 1803 ... Major multiple trauma with brain or spinal cord in- 1.9345 1.5344 1.3781 1.2782 17 17 15 14 jury M >=45.50 and M <55.50. 1804 ... Major multiple trauma with brain or spinal cord in- 2.2183 1.7596 1.5803 1.4657 22 19 17 16 jury M >=40.50 and M <45.50. 1805 ... Major multiple trauma with brain or spinal cord in- 2.6487 2.1010 1.8869 1.7501 28 23 20 19 jury M >=30.50 and M <40.50. 1806 ... Major multiple trauma with brain or spinal cord in- 3.4119 2.7063 2.4305 2.2543 37 29 22 25 jury M <30.50. 1901 ... Guillain-Barre´ M >=66.50 ...... 1.2031 0.9356 0.9226 0.8738 14 12 13 10 1902 ... Guillain-Barre´ M >=51.50 and M <66.50 ...... 1.6292 1.2670 1.2493 1.1832 18 14 14 14 1903 ... Guillain-Barre´ M >=38.50 and M <51.50 ...... 2.5939 2.0172 1.9890 1.8838 25 21 21 21 1904 ... Guillain-Barre´ M <38.50...... 3.8189 2.9699 2.9284 2.7735 44 31 29 29 2001 ... Miscellaneous M >=66.50 ...... 1.2118 0.9833 0.9005 0.8282 11 11 10 9 2002 ... Miscellaneous M >=55.50 and M <66.50 ...... 1.4899 1.2090 1.1072 1.0182 13 13 12 11 2003 ... Miscellaneous M >=46.50 and M <55.50 ...... 1.7634 1.4309 1.3105 1.2052 15 15 14 13 2004 ... Miscellaneous M <46.50 and A >=77.50 ...... 1.9847 1.6104 1.4749 1.3564 18 17 15 15 2005 ... Miscellaneous M <46.50 and A <77.50 ...... 2.1338 1.7315 1.5858 1.4583 19 18 16 15 2101 ... Burns M >=52.50 ...... 1.8033 1.3711 1.1272 1.1272 17 13 13 14 2102 ... Burns M <52.50 ...... 2.4055 1.8289 1.5036 1.5036 20 21 15 15 5001 ... Short-stay cases, length of stay is 3 days or fewer ...... 0.1643 ...... 2 5101 ... Expired, orthopedic, length of stay is 13 days or ...... 0.7262 ...... 8 fewer. 5102 ... Expired, orthopedic, length of stay is 14 days or ...... 1.8015 ...... 19 more. 5103 ... Expired, not orthopedic, length of stay is 15 days or ...... 0.8454 ...... 8 fewer. 5104 ... Expired, not orthopedic, length of stay is 16 days or ...... 2.0896 ...... 20 more.

Generally, updates to the CMG particular CMG relative weight values, previously described), total estimated relative weights result in some increases which would affect the overall aggregate payments to IRFs for FY 2021 and some decreases to the CMG relative distribution of payments within CMGs are not affected as a result of the CMG weight values. Table 3 shows how we and tiers. We note that, because we relative weight revisions. However, the estimate that the application of the implement the CMG relative weight revisions affect the distribution of revisions for FY 2021 would affect revisions in a budget-neutral manner (as payments within CMGs and tiers.

TABLE 3—DISTRIBUTIONAL EFFECTS OF THE CHANGES TO THE CMG RELATIVE WEIGHTS

Number Percentage Percentage change in CMG relative weights of cases of cases affected affected

Increased by 15% or more ...... 64 0.0 Increased by between 5% and 15% ...... 1,830 0.4 Changed by less than 5% ...... 404,940 99.3 Decreased by between 5% and 15% ...... 1,029 0.3 Decreased by 15% or more ...... 11 0.0

As shown in Table 3, 99.3 percent of would experience less than a 5 percent the CMG relative weight value as a all IRF cases are in CMGs and tiers that change (either increase or decrease) in result of the revisions for FY 2021. The

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changes in the average length of stay 2021 IRF PPS proposed rule, the FY rarely make changes to this values for FY 2021, compared with the 2019 data is the most current and methodology, so we believe that FY 2020 average length of stay values, complete data available for updating stakeholders have had ample are small and do not show any payments. opportunity to comment on this particular trends in IRF length of stay We are confident that the data is valid methodology over the years, and we do patterns. and reliable for use in setting IRF PPS not believe that there would be added The comments we received on our payment rates. CMS’s contractor value to convening a TEP to discuss this proposal to update the CMG relative (Research Triangle Institute (RTI)) well-established methodology. weights and average length of stay analyzed 2 year’s worth of these data With regard to the comment regarding values for FY 2021 are summarized (FYs 2017 and 2018) to determine the Table 3, we do not agree with the below. extent to which the data could predict commenter’s suggestion that utilizing Comment: One commenter expressed resource use in the IRF setting. RTI changes in payment would more concern about the decreases in some of produced two reports containing their adequately project changes in the CMG the CMG relative weights and average analyses and findings, ‘‘Analyses to relative weight values than examining length of stay values from the proposed Inform the Potential use of Standardized changes in the relative weight values updates, and questioned whether the FY Patient Assessment Data Elements in the themselves. We would also like to note 2019 data used to update these values Inpatient Rehabilitation Facility that the data files published in for FY 2021 are reliable and valid. This Prospective Payment System (PDF)’’ conjunction with each proposed and commenter suggested that CMS freeze (April 2018) and ‘‘Analyses to Inform final rule contain estimated facility level the CMG relative weights and average the Use of Standardized Patient payment impacts for each IRF in our length of stay values at FY 2020 levels. Assessment Data Elements in the analysis file to support transparency This commenter also requested that Inpatient Rehabilitation Facility and assist providers in determining the CMS provide patient level data to allow Prospective Payment System (PDF)’’ payment implications of the policy stakeholders to analyze and model IRF (March 2019). These reports are both updates contained in each rule. payments and requested that CMS available for download from the IRF However, we appreciate the convene regularly scheduled TEPs to PPS website at https://www.cms.gov/ commenter’s suggested revisions to discuss and review payment model Medicare/Medicare-Fee-for-Service- Table 3 and will take this comment analyses. Additionally, this commenter Payment/InpatientRehabFacPPS/ under advisement for future also suggested that CMS should modify Research. consideration. Table 3 to reflect the payment impacts As most recently discussed in detail After consideration of the comments of updating the CMG relative weights in the FY 2020 IRF PPS final rule (84 we received, we are finalizing our and requested that CMS provide actual FR 39054), we believe that these data proposal to update the CMG relative changes in payment instead of changes accurately reflect the severity of the IRF weights and average length of stay in percentages, as this would provide patient population and the associated values for FY 2021, as shown in Table more transparency related to the actual costs of caring for these patients in the 2 of this final rule. These updates are changes that IRFs may experience. IRF setting. Therefore, we believe it is effective for FY 2021, that is, for Response: The annual updates to the appropriate to use the FY 2019 data to discharges occurring on or after October CMG relative weights, which include update the CMG relative weights and 1, 2020 and on or before September 30, both increases and decreases to the average length of stay values for FY 2021. CMG relative weights, are intended to 2021 to ensure the case mix system is ensure that IRF payments are aligned as as reflective as possible of recent VI. FY 2021 IRF PPS Payment Update closely as possible with the current changes in IRF utilization and case mix. A. Background costs of care. The relative weights for With regard to the request for patient- each of the CMGs and tiers represent the level data, we are unable to make Section 1886(j)(3)(C) of the Act relative costliness of patients in those patient assessment and claims data requires the Secretary to establish an CMGs and tiers compared with patients publicly available on the CMS website increase factor that reflects changes over in other CMGs and tiers. Additionally, because these data contain information time in the prices of an appropriate mix the average length of stay values are that can be used to identify individual of goods and services for which only used to determine which cases Medicare beneficiaries. However, payment is made under the IRF PPS. qualify for the short-stay transfer policy stakeholders may obtain these data According to section 1886(j)(3)(A)(i) of and are not used to determine payments through the standard CMS data the Act, the increase factor shall be used for the non-short-stay transfer cases. acquisition and Data Use Agreement to update the IRF prospective payment We do not agree that it would be (DUA) processes. More information on rates for each FY. Section appropriate to freeze the CMG relative CMS data acquisition process can be 1886(j)(3)(C)(ii)(I) of the Act requires the weights and average length of stay found on the CMS website at https:// application of the productivity values at FY 2020 levels because this www.cms.gov/Research-Statistics-Data- adjustment described in section would require us to base them on older and-Systems/Files-for-Order/ 1886(b)(3)(B)(xi)(II) of the Act. Thus, in data. Updating these values based on FilesForOrderGenInfo/index. the FY 2021 IRF PPS proposed rule (85 the most recent available data ensures In addition, with regard to the request FR 22073 through 22074), we proposed that the IRF case mix system is as for the regularly scheduled TEPs to to update the IRF PPS payments for FY reflective as possible of recent changes obtain stakeholder input on the routine 2021 by a market basket increase factor in IRF utilization and case mix, thereby annual updates to the CMG relative as required by section 1886(j)(3)(C) of ensuring that IRF payments weights and average length of stay the Act based upon the most current appropriately reflect the relative costs of values, we provide the methodology for data available, with a productivity caring for IRF patients. Freezing these these updates in the IRF PPS proposed adjustment as required by section values at FY 2020 levels does not allow rules each year to enable stakeholders to 1886(j)(3)(C)(ii)(I) of the Act. us to reflect any changes in IRF comment on the methodology and We have utilized various market utilization and case mix that might have provide any suggestions for updating baskets through the years in the IRF occurred over time. As stated in the FY this methodology. Furthermore, we PPS. For a discussion of these market

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baskets, we refer readers to the FY 2016 Section 1886(b)(3)(B)(xi)(II) of the Act primarily driven by slower anticipated IRF PPS final rule (80 FR 47046). sets forth the definition of this compensation growth for both health- In FY 2016, we finalized the use of a productivity adjustment. The statute related and other occupations as labor 2012-based IRF market basket, using defines the productivity adjustment to markets are expected to be significantly Medicare cost report (MCR) data for be equal to the 10-year moving average impacted during the recession that both freestanding and hospital-based of changes in annual economy-wide, started in February 2020 and throughout IRFs (80 FR 47049 through 47068). private nonfarm business MFP (as the anticipated recovery. Beginning with FY 2020, we finalized a projected by the Secretary for the 10- Based on the more recent data rebased and revised IRF market basket year period ending with the applicable available for this FY 2021 IRF final rule, to reflect a 2016 base year. The FY 2020 FY, year, cost reporting period, or other the current estimate of the 10-year IRF PPS final rule (84 FR 39071 through annual period) (the ‘‘MFP adjustment’’). moving average growth of MFP for FY 39086) contains a complete discussion The U.S. Department of Labor’s Bureau 2021 is –0.1 percentage point. This MFP of the development of the 2016-based of Labor Statistics (BLS) publishes the is based on the most recent IRF market basket. official measure of private nonfarm macroeconomic outlook from IGI at the time of rulemaking (released June 2020) B. FY 2021 Market Basket Update and business MFP. Please see http:// in order to reflect more current Productivity Adjustment www.bls.gov/mfp for the BLS historical published MFP data. A complete historical economic data. IGI produces For FY 2021 (that is, beginning description of the MFP projection monthly macroeconomic forecasts, October 1, 2020 and ending September methodology is available on the CMS which include projections of all of the 30, 2021), we proposed to update the website at https://www.cms.gov/ economic series used to derive MFP. In IRF PPS payments by a market basket Research-Statistics-Dataand-Systems/ contrast, IGI only produces forecasts of increase factor as required by section Statistics-Trends-andReports/ the more detailed price proxies used in 1886(j)(3)(C) of the Act, with a MedicareProgramRatesStats/ the 2016-based IRF market basket on a productivity adjustment as required by MarketBasketResearch.html. quarterly basis. Therefore, IGI’s second section 1886(j)(3)(C)(ii)(I) of the Act. For Using IGI’s fourth quarter 2019 quarter 2020 forecast is the most recent FY 2021, we proposed to use the same forecast, the 10-year moving average forecast of the 2016-based IRF market methodology described in the FY 2020 growth of MFP for FY 2021 was basket update. IRF PPS final rule (84 FR 39085) to projected to be 0.4 percentage point. We note that it has typically been our compute the FY 2021 market basket Thus, in accordance with section practice to base the projection of the increase factor to update the IRF PPS 1886(j)(3)(C) of the Act, we proposed to market basket price proxies and MFP in base payment rate. base the FY 2021 market basket update, the final rule on the second quarter IGI Consistent with historical practice, we which is used to determine the forecast. For this FY 2021 IRF PPS final proposed to estimate the market basket applicable percentage increase for the rule, we are using the IGI June update for the IRF PPS based on IHS IRF payments, on IGI’s fourth quarter macroeconomic forecast for MFP Global Inc.’s (IGI’s) forecast using the 2019 forecast of the 2016-based IRF because it is a more recent forecast, and most recent available data. IGI is a market basket. We proposed to then it is important to use more recent data nationally-recognized economic and reduce this percentage increase by the during this period when economic financial forecasting firm with which estimated MFP adjustment for FY 2021 trends, particularly employment and we contract to forecast the components of 0.4 percentage point (the 10-year labor productivity, are notably uncertain of the market baskets and multifactor moving average growth of MFP for the because of the COVID–19 pandemic. productivity (MFP). Based on IGI’s period ending FY 2021 based on IGI’s Historically, the MFP adjustment based fourth quarter 2019 forecast with fourth quarter 2019 forecast). Therefore, on the second quarter IGI forecast has historical data through the third quarter the proposed FY 2021 IRF update was been very similar to the MFP adjustment of 2019, the 2016-based IRF market equal to 2.5 percent (2.9 percent market derived with IGI’s June macroeconomic basket increase factor for FY 2021 was basket update less 0.4 percentage point forecast. Substantial changes in the projected to be 2.9 percent. Therefore, MFP adjustment). Furthermore, we macroeconomic indicators in between we proposed that the 2016-based IRF proposed that if more recent data monthly forecasts are atypical. market basket increase factor for FY became available after the publication of Given the unprecedented economic 2021 would be 2.9 percent. We the proposed rule and before the uncertainty as a result of the COVID–19 proposed that if more recent data publication of this final rule (for pandemic, the change in the IGI became available after the publication of example, a more recent estimate of the macroeconomic series used to derive the proposed rule and before the market basket and/or MFP), we would MFP between the IGI second quarter publication of this final rule (for use such data to determine the FY 2021 2020 IGI forecast and the IGI June 2020 example, a more recent estimate of the market basket update and MFP macroeconomic forecast is significant. market basket update), we would use adjustment in this final rule. Therefore, we believe it is technically such data to determine the FY 2021 Based on the more recent data appropriate to use IGI’s more recent market basket update in this final rule. available for this FY 2021 IRF final rule June 2020 macroeconomic forecast to According to section 1886(j)(3)(C)(i) of (that is, IGI’s second quarter 2020 determine the MFP adjustment for the the Act, the Secretary shall establish an forecast of the 2016-based IRF market final rule as it reflects more current increase factor based on an appropriate basket rate-of-increase with historical historical data. For comparison percentage increase in a market basket data through the first quarter of 2020), purposes, the 10-year moving average of goods and services. Section we estimate that the FY 2021 market growth of MFP for FY 2021 is projected 1886(j)(3)(C)(ii) of the Act then requires basket update is 2.4 percent. We note to be –0.1 percentage point based on that, after establishing the increase that the fourth quarter 2019 forecast was IGI’s June 2020 macroeconomic forecast factor for a FY, the Secretary shall developed prior to the economic compared to a FY 2021 projected 10- reduce such increase factor for FY 2012 impacts of the Coronavirus disease 2019 year moving average growth of MFP of and each subsequent FY, by the (COVID–19) pandemic. This lower 0.7 percentage point based on IGI’s productivity adjustment described in update (2.4 percent) for FY 2021 relative second quarter 2020 forecast. section 1886(b)(3)(B)(xi)(II) of the Act. to the proposed rule (2.9 percent) is Mechanically subtracting the negative

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10-year moving average growth of MFP the proposed rule, the final update would allow this analysis. We have from the IRF market basket increase would be based on a more recent estimated hospital-sector multi-factor factor using the data from the IGI June forecast of the market basket and MFP productivity and have published the 2020 macroeconomic forecast would adjustment if available. Therefore, findings on the CMS website at https:// have resulted in a 0.1 percentage point incorporating an updated estimate of the www.cms.gov/Research-Statistics-Data- increase in the FY 2021 IRF increase market basket update and productivity and-Systems/Statistics-Trends-and- factor. However, under sections adjustment in the final rule is consistent Reports/ReportsTrustFunds/Downloads/ 1886(b)(3)(B)(xi)(II) and 1886(j)(3)(C) of with what we have done historically for ProductivityMemo2016.pdf. the Act, the Secretary is required to the IRF PPS as well as other Medicare Comment: One commenter stated that reduce (not increase) the IRF market PPSs as it reflects more current while they appreciate this modest basket increase factor by changes in historical data as well as a revised increase to the payment rate, it is economy-wide productivity. outlook on the forecasted price insufficient to offset the impact of cost Accordingly, we will be applying a 0.0 pressures faced by providers for FY inflation, sequestration, and the percentage point MFP adjustment to the 2021 and inclusive of economic financial impact IRFs are facing due to IRF market basket increase factor. assumptions regarding the expected COVID–19. The commenter encouraged Therefore, the current estimate of the FY impacts from the COVID–19 pandemic. CMS to consider these additional 2021 IRF increase factor is equal to 2.4 Comment: Several commenters impacts in the final rule. percent. expressed concern about the continued Response: Since the publication of the For FY 2021, the Medicare Payment application of the productivity FY 2021 IRF PPS proposed rule, we Advisory Commission (MedPAC) adjustment to IRFs. One commenter have incorporated more current recommends that we reduce IRF PPS stated that while they understand that historical data and revised forecasts payment rates by 5 percent. As CMS is bound by statute to reduce the provided by IGI that factor in expected discussed, and in accordance with market basket update by a productivity impacts on price and wage pressures sections 1886(j)(3)(C) and 1886(j)(3)(D) adjustment factor in accordance with from the COVID–19 pandemic. By of the Act, the Secretary is required to the PPACA, they continue to be incorporating the most recent estimates update the IRF PPS payment rates for concerned that IRFs will not have the available of the market basket update FY 2021 by an adjusted market basket ability to generate additional and productivity adjustment, we believe increase factor which, based on the most productivity gains at a pace matching these data reflect the best available recently available data, is 2.4 percent. the productivity of the economy at large projection of input price inflation faced Section 1886(j)(3)(C) of the Act does not on an ongoing, consistent basis as by IRFs for FY 2021, adjusted for provide the Secretary with the authority contemplated by the PPACA. In economy-wide productivity, which is to apply a different update factor to IRF addition, the commenter stated that the required by statute. PPS payment rates for FY 2021. recent developments related to the After consideration of the comments The comments we received on the public health emergency due to COVID– we received, we are finalizing a FY 2021 proposed market basket update and 19 have resulted in further productivity IRF update equal to 2.4 percent based productivity adjustment are challenges for IRFs. The commenter on the most recent data available. summarized below. respectfully requested that CMS C. Labor-Related Share for FY 2021 Comment: One commenter (MedPAC) carefully monitor the impact that these stated that Medicare’s current payment productivity adjustments will have on Section 1886(j)(6) of the Act specifies rates for IRFs appear to be more than the rehabilitation hospital sector, that the Secretary is to adjust the adequate and therefore recommended provide feedback to Congress as proportion (as estimated by the that the Congress reduce the IRF appropriate, and reduce the Secretary from time to time) of IRFs’ payment rate by 5 percent for FY 2021. productivity adjustment. A few costs which are attributable to wages The commenter appreciated that CMS commenters recommended that CMS and wage-related costs, of the cited MedPAC’s recommendation, even continue to research productivity factors prospective payment rates computed while noting that the Secretary does not for health care providers and hospitals, under section 1886(j)(3) of the Act for have the authority to deviate from and partner with Congress to implement area differences in wage levels by a statutorily mandated updates. a more appropriate, health care specific factor (established by the Secretary) Response: We appreciate MedPAC’s productivity adjustment. reflecting the relative hospital wage interest in the IRF increase factor. Response: We acknowledge the level in the geographic area of the However, we are required to update IRF commenters’ concerns regarding rehabilitation facility compared to the PPS payments by the market basket productivity growth at the economy- national average wage level for such update adjusted for productivity, as wide level and its application to IRFs. facilities. The labor-related share is directed by section 1886(j)(3)(C) of the As the commenter acknowledges, determined by identifying the national Act. section 1886(j)(3)(C)(ii)(I) of the Act average proportion of total costs that are Comment: A few commenters requires the application of a related to, influenced by, or vary with supported the proposal to update the productivity adjustment to the IRF PPS the local labor market. We proposed to market basket and productivity amounts market basket increase factor. We will continue to classify a cost category as using the latest available data, and continue to monitor the impact of the labor-related if the costs are labor- encouraged CMS to update these factors payment updates on IRF Medicare intensive and vary with the local labor using the latest available data as part of payment adequacy as well as market. the release of the IRF PPS Final Rule. beneficiary access to care. Based on our definition of the labor- One commenter stated that they were As stated in the FY 2020 IRF PPS final related share and the cost categories in pleased to see an increase in payments rule (84 FR 39087), we would be very the 2016-based IRF market basket, we to IRFs and further increases to rural interested in better understanding IRF- proposed to calculate the labor-related providers. specific productivity; however, the data share for FY 2021 as the sum of the FY Response: We appreciate the elements required to estimate IRF 2021 relative importance of Wages and commenters’ support for the proposed specific multi-factor productivity are Salaries, Employee Benefits, IRF annual payment update. As noted in not produced at the level of detail that Professional Fees: Labor-related,

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Administrative and Facilities Support local labor market is 46 percent. Since Labor-related, Administrative and Services, Installation, Maintenance, and the relative importance for Capital- Facilities Support Services, Installation Repair Services, All Other: Labor-related Related costs was 8.5 percent of the Maintenance & Repair Services, and All Services, and a portion of the Capital- 2016-based IRF market basket for FY Other: Labor-related Services is 69.1 Related relative importance from the 2021, we proposed to take 46 percent of percent. We proposed that the portion of 2016-based IRF market basket. For more 8.5 percent to determine the labor- Capital-Related costs that are influenced details regarding the methodology for related share of Capital-Related costs for by the local labor market is 46 percent. determining specific cost categories for FY 2021 of 3.9 percent. Therefore, we Since the relative importance for inclusion in the 2016-based IRF labor- proposed a total labor-related share for Capital-Related costs is 8.5 percent of related share, see the FY 2020 IRF PPS FY 2021 of 72.9 percent (the sum of 69.0 the 2016-based IRF market basket for FY final rule (84 FR 39087 through 39089). percent for the labor-related share of 2021, we take 46 percent of 8.5 percent The relative importance reflects the operating costs and 3.9 percent for the different rates of price change for these labor-related share of Capital-Related to determine the labor-related share of cost categories between the base year costs). We proposed that if more recent Capital-Related costs for FY 2021 of 3.9 (2016) and FY 2021. Based on IGI’s data became available after publication percent. Therefore, the current estimate fourth quarter 2019 forecast of the 2016- of the proposed rule and before the of the total labor-related share for FY based IRF market basket, the sum of the publication of this final rule (for 2021 is equal to 73.0 percent (the sum FY 2021 relative importance for Wages example, a more recent estimate of the of 69.1 percent for the labor-related and Salaries, Employee Benefits, labor-related share), we would use such share of operating costs and 3.9 percent Professional Fees: Labor-related, data to determine the FY 2021 IRF for the labor-related share of Capital- Administrative and Facilities Support labor-related share in this final rule. Related costs). Table 4 shows the Services, Installation Maintenance & Based on IGI’s second quarter 2020 current estimate of the FY 2021 labor- Repair Services, and All Other: Labor- forecast of the 2016-based IRF market related share and the FY 2020 final related Services was 69.0 percent. We basket, the sum of the FY 2021 relative labor-related share using the 2016-based proposed that the portion of Capital- importance for Wages and Salaries, IRF market basket relative importance. Related costs that are influenced by the Employee Benefits, Professional Fees:

TABLE 4—FY 2021 IRF LABOR-RELATED SHARE AND FY 2020 IRF LABOR-RELATED SHARE

FY 2021 FY 2020 labor-related final labor share 1 related share 2

Wages and Salaries ...... 48.6 48.1 Employee Benefits ...... 11.4 11.4 Professional Fees: Labor-Related 3 ...... 5.0 5.0 Administrative and Facilities Support Services ...... 0.7 0.8 Installation, Maintenance, and Repair Services ...... 1.6 1.6 All Other: Labor-Related Services ...... 1.8 1.8 Subtotal ...... 69.1 68.7 Labor-related portion of Capital-Related (46%) ...... 3.9 4.0

Total Labor-Related Share ...... 73.0 72.7 1 Based on the 2016-based IRF market basket relative importance, IGI 2nd quarter 2020 forecast. 2 Based on the 2016-based IRF market basket relative importance as published in the Federal Register (84 FR 39089). 3 Includes all contract advertising and marketing costs and a portion of accounting, architectural, engineering, legal, management consulting, and home office contract labor costs.

The comment we received on the believe it is technically appropriate to forecast) of the 2016-based IRF market proposed labor related share for FY use the 2016-based IRF market basket basket labor-related share cost weights 2021 is summarized below. relative importance to determine the as proposed. Comment: One commenter opposed labor-related share for FY 2021 as it is the proposed increase in the labor based on more recent data regarding D. Wage Adjustment for FY 2021 related share because it penalizes any price pressures and cost structure of 1. Background facility that has a wage index less than IRFs. Our policy to use the most recent 1.0. The commenter stated that across market basket to determine the labor- Section 1886(j)(6) of the Act requires the country, there is a growing disparity related share is a policy we have the Secretary to adjust the proportion of between high-wage and low-wage states regularly adopted for the IRF PPS, (such rehabilitation facilities’ costs and stated that this proposal will as for the FY 2020 IRF PPS final rule (84 attributable to wages and wage-related continue to exacerbate that disparity FR 39089)), as well as for other PPSs costs (as estimated by the Secretary from and further harm hospitals in many including but not limited to the time to time) by a factor (established by rural and underserved communities. Inpatient Psychiatric Facility PPS (84 the Secretary) reflecting the relative Unless there is sufficient data to support FR 38446) and the Long-term care hospital wage level in the geographic the labor related share increase, the hospital PPS (84 FR 42642). area of the rehabilitation facility commenter requested that the After consideration of the comment compared to the national average wage percentage from 2020 should carry we received, we are finalizing the use of level for those facilities. The Secretary forward into 2021. the sum of the FY 2021 relative is required to update the IRF PPS wage Response: We appreciate the importance for the labor-related cost index on the basis of information commenter’s concern over the increase categories based on the most recent available to the Secretary on the wages in the labor-related share; however, we forecast (IGI’s second quarter 2020 and wage-related costs to furnish

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rehabilitation services. Any adjustment discrepancies in wage index policies geographically located. IRF labor market or updates made under section between the IRF PPS and IPPS settings areas are delineated based on the CBSAs 1886(j)(6) of the Act for a FY are made may impact access to care and established by the OMB. The current in a budget-neutral manner. competition for labor and requested that CBSA delineations (which were For FY 2021, we proposed to maintain CMS ensure parity between wage index implemented for the IRF PPS beginning the policies and methodologies policies for all hospitals. with FY 2016) are based on revised described in the FY 2020 IRF PPS final Response: We appreciate the OMB delineations issued on February rule (84 FR 39090) related to the labor commenters’ support for the continued 28, 2013, in OMB Bulletin No. 13–01. market area definitions and the wage use of the concurrent year’s IPPS wage OMB Bulletin No. 13–01 established index methodology for areas with wage data. However, we note that the IRF PPS revised delineations for Metropolitan data. Thus, we proposed to use the does not account for geographic Statistical Areas, Micropolitan CBSA labor market area definitions and reclassification under sections Statistical Areas, and Combined the FY 2021 pre-reclassification and 1886(d)(8) and (d)(10) of the Act, and Statistical Areas in the United States pre-floor hospital wage index data. In does not apply the ‘‘rural floor’’ under and Puerto Rico based on the 2010 accordance with section 1886(d)(3)(E) of section 4410 of the Balanced Budget Act Census, and provided guidance on the the Act, the FY 2021 pre-reclassification of 1997 (BBA) (Pub. L. 105–33, enacted use of the delineations of these and pre-floor hospital wage index is on August 5, 1997). Furthermore, as we statistical areas using standards based on data submitted for hospital do not have an IRF-specific wage index, published in the June 28, 2010 Federal cost reporting periods beginning on or we are unable to determine the degree, Register (75 FR 37246 through 37252). after October 1, 2016, and before if any, to which a geographic We refer readers to the FY 2016 IRF PPS October 1, 2017 (that is, FY 2017 cost reclassification adjustment or a rural final rule (80 FR 47068 through 47076) report data). floor policy under the IRF PPS would be for a full discussion of our The labor market designations made appropriate. The rationale for our implementation of the OMB labor by the OMB include some geographic current wage index policies is fully market area delineations beginning with areas where there are no hospitals and, described in the FY 2006 IRF PPS final the FY 2016 wage index. thus, no hospital wage index data on rule (70 FR 47880, 47926 through Generally, OMB issues major which to base the calculation of the IRF 47928). revisions to statistical areas every 10 PPS wage index. We proposed to With regard to the comments years, based on the results of the continue to use the same methodology requesting that we adopt similar decennial census. However, OMB discussed in the FY 2008 IRF PPS final adjustments to address wage disparities occasionally issues updates and rule (72 FR 44299) to address those between high and low wage index IPPS revisions to the statistical areas to reflect geographic areas where there are no hospitals under the IRF PPS, we would the recognition of new areas or the hospitals and, thus, no hospital wage like to note that the IRF wage index is addition of counties to existing areas. In index data on which to base the derived from IPPS wage data. As such, some instances, these updates merge calculation for the FY 2021 IRF PPS any effects of this policy on the wage formerly separate areas, transfer wage index. data of IPPS hospitals will be extended components of an area from one area to The comments we received on these to the IRF setting, as this data will be another, or drop components from an proposals are summarized below. used to establish the wage index for area. On July 15, 2015, OMB issued Comment: One commenter OMB Bulletin No. 15–01, which recommended that CMS repeal the IRFs in the future. We appreciate the commenters’ provides minor updates to and existing hospital wage index and supersedes OMB Bulletin No. 13–01 recommended a number of changes to concerns regarding beneficiary access to care and competition for labor resulting that was issued on February 28, 2013. existing wage index policies, but The attachment to OMB Bulletin No. acknowledged that legislative action from different applicable wage index policies across different settings of care. 15–01 provides detailed information on may be necessary to accomplish some or the update to statistical areas since all of the recommended changes. While CMS and other stakeholders have explored potential alternatives to the February 28, 2013. The updates Response: We appreciate the provided in OMB Bulletin No. 15–01 are current wage index system in the past, commenter’s recommendations on based on the application of the 2010 no consensus has been achieved implementing wage index reform and Standards for Delineating Metropolitan regarding how best to implement a the recommended modifications to the and Micropolitan Statistical Areas to replacement system. These concerns IRF PPS wage index polices. We believe Census Bureau population estimates for will be taken into consideration while that such recommendations should be July 1, 2012 and July 1, 2013. part of a broader discussion on wage we continue to explore potential wage In the FY 2018 IRF PPS final rule (82 index reform across Medicare payment index reforms and monitor IRF wage FR 36250 through 36251), we adopted systems. These recommendations will index policies. After consideration of the updates set forth in OMB Bulletin be taken into consideration while we the comments we received, we are No. 15–01 effective October 1, 2017, continue to explore potential wage finalizing our proposed policies as beginning with the FY 2018 IRF wage index alternatives in the future. discussed above relating to the wage index. For a complete discussion of the Comment: Some commenters who index. adoption of the updates set forth in were supportive of using the concurrent 2. Core-Based Statistical Areas (CBSAs) OMB Bulletin No. 15–01, we refer year’s IPPS wage data requested that for the FY 2021 IRF Wage Index readers to the FY 2018 IRF PPS final CMS adopt IPPS wage index polices rule. In the FY 2019 IRF PPS final rule under the IRF PPS, including a. Background (83 FR 38527), we continued to use the geographic reclassification, the The wage index used for the IRF PPS OMB delineations that were adopted imposition of a rural floor, and is calculated using the pre- beginning with FY 2016 to calculate the adjustments that address wage reclassification and pre-floor inpatient area wage indexes, with updates set disparities between high and low wage PPS (IPPS) wage index data and is forth in OMB Bulletin No. 15–01 that index hospitals. Additionally, some assigned to the IRF on the basis of the we adopted beginning with the FY 2018 commenters suggested that labor market area in which the IRF is wage index.

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On August 15, 2017, OMB issued OMB delineations, there would be new geographic areas, we also proposed to OMB Bulletin No. 17–01, which CBSAs, urban counties that would apply a 5 percent cap on any decrease provided updates to and superseded become rural, rural counties that would in an IRF’s wage index from the IRF’s OMB Bulletin No. 15–01 that was issued become urban, and existing CBSAs that wage index from the prior FY. This on July 15, 2015. The attachments to would be split apart. We discuss these transition is discussed in more detail in OMB Bulletin No. 17–01 provide changes in more detail in section section VI.D.3. of this final rule. detailed information on the update to VI.D.2.b. of this final rule. We proposed (1) Micropolitan Statistical Areas statistical areas since July 15, 2015, and to adopt the updates to the OMB are based on the application of the 2010 delineations announced in OMB OMB defines a ‘‘Micropolitan Standards for Delineating Metropolitan Bulletin No. 18–04 effective beginning Statistical Area’’ as a CBSA associated and Micropolitan Statistical Areas to with FY 2021 under the IRF PPS. As with at least one urban cluster that has Census Bureau population estimates for noted previously, the March 6, 2020 a population of at least 10,000, but less July 1, 2014 and July 1, 2015. In the FY OMB Bulletin 20–01 was not issued in than 50,000 (75 FR 37252). We refer to 2020 IRF PPS final rule (84 FR 39090 time for development of this rule. While these areas as Micropolitan Areas. Since through 39091), we adopted the updates we do not believe that the minor FY 2006, we have treated Micropolitan set forth in OMB Bulletin No. 17–01 updates included in OMB Bulletin 20– Areas as rural and include hospitals effective October 1, 2019, beginning 01 will impact the updates to the CBSA- located in Micropolitan Areas in each with the FY 2020 IRF wage index. based labor market area delineations, if State’s rural wage index. We refer the On April 10, 2018, OMB issued OMB appropriate, we will propose any reader to the FY 2006 IRF PPS final rule Bulletin No. 18–03, which superseded updates from this bulletin in the FY for a complete discussion regarding the August 15, 2017 OMB Bulletin No. 2022 IRF PPS proposed rule. treating Micropolitan Areas as rural. 17–01, and on September 14, 2018, b. Implementation of New Labor Market Therefore, in conjunction with our OMB issued OMB Bulletin No. 18–04, Area Delineations proposal to implement the new OMB which superseded the April 10, 2018 We believe it is important for the IRF labor market delineations beginning in OMB Bulletin No. 18–03. These PPS to use the latest labor market area FY 2021 and consistent with the bulletins established revised delineations available as soon as is treatment of Micropolitan Areas under delineations for Metropolitan Statistical reasonably possible to maintain a more the IPPS, we proposed to continue to Areas, Micropolitan Statistical Areas, accurate and up-to-date payment system treat Micropolitan Areas as ‘‘rural’’ and and Combined Statistical Areas, and that reflects the reality of population to include Micropolitan Areas in the provided guidance on the use of the shifts and labor market conditions. We calculation of the state’s rural wage delineations of these statistical areas. A further believe that using the most index. copy of this bulletin may be obtained at current delineations possible will (2) Urban Counties That Would Become https://www.whitehouse.gov/wp- increase the integrity of the IRF PPS Rural Under the New OMB Delineations content/uploads/2018/09/Bulletin-18- wage index system by creating a more 04.pdf. We note that on March 6, 2020 accurate representation of geographic As previously discussed, we proposed OMB issued OMB Bulletin 20–01 variations in wage levels. Therefore, we to implement the new OMB labor (available on the web at https:// proposed to adopt the new OMB market area delineations (based upon www.whitehouse.gov/wp-content/ delineations as described in the the 2010 Decennial Census data) uploads/2020/03/Bulletin-20-01.pdf), September 14, 2018 OMB Bulletin No. beginning in FY 2021. Our analysis but it was not issued in time for 18–04, effective beginning with the FY shows that a total of 34 counties (and development of this rule. 2021 IRF PPS wage index. We proposed county equivalents) that are currently While OMB Bulletin No. 18–04 is not to use these new delineations to considered part of an urban CBSA based on new census data, there were calculate area wage indexes in a manner would be considered located in a rural some material changes based on the that is generally consistent with the area, beginning in FY 2021, under these revised OMB delineations. The CBSA-based methodologies. As the new OMB delineations. Table 5 lists the revisions OMB published on September adoption of the new OMB delineations 34 urban counties that will be rural with 14, 2018 contain a number of significant may have significant negative impacts the implementation of the new OMB changes. For example, under the new on the wage index values for certain delineations.

TABLE 5—COUNTIES THAT WILL TRANSITION FROM URBAN TO RURAL STATUS

FIPS county code County/county equivalent State Current CBSA Current CBSA name

01127 ...... Walker ...... AL 13820 Birmingham-Hoover, AL. 12045 ...... Gulf ...... FL 37460 Panama City, FL. 13007 ...... Baker ...... GA 10500 Albany, GA. 13235 ...... Pulaski ...... GA 47580 Warner Robins, GA. 15005 ...... Kalawao ...... HI 27980 Kahului-Wailuku-Lahaina, HI. 17039 ...... De Witt ...... IL 14010 Bloomington, IL. 17053 ...... Ford ...... IL 16580 Champaign-Urbana, IL. 18143 ...... Scott ...... IN 31140 Louisville/Jefferson County, KY–IN. 18179 ...... Wells ...... IN 23060 Fort Wayne, IN. 19149 ...... Plymouth ...... IA 43580 Sioux City, IA–NE–SD. 20095 ...... Kingman ...... KS 48620 Wichita, KS. 21223 ...... Trimble ...... KY 31140 Louisville/Jefferson County, KY–IN. 22119 ...... Webster ...... LA 43340 Shreveport-Bossier City, LA. 26015 ...... Barry ...... MI 24340 Grand Rapids-Wyoming, MI. 26159 ...... Van Buren ...... MI 28020 Kalamazoo-Portage, MI. 27143 ...... Sibley ...... MN 33460 Minneapolis-St. Paul-Bloomington, MN–WI.

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TABLE 5—COUNTIES THAT WILL TRANSITION FROM URBAN TO RURAL STATUS—Continued

FIPS county code County/county equivalent State Current CBSA Current CBSA name

28009 ...... Benton ...... MS 32820 Memphis, TN–MS–AR. 29119 ...... Mc Donald ...... MO 22220 Fayetteville-Springdale-Rogers, AR–MO. 30037 ...... Golden Valley ...... MT 13740 Billings, MT. 31081 ...... Hamilton ...... NE 24260 Grand Island, NE. 38085 ...... Sioux ...... ND 13900 Bismarck, ND. 40079 ...... Le Flore ...... OK 22900 Fort Smith, AR–OK. 45087 ...... Union ...... SC 43900 Spartanburg, SC. 46033 ...... Custer ...... SD 39660 Rapid City, SD. 47081 ...... Hickman ...... TN 34980 Nashville-Davidson-Murfreesboro-Franklin, TN. 48007 ...... Aransas ...... TX 18580 Corpus Christi, TX. 48221 ...... Hood ...... TX 23104 Fort Worth-Arlington, TX. 48351 ...... Newton ...... TX 13140 Beaumont-Port Arthur, TX. 48425 ...... Somervell ...... TX 23104 Fort Worth-Arlington, TX. 51029 ...... Buckingham ...... VA 16820 Charlottesville, VA. 51033 ...... Caroline ...... VA 40060 Richmond, VA. 51063 ...... Floyd ...... VA 13980 Blacksburg-Christiansburg-Radford, VA. 53013 ...... Columbia ...... WA 47460 Walla Walla, WA. 53051 ...... Pend Oreille ...... WA 44060 Spokane-Spokane Valley, WA.

We proposed that the wage data for all (3) Rural Counties That Will Become shows that a total of 47 counties (and hospitals located in the counties listed Urban Under the New OMB county equivalents) that are currently above would now be considered rural, Delineations considered located in rural areas will beginning in FY 2021, when calculating now be considered located in urban their respective State’s rural wage index. As previously discussed, we are areas under the new OMB delineations. This rural wage index value would also implementing the new OMB labor Table 6 lists the 47 rural counties that be used under the IRF PPS. We refer market area delineations (based upon will be urban with the implementation readers to section VI.D.3. of this final the 2010 Decennial Census data) of the new OMB delineations. rule for a discussion of the wage index beginning in FY 2021. Analysis of these transition policy due to these changes. OMB labor market area delineations

TABLE 6—COUNTIES THAT WILL TRANSITION FROM RURAL TO URBAN STATUS

FIPS county Proposed code County/county equivalent State CBSA code Proposed CBSA name

01063 ...... Greene ...... AL 46220 Tuscaloosa, AL. 01129 ...... Washington ...... AL 33660 Mobile, AL. 05047 ...... Franklin ...... AR 22900 Fort Smith, AR–OK. 12075 ...... Levy ...... FL 23540 Gainesville, FL. 13259 ...... Stewart ...... GA 17980 Columbus, GA–AL. 13263 ...... Talbot ...... GA 17980 Columbus, GA–AL. 16077 ...... Power ...... ID 38540 Pocatello, ID. 17057 ...... Fulton ...... IL 37900 Peoria, IL. 17087 ...... Johnson ...... IL 16060 Carbondale-Marion, IL. 18047 ...... Franklin ...... IN 17140 Cincinnati, OH–KY–IN. 18121 ...... Parke ...... IN 45460 Terre Haute, IN. 18171 ...... Warren ...... IN 29200 Lafayette-West Lafayette, IN. 19015 ...... Boone ...... IA 11180 Ames, IA. 19099 ...... Jasper ...... IA 19780 Des Moines-West Des Moines, IA. 20061 ...... Geary ...... KS 31740 Manhattan, KS. 21043 ...... Carter ...... KY 26580 Huntington-Ashland, WV–KY–OH. 22007 ...... Assumption ...... LA 12940 Baton Rouge, LA. 22067 ...... Morehouse ...... LA 33740 Monroe, LA. 25011 ...... Franklin ...... MA 44140 Springfield, MA. 26067 ...... Ionia ...... MI 24340 Grand Rapids-Kentwood, MI. 26155 ...... Shiawassee ...... MI 29620 Lansing-East Lansing, MI. 27075 ...... Lake ...... MN 20260 Duluth, MN–WI. 28031 ...... Covington ...... MS 25620 Hattiesburg, MS. 28051 ...... Holmes ...... MS 27140 Jackson, MS. 28131 ...... Stone ...... MS 25060 Gulfport-Biloxi, MS. 29053 ...... Cooper ...... MO 17860 Columbia, MO. 29089 ...... Howard ...... MO 17860 Columbia, MO. 30095 ...... Stillwater ...... MT 13740 Billings, MT. 37007 ...... Anson ...... NC 16740 Charlotte-Concord-Gastonia, NC–SC. 37029 ...... Camden ...... NC 47260 Virginia Beach-Norfolk-Newport News, VA–NC. 37077 ...... Granville ...... NC 20500 Durham-Chapel Hill, NC. 37085 ...... Harnett ...... NC 22180 Fayetteville, NC. 39123 ...... Ottawa ...... OH 45780 Toledo, OH.

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TABLE 6—COUNTIES THAT WILL TRANSITION FROM RURAL TO URBAN STATUS—Continued

FIPS county Proposed code County/county equivalent State CBSA code Proposed CBSA name

45027 ...... Clarendon ...... SC 44940 Sumter, SC. 47053 ...... Gibson ...... TN 27180 Jackson, TN. 47161 ...... Stewart ...... TN 17300 Clarksville, TN–KY. 48203 ...... Harrison ...... TX 30980 Longview, TX. 48431 ...... Sterling ...... TX 41660 San Angelo, TX. 51097 ...... King And Queen ...... VA 40060 Richmond, VA. 51113 ...... Madison ...... VA 47894 Washington-Arlington-Alexandria, DC–VA–MD–WV. 51175 ...... Southampton ...... VA 47260 Virginia Beach-Norfolk-Newport News, VA–NC. 51620 ...... Franklin City ...... VA 47260 Virginia Beach-Norfolk-Newport News, VA–NC. 54035 ...... Jackson ...... WV 16620 Charleston, WV. 54065 ...... Morgan ...... WV 25180 Hagerstown-Martinsburg, MD–WV. 55069 ...... Lincoln ...... WI 48140 Wausau-Weston, WI. 72001 ...... Adjuntas ...... PR 38660 Ponce, PR. 72083 ...... Las Marias ...... PR 32420 Mayagu¨ez, PR.

We proposed that when calculating (4) Urban Counties That Will Move to a three constituent counties will remain the area wage index, beginning with FY Different Urban CBSA Under the New the same. In other cases, only the name 2021, the wage data for hospitals located OMB Delineations of the CBSA will be modified, and none in these counties would be included in of the currently assigned counties will their new respective urban CBSAs. In certain cases, adopting the new be reassigned to a different urban CBSA. Typically, providers located in an urban OMB delineations involves a change Table 7 shows the current CBSA code area receive a higher wage index value only in CBSA name and/or number, and our proposed CBSA code where we than or equal to providers located in while the CBSA continues to encompass proposed to change either the name or their State’s rural area. We refer readers the same constituent counties. For CBSA number only. We are not to section VI.D.3. of this final rule for a example, CBSA 19380 (Dayton, OH) will discussing further in this section these discussion of the wage index transition experience both a change to its number changes because they are and its name, and become CBSA 19430 policy. inconsequential changes with respect to (Dayton-Kettering, OH), while all of its the IRF PPS wage index.

TABLE 7—CURRENT CBSAS THAT WILL CHANGE CBSA CODE OR TITLE

Proposed Current CBSA CBSA code Proposed CBSA title code Current CBSA title

10540 ...... Albany-Lebanon, OR ...... 10540 Albany, OR. 11500 ...... Anniston-Oxford, AL ...... 11500 Anniston-Oxford-Jacksonville, AL. 12060 ...... Atlanta-Sandy Springs-Alpharetta, GA ...... 12060 Atlanta-Sandy Springs-Roswell, GA. 12420 ...... Austin-Round Rock-Georgetown, TX ...... 12420 Austin-Round Rock, TX. 13460 ...... Bend, OR ...... 13460 Bend-Redmond, OR. 13980 ...... Blacksburg-Christiansburg, VA ...... 13980 Blacksburg-Christiansburg-Radford, VA. 14740 ...... Bremerton-Silverdale-Port Orchard, WA ...... 14740 Bremerton-Silverdale, WA. 15380 ...... Buffalo-Cheektowaga, NY ...... 15380 Buffalo-Cheektowaga-Niagara Falls, NY. 19430 ...... Dayton-Kettering, OH ...... 19380 Dayton, OH. 24340 ...... Grand Rapids-Kentwood, MI ...... 24340 Grand Rapids-Wyoming, MI. 24860 ...... Greenville-Anderson, SC ...... 24860 Greenville-Anderson-Mauldin, SC. 25060 ...... Gulfport-Biloxi, MS ...... 25060 Gulfport-Biloxi-Pascagoula, MS. 25540 ...... Hartford-East Hartford-Middletown, CT ...... 25540 Hartford-West Hartford-East Hartford, CT. 25940 ...... Hilton Head Island-Bluffton, SC ...... 25940 Hilton Head Island-Bluffton-Beaufort, SC. 28700 ...... Kingsport-Bristol, TN–VA ...... 28700 Kingsport-Bristol-Bristol, TN–VA. 31860 ...... Mankato, MN ...... 31860 Mankato-North Mankato, MN. 33340 ...... Milwaukee-Waukesha, WI ...... 33340 Milwaukee-Waukesha-West Allis, WI. 34940 ...... Naples-Marco Island, FL ...... 34940 Naples-Immokalee-Marco Island, FL. 35660 ...... Niles, MI ...... 35660 Niles-Benton Harbor, MI. 36084 ...... Oakland-Berkeley-Livermore, CA ...... 36084 Oakland-Hayward-Berkeley, CA. 36500 ...... Olympia-Lacey-Tumwater, WA ...... 36500 Olympia-Tumwater, WA. 38060 ...... Phoenix-Mesa-Chandler, AZ ...... 38060 Phoenix-Mesa-Scottsdale, AZ. 39150 ...... Prescott Valley-Prescott, AZ ...... 39140 Prescott, AZ. 23224 ...... Frederick-Gaithersburg-Rockville, MD ...... 43524 Silver Spring-Frederick-Rockville, MD. 44420 ...... Staunton, VA ...... 44420 Staunton-Waynesboro, VA. 44700 ...... Stockton, CA ...... 44700 Stockton-Lodi, CA. 45940 ...... Trenton-Princeton, NJ ...... 45940 Trenton, NJ. 46700 ...... Vallejo, CA ...... 46700 Vallejo-Fairfield, CA. 47300 ...... Visalia, CA ...... 47300 Visalia-Porterville, CA. 48140 ...... Wausau-Weston, WI ...... 48140 Wausau, WI. 48424 ...... West Palm Beach-Boca Raton-Boynton Beach, FL ... 48424 West Palm Beach-Boca Raton-Delray Beach, FL.

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In some cases, counties will shift new CBSAs, or a CBSA loses one or another or to a newly proposed or between existing and new CBSAs, more counties to another urban CBSA, modified CBSA due to the changing the constituent makeup of the to be significant modifications. implementation of the new OMB CBSAs. We consider this type of change, Table 8 lists the urban counties that delineations. where CBSAs are split into multiple will move from one urban CBSA to

TABLE 8—URBAN COUNTIES THAT WILL MOVE TO A NEWLY PROPOSED OR MODIFIED CBSA

FIPS county Proposed code County name State Current CBSA Current CBSA name CBSA code Proposed CBSA name

17031 ...... Cook ...... IL 16974 Chicago-Naperville-Arlington 16984 Chicago-Naperville-Evanston, Heights, IL. IL. 17043 ...... Du Page ...... IL 16974 Chicago-Naperville-Arlington 16984 Chicago-Naperville-Evanston, Heights, IL. IL. 17063 ...... Grundy ...... IL 16974 Chicago-Naperville-Arlington 16984 Chicago-Naperville-Evanston, Heights, IL. IL. 17093 ...... Kendall ...... IL 16974 Chicago-Naperville-Arlington 20994 Elgin, IL. Heights, IL. 17111 ...... Mc Henry ...... IL 16974 Chicago-Naperville-Arlington 16984 Chicago-Naperville-Evanston, Heights, IL. IL. 17197 ...... Will ...... IL 16974 Chicago-Naperville-Arlington 16984 Chicago-Naperville-Evanston, Heights, IL. IL. 34023 ...... Middlesex ...... NJ 35614 New York-Jersey City-White 35154 New Brunswick-Lakewood, Plains, NY–NJ. NJ. 34025 ...... Monmouth ...... NJ 35614 New York-Jersey City-White 35154 New Brunswick-Lakewood, Plains, NY–NJ. NJ. 34029 ...... Ocean ...... NJ 35614 New York-Jersey City-White 35154 New Brunswick-Lakewood, Plains, NY–NJ. NJ. 34035 ...... Somerset ...... NJ 35084 Newark, NJ–PA...... 35154 New Brunswick-Lakewood, NJ. 36027 ...... Dutchess ...... NY 20524 Dutchess County-Putnam 39100 Poughkeepsie-Newburgh-Mid- County, NY. dletown, NY. 36071 ...... Orange ...... NY 35614 New York-Jersey City-White 39100 Poughkeepsie-Newburgh-Mid- Plains, NY–NJ. dletown, NY. 36079 ...... Putnam ...... NY 20524 Dutchess County-Putnam 35614 New York-Jersey City-White County, NY. Plains, NY–NJ. 47057 ...... Grainger ...... TN 28940 Knoxville, TN...... 34100 Morristown, TN. 54043 ...... Lincoln ...... WV 26580 Huntington-Ashland, WV–KY– 16620 Charleston, WV. OH. 72055 ...... Guanica ...... PR 38660 Ponce, PR...... 49500 Yauco, PR. 72059 ...... Guayanilla ...... PR 38660 Ponce, PR...... 49500 Yauco, PR. 72111 ...... Penuelas ...... PR 38660 Ponce, PR...... 49500 Yauco, PR. 72153 ...... Yauco ...... PR 38660 Ponce, PR...... 49500 Yauco, PR.

If providers located in these counties Rules-and-Related-Files.html) reflect the the CBSAs until after the 2020 move from one CBSA to another under proposed revisions to the CBSA-based decennial census data is available. the new OMB delineations, there may labor market area delineations. Response: We appreciate the be impacts, both negative and positive, Furthermore, consistent with the commenters’ concerns regarding the upon their specific wage index values. requirement at § 412.624(e)(1) that impact of implementing the New We refer readers to section VI.D.3. of changes to area wage level adjustment Brunswick-Lakewood, NJ CBSA this final rule for a discussion of the are made in a budget neutral manner, designation on their specific counties. wage index transition policy due to we proposed to adopt these revisions to While we understand the commenters’ these changes. the CSBA based labor market area concern regarding the potential We believe the revisions to the CBSA- delineations in a budget neutral manner. financial impact, we believe that based labor market area delineations as The methodology for calculating the implementing the revised OMB established in OMB Bulletin 18–04 budget neutrality factor is discussed in delineations will create more accurate would ensure that the IRF PPS area section VI.D.4. of this final rule. representations of labor market areas wage level adjustment most and result in IRF wage index values appropriately accounts for and reflects The comments we received on the being more representative of the actual the relative wage levels in the proposal to adopt the new OMB costs of labor in a given area. Moreover, geographic area of the IRF. Therefore, delineations, effective beginning with to the extent that providers exist in a we proposed to adopt the revisions to the FY 2021 IRF PPS wage index are labor market area experiencing a decline the CSBA based labor market area summarized below. in relation to the revised OMB delineations under the IRF PPS, Comment: Commenters were delineations, this would mean that these effective October 1, 2020. Accordingly, generally supportive of the adoption of providers were previously being paid in the proposed FY 2021 IRF PPS wage the new delineations; however, two excess of what their reported wage and index values (which are available on the commenters disagreed with the creation labor data would suggest is appropriate. CMS website at https://www.cms.gov/ of the new ‘‘New Brunswick-Lakewood, We believe that the OMB standards for Medicare/Medicare-Fee-for-Service- NJ’’ CBSA and requested that CMS delineating Metropolitan and Payment/InpatientRehabFacPPS/IRF- delay implementing these revisions to Micropolitan Statistical Areas are

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appropriate for determining wage area Lakewood, NJ) under the proposed as we discussed in the proposed rule, differences and that the values changes to the CBSA-based labor market the purpose of the proposed transition computed under the revised area delineations would experience a policy, as well as those we have delineations will result in more nearly 17 percent decrease in the wage implemented in the past, is to help appropriate payments to providers by index as a result of the proposed mitigate the significant negative impacts more accurately accounting for and change. Therefore, consistent with past of certain wage index changes, not to reflecting the differences in area wage practice we proposed a transition policy curtail the positive impacts of such levels. Therefore, we believe that it is to help mitigate any significant negative changes, and thus we do not believe it appropriate to implement the new OMB impacts that IRFs may experience due to would be appropriate to apply the 5 delineations without delay. our proposal to adopt the revised OMB percent cap on wage index increases as After consideration of the comments delineations under the IRF PPS. well. Additionally, we believe that we received, we are finalizing our Specifically, for FY 2021 as a transition, implementing a cap on wage index proposal to adopt the revised OMB we proposed to apply a 5 percent cap values each year would undermine the delineations contained in OMB Bulletin on any decrease in an IRF’s wage index goal of the wage index, which is to 18–04. from the IRF’s wage index from the improve the accuracy of IRF payments, 3. Transition Policy prior FY. This transition would allow and would only serve to further delay the effects of our proposed adoption of improving the accuracy of IRF Overall, we believe that our proposal the revised OMB delineations to be payments. Therefore, while we believe to adopt the revised OMB delineations phased in over 2 years, where the that a transition is necessary to help for FY 2021 would result in wage index estimated reduction in an IRF’s wage mitigate some of the negative impact values being more representative of the index would be capped at 5 percent in from the revised OMB delineations, we actual costs of labor in a given area. FY 2021 (that is, no cap would be also believe this mitigation must be However, we also recognize that applied to any reductions in the wage balanced against the importance of approximately 5 percent of IRFs would index for the second year (FY 2022)). ensuring accurate payments. experience decreases in their area wage We believe a 5 percent cap on the index values as a result of our proposal Additionally, the use of a 50/50 overall decrease in an IRF’s wage index blended wage index transition would to adopt the revised OMB delineations. value would be an appropriate We also realize that many IRFs would affect all IRF providers. We believe it transition as it would effectively would be more appropriate to allow have higher area wage index values mitigate any significant decreases in an under our proposal. IRFs that would experience an increase IRF’s wage index for FY 2021. in their wage index value to receive the To mitigate the potential impacts of Furthermore, consistent with the revisions to the OMB delineations on full benefit of their increased wage requirement at § 412.624(e)(1) that index value, which is intended to reflect IRFs, we have in the past provided for changes to area wage level adjustment accurately the higher labor costs in that transition periods when adopting are made in a budget neutral manner, area. The utilization of a cap on negative changes that have significant payment we proposed that this transitional wage impacts restricts the transition to only implications, particularly large negative index would not result in any change in those with negative impacts and allows impacts. For example, we proposed and estimated aggregate IRF PPS payments providers who would experience finalized budget neutral transition by applying a budget neutrality factor to positive impacts to receive the full policies to help mitigate negative the standard payment conversion factor. amount of their wage index increase. As impacts on IRFs following the adoption Our proposed methodology for such, we believe a 5 percent cap on the of the new CBSA delineations based on calculating this budget neutrality factor overall decrease in an IRF’s wage index the 2010 decennial census data in the is discussed in section VI.D.4. of this FY 2016 IRF PPS final rule (80 FR final rule. value would be an appropriate 47035). Specifically, we implemented a The comments we received on our transition as it would effectively 1-year blended wage index for all IRFs proposed transition methodology to mitigate any significant decreases in an due to our adoption of the revised utilize a 5 percent cap on wage index IRF’s wage index for FY 2021. delineations. This required calculating decreases for FY 2021 are summarized Comment: One commenter requested and comparing two wage indexes for below. that CMS provide the data used to each IRF since that blended wage index Comment: Commenters were calculate the new wage indices. was computed as the sum of 50 percent generally supportive of the proposed 5 Response: The hospital wage data of the FY 2016 IRF PPS wage index percent cap transition policy to mitigate used to derive the IRF PPS wage index values under the FY 2015 CBSA the impact of changes to the wage index are available from the CMS IPPS wage delineations and 50 percent of the FY values. A few commenters suggested the index websites for each respective FY, 2016 IRF PPS wage index values under limit should apply to both increases and which can be accessed from https:// the FY 2016 new OMB delineations. decreases in the wage index. www.cms.gov/Medicare/Medicare-Fee- While we believe that using the new Commenters also suggested a cap for-Service-Payment/ OMB delineations would create a more should be applied every year. One AcuteInpatientPPS/index. After accurate payment adjustment for commenter requested that CMS consideration of the comments we differences in area wage levels, we also incorporate a blended wage index into received, we are finalizing the proposed recognize that adopting such changes the transition, consisting of 50 percent transition methodology, which applies a may cause some short-term instability in of the FY 2020 delineations and 50 5 percent cap on any decrease in an IRF PPS payments, in particular for IRFs percent of the FY 2021 delineations. IRF’s wage index for FY 2021 from the that would be negatively impacted by Response: We appreciate the IRF’s wage index in FY 2020. This the proposed adoption of the updates to comments supporting this transition transitional wage index will not result the OMB delineations. For example, methodology. Further, we appreciate the in any change in estimated aggregate IRF’s currently located in CBSA 35614 commenters’ suggestion that the cap on IRF PPS payments by applying a budget (New York-Jersey City-White Plains, wage index movements of more than 5 neutrality factor to the standard NY–NJ) that would be located in new percent should also be applied to payment conversion factor. The CBSA 35154 (New Brunswick- increases in the wage index. However, methodology for calculating this budget

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neutrality factor is discussed in section the FY 2017 hospital cost report data adjustment factor for FY 2021. VI.D.4. of this final rule. and taking into account the revisions to Therefore, we are finalizing a budget- the OMB delineations and the transition neutral wage adjustment factor of 1.0013 4. Wage Adjustment policy) and the update to the labor- for FY 2021. To calculate the wage-adjusted facility related share, in a budget-neutral E. Description of the IRF Standard payment for the payment rates set forth manner: Payment Conversion Factor and in this final rule, we multiply the Step 1. Calculate the total amount of Payment Rates for FY 2021 unadjusted Federal payment rate for estimated IRF PPS payments using the IRFs by the FY 2021 labor-related share labor-related share and the wage To calculate the standard payment based on the 2016-based IRF market indexes from FY 2020 (as published in conversion factor for FY 2021, as basket relative importance (73.0 the FY 2020 IRF PPS final rule (84 FR illustrated in Table 5, we begin by percent) to determine the labor-related 39054)). applying the increase factor for FY 2021, portion of the standard payment Step 2. Calculate the total amount of as adjusted in accordance with sections amount. A full discussion of the estimated IRF PPS payments using the 1886(j)(3)(C) of the Act, to the standard calculation of the labor-related share is FY 2021 wage index values (based on payment conversion factor for FY 2020 located in section VI.C. of this final rule. updated hospital wage data and taking ($16,489). Applying the 2.4 percent We then multiply the labor-related into account the changes to geographic increase factor for FY 2021 to the portion by the applicable IRF wage labor market area delineations and the standard payment conversion factor for index. The wage index tables are transition policy) and the FY 2021 FY 2020 of $16,489 yields a standard available on the CMS website at https:// labor-related share of 73.0 percent. payment amount of $16,885. Then, we www.cms.gov/Medicare/Medicare-Fee- Step 3. Divide the amount calculated apply the budget neutrality factor for the for-Service-Payment/ in step 1 by the amount calculated in FY 2021 wage index (taking into InpatientRehabFacPPS/IRF-Rules-and- step 2. The resulting quotient is the FY account the revisions to the CBSA Related-Files.html. 2021 budget-neutral wage adjustment delineations and the transition policy), Adjustments or updates to the IRF factor of 1.0013. and labor-related share of 1.0013, which wage index made under section Step 4. Apply the budget neutrality results in a standard payment amount of 1886(j)(6) of the Act must be made in a factor from step 3 to the FY 2021 IRF $16,907. We next apply the budget budget-neutral manner. We proposed to PPS standard payment amount after the neutrality factor for the CMG relative calculate a budget-neutral wage application of the increase factor to weights of 0.9970, which results in the adjustment factor as established in the determine the FY 2021 standard standard payment conversion factor of FY 2004 IRF PPS final rule (68 FR payment conversion factor. $16,856 for FY 2021. 45689), codified at § 412.624(e)(1), as We discuss the calculation of the We did not receive any comments on described in the steps below. We standard payment conversion factor for the proposed calculation of the standard proposed to use the listed steps to FY 2021 in section VI.E. of this final payment conversion factor for FY 2021. ensure that the FY 2021 IRF standard rule. Therefore, we are finalizing the IRF payment conversion factor reflects the We did not receive any comments on standard payment conversion factor of update to the wage indexes (based on the proposed budget-neutral wage $16,856 for FY 2021.

TABLE 9—CALCULATIONS TO DETERMINE THE FY 2021 STANDARD PAYMENT CONVERSION FACTOR

Explanation for adjustment Calculations

Standard Payment Conversion Factor for FY 2020 ...... $16,489 Market Basket Increase Factor for FY 2021 (2.4 percent), reduced by 0.0 percentage point for the productivity adjustment as re- quired by section 1886(j)(3)(C)(ii)(I) of the Act ...... × 1.024 Budget Neutrality Factor for the Updates to the Wage Index and Labor-Related Share ...... × 1.0013 Budget Neutrality Factor for the Revisions to the CMG Relative Weights ...... × 0.9970 FY 2020 Standard Payment Conversion Factor ...... = 16,856

After the application of the CMG payment conversion factor ($16,856), payment rates for FY 2021 are shown in relative weights described in section V. the resulting unadjusted IRF prospective Table 10. of this final rule to the FY 2021 standard

TABLE 10—FY 2021 PAYMENT RATES

Payment Payment Payment Payment rate CMG rate tier 1 rate tier 2 rate tier 3 no comorbidity

0101 ...... $ 17,385.28 $ 14,863.62 $ 13,791.58 $ 13,198.25 0102 ...... 22,206.09 18,983.23 17,616.21 16,857.69 0103 ...... 28,395.62 24,274.33 22,524.67 21,557.14 0104 ...... 36,891.04 31,537.58 29,263.70 28,006.24 0105 ...... 41,851.76 35,778.55 33,199.58 31,773.56 0106 ...... 48,081.74 41,103.36 38,141.76 36,501.67 0201 ...... 19,375.97 15,842.95 14,231.52 13,301.07 0202 ...... 24,340.06 19,901.88 17,877.47 16,709.35 0203 ...... 29,347.98 23,994.52 21,553.77 20,146.29 0204 ...... 36,525.27 29,865.46 26,826.32 25,074.99 0205 ...... 46,133.19 37,718.67 33,882.25 31,669.05 0301 ...... 20,670.51 16,756.55 15,482.24 14,351.20

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TABLE 10—FY 2021 PAYMENT RATES—Continued

Payment Payment Payment Payment rate CMG rate tier 1 rate tier 2 rate tier 3 no comorbidity

0302 ...... 26,482.46 21,469.49 19,836.14 18,386.52 0303 ...... 31,702.76 25,700.34 23,745.05 22,010.56 0304 ...... 35,567.85 28,832.19 26,640.91 24,694.04 0305 ...... 38,851.39 31,495.44 29,100.20 26,972.97 0401 ...... 23,065.75 19,573.19 17,631.38 16,380.66 0402 ...... 30,015.48 25,469.42 22,942.70 21,316.10 0403 ...... 36,022.96 30,568.36 27,535.96 25,582.35 0404 ...... 60,993.44 51,758.03 46,623.70 43,316.55 0405 ...... 46,259.61 39,254.25 35,360.52 32,852.34 0406 ...... 60,629.35 51,447.88 46,343.89 43,056.97 0407 ...... 69,227.59 58,743.16 52,917.73 49,162.21 0501 ...... 22,076.30 17,156.04 16,196.93 14,959.70 0502 ...... 27,429.77 21,316.10 20,124.38 18,588.80 0503 ...... 31,856.15 24,756.41 23,372.53 21,587.48 0504 ...... 37,936.11 29,482.83 27,834.31 25,708.77 0505 ...... 49,492.59 38,463.71 36,312.88 33,541.75 0601 ...... 23,047.21 17,349.88 16,264.35 14,782.71 0602 ...... 28,682.17 21,590.85 20,240.68 18,398.32 0603 ...... 34,072.72 25,648.09 24,043.40 21,853.80 0604 ...... 39,537.43 29,762.64 27,900.05 25,359.85 0701 ...... 21,024.49 17,049.84 16,156.48 14,851.82 0702 ...... 26,286.93 21,317.78 20,201.92 18,568.57 0703 ...... 31,952.23 25,912.73 24,555.82 22,570.18 0704 ...... 36,510.10 29,609.25 28,058.50 25,789.68 0801 ...... 18,993.34 15,285.02 13,688.76 12,749.88 0802 ...... 22,330.83 17,970.18 16,094.11 14,990.04 0803 ...... 24,945.19 20,073.81 17,978.61 16,744.75 0804 ...... 28,749.59 23,136.55 20,721.08 19,298.43 0805 ...... 33,499.61 26,959.49 24,144.53 22,487.59 0901 ...... 20,414.30 16,267.73 15,394.58 13,944.97 0902 ...... 25,415.48 20,252.48 19,166.96 17,363.37 0903 ...... 29,909.29 23,832.70 22,556.70 20,432.84 0904 ...... 34,340.73 27,365.72 25,899.24 23,460.18 1001 ...... 21,845.38 18,310.67 16,431.23 15,177.14 1002 ...... 26,986.46 22,619.07 20,298.00 18,748.93 1003 ...... 31,534.20 26,431.89 23,719.76 21,907.74 1004 ...... 37,165.79 31,151.57 27,955.68 25,820.02 1101 ...... 21,911.11 19,524.30 17,053.22 16,535.74 1102 ...... 29,273.82 26,086.35 22,784.26 22,093.16 1103 ...... 32,894.48 29,312.58 25,600.89 24,825.52 1201 ...... 24,021.49 16,004.77 16,004.77 14,695.06 1202 ...... 30,184.04 20,109.21 20,109.21 18,464.06 1203 ...... 35,085.76 23,374.22 23,374.22 21,464.43 1204 ...... 36,875.87 24,567.62 24,567.62 22,558.38 1301 ...... 19,008.51 15,694.62 14,899.02 13,226.90 1302 ...... 26,007.12 21,474.54 20,385.65 18,098.29 1303 ...... 29,980.08 24,754.72 23,498.95 20,862.67 1304 ...... 34,752.02 28,695.65 27,240.98 24,183.30 1305 ...... 35,188.59 29,054.69 27,581.47 24,486.71 1401 ...... 19,310.23 15,831.16 14,288.83 12,785.28 1402 ...... 24,257.47 19,888.39 17,951.64 16,062.08 1403 ...... 29,454.17 24,147.91 21,796.49 19,502.39 1404 ...... 34,595.25 28,363.59 25,600.89 22,907.30 1501 ...... 21,752.67 17,420.68 16,274.47 15,612.03 1502 ...... 26,822.95 21,481.29 20,068.75 19,251.24 1503 ...... 31,143.15 24,940.14 23,300.05 22,352.74 1504 ...... 36,107.24 28,914.78 27,015.11 25,916.10 1601 ...... 16,668.90 16,668.90 15,033.87 13,532.00 1602 ...... 18,673.08 18,673.08 16,840.83 15,156.92 1603 ...... 22,819.65 22,819.65 20,579.49 18,523.06 1604 ...... 28,994.01 28,994.01 26,148.71 23,536.03 1701 ...... 23,446.70 18,393.27 16,719.47 15,224.34 1702 ...... 28,634.97 22,465.68 20,421.04 18,593.85 1703 ...... 33,947.98 26,630.79 24,208.59 22,042.59 1704 ...... 37,553.48 29,460.92 26,780.81 24,383.89 1705 ...... 41,207.86 32,328.12 29,386.75 26,755.53 1801 ...... 20,869.41 16,554.28 14,866.99 13,788.21 1802 ...... 26,576.86 21,080.11 18,932.66 17,560.58 1803 ...... 32,607.93 25,863.85 23,229.25 21,545.34 1804 ...... 37,391.66 29,659.82 26,637.54 24,705.84 1805 ...... 44,646.49 35,414.46 31,805.59 29,499.69

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TABLE 10—FY 2021 PAYMENT RATES—Continued

Payment Payment Payment Payment rate CMG rate tier 1 rate tier 2 rate tier 3 no comorbidity

1806 ...... 57,510.99 45,617.39 40,968.51 37,998.48 1901 ...... 20,279.45 15,770.47 15,551.35 14,728.77 1902 ...... 27,461.80 21,356.55 21,058.20 19,944.02 1903 ...... 43,722.78 34,001.92 33,526.58 31,753.33 1904 ...... 64,371.38 50,060.63 49,361.11 46,750.12 2001 ...... 20,426.10 16,574.50 15,178.83 13,960.14 2002 ...... 25,113.75 20,378.90 18,662.96 17,162.78 2003 ...... 29,723.87 24,119.25 22,089.79 20,314.85 2004 ...... 33,454.10 27,144.90 24,860.91 22,863.48 2005 ...... 35,967.33 29,186.16 26,730.24 24,581.10 2101 ...... 30,396.42 23,111.26 19,000.08 19,000.08 2102 ...... 40,547.11 30,827.94 25,344.68 25,344.68 5001 ...... - - - 2,769.44 5101 ...... - - - 12,240.83 5102 ...... - - - 30,366.08 5103 ...... - - - 14,250.06 5104 ...... - - - 35,222.30

F. Example of the Methodology for of 1.0454 percent), a wage index of The resulting figure is the wage- Adjusting the Prospective Payment 0.8697, and a teaching status adjustment adjusted labor amount. Next, we Rates of 0.0784. compute the wage-adjusted Federal Table 11 illustrates the methodology To calculate each IRF’s labor and non- payment by adding the wage-adjusted for adjusting the prospective payments labor portion of the prospective labor amount to the non-labor portion of (as described in section VI. of this final payment, we begin by taking the the Federal payment. unadjusted prospective payment rate for rule). The following examples are based Adjusting the wage-adjusted Federal CMG 0104 (without comorbidities) from on two hypothetical Medicare payment by the facility-level beneficiaries, both classified into CMG Table 10. Then, we multiply the labor- related share for FY 2021 (73.0 percent) adjustments involves several steps. 0104 (without comorbidities). The First, we take the wage-adjusted unadjusted prospective payment rate for described in section VI.C. of this final prospective payment and multiply it by CMG 0104 (without comorbidities) rule by the unadjusted prospective the appropriate rural and LIP appears in Table 10. payment rate. To determine the non- Example: One beneficiary is in labor portion of the prospective adjustments (if applicable). Second, to Facility A, an IRF located in rural payment rate, we subtract the labor determine the appropriate amount of Spencer County, Indiana, and another portion of the Federal payment from the additional payment for the teaching beneficiary is in Facility B, an IRF unadjusted prospective payment. status adjustment (if applicable), we located in urban Harrison County, To compute the wage-adjusted multiply the teaching status adjustment Indiana. Facility A, a rural non-teaching prospective payment, we multiply the (0.0784, in this example) by the wage- hospital has a Disproportionate Share labor portion of the Federal payment by adjusted and rural-adjusted amount (if Hospital (DSH) percentage of 5 percent the appropriate wage index located in applicable). Finally, we add the (which would result in a LIP adjustment the applicable wage index table. This additional teaching status payments (if of 1.0156), a wage index of 0.8354, and table is available on the CMS website at applicable) to the wage, rural, and LIP- a rural adjustment of 14.9 percent. https://www.cms.gov/Medicare/ adjusted prospective payment rates. Facility B, an urban teaching hospital, Medicare-Fee-for-Service-Payment/ Table 11 illustrates the components of has a DSH percentage of 15 percent InpatientRehabFacPPS/IRF-Rules-and- the adjusted payment calculation. (which would result in a LIP adjustment Related-Files.html.

TABLE 11—EXAMPLE OF COMPUTING THE FY 2021 IRF PROSPECTIVE PAYMENT

Steps Rural facility A (Spencer Urban facility B (Harrison Co., IN) Co., IN) 1 ...... Unadjusted Payment ...... $28,006.24 $28,006.24 2 ...... Labor Share ...... × 0.730 × 0.730 3 ...... Labor Portion of Payment ...... = $20,444.56 = $20,444.56 4 ...... CBSA-Based Wage Index\ ...... × 0.8354 × 0.8697 5 ...... Wage-Adjusted Amount ...... = $17,079.38 = $17,780.63 6 ...... Non-Labor Amount ...... + $7,561.68 + $7,561.68 7 ...... Wage-Adjusted Payment ...... = $24,641.06 = $25,342.31 8 ...... Rural Adjustment ...... × 1.149 × 1.000 9 ...... Wage- and Rural-Adjusted Payment ...... = $28,312.58 = $25,342.31 10 ...... LIP Adjustment ...... × 1.0156 × 1.0454 11 ...... Wage-, Rural- and LIP-Adjusted Payment ...... = $28,754.25 = $26,492.85 12 ...... Wage- and Rural-Adjusted Payment ...... $28,312.59 $25,342.31 13 ...... Teaching Status Adjustment ...... × 0 × 0.0784 14 ...... Teaching Status Adjustment Amount ...... = $0.00 = $1,986.84 15 ...... Wage-, Rural-, and LIP-Adjusted Payment ...... + $28,754.25 + $26,492.85 16 ...... Total Adjusted Payment ...... = $28,754.25 = $28,479.69

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Thus, the adjusted payment for as appropriate to maintain the 3 percent total estimated IRF payments are Facility A would be $28,754.25, and the target. summarized below. adjusted payment for Facility B would To update the IRF outlier threshold Comment: Commenters were be $28,479.69. amount for FY 2021, we proposed to use generally supportive of the update to the FY 2019 claims data and the same outlier threshold. One commenter noted VII. Update to Payments for High-Cost methodology that we used to set the support for expanding the outlier pool Outliers Under the IRF PPS for FY 2021 initial outlier threshold amount in the from 3 percent to 5 percent of aggregate A. Update to the Outlier Threshold FY 2002 IRF PPS final rule (66 FR 41316 IRF payments, while other commenters Amount for FY 2021 and 41362 through 41363), which is also stated that we should reduce the outlier the same methodology that we used to pool below 3 percent and still others Section 1886(j)(4) of the Act provides update the outlier threshold amounts for supported us maintaining the pool at 3 the Secretary with the authority to make FYs 2006 through 2020. The outlier percent. payments in addition to the basic IRF threshold is calculated by simulating Response: We thank the commenters prospective payments for cases aggregate payments and using an for their support of the update to the incurring extraordinarily high costs. A iterative process to determine a outlier threshold. We continue to case qualifies for an outlier payment if threshold that results in outlier believe that maintaining the outlier pool the estimated cost of the case exceeds payments being equal to 3 percent of at 3 percent of aggregate IRF payments the adjusted outlier threshold. We total payments under the simulation. To optimizes the extent to which we can calculate the adjusted outlier threshold determine the outlier threshold for FY reduce financial risk to IRFs of caring by adding the IRF PPS payment for the 2021, we estimate the amount of FY for high-cost patients, while still case (that is, the CMG payment adjusted 2021 IRF PPS aggregate and outlier providing for adequate payments for all by all of the relevant facility-level payments using the most recent claims other non-high cost outlier cases. We adjustments) and the adjusted threshold available (FY 2019) and the proposed refer readers to the FY 2002 IRF PPS amount (also adjusted by all of the FY 2021 standard payment conversion final rule (66 FR 41316, 41362 through relevant facility-level adjustments). factor, labor-related share, and wage 41363) for more information regarding Then, we calculate the estimated cost of indexes, incorporating any applicable the rationale for setting the outlier a case by multiplying the IRF’s overall budget-neutrality adjustment factors. threshold amount for the IRF PPS so CCR by the Medicare allowable covered The outlier threshold is adjusted either that estimated outlier payments would charge. If the estimated cost of the case up or down in this simulation until the equal 3 percent of total estimated is higher than the adjusted outlier estimated outlier payments equal 3 payments. threshold, we make an outlier payment percent of the estimated aggregate Comment: Commenters suggested that for the case equal to 80 percent of the payments. Based on an analysis of the CMS pay the full 3 percent outlier pool difference between the estimated cost of preliminary data used for the proposed each year and recommended that CMS the case and the outlier threshold. rule, we estimated that IRF outlier include historical outlier reconciliation In the FY 2002 IRF PPS final rule (66 payments as a percentage of total dollars in the calculation of the fixed FR 41362 through 41363), we discussed estimated payments would be loss threshold under the IRF PPS. our rationale for setting the outlier approximately 2.6 percent in FY 2020. Additionally, a commenter requested threshold amount for the IRF PPS so Therefore, we proposed to update the that CMS establish a new outlier that estimated outlier payments would outlier threshold amount from $9,300 threshold baseline to be updated by the equal 3 percent of total estimated for FY 2020 to $8,102 for FY 2021 to market basket while other commenters payments. For the FY 2002 IRF PPS maintain estimated outlier payments at suggested that CMS should cap the final rule, we analyzed various outlier approximately 3 percent of total overall outlier payments an IRF can policies using 3, 4, and 5 percent of the estimated aggregate IRF payments for receive. total estimated payments, and we FY 2021. Response: We appreciate the concluded that an outlier policy set at We note that, as we typically do, we commenters’ suggestions regarding 3 percent of total estimated payments updated our data between the FY 2021 changes to the methodology used to would optimize the extent to which we IRF PPS proposed and final rules to establish an outlier threshold for IRF could reduce the financial risk to IRFs ensure that we use the most recent PPS payments. However, as we did not of caring for high-cost patients, while available data in calculating IRF PPS propose changes to this methodology, still providing for adequate payments payments. This updated data includes a these comments are outside the scope of for all other (non-high cost outlier) more complete set of claims for FY this final rule. We will continue to cases. 2019. Based on our analysis using this monitor our IRF outlier policies to Subsequently, we updated the IRF updated data, we continue to estimate ensure that they continue to compensate outlier threshold amount in the FYs that IRF outlier payments as a IRFs appropriately. 2006 through 2020 IRF PPS final rules percentage of total estimated payments After consideration of the comments and the FY 2011 and FY 2013 notices are approximately 2.6 percent in FY received and also taking into account (70 FR 47880, 71 FR 48354, 72 FR 2020. Therefore, we will update the the most recent available data, we are 44284, 73 FR 46370, 74 FR 39762, 75 FR outlier threshold amount from $9,300 finalizing the outlier threshold amount 42836, 76 FR 47836, 76 FR 59256, 77 FR for FY 2020 to $7,906 for FY 2021 to of $7,906 to maintain estimated outlier 44618, 78 FR 47860, 79 FR 45872, 80 FR account for the increases in IRF PPS payments at approximately 3 percent of 47036, 81 FR 52056, 82 FR 36238, 83 FR payments and estimated costs and to total estimated aggregate IRF payments 38514, and 84 FR 39054, respectively) to maintain estimated outlier payments at for FY 2021. maintain estimated outlier payments at approximately 3 percent of total 3 percent of total estimated payments. estimated aggregate IRF payments for B. Update to the IRF Cost-to-Charge We also stated in the FY 2009 final rule FY 2021. Ratio Ceiling and Urban/Rural Averages (73 FR 46370 at 46385) that we would The comments we received on the for FY 2021 continue to analyze the estimated update to the FY 2021 outlier threshold Cost-to-charge ratios (CCRs) are used outlier payments for subsequent years amount to maintain estimated outlier to adjust charges from Medicare claims and adjust the outlier threshold amount payments at approximately 3 percent of to costs and are computed annually

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from facility-specific data obtained from 2021. This means that, if an individual which we could reduce burden for MCRs. IRF specific CCRs are used in the IRF’s CCR were to exceed this ceiling of hospitals and clinicians, improve development of the CMG relative 1.33 for FY 2021, we will replace the quality of care, decrease costs and weights and the calculation of outlier IRF’s CCR with the appropriate ensure that patients receive the best payments under the IRF PPS. In proposed national average CCR (either care. We received comments from IRF accordance with the methodology stated rural or urban, depending on the industry associations, state and national in the FY 2004 IRF PPS final rule (68 geographic location of the IRF). We hospital associations, industry groups FR 45674, 45692 through 45694), we calculated the proposed national CCR representing hospitals, and individual propose to apply a ceiling to IRFs’ CCRs. ceiling by: IRF providers in response to the Using the methodology described in that Step 1. Taking the national average solicitation. In the FY 2019 IRF PPS final rule, we proposed to update the CCR (weighted by each IRF’s total costs, final rule (83 FR 38549 through 38553), national urban and rural CCRs for IRFs, as previously discussed) of all IRFs for we finalized several changes to the as well as the national CCR ceiling for which we have sufficient cost report regulatory requirements that we FY 2021, based on analysis of the most data (both rural and urban IRFs believed were responsive to stakeholder recent data that is available. We apply combined). feedback and helpful to providers in the national urban and rural CCRs in the Step 2. Estimating the standard reducing administrative burden. following situations: deviation of the national average CCR Patients over Paperwork has • New IRFs that have not yet computed in step 1. continued to be a priority for the submitted their first MCR. Step 3. Multiplying the standard agency, as we target ways in which we • IRFs whose overall CCR is in excess deviation of the national average CCR can reduce paperwork burden for of the national CCR ceiling for FY 2021, computed in step 2 by a factor of 3 to hospitals and clinicians while as discussed below in this section. compute a statistically significant improving quality of care for patients. • Other IRFs for which accurate data reliable ceiling. Therefore, we are proposing to revise to calculate an overall CCR are not Step 4. Adding the result from step 3 the current IRF coverage criteria. available. to the national average CCR of all IRFs Specifically, we are focused on reducing Specifically, for FY 2021, we for which we have sufficient cost report medical record documentation proposed to estimate a national average data, from step 1. requirements that we believe are no CCR of 0.490 for rural IRFs, which we Using the updated FY 2018 cost longer necessary. calculated by taking an average of the report data for this final rule, we IRF care is only considered by CCRs for all rural IRFs using their most estimate a national average CCR ceiling Medicare to be reasonable and necessary recently submitted cost report data. of 1.34, using the same methodology. under section 1862(a)(1) of the Act if the Similarly, we proposed to estimate a We did not receive any comments on patient meets all of the IRF coverage national average CCR of 0.400 for urban the proposed update to the IRF CCR requirements outlined in IRFs, which we calculated by taking an ceiling and urban/rural averages for FY § 412.622(a)(3), (4), and (5). Failure to average of the CCRs for all urban IRFs 2021. Therefore, we are finalizing the meet the IRF coverage criteria in a using their most recently submitted cost national average urban CCR at 0.398, the particular case will result in denial of report data. We apply weights to both of national average rural CCR at 0.493, and the IRF claim. Under § 412.622(a)(4)(ii), these averages using the IRFs’ estimated the national average CCR ceiling at 1.34 to document that each patient for whom costs, meaning that the CCRs of IRFs for FY 2021. the IRF seeks payment is reasonably with higher total costs factor more VIII. Removal of the Post-Admission expected to meet all of the requirements heavily into the averages than the CCRs in § 412.622(a)(3) at the time of of IRFs with lower total costs. For this Physician Evaluation Requirement From the IRF Coverage Requirements admission, the patient’s medical record final rule, we have used the most recent at the IRF must contain a post- available cost report data (FY 2018). We are committed to transforming the admission physician evaluation that This includes all IRFs whose cost health care delivery system, and the meets ALL of the following reporting periods begin on or after Medicare program, by putting an requirements: October 1, 2017, and before October 1, additional focus on patient-centered • It is completed by the rehabilitation 2018. If, for any IRF, the FY 2018 cost care and working with providers and physician within 24 hours of the report was missing or had an ‘‘as clinicians to improve patient outcomes. patient’s admission to the IRF. submitted’’ status, we used data from a We refer to this transformation as • It documents the patient’s status on previous FY’s (that is, FY 2004 through ‘‘Patients Over Paperwork.’’ That is, admission to the IRF, includes a FY 2017) settled cost report for that IRF. CMS recognizes it is imperative that we comparison with the information noted We do not use cost report data from develop and implement policies that in the preadmission screening before FY 2004 for any IRF because allow providers and clinicians to focus documentation, and serves as the basis changes in IRF utilization since FY 2004 the majority of their time treating for the development of the overall resulting from the 60 percent rule and patients rather than completing individualized plan of care. IRF medical review activities suggest paperwork. Moreover, we believe it is • It is retained in the patient’s that these older data do not adequately essential for us to reexamine current medical record at the IRF. reflect the current cost of care. Using regulations and administrative Before the current IRF coverage updated FY 2018 cost report data for requirements to ensure that we are not criteria were implemented in January 1, this final rule, we estimate a national placing unnecessary burden on 2010, Medicare permitted ‘‘trial’’ IRF average CCR of 0.493 for rural IRFs, and providers. admissions (HCFAR 85–2–4 through a national average CCR of 0.398 for In the FY 2018 IRF PPS proposed rule 85–2–5). A ‘‘trial’’ IRF admission meant urban IRFs. (82 FR 20743), we included a request for that patients were sometimes admitted In accordance with past practice, we information (RFI) to solicit comments to IRFs for 3 to 10 days to assess proposed to set the national CCR ceiling from stakeholders requesting whether the patients would benefit at 3 standard deviations above the mean information on CMS flexibilities and significantly from treatment in the IRF CCR. Using this method, we proposed a efficiencies. The purpose of the RFI was or other settings. Therefore, if it was national CCR ceiling of 1.33 for FY to receive feedback regarding ways in determined during a ‘‘trial’’ admission

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that a patient was not appropriate for admission screening as required in IRF discharges beginning on or after IRF level services, their claims for items § 412.622(a)(4)(i) by making sure each October 1, 2020; our proposed and services provided during the trial prospective IRF patient meets all of the conforming amendments to period could not be denied for failure to requirements to be admitted to the IRF, § 412.622(a)(3)(iv) to remove the meet IRF coverage criteria. Over time, then the post-admission physician reference to § 412.622(a)(4)(ii); and on we concluded that IRFs had developed evaluation is unnecessary. rescinding the above-mentioned policy a better ability and were more capable Finally, we have removed the post- described in chapter 1, sections 110.1.2, of recognizing if a patient was admission physician evaluation of the Medicare Benefit Policy Manual appropriate for IRF services prior to requirement during the public health are summarized below. being admitted. Therefore, the concept emergency for the COVID–19 pandemic Comment: The commenters of a ‘‘trial’’ IRF admission was in the interim final rule with comment unanimously supported CMS’ proposal. eliminated when we rescinded HCFA entitled, ‘‘Medicare and Medicaid Many commenters agreed that the Ruling 85–2 through a Federal Register Programs; Policy and Regulatory information contained in the post- notice titled ‘‘Medicare Program; Revisions in Response to the COVID–19 admission physician evaluation is Criteria for Medicare Coverage of Public Health Emergency’’, published redundant, since the majority of the Inpatient Hospital Rehabilitation on April 6, 2020 (85 FR 19230) information required in the post- Services’’ (74 FR 54835), effective (hereinafter referred to as the April 6, admission physician evaluation is January 1, 2010. We discussed our 2020 IFC). We believe that this will already being captured in the IRF intent to rescind HCFA Ruling 85–2 in provide us with experience to determine patient’s history and physical. Many detail in the FY 2010 IRF PPS final rule whether this requirement can be commenters stated that not only would (74 FR 39797 through 39798). removed permanently to reduce the proposal to remove the post- In addition, the Medicare Benefit paperwork burden for hospitals and admission physician evaluation remove Policy Manual, chapter 1, section clinicians while continuing to provide redundant documentation requirements, 110.1.2 (Pub. L. 100–02), which can be adequate quality of care for patients. but it would also remove the added downloaded from the CMS website at Therefore, we proposed to remove the burden of it being a time sensitive https://www.cms.gov/Regulations-and- post-admission physician evaluation requirement. Guidance/Guidance/Manuals/internet- documentation requirement at Response: We appreciate the Only-Manuals-IOMs.html), states, ‘‘In § 412.622(a)(4)(ii) beginning with FY commenters’ support for the proposal. most cases, the clinical picture of the 2021, that is, for all IRF discharges We agree that finalizing this proposal patient that emerges from the post- beginning on or after October 1, 2020. will ease administrative and admission physician evaluation will Accordingly, we proposed to amend documentation burden in the IRF closely resemble the information § 412.622(a)(3)(iv) to remove the setting. documented in the preadmission reference to § 412.622(a)(4)(ii). We After consideration of the comments screening. However, for a variety of would also rescind the above-mentioned we received, we are finalizing our reasons, the patient’s condition at the policy described in chapter 1, section proposal to remove the post-admission time of admission may occasionally not 110.1.2, of the Medicare Benefit Policy physician evaluation documentation match the description of the patient’s Manual. requirement at § 412.622(a)(4)(ii) We note that removal of the post- condition on the preadmission beginning with FY 2021, that is, for all admission physician evaluation does screening. If this occurs, the IRF must IRF discharges beginning on or after not preclude an IRF patient from being immediately begin the discharge October 1, 2020; our proposed evaluated within the first 24 hours of process. It may take a day or more for conforming amendments to admission if the IRF believes that the the IRF to find placement for the patient § 412.622(a)(3)(iv) to remove the patient’s condition warrants such an in another setting of care. MACs will reference to § 412.622(a)(4)(ii); and on evaluation. We merely proposed that a therefore allow the patient to continue rescinding the above-mentioned policy post-admission physician evaluation receiving treatment in the IRF until described in chapter 1, sections 110.1.2, would no longer be an IRF placement in another setting can be of the Medicare Benefit Policy Manual. found.’’ It further states that in these documentation requirement for IRF particular cases, ‘‘Medicare authorizes discharges occurring on and after IX. Revisions to Certain IRF Coverage its MACs to permit the IRF claim to be October 1, 2020. Moreover, removal of Documentation Requirements the post-admission physician evaluation paid at the appropriate CMG for IRF A. Codification of Existing Preadmission does not remove one of the required patient stays of 3 days or less.’’ Screening Documentation Instructions At this time, we believe that IRFs are rehabilitation physician visits in the and Guidance more knowledgeable in determining first week of the patient’s stay in the IRF prior to admission, whether a patient as specified in § 412.622(a)(3)(iv). IRFs Another way in which CMS has meets the coverage criteria for IRF will need to continue to meet the continued to explore burden reduction services than they were when the IRF requirements at § 412.622(a)(3)(iv) as for providers and clinicians, while coverage requirements were initially they always have. keeping patient centered care a priority, implemented. Over time, we have While removal of the post-admission is by reviewing subregulatory guidance analyzed the data regarding the number physician evaluation does not attribute to identify any longstanding policies, of above-mentioned cases described in to any direct savings for Medicare Part- instructions, or guidance that would be chapter 1, section 110.1.2, of the A or Part-B, we do believe that removing appropriate to codify through notice and Medicare Benefit Policy Manual, and it it will reduce administrative and comment rulemaking. has trended downward since the IRF paperwork burden for both IRF Specifically, in regards to the IRF PPS coverage requirements were initially providers and MACs. payment requirements, we conducted a implemented. In FY 2019, the payment The comments we received on our detailed review of the Medicare Benefit was utilized 4 times across all 1,117 proposal to remove the post-admission Policy Manual, chapter 1, section Medicare certified IRFs. Additionally, physician evaluation documentation 110.1.2 (Pub. L. 100–02), as well as the we believe that if IRFs are doing their requirement at § 412.622(a)(4)(ii) IRF PPS website (https://www.cms.gov/ due diligence while completing the pre- beginning with FY 2021, that is, for all Medicare/Medicare-Fee-for-Service-

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Payment/InpatientRehabFacPPS/index), anticipated post-discharge treatments, and (D) to codify our longstanding to identify any such policies. and other information relevant to the documentation instructions and Currently, § 412.622(a)(4)(i) requires care needs of the patient.’’ Additionally, guidance of the preadmission screening that a comprehensive preadmission we state, ‘‘All findings of the in regulation text, are summarized screening must meet ALL of the preadmission screening must be below. following requirements: conveyed to a rehabilitation physician Comment: The majority of • It is conducted by a licensed or prior to the IRF admission. In addition, commenters supported codifying the certified clinician(s) designated by a the rehabilitation physician must existing preadmission screening rehabilitation physician described in document that he or she has reviewed documentation requirements to the § 412.622(a)(3)(iv) within the 48 hours and concurs with the findings and extent that it makes no substantive immediately preceding the IRF results of the preadmission screening policy changes from the requirements admission. prior to the IRF admission.’’ These have described in the MDPM, chapter 1, • It includes a detailed and been our documentation instructions section 110.1.1. Commenters stated that comprehensive review of each patient’s and guidance since the implementation CMS’ decision to codify these condition and medical history. of the IRF coverage requirements on longstanding instructions and guidance • It serves as the basis for the initial January 1, 2010. would improve clarity and reduce determination of whether or not the We believe that codifying these administrative burden on both IRF patient meets the requirements for an longstanding instructions and guidance providers and MACs. With patient- IRF admission to be considered would improve clarity and reduce centered care being such a high priority reasonable and necessary in administrative burden on both IRF in today’s health care climate, § 412.622(a)(3). providers and MACs. With patient commenters stated that they appreciated • It is used to inform a rehabilitation centered care being such a high priority CMS’ efforts to reduce tasks that take who reviews and comments his or her in today’s healthcare climate, we want away from time spend directly with the concurrence with the findings and to mitigate, as much as possible, tasks patient. Commenters also stated that results of the preadmission screening. they agree with CMS that IRF providers • that take away from time spent directly It is retained in the patient’s with the patient. Lastly, we believe IRF and MACs will benefit from all medical record at the IRF. providers and MACs will appreciate all documentation requirements being When the pre-admission screening preadmission screening documentation located in the same place in the documentation requirements were requirements being located in the same regulations for ease of reference. finalized (74 FR 39790 through 39792), place for ease of reference. Response: We appreciate the we did not specify any individual Thus, in the interest of reducing commenters’ support for the proposal. elements as being required for the pre- administrative burden and being able to We agree that finalizing this proposal admission screening documentation to locate all preadmission screening will reduce administrative burden on be considered detailed and documentation requirements in the both IRF providers and MACs and allow comprehensive in accordance with same place for ease of reference, we more time to be spent in direct patient § 412.622(a)(4)(i)(B). In addition, we did proposed to make the following care. not specify at § 412.622(a)(4)(i)(D) that regulatory amendments: Comment: Some commenters did not the rehabilitation physician must review • At § 412.622(a)(4)(i)(B), to provide support codifying the existing and concur with the preadmission that the comprehensive preadmission preadmission screening documentation screening prior to the IRF admission. screening must include a detailed and requirements, stating that the proposal The Medicare Benefit Policy Manual, comprehensive review of each patient’s did not align with CMS’ Patients over chapter 1, section 110.1.1 (Pub. L. 100– condition and medical history, Paperwork initiative. These commenters 02) provides a more detailed description including the patient’s level of function suggested that instead of codifying the of what elements the preadmission prior to the event or condition that led existing requirements, we should allow screening should include and clarifies to the patient’s need for intensive IRF rehabilitation physicians to rely on that the rehabilitation physician should rehabilitation therapy, expected level of their training and experience to review and concur with the improvement, and the expected length determine which information best preadmission screening prior to the of time necessary to achieve that level supports the appropriateness of the IRF patient being admitted to the IRF. of improvement; an evaluation of the admission. These commenters stated In chapter 1, section 110.1.1 of the patient’s risk for clinical complications; that such an approach would reduce Medicare Benefit Policy Manual the conditions that caused the need for documentation burden, and facilitate currently, we state, ‘‘The preadmission rehabilitation; the treatments needed timely patient admissions to IRFs. screening documentation must indicate (that is, physical therapy, occupational Response: We appreciate the the patient’s prior level of function therapy, speech-language pathology, or commenters’ concerns. However, we (prior to the event or condition that led prosthetics/orthotics); expected respectfully disagree that it would be to the patient’s need for intensive frequency and duration of treatment in better not to specify basic elements to rehabilitation therapy), expected level of the IRF; anticipated discharge include in the pre-admission screening improvement, and the expected length destination; and anticipated post- documentation, as we believe that this of time necessary to achieve that level discharge treatments; and would lead to excessive ambiguity in of improvement. It must also include an • At § 412.622(a)(4)(i)(D), to provide the regulations and create unnecessary evaluation of the patient’s risk for that the comprehensive preadmission confusion. Codifying the current clinical complications, the conditions screening must be used to inform a preadmission screening requirements that caused the need for rehabilitation, rehabilitation physician who must then into regulation text does not change the the treatments needed (that is, physical review and document his or her amount of documentation that is therapy, occupational therapy, speech- concurrence with the findings and required. We did not propose any new language pathology, or prosthetics/ results of the preadmission screening required elements to be completed on orthotics), expected frequency and prior to the IRF admission. the pre-admission screening. Therefore, duration of treatment in the IRF, The comments we received on our the information being collected and the anticipated discharge destination, any proposal to amend § 412.622(a)(4)(i)(B) time it takes to collect the information

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remain the same. Additionally, we agree requirements in regulation will increase removal of the following elements from with the commenters that IRF technical denials. We expect that IRFs the pre-admission screening: rehabilitation physicians should have will continue to complete the • Expected frequency and duration of the freedom to document the preadmission screening documentation treatment in the IRF information that best supports their as they always have. • Any anticipated post-discharge decision to admit the patient in the Comment: Some commenters treatments preadmission screening documentation. suggested that codifying the required • Other information relevant to the For this reason, we require a detailed elements of the pre-admission screening patient’s care needs and comprehensive preadmission that are duplicative with other portions We believe that the elements noted screening in which we allow of the patient medical record does not above are duplicative requirements that rehabilitation physicians to include any alleviate documentation burden. These will be captured in other medical additional information they deem commenters suggested that CMS should documentation, such as the history and necessary to the preadmission consider removing some of the physical or the individualized overall screening, in addition to the required preadmission screening elements that plan of care, and require the elements. However, we believe that it is duplicate data already included in other rehabilitation physician to predict what necessary to specify the basic minimum parts of the patient’s IRF medical record will happen during and after the IRF elements that we expect to see in a (such as the history and physical and admission, which often changes during detailed and comprehensive pre- the individualized overall plan of care). the IRF stay. We believe that by admission screening to eliminate A few commenters suggested that CMS removing the above mentioned confusion and ambiguity in the should consider removing the elements, we are not only reducing requirement. preadmission screening documentation provider burden, but we are continuing Comment: Several commenters requirements altogether. to align with the agency’s Patients over suggested that if CMS finalizes the Response: We do not agree with the Paperwork initiative without proposal to codify the pre-admission commenters who suggested that we diminishing the quality of care patients screening requirements into regulation remove the pre-admission screening receive. text, CMS should also consider requirement altogether, as we continue We are, therefore, keeping the amending the timing of this requirement to believe that the pre-admission following key elements of the pre- (which is currently required to be screening is an integral part of admission screening documentation: completed within the 48 hours determining if a patient can tolerate and • immediately preceding the IRF Prior level of function benefit from IRF level services. • admission). Additionally, several Expected level of improvement However, we do agree with commenters • commenters suggested that CMS should Expected length of time to achieve who suggested that we should not allow rehabilitation physicians to give a that level of improvement codify all of the current required • verbal approval of the preadmission Risk for clinical complications elements of the pre-admission • Conditions that caused the need for screening instead of requiring them to screening, as some of the elements rehabilitation review and concur with the findings duplicate data that is already included • Combinations of treatments needed and results of the pre-admission in other parts of the patients IRF • Anticipated discharge destination screening prior to admission to the IRF. Response: We appreciate the medical record (such as the history and We believe that the elements above commenters’ suggestions regarding physical and the individualized overall demonstrate not only the anticipated other ways to reduce burden associated plan of care). We are addressing the functional progress of the patient and with the pre-admission screening. concerns of the current required the therapeutic disciplines that will be However, since we only solicited elements of the preadmission screening utilized to reach those goals, but also comments regarding the elements of the in section IX. of this final rule. the need for medical supervision by a preadmission screening documentation Comment: Many commenters stated physician and supports the need for an in the proposed rule (85 FR 22065, that removing some of the pre- intensive inpatient rehabilitation 22088), any additional changes to the admission screening elements that were program instead of a lower level of care. preadmission screening requirements duplicative of data collected in various Since IRF patients are more medically are beyond the scope of this final rule. other documents in the patient’s IRF complex than ever before, often Therefore, we will take these medical record (such as the history and suffering from chronic illnesses or suggestions into consideration for future physical and the individualized overall disabilities, and/or recovering from rulemaking. plan of care) would reduce burden. devastating physical trauma, we believe Comment: A few commenters were Several commenters suggested removing that these elements are essential in concerned that codifying the the pre-admission screening elements determining if the patient can tolerate preadmission screening requirements that require IRF clinicians to predict and benefit from IRF level care. They into regulation text might increase the what will happen during the IRF stay, require a higher level of care and more amount of technical denials of IRF as this information frequently changes intense therapy and physician claims whenever one or more of the during the IRF stay and thereby supervision than patients in other post- elements is missing from the becomes inaccurate and unnecessary. acute care settings. Therefore, properly preadmission screening documentation. Response: We appreciate the managing a patient’s medical Response: We respectfully disagree suggestions that commenters submitted complexities while developing an with the commenters suggesting that in response to our solicitation of informative and, to the extent possible, codifying the requirements into comments regarding what elements of an all-inclusive pre-admission screening regulation text will increase the amount the pre-admission screening should be is of utmost importance. We continue to of technical denials of IRF claims. We removed in order to reduce burden on believe that having as much pertinent did not propose to add any new rehabilitation physicians. With the information about the patient as requirements to the pre-admission assistance of CMS medical officers, as possible prior to the IRF admission screening. Therefore, we do not believe well as the responses we received from improves the quality of care the patient that merely codifying these existing the IRF industry, we are finalizing receives in the IRF. Additionally,

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discharge planning in IRFs should begin These elements will be removed from Response: We appreciate the on the day of admission, so while it may chapter 1, section 110.1.1 of the commenter’s concern, but the proposed appear that some pre-admission Medicare Benefit Policy Manual. definition was always the definition that screening elements are better discussed we used for the IRF requirements in B. Definition of a ‘‘Week’’ after the patient is admitted, we want to § 412.622. We simply proposed to add continue to encourage IRFs to begin In § 412.622(a)(3)(ii) we state that in the word ‘‘calendar’’ to help clarify the planning for the patient’s discharge certain well-documented cases, this definition and eliminate any possible upon admission. Discharge coordination intensive rehabilitation therapy program confusion. often involves not only the patient, but might instead consist of at least 15 Comment: One commenter suggested family members, caregivers, etc. and it hours of intensive rehabilitation therapy that CMS should instead define a can sometimes take weeks for all of the within a 7 consecutive day period, ‘‘week’’ as a 7 consecutive calendar day discharge details to be sorted out. We beginning with the date of admission to period starting on the day after want to ensure that upon discharge, the IRF. This language is also used admission rather than on the day of patients are set up for continued success many times throughout the IRF Services admission. The commenter suggested in their recovery. section of the Medicare Benefit Policy that because some IRF patients are Comment: One commenter suggested Manual. For more information, we refer admitted late in the day, IRF therapists that we should specify the requirements readers to the Medicare Benefit Policy are unable to provide therapy services for a ‘‘detailed and comprehensive Manual, chapter 1, section 110.1.2 (Pub. on the day of admission. Therefore, review’’ of the patient’s condition and L. 100–02), which can be downloaded according to this commenter, therapists medical history in the pre-admission from the CMS website at https:// often only have 6 days to meet the screening. www.cms.gov/Regulations-and- minimum of 15 hours of intensive Response: As noted above, we believe Guidance/Guidance/Manuals/internet- therapy requirement during the patient’s that it is appropriate for the Only-Manuals-IOMs.html. first week of admission. However, we understand there is rehabilitation physician to use his or her Response: We respectfully disagree training and experience when some question as to whether the term ‘‘Week’’ may be construed as a different with the commenter’s suggested determining what information best modification to the definition of supports his or her decision to admit the period (for example, Monday through Sunday). To provide clarity and reduce ‘‘week.’’ We believe that an IRF patient’s patient to the IRF to include in the pre- stay should be tracked beginning with admission screening. For this reason, we administrative burden for stakeholders regarding several of the IRF coverage the day of admission as it always has. require a detailed and comprehensive We believe that the suggested pre-admission screening in which we requirements, we proposed to amend our regulation text to clarify that we modification would create unnecessary allow rehabilitation physicians to confusion as to what the actual day of include any additional information, define a ‘‘Week’’ as ‘‘a 7 consecutive calendar day period’’ for purposes of the admission is for other documentation outside of the required elements, they purposes in the IRF medical record. deem necessary to the pre-admission IRF coverage requirements. Therefore, we proposed to amend Additionally, IRFs have shown that they screening. are able to meet the minimum of 15 After consideration of the comments § 412.622(c) to clarify our definition of a ‘‘Week’’ as a period of ‘‘7 consecutive hours of intensive therapy requirement, we received, we are finalizing our even if the patient is admitted late in the proposal to amend § 412.622(a)(4)(i)(B) calendar days beginning with the date of admission to the IRF.’’ We also day. and (D) to codify certain elements of our After consideration of the comments longstanding documentation proposed to make conforming amendments to § 412.622(a)(3)(ii) by we received, we are finalizing our instructions and guidance of the proposal to amend § 412.622(c) to preadmission screening in regulation replacing ‘‘7 consecutive day period, beginning with the date of admission to clarify the definition of a ‘‘Week’’ as a text. Specifically, we are finalizing the ‘‘7 consecutive calendar days beginning following elements of the pre-admission the IRF’’ with ‘‘Week’’. The comments we received on our with the date of admission to the IRF.’’ screening requirements prior to proposals to §§ 412.622(c) and We are also finalizing our proposal to codifying the pre-admission screening 412.622(a)(3)(ii) are summarized below. make conforming amendments to elements at § 412.622(a)(4)(i): Comment: The majority of § 412.622(a)(3)(ii) by replacing ‘‘7 • Prior level of function commenters support CMS’ proposal to consecutive day period, beginning with • Expected level of improvement the date of admission to the IRF’’ with • clarify the definition of ‘‘Week.’’ Expected length of time to achieve Commenters stated that CMS’ efforts to ‘‘Week’’. that level of improvement clarify this period of time and utilize • Risk for clinical complications C. Solicitation of Comments Regarding • consistent language throughout the Further Changes to the Preadmission Conditions that caused the need for regulatory text will improve clarity and rehabilitation Screening Documentation Requirements • reduce administrative burden on both Combinations of treatments needed As noted in section VIII. of this final • IRF providers and MACs. Anticipated discharge destination Response: We appreciate the rule, we are considering ways in which These changes will become effective commenters’ support for the proposal. we can continue to help reduce for all IRF discharges on or after Oct. 1, We agree that finalizing this proposal administrative burden on IRF providers. 2020. We are not finalizing the will reduce administrative burden on Specifically, we have been reviewing following elements of the pre-admission both IRF providers and MACs. the pre-admission screening screening documentation: Comment: One commenter expressed documentation requirements under • Expected frequency and duration of concern that codifying the definition of § 412.622(a)(4)(i) and are considering treatment in the IRF a ‘‘Week’’ would cause greater provider whether we could remove some of the • Any anticipated post-discharge burden, as IRF providers would need to requirements, but still maintain an IRF treatments independently track each patient’s patient’s clinical history, as well as • Other information relevant to the admission date to ensure that other documentation of their medical and patient’s care needs requirements were being met timely. functional needs in sufficient detail to

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adequately describe and support the the IRF that the patient requires that they need to have to appropriately patient’s need for IRF services. physician supervision by a assess IRF patients both medically and To assist us in balancing the needs of rehabilitation physician. The functionally? the patient with the desire to reduce the requirement for medical supervision • How would the non-physician regulatory burden on rehabilitation means that the rehabilitation physician practitioner’s credentials be physicians, we solicited feedback from must conduct face-to-face visits with the documented and monitored to ensure stakeholders in the proposed rule about patient at least 3 days per week that IRF patients are receiving high potentially removing some of the throughout the patient’s stay in the IRF quality care? preadmission screening documentation to assess the patient both medically and • Do stakeholders believe that requirements. Specifically, we requested functionally, as well as to modify the utilizing non-physician practitioners to feedback regarding: course of treatment as needed to fulfill some of the requirements that are • What aspects of the preadmission maximize the patient’s capacity to currently required to be completed by a screening do stakeholders believe are benefit from the rehabilitation process. rehabilitation physician would have an most or least critical and useful for For more information, please refer to the impact of the quality of care for IRF supporting the appropriateness of an Medicare Benefit Policy Manual, patients? IRF admission, and why? chapter 1, section 110.2.4 (Pub. L. 100– We received significant feedback in We appreciate the commenters’ 02), which can be downloaded from the response to our solicitation of comments responses to this solicitation. We have CMS website at https://www.cms.gov/ on allowing non-physician practitioners summarized and responded to those Regulations-and-Guidance/Guidance/ to fulfill the requirements at comments in section IX.A. of this final Manuals/internet-Only-Manuals- § 412.622(a)(3), (4) and (5). However, the rule. IOMs.html. comments from stakeholders were conflicting. Some commenters X. Amendment To Allow Non- In addition, under § 412.622(a)(4)(ii), expressed concern with allowing non- physician Practitioners To Perform to document that each patient for whom physician practitioners to fulfill some or Some of the Weekly Visits That Are the IRF seeks payment is reasonably all of the requirements that Currently Required To Be Performed by expected to meet all of the requirements rehabilitation physicians are currently a Rehabilitation Physician in § 412.622(a)(3) at the time of admission, the patient’s medical record required to meet. These commenters In October 2019, Executive Order at the IRF must contain a post- generally raised the following specific 13890, entitled ‘‘Protecting and admission physician evaluation that concerns: Improving Medicare for Our Nation’s must, among other requirements, be • The first concern was that IRF Seniors,’’ available at https:// completed by a rehabilitation physician patients would not continue receiving www.whitehouse.gov/presidential- within 24 hours of the patient’s the hospital level and quality of care actions/executive-order-protecting- admission to the IRF. For more that is necessary to treat such complex improving-medicare-nations-seniors/, information, we refer readers to the conditions in an IRF if being treated was issued by the President of the Medicare Benefit Policy Manual, only by a non-physician practitioner. • United States instructing the Secretary chapter 1, section 110.1.2 (Pub. L. 100– The second concern was that non- to, among other things, propose a 02), which can be downloaded from the physician practitioners have no regulation under the Medicare program CMS website at https://www.cms.gov/ specialized training in inpatient that would eliminate regulatory billing Regulations-and-Guidance/Guidance/ rehabilitation that would enable them to and other such requirements that are Manuals/internet-Only-Manuals- adequately assess the interaction more stringent than applicable Federal IOMs.html. between patients’ medical and or State laws and that limit In response to the RFI in the FY 2018 functional care needs in an IRF. professionals from practicing within IRF PPS proposed rule (82 FR 20742 Conversely, we also received their full scope of practice. through 20743), we received comments comments from industry stakeholders In responding to this Executive Order, suggesting that we consider amending stating that non-physician practitioners CMS has begun to review any IRF the requirements in § 412.622(a)(3)(iv) do have the necessary education and are coverage requirements at § 412.622(a) and (a)(4)(ii) to allow non-physician qualified to provide the same level of where we explicitly state the practitioners to fulfill some of the care currently being provided to IRF requirement must be completed by a requirements that rehabilitation patients by rehabilitation physicians. rehabilitation physician to see if, when physicians are currently required to These commenters stated that non- appropriate, some of these requirements complete. The commenters suggested physician practitioners are capable of could be fulfilled by non-physician that expanding the use of non-physician performing the same tasks that the practitioners (physician assistants, practitioners in meeting some of the IRF rehabilitation physicians currently must nurse practitioners, and licensed coverage requirements would ease the perform in IRFs. These commenters practical nurses). documentation burden on rehabilitation stated that non-physician practitioners Several of the IRF coverage physicians. have a history of treating complex requirements at § 412.622(a)(3), (4), and We solicited additional comments in patients across all settings, and are (5) explicitly state that a requirement the FY 2019 proposed rule (83 FR 20998 already doing so in IRFs. They also must be completed by a rehabilitation through 20999) on potentially allowing stated that the types of patient physician, defined at § 412.622(c) as a non-physician practitioners to fulfill assessments that they would be required licensed physician who is determined some of the requirements in to do in the IRFs are the same types of by the IRF to have specialized training § 412.622(a)(3), (4), and (5) that assessments they are currently and experience in inpatient rehabilitation physicians are currently authorized to provide in other settings, rehabilitation. For example, under required to complete. Specifically, we such as inpatient hospitals, skilled § 412.622(a)(3)(iv), for an IRF claim to sought feedback from the industry and nursing facilities, hospice, and be considered reasonable and necessary asked: outpatient rehabilitation centers. under section 1862(a)(1) of the Act, • Does the IRF industry believe non- Additionally, commenters stated that there must be a reasonable expectation physician practitioners have the because non-physician practitioners at the time of the patient’s admission to specialized training in rehabilitation practice in conjunction with

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rehabilitation physicians in IRFs care to complex IRF patients. Lastly, we impact on the quality of care for IRF already, time spent practicing with stated that we believed that it continues patients. We also requested information rehabilitation physicians has provided to be the IRF’s responsibility to exercise from IRFs regarding whether or not their many non-physician practitioners with their best judgment regarding who has facilities would allow non-physician direct rehabilitation experience to appropriate specialized training and practitioners to complete all of the provide quality of care and services to experience, provided that these duties requirements at § 412.622(a)(3), (4), and IRF patients. Lastly, several commenters are within the practitioner’s scope of (5), some of these requirements at stated that non-physician practitioner practice under applicable state law. § 412.622(a)(3), (4), and (5), or none of educational programs include didactic We proposed to mirror our current the requirements at § 412.622(a)(3), (4), and clinical experiences to prepare definition of a rehabilitation physician and (5). We stated that this information graduates for advanced clinical practice. with the proposed definition of a non- would assist us in refining our estimates These commenters stated that current physician practitioner in that we expect of the changes in Medicare payment that accreditation requirements and the IRF to determine whether the non- may result from the proposal. competency-based standards ensure that physician practitioner has specialized The comments we received on our non-physician practitioners are training and experience in inpatient proposal to allow non-physician equipped to provide safe, high level rehabilitation and thus may perform any practitioners to perform the IRF quality care. of the duties that are required to be coverage requirements at Additionally, several commenters performed by a rehabilitation physician, § 412.622(a)(3), (4), and (5) that are stated that allowing non-physician provided that the duties are within the currently required to be performed by a practitioners to practice to the full non-physician practitioner’s scope of rehabilitation physician, provided that extent of their education, training, and practice under applicable state law. these duties are within the practitioner’s scope of practice will increase the Therefore, we proposed to add new scope of practice under applicable state number of available health care § 412.622(d) providing that for purposes law, are summarized below. providers able to work in the post-acute of § 412.622, a non-physician Comment: Some commenters care setting resulting in lower costs and practitioner who is determined by the expressed support for the proposal to improved quality of care. Allowing the IRF to have specialized training and allow non-physician practitioners to use of non-physician practitioners, experience in inpatient rehabilitation perform the IRF coverage requirements. authorized to provide care to the full may perform any of the duties that are Some commenters stated that non- extent of their states scope of practice, required to be performed by a physician practitioners are qualified, would also help offset deficiencies in rehabilitation physician, provided that prepared, and experienced at physician supply, especially in rural the duties are within the non-physician performing and documenting mandatory areas. Physician burnout is also practitioner’s scope of practice under assessments such as those of IRF something that commenters suggested applicable state law. patients, as well as providing the high can occur overtime, and they Additionally, we noted that if an IRF quality of care these patients require. commented that allowing the use of believes in any given situation a Additionally, the commenters suggested non-physician practitioners could rehabilitation physician should have that authorizing non-physician potentially help decrease the rate at sole responsibility, or shared practitioners, who have a long history of which physicians move on from responsibility with non-physician providing safe, high quality care to their providing care in IRFs. practitioners, for overseeing a patient’s patients, to treat patients would After carefully reviewing and taking care, the IRF should make that decision. improve the care for IRF patients by all feedback that we received to our Furthermore, IRFs are required to meet reducing the burdens of the patient’s solicitation of comments into the hospital Conditions of Participation clinical care team, thus enabling consideration, we proposed to allow the in section 1861(e) of the Act and in the facilities to utilize their staff in the most use of non-physician practitioners to regulations in part 482. Under section efficient way possible. One of the perform the IRF services and 1861(e)(4) of the Act and § 482.12(c), commenters suggested that non- documentation requirements currently every Medicare patient is generally physician practitioners were an required to be performed by the required to be under the care of a important part of the IRF team already rehabilitation physician in physician. assisting with many consults, § 412.622(a)(3), (4), and (5). In the FY Our proposal did not preclude IRFs admissions, and daily patient visits. 2021 IRF PPS proposed rule, we stated from making decisions regarding the Therefore, extending their ability to that we agreed with commenters that role of rehabilitation physicians or non- perform the proposed duties and sign non-physician practitioners have the physician practitioners. We merely documentation under the supervision training and experience to perform the proposed to allow non-physician and guidance of a board certified IRF requirements, and believe that practitioners to perform the IRF rehabilitation physician would provide allowing IRFs to utilize non-physician coverage requirements at additional assistance to IRF treatment practitioners practicing to their full § 412.622(a)(3), (4), and (5) that are teams. A few commenters that scope of practice under applicable state currently required to be performed by a supported CMS’ proposal stated that law will increase access to post-acute rehabilitation physician, provided that given ongoing staffing challenges that care services specifically in rural areas, these duties are within the practitioner’s many providers face, including where rehabilitation physicians are scope of practice under applicable state physician burnout, particularly in often in short supply. We stated that we law. certain geographic areas, allowing non- believed that alleviating access barriers We invited public comment on this physician practitioners to practice to the to post-acute care services will improve proposal. In particular, we invited top of their license and use their full the quality of care and lead to better commenters to provide feedback on skill set would help lower health care patient outcomes in rural areas. We also whether they believed that utilizing costs and increase access to care. Lastly, agreed with commenters that non- non-physician practitioners to fulfill a few commenters stated that it would physician practitioners have the some of the requirements that are be helpful if CMS would clearly define appropriate education and are capable currently required to be completed by a the role of non-physician practitioners of providing hospital level quality of rehabilitation physician would have an in IRFs as there are clinical differences

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between nurse practitioners and comorbidities and medication needs of maintains the central role and judgment physician assistants, and state scope of IRF patients and evaluate and order of the rehabilitation physician in the practice laws differ. durable medical equipment for patients patient’s plan of care, while also Response: We appreciate the with new onset of disabilities. allowing for the expanded role of non- commenters’ support for the proposal to Commenters suggested that substituting physician practitioners. We believe this allow non-physician practitioners to non-physician practitioners for approach takes full advantage of the perform the IRF coverage requirements rehabilitation physicians in the IRF is extensive training and knowledge that at § 412.622(a)(3), (4), and (5) that are likely to result in worse clinical rehabilitation physicians bring to the currently required to be performed by a outcomes for patients and an increase in care of IRF patients, but also allows rehabilitation physician, provided that medical complications, readmission, patients to benefit from the training that these duties are within the practitioner’s acute transfers, and emergency room non-physician practitioners have in scope of practice under applicable state utilization. Commenters noted that the caring for complex patients. We believe law. We continue to believe that non- costs of these outcomes—both to the that this measured approach may result physician practitioners have an Medicare program and to individual in improved outcomes for patients, as it important role in treating IRF patients. patients—would more than offset any takes full advantage of the skills of both We agree with commenters that non- projected savings tied to the substitution non-physician practitioners and physician practitioners have training of non-physician practitioners. Lastly, rehabilitation physicians. We do not and experience in caring for complex commenters stated that allowing non- estimate the savings from this expansion patient populations, and that they can physician practitioners to perform of the role of non-physician provide much-needed help to specific clinical and patient care practitioners in IRFs to be significant, rehabilitation physicians. However, functions that currently can only be but we also do not anticipate that this given the overall nature of the satisfied by rehabilitation physicians is measured approach will increase costs comments that we received in response inconsistent with Medicare’s benefit to the Medicare program, as suggested to this proposal, we believe it is prudent structure for rehabilitation hospitals and by commenters, because rehabilitation at this time to take a more measured post-acute care benefits. These physicians will still be directly involved approach to expanding the role of non- commenters indicated that the IRF in establishing and implementing the physician practitioners in the IRF benefit structure explicitly requires that patient’s IRF plan of care. Non- setting to ensure that the vulnerable IRF each patient requires physician physician practitioners can add populations will continue to receive the supervision by a rehabilitation significant expertise to the patient care highest quality of care for their post- physician, as specified at team, including recognizing emergent acute rehabilitation needs. Therefore, § 412.622(a)(3)(iv). issues that, if left unaddressed, could we are finalizing a portion of the lead to unplanned readmissions to the Response: We appreciate the proposed policy by amending acute care hospitals. § 412.622(a)(3)(iv) to allow non- commenters’ feedback regarding the Comment: The majority of physician practitioners to conduct one proposal to allow non-physician commenters suggested that non- of the three required rehabilitation practitioners to perform the IRF physician practitioners do not have the physician visits in every week of the IRF coverage requirements at adequate training and experience to stay, with the exception of the first § 412.622(a)(3), (4), and (5) that are fulfill the preadmission screening, week, if permitted under state law. In currently required to be performed by a individualized overall plan of care, 3 the first week of the IRF stay, we rehabilitation physician, provided that weekly face-to-face visits, and continue to require the rehabilitation these duties are within the practitioner’s interdisciplinary team meeting physician to visit patients a minimum of scope of practice under applicable state requirements. Many of the commenters three times to ensure that the patient’s law. Given the strong concerns that stated that physicians, by nature of their plan of care is fully established and many commenters noted over this medical training and education, are the optimized to the patient’s care needs in proposed policy, we believe that the only types of health care providers that the IRF. prudent approach at this time is to should make decisions tied to a Comment: The majority of finalize only a portion of the proposed patient’s admission. Therefore, the commenters urged CMS not to finalize policy. Thus, we are finalizing a portion majority of commenters stated that they this proposal, expressing concerns that of the proposed policy by amending did not believe that non-physician the change would have negative impacts § 412.622(a)(3)(iv) to allow non- practitioners should be conducting the on the health, quality of care, and physician practitioners to conduct one pre-admission screening, as it is the recovery success rate of IRF patients. of the three required rehabilitation initial evaluation and review of the These commenters stated that the role physician visits in every week of the IRF patient’s condition and need for and judgment of rehabilitation stay, with the exception of the first rehabilitation therapy and medical physicians in IRFs is central to the week, if permitted under state law. We treatment. Commenters also stated that successful outcomes of complex IRF believe that this approach mitigates having a rehabilitation physician make patients, and a key element in what many of the concerns expressed by the admission decisions would separates IRFs from other lesser commenters, because it preserves the significantly reduce erroneous claim intensive post-acute care settings. The existing benefit structure of the IRF reviews and denials. commenters stated that rehabilitation setting, ensures the quality of care for Many commenters suggested that, physicians are specifically trained to IRF patients by continuing the while non-physician practitioners can handle the distinctive needs of highly rehabilitation physician’s close play a vital role in supporting the complex medical rehabilitation patients involvement in the establishment of the rehabilitation physician in coordinating such as spinal cord injury patients, patient’s plan of care and the initial the patient’s medical needs with his or brain injury patients, and complex implementation of the plan of care, and her functional rehabilitation needs, they wound issues seen in mobility-impaired allows non-physician practitioners to do not have the adequate training and patients. Additionally, commenters assist in implementing the plan of care experience to play a direct role in the suggested that rehabilitation physicians once it has been fully established. We execution of the individualized overall are better trained to manage the believe that this balanced approach plan of care for IRF patients.

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Commenters noted that the quality of care and we want to ensure week. We believe that this measured complexity of patients in IRFs has been that the policies we finalize provide just approach to expanding the role of non- increasing, and it would be illogical, that. Thus, we are finalizing a portion of physician practitioners in IRFs balances and particularly ill-timed in light of the the proposed policy by amending the commenters’ concerns about COVID–19 public health emergency, to § 412.622(a)(3)(iv) to allow non- maintaining the rehabilitation physician allow a non-physician practitioner to physician practitioners to conduct one at the core of the patient’s plan of care synthesize and approve all of the of the three required rehabilitation in the IRF with the benefits of elements of the individualized overall physician visits in every week of the IRF expanding the role of non-physician plan of care for IRF patients. stay, with the exception of the first practitioners, who play an important Many commenters stated that CMS’ week, if permitted under state law. We role in the interdisciplinary team and proposal to allow non-physician believe that this measured approach the care of complex patients. We are practitioners to administer the three responds to the concerns expressed by also making conforming changes to weekly face-to-face visits was commenters by preserving the § 412.29(e) to allow, beginning with the particularly concerning because the rehabilitation physician’s training and second week of admission to the IRF, a physician visits with patients judgment at the center of the patient’s non-physician practitioner who is significantly inform the course of care plan in the IRF, while also allowing determined by the IRF to have patients’ treatment and overall plans of non-physician practitioners to take an specialized training and experience in care. In these visits, physicians modify expanded role in the care of patients. inpatient rehabilitation to conduct 1 of patients’ course of treatment as needed, We believe that this approach will allow the 3 required face-to-face visits with so that the patient’s capacity to benefit non-physician practitioners to play a the patient per week, provided that such is maximized. Commenters also vital role in supporting the duties are within the non-physician suggested that a patient’s ability to rehabilitation physician by coordinating practitioner’s scope of practice under benefit from the IRF care is diminished the patient’s medical needs with his or applicable state law. if lesser trained clinicians are tasked her functional rehabilitation needs once XI. Method for Applying the Reduction with treating the patients. Additionally, the rehabilitation physician has fully to the FY 2021 IRF Increase Factor for commenters suggested that some states established the patient’s plan of care in IRFs That Fail To Meet the Quality would not permit (under their current the first week. This approach also Reporting Requirements laws) non-physician practitioners to maintains the rehabilitation physician’s engage in these visits because such direct involvement in other aspects of As previously noted, section services are only intended to be the patient’s care. 1886(j)(7)(A)(i) of the Act requires the performed by a licensed physician with application of a 2-percentage point the skillset that allows them to assess After consideration of the comments reduction of the applicable market the patient or make modifications to we received, we are finalizing a portion basket increase factor for payments for treatment plans, both medically and of our proposed policy changes by discharges occurring during such FY for functionally. amending § 412.622(a)(3)(iv) to allow, Lastly, commenters stated that all beginning with the second week of IRFs that fail to comply with the quality recommendations made by the admission to the IRF, a non-physician data submission requirements. In interdisciplinary team are directly practitioner who is determined by the accordance with § 412.624(c)(4)(i), we related to the prognosis and oversight of IRF to have specialized training and apply a 2-percentage point reduction to the patient’s care and should be experience in inpatient rehabilitation to the applicable FY 2021 market basket authorized only by a rehabilitation conduct 1 of the 3 required face-to-face increase factor in calculating an physician, as the complex nature of the visits with the patient per week, adjusted FY 2021 standard payment patient in IRFs, combined with the provided that such duties are within the conversion factor to apply to payments delivery of an intensive course of non-physician practitioner’s scope of for only those IRFs that failed to comply therapy, requires skills and expertise practice under applicable state law. To with the data submission requirements. that far exceed those held by a non- be clear, in the first week of the IRF As previously noted, application of the physician practitioner. stay, we continue to require the 2-percentage point reduction may result Response: We appreciate the rehabilitation physician to visit patients in an update that is less than 0.0 for a commenters’ feedback. While we a minimum of three times to ensure that FY and in payment rates for a FY being continue to believe that non-physician the patient’s plan of care is fully less than such payment rates for the practitioners are well-trained to care for established and optimized to the preceding FY. Also, reporting-based complex patient populations, the patient’s care needs in the IRF. In the reductions to the market basket increase concerns that commenters brought to second, third, fourth weeks of the stay, factor are not cumulative; they only our attention on this proposal have led and beyond, we will continue to require apply for the FY involved. us to believe that we need to take a more Medicare fee-for-services beneficiaries Table 12 shows the calculation of the measured approach to expanding the in IRFs to receive a minimum of three proposed adjusted FY 2021 standard role of non-physician practitioners in rehabilitation physicians visits per payment conversion factor that would the IRF setting without diminishing the week, but will amend § 412.622(a)(3)(iv) be used to compute IRF PPS payment quality of care. We understand that IRF to allow non-physician practitioners to rates for any IRF that failed to meet the beneficiaries are a vulnerable independently conduct one of these quality reporting requirements for the population that require the highest three minimum required visits per applicable reporting period.

TABLE 12—CALCULATIONS TO DETERMINE THE ADJUSTED FY 2021 STANDARD PAYMENT CONVERSION FACTOR FOR IRFS THAT FAILED TO MEET THE QUALITY REPORTING REQUIREMENT

Explanation for adjustment Calculations

Standard Payment Conversion Factor for FY 2020 ...... $ 16,489

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TABLE 12—CALCULATIONS TO DETERMINE THE ADJUSTED FY 2021 STANDARD PAYMENT CONVERSION FACTOR FOR IRFS THAT FAILED TO MEET THE QUALITY REPORTING REQUIREMENT—Continued

Explanation for adjustment Calculations

Market Basket Increase Factor for FY 2021 (2.4 percent), reduced by 0.0 percentage point for the productivity adjust- ment as required by section 1886(j)(3)(C)(ii)(I) of the Act, and further reduced by 2 percentage points for IRFs that failed to meet the quality reporting requirement ...... × 1.004 Budget Neutrality Factor for the Updates to the Wage Index and Labor-Related Share ...... × 1.0013 Budget Neutrality Factor for the Revisions to the CMG Relative Weights ...... × 0.9970 Adjusted FY 2021 Standard Payment Conversion Factor ...... = $ 16,527

XII. Miscellaneous Comments submission threshold from 95 percent to unnecessary, or contrary to the public Comment: Several commenters 80 percent, for consistency with the interest, the rule shall take effect at such recommended that CMS evaluate how SNF QRP and LTCH QRP. time as the agency determines. The the public health emergency will impact Response: We consider these United States is responding to an future reimbursement under current comments to be outside the scope of the outbreak of respiratory disease caused practices and encouraged CMS to work current rulemaking. We refer providers by a novel (new) coronavirus that has with stakeholders to make adjustments to the interim final rule with comment now been detected in more than 190 to the case-mix system in the future. entitled, ‘‘Additional Policy and locations internationally, including in Response: We recognize the impact Regulatory Revisions in Response to the all 50 States and the District of that the public health emergency is COVID–19 Public Health Emergency Columbia. The virus has been named having on all providers and we intend and Delay of Certain Reporting ‘‘SARS-CoV–2’’ and the disease it to examine the effects of this emergency Requirements for the Skilled Nursing causes has been named ‘‘coronavirus in available Medicare data. We will Facility Quality Reporting Program’’ (85 disease 2019’’ (abbreviated ‘‘COVID– propose any modifications to the FR 27595 through 27596) regarding the 19’’). existing methodologies used to update delay in the compliance date for the On January 30, 2020, the International reimbursements in future rulemaking if Transfer of Health Information quality Health Regulations Emergency and when appropriate. We value measures and certain standardized Committee of the World Health transparency in our processes and will patient assessment data elements Organization (WHO) declared the continue to engage stakeholders in (SPADEs). We also refer providers to our outbreak a ‘‘Public Health Emergency of future development of payment policies. June 23, 2020 announcement at https:// international concern.’’ On January 31, Comment: We received several www.cms.gov/Medicare/Quality- 2020, Health and Human Services comments on the IRF QRP. Several Initiatives-Patient-Assessment- Secretary, Alex M. Azar II, declared a commenters noted that the status of Instruments/IRF-Quality-Reporting/ public health emergency (PHE) for the IRF–PAI 4.0 is unknown along with the Spotlights-Announcements that, United States to aid the nation’s adoption of additional standardized effective July 1, 2020, IRFs must resume healthcare community in responding to patient assessment data element items reporting their quality data. COVID–19. On March 11, 2020, the that are being added to IRF–PAI 4.0. We received several additional WHO publicly characterized COVID–19 Several commenters thanked CMS for comments that were outside the scope as a pandemic. On March 13, 2020, the efforts taken to reduce data reporting of the FY 2021 IRF PPS proposed rule. President of the United States declared burden, such as delaying the release of Specifically, we received comments the COVID–19 outbreak a national IRF–PAI 4.0, and granting an exception regarding the facility-level adjustment emergency. to the IRF QRP reporting requirements factors, cognitive function and resource Due to CMS prioritizing efforts in for Quarter 1 and Quarter 2 of 2020. One use in IRFs, the motor score, the support of containing and combatting commenter requested that the reliability and validity of IRF data the COVID–19 PHE, and devoting exemption be extended for all affected collection, modifications to the 60 significant resources to that end, it was quarters. One commenter requested that percent rule, IRF regulatory burden impracticable for CMS to complete the measure reliability analyses be reduction, the use of recreational work needed on the IRF PPS final rule performed and shared to ensure the therapy, IMPACT Act data availability, in accordance with our usual schedule accuracy of measure calculations in COVID–19 health pandemic, post-acute for this rulemaking, which aims for a light of truncated, incomplete, or care payment reform, and the PAC PPS publication date providing for at least COVID–19 affected data. prototype among other topics. We thank 60 days of public notice before the start Several commenters also provided the commenters for bringing these of the fiscal year to which it applies. recommendations for additions and issues to our attention, and will take The IRF PPS final rule is necessary to modifications of IRF QRP measures. these comments into consideration for annually review and update the One commenter suggested CMS collect potential policy refinements. payment system, and it is critical to and stratify patient and caregiver data ensure that the payment policies for this based on key variables of inequities in XIII. Waiver of the 60-Day Delayed payment system are effective on the first patient care within population segments Effective Date for the Final Rule day of the fiscal year to which they are and other communities of belonging, We ordinarily provide a 60-day delay intended to apply. Therefore, in light of such as race and ethnicity, for all types in the effective date of final rules after the COVID–19 PHE and the resulting of measures. the date they are issued in accord with strain on CMS’s resources, it was One commenter recommended that the Congressional Review Act (CRA) (5 impracticable for CMS to publish the CMS exercise flexibility regarding the U.S.C. 801(a)(3)). However, section IRF PPS final rule 60 days before the non-compliance payment penalty. 808(2) of the CRA provides that, if an effective date, and we are hereby Another commenter requested that CMS agency finds good cause that notice and waiving the 60-day requirement and lower the IRF QRP APU minimum public procedure are impracticable, determining that the IRF PPS final rule

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will take effect 55 days after issuance; our longstanding documentation finalizing our proposal to amend the IRF it would be contrary to the public instructions and guidance of the coverage requirements to remove the interest for CMS to do otherwise. preadmission screening in regulation post-admission physician evaluation text. As per our discussion in the FY requirement and codify existing XIV. Provisions of the Final Regulations 2010 IRF PPS final rule (74 CR 39803), documentation instructions and In this final rule, we are adopting the we do not believe that there is any guidance. provisions set forth in the FY 2021 IRF burden associated with this B. Overall Impact PPS proposed rule (85 FR 22065), requirement. The burden associated specifically: with this requirement is the time and We have examined the impacts of this • We will update the CMG relative effort put forth by the rehabilitation rule as required by Executive Order weights and average length of stay physician to document his or her 12866 on Regulatory Planning and values for FY 2021, in a budget neutral concurrence with the pre-admission Review (September 30, 1993), Executive manner, as discussed in section V. of findings and the results of the pre- Order 13563 on Improving Regulation this final rule. admission screening and retain the and Regulatory Review (January 18, • We will update the IRF PPS information in the patient’s medical 2011), the Regulatory Flexibility Act payment rates for FY 2021 by the market record. The burden associated with this (RFA) (September 19, 1980, Pub. L. 96– basket increase factor, based upon the requirement is in keeping with the 354), section 1102(b) of the Act, section most current data available, with a ‘‘Conditions of Participation: Medical 202 of the Unfunded Mandates Reform productivity adjustment required by record services,’’ that are already Act of 1995 (March 22, 1995, Pub. L. section 1886(j)(3)(C)(ii)(I) of the Act, as applicable to Medicare participating 104–4), Executive Order 13132 on described in section VI. of this final hospitals. Therefore, we believe that this Federalism (August 4, 1999), the rule. requirement reflects customary and Congressional Review Act (5 U.S.C. • We will adopt the revised OMB usual business and medical practice. 804(2)), and Executive Order 13771 on delineations, the IRF wage index Thus, in accordance with section Reducing Regulation and Controlling transition, and the update to the labor- 1320.3(b)(2) of the Act, the burden is not Regulatory Costs (January 30, 2017). Executive Orders 12866 and 13563 related share for FY 2021 in a budget- subject to the PRA. neutral manner, as described in section As discussed in section VIII. of this direct agencies to assess all costs and VI. of this final rule. final rule, we are removing the post- benefits of available regulatory • alternatives and, if regulation is We will calculate the final IRF admission physician evaluation necessary, to select regulatory standard payment conversion factor for requirement at § 412.622(a)(4)(ii) approaches that maximize net benefits FY 2021, as discussed in section VI. of beginning with FY 2021, that is, for all (including potential economic, this final rule. IRF discharges beginning on or after • environmental, public health and safety We will update the outlier October 1, 2020. Accordingly, we are effects, distributive impacts, and threshold amount for FY 2021, as amending § 412.622(a)(3)(iv) to remove equity). Section 3(f) of Executive Order discussed in section VII. of this final the reference to § 412.622(a)(4)(ii). We 12866 defines a ‘‘significant regulatory rule. discuss any potential cost savings from • action’’ as an action that is likely to We will update the CCR ceiling and this revision in the Overall Impact result in a rule: (1) Having an annual urban/rural average CCRs for FY 2021, section of this final rule. as discussed in section VII. of this final effect on the economy of $100 million rule. XVI. Regulatory Impact Analysis or more in any 1 year, or adversely and • materially affecting a sector of the We will amend the IRF coverage A. Statement of Need requirements to remove the post- economy, productivity, competition, admission physician evaluation This final rule updates the IRF jobs, the environment, public health or requirement as discussed in section VIII. prospective payment rates for FY 2021 safety, or state, local or tribal of this final rule. as required under section 1886(j)(3)(C) governments or communities (also • We will amend the IRF coverage of the Act and in accordance with referred to as ‘‘economically requirements to codify existing section 1886(j)(5) of the Act, which significant’’); (2) creating a serious documentation instructions and requires the Secretary to publish in the inconsistency or otherwise interfering guidance as discussed in section IX. of Federal Register on or before the August with an action taken or planned by this final rule. 1 before each FY, the classification and another agency; (3) materially altering • We will amend the IRF coverage weighting factors for CMGs used under the budgetary impacts of entitlement requirements to allow non-physician the IRF PPS for such FY and a grants, user fees, or loan programs or the practitioners to conduct one of the three description of the methodology and data rights and obligations of recipients minimum required rehabilitation used in computing the prospective thereof; or (4) raising novel legal or physician visits every week of the IRF payment rates under the IRF PPS for policy issues arising out of legal stay, except for the first week, if that FY. This final rule also implements mandates, the President’s priorities, or permitted under state law, as discussed section 1886(j)(3)(C) of the Act, which the principles set forth in Executive in section X. of this final rule. requires the Secretary to apply a MFP Order 12866. • We will apply the reduction to the adjustment to the market basket increase A regulatory impact analysis (RIA) FY 2021 IRF increase factor for IRFs that factor for FY 2012 and subsequent years. must be prepared for major rules with fail to meet the quality reporting Furthermore, this final rule adopts economically significant effects ($100 requirements as discussed in section XI. policy changes under the statutory million or more in any 1 year). We of this final rule. discretion afforded to the Secretary estimate the total impact of the policy under section 1886(j) of the Act. We are updates described in this final rule by XV. Collection of Information finalizing our proposal to adopt more comparing the estimated payments in Requirements recent OMB statistical area delineations FY 2021 with those in FY 2020. This As discussed in section IX. of this and apply a 5 percent cap on any wage analysis results in an estimated $260 final rule, we are amending index decreases compared to FY 2020 in million increase for FY 2021 IRF PPS § 412.622(a)(4)(i)(B) and (D) to codify a budget neutral manner. We are also payments. We estimate that this

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rulemaking is ‘‘economically percent. Also, we estimate a 3.2 percent regulations ‘‘shall, to the extent significant’’ as measured by the $100 overall impact for IRFs with a DSH permitted by law, be offset by the million threshold, and hence also a patient percentage of 0 percent and a 3.1 elimination of existing costs associated major rule under the Congressional percent overall impact for IRFs with a with at least two prior regulations.’’ It Review Act. Also, the rule has been DSH patient percentage greater than 20 has been determined that this final rule reviewed by OMB. Accordingly, we percent. As a result, we anticipate this is a transfer rule that does not impose have prepared an RIA that, to the best final rule will have a positive impact on more than de minimis costs and thus is of our ability, presents the costs and a substantial number of small entities. not a regulatory action for the purposes benefits of the rulemaking. MACs are not considered to be small of Executive Order 13771. entities. Individuals and states are not C. Anticipated Effects 2. Detailed Economic Analysis included in the definition of a small 1. Effects on IRFs entity. This final rule will update the IRF PPS rates contained in the FY 2020 IRF The RFA requires agencies to analyze In addition, section 1102(b) of the Act PPS final rule (84 FR 39054). options for regulatory relief of small requires us to prepare an RIA if a rule Specifically, this final rule will update entities, if a rule has a significant impact may have a significant impact on the the CMG relative weights and average on a substantial number of small operations of a substantial number of length of stay values, the wage index, entities. For purposes of the RFA, small small rural hospitals. This analysis must and the outlier threshold for high-cost entities include small businesses, conform to the provisions of section 604 of the RFA. For purposes of section cases. This final rule will apply a MFP nonprofit organizations, and small 1102(b) of the Act, we define a small adjustment to the FY 2021 IRF market governmental jurisdictions. Most IRFs rural hospital as a hospital that is basket increase factor in accordance and most other providers and suppliers located outside of a Metropolitan with section 1886(j)(3)(C)(ii)(I) of the are small entities, either by having Statistical Area and has fewer than 100 Act. In addition, it adopts more recent revenues of $8.0 million to $41.5 beds. As shown in Table 13, we estimate OMB statistical area delineations and million or less in any 1 year depending that the net revenue impact of this final applies a transition wage index under on industry classification, or by being rule on rural IRFs is to increase the IRF PPS. We are also amending the nonprofit organizations that are not estimated payments by approximately IRF coverage requirements to remove dominant in their markets. (For details, 3.0 percent based on the data of the 132 the post-admission physician evaluation see the Small Business Administration’s rural units and 11 rural hospitals in our requirement and codify existing final rule that set forth size standards for database of 1,118 IRFs for which data documentation instructions and health care industries, at 65 FR 69432 at were available. We estimate an overall guidance. https://www.sba.gov/sites/default/files/ impact for rural IRFs in all areas except We estimate that the impact of the 2019-08/SBA%20 Rural South Atlantic and Rural East changes and updates described in this Table%20of%20Size%20Standards_ final rule will be a net estimated _ South Central of between 3.0 percent Effective%20Aug%2019%2C%202019 and 5.0 percent. As a result, we increase of $260 million in payments to Rev.pdf, effective January 1, 2017 and anticipate this final rule would have a IRF providers. This estimate does not updated on August 19, 2019.) Because positive impact on a substantial number include the implementation of the we lack data on individual hospital of small rural hospitals. required 2 percentage point reduction of receipts, we cannot determine the Section 202 of the Unfunded the market basket increase factor for any number of small proprietary IRFs or the Mandates Reform Act of 1995 (Pub. L. IRF that fails to meet the IRF quality proportion of IRFs’ revenue that is 104–04, enacted on March 22, 1995) reporting requirements (as discussed in derived from Medicare payments. (UMRA) also requires that agencies section XI. of this final rule). The impact Therefore, we assume that all IRFs (an assess anticipated costs and benefits analysis in Table 13 of this final rule approximate total of 1,120 IRFs, of before issuing any rule whose mandates represents the projected effects of the which approximately 55 percent are require spending in any 1 year of $100 updates to IRF PPS payments for FY nonprofit facilities) are considered small million in 1995 dollars, updated 2021 compared with the estimated IRF entities and that Medicare payment annually for inflation. In 2020, that PPS payments in FY 2020. We constitutes the majority of their threshold is approximately $156 determine the effects by estimating revenues. HHS generally uses a revenue million. This final rule does not payments while holding all other impact of 3 to 5 percent as a significance mandate any requirements for State, payment variables constant. We use the threshold under the RFA. As shown in local, or tribal governments, or for the best data available, but we do not Table 13, we estimate that the net private sector. attempt to predict behavioral responses revenue impact of this final rule on all Executive Order 13132 establishes to these changes, and we do not make IRFs is to increase estimated payments certain requirements that an agency adjustments for future changes in such by approximately 2.8 percent. However, must meet when it issues a proposed variables as number of discharges or we find that certain categories of IRF rule (and subsequent final rule) that case-mix. providers will be expected to experience imposes substantial direct requirement We note that certain events may revenue impacts in the 3 to 5 percent costs on state and local governments, combine to limit the scope or accuracy range. We estimate a 3.0 percent overall preempts state law, or otherwise has of our impact analysis, because such an impact for rural IRFs. Additionally, we federalism implications. As stated, this analysis is future-oriented and, thus, estimate a 3.1 percent overall impact for final rule will not have a substantial susceptible to forecasting errors because teaching IRFs with a resident to average effect on state and local governments, of other changes in the forecasted daily census ratio of less than 10 preempt state law, or otherwise have a impact time period. Some examples percent, a 3.4 percent overall impact for federalism implication. could be legislative changes made by teaching IRFs with resident to average Executive Order 13771, titled the Congress to the Medicare program daily census ratio of 10 to 19 percent, Reducing Regulation and Controlling that would impact program funding, or and a 3.1 percent overall impact for Regulatory Costs, was issued on January changes specifically related to IRFs. teaching IRFs with a resident to average 30, 2017 and requires that the costs Although some of these changes may daily census ratio greater than 19 associated with significant new not necessarily be specific to the IRF

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PPS, the nature of the Medicare program authority of section 1886(j)(2)(C)(i) of IRFs with zero DSH PP, IRFs with a is such that the changes may interact, the Act. DSH PP less than 5 percent, IRFs with and the complexity of the interaction of • The total change in estimated a DSH PP between 5 and less than 10 these changes could make it difficult to payments based on the FY 2021 percent, IRFs with a DSH PP between 10 predict accurately the full scope of the payment changes relative to the and 20 percent, and IRFs with a DSH PP impact upon IRFs. estimated FY 2020 payments. greater than 20 percent. In updating the rates for FY 2021, we 3. Description of Table 13 The estimated impacts of each policy are implementing standard annual described in this rule to the facility Table 13 shows the overall impact on revisions described in this final rule (for categories listed are shown in the the 1,118 IRFs included in the analysis. example, the update to the wage index columns of Table 13. The description of and market basket increase factor used The next 12 rows of Table 13 contain IRFs categorized according to their each column is as follows: to adjust the Federal rates). We are also • implementing a productivity adjustment geographic location, designation as Column (1) shows the facility to the FY 2021 IRF market basket either a freestanding hospital or a unit classification categories. increase factor in accordance with of a hospital, and by type of ownership; • Column (2) shows the number of section 1886(j)(3)(C)(ii)(I) of the Act. We all urban, which is further divided into IRFs in each category in our FY 2021 estimate the total increase in payments urban units of a hospital, urban analysis file. to IRFs in FY 2021, relative to FY 2020, freestanding hospitals, and by type of • Column (3) shows the number of would be approximately $260 million. ownership; and all rural, which is cases in each category in our FY 2021 This estimate is derived from the further divided into rural units of a analysis file. application of the FY 2021 IRF market hospital, rural freestanding hospitals, • and by type of ownership. There are 975 Column (4) shows the estimated basket increase factor, as reduced by a effect of the adjustment to the outlier productivity adjustment in accordance IRFs located in urban areas included in our analysis. Among these, there are 684 threshold amount. with section 1886(j)(3)(C)(ii)(I) of the • Act which yields an estimated increase IRF units of hospitals located in urban Column (5) shows the estimated in aggregate payments to IRFs of $220 areas and 291 freestanding IRF hospitals effect of the update to the IRF labor- million. Furthermore, there is an located in urban areas. There are 143 related share and wage index, in a additional estimated $40 million IRFs located in rural areas included in budget-neutral manner. increase in aggregate payments to IRFs our analysis. Among these, there are 132 • Column (6) shows the estimated due to the update to the outlier IRF units of hospitals located in rural effect of the revisions to the CBSA threshold amount. Therefore, summed areas and 11 freestanding IRF hospitals delineations and the transition wage together, we estimate that these updates located in rural areas. There are 394 for- index, in a budget-neutral manner. will result in a net increase in estimated profit IRFs. Among these, there are 361 • Column (7) shows the estimated payments of $260 million from FY 2020 IRFs in urban areas and 33 IRFs in rural effect of the update to the CMG relative to FY 2021. areas. There are 610 non-profit IRFs. weights and average LOS values, in a The effects of the updates that impact Among these, there are 521 urban IRFs budget-neutral manner. and 89 rural IRFs. There are 114 IRF PPS payment rates are shown in • Column (8) compares our estimates government-owned IRFs. Among these, Table 13. The following updates that of the payments per discharge, affect the IRF PPS payment rates are there are 93 urban IRFs and 21 rural IRFs. incorporating all of the policies discussed separately below: reflected in this final rule for FY 2021 • The effects of the update to the The remaining four parts of Table 13 to our estimates of payments per outlier threshold amount, from show IRFs grouped by their geographic discharge in FY 2020. approximately 2.6 percent to 3.0 percent location within a region, by teaching of total estimated payments for FY 2021, status, and by DSH patient percentage The average estimated increase for all consistent with section 1886(j)(4) of the (PP). First, IRFs located in urban areas IRFs is approximately 2.8 percent. This Act. are categorized for their location within estimated net increase includes the • The effects of the annual market a particular one of the nine Census effects of the IRF market basket increase basket update (using the IRF market geographic regions. Second, IRFs factor for FY 2021 of 2.4 percent, basket) to IRF PPS payment rates, as located in rural areas are categorized for reduced by a productivity adjustment of required by sections 1886(j)(3)(A)(i) and their location within a particular one of 0.0 percentage point in accordance with (j)(3)(C) of the Act, including a the nine Census geographic regions. In section 1886(j)(3)(C)(ii)(I) of the Act. It productivity adjustment in accordance some cases, especially for rural IRFs also includes the approximate 0.4 with section 1886(j)(3)(C)(i)(I) of the located in the New England, Mountain, percent overall increase in estimated Act. and Pacific regions, the number of IRFs IRF outlier payments from the update to • The effects of applying the budget- represented is small. IRFs are then the outlier threshold amount. Since we neutral labor-related share and wage grouped by teaching status, including are making the updates to the IRF wage index adjustment, as required under non-teaching IRFs, IRFs with an intern index, labor-related share and the CMG section 1886(j)(6) of the Act. and resident to average daily census relative weights in a budget-neutral • The effects of the budget neutral (ADC) ratio less than 10 percent, IRFs manner, they will not be expected to changes to the wage index due to the with an intern and resident to ADC ratio affect total estimated IRF payments in OMB delineation revisions and the greater than or equal to 10 percent and the aggregate. However, as described in transition wage index policy. less than or equal to 19 percent, and more detail in each section, they will be • The effects of the budget-neutral IRFs with an intern and resident to ADC expected to affect the estimated changes to the CMG relative weights ratio greater than 19 percent. Finally, distribution of payments among and average LOS values under the IRFs are grouped by DSH PP, including providers.

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TABLE 13—IRF IMPACT TABLE FOR FY 2021 [Columns 4 through 8 in percentage]

FY 21 FY 21 wage Number Number wage index new CMG Total Facility classification of IRFs of cases Outlier index and CBSA and weights percent 1 labor share 5% cap change

(1) (2) (3) (4) (5) (6) (7) (8)

Total ...... 1,118 410,883 0.4 0.0 0.0 0.0 2.8 Urban unit...... 684 161,642 0.7 0.1 0.0 0.0 3.2 Rural unit...... 132 20,758 0.7 0.0 0.1 0.0 3.2 Urban hospital...... 291 223,421 0.2 0.0 0.0 0.0 2.5 Rural hospital ...... 11 5,062 0.0 0.0 ¥0.2 0.0 2.2 Urban For-Profit...... 361 218,350 0.2 0.0 0.0 0.0 2.5 Rural For-Profit...... 33 8,487 0.3 0.0 0.0 0.0 2.6 Urban Non-Profit...... 521 145,259 0.7 0.1 0.0 0.0 3.2 Rural Non-Profit...... 89 14,171 0.8 0.0 0.0 0.0 3.2 Urban Government ...... 93 21,454 0.7 ¥0.1 0.2 0.0 3.2 Rural Government...... 21 3,162 0.4 0.0 0.0 0.1 3.0 Urban ...... 975 385,063 0.4 0.0 0.0 0.0 2.8 Rural ...... 143 25,820 0.6 0.0 0.0 0.0 3.0 Urban by region: Urban New England ...... 29 16,117 0.4 ¥0.6 0.0 ¥0.1 2.1 Urban Middle Atlantic ...... 132 48,820 0.5 0.4 ¥0.3 0.1 3.0 Urban South Atlantic...... 153 78,375 0.3 0.1 0.0 0.0 2.8 Urban East North Central...... 159 50,217 0.5 0.2 0.0 0.0 3.1 Urban East South Central...... 56 28,428 0.2 0.1 0.0 0.0 2.6 Urban West North Central ...... 73 21,136 0.5 ¥0.6 0.0 0.0 2.1 Urban West South Central...... 188 85,336 0.3 0.1 0.1 0.1 3.0 Urban Mountain ...... 87 30,648 0.4 ¥0.4 0.0 ¥0.1 2.3 Urban Pacific ...... 98 25,986 0.8 ¥0.3 0.3 ¥0.1 3.2 Rural by region: Rural New England ...... 5 1,347 0.5 0.6 0.0 ¥0.2 3.3 Rural Middle Atlantic...... 11 1,189 1.1 0.4 0.0 0.0 4.0 Rural South Atlantic ...... 16 3,796 0.4 ¥0.3 ¥0.3 0.0 2.2 Rural East North Central...... 23 4,068 0.5 0.4 0.1 0.0 3.4 Rural East South Central ...... 21 4,442 0.3 0.0 0.0 ¥0.1 2.6 Rural West North Central ...... 20 3,047 0.8 ¥0.1 0.2 0.0 3.2 Rural West South Central ...... 39 7,005 0.5 ¥0.2 0.1 0.2 3.0 Rural Mountain ...... 5 563 1.2 ¥0.2 0.0 0.1 3.5 Rural Pacific...... 3 363 1.8 0.7 0.0 0.0 5.0 Teaching status: Non-teaching ...... 1,012 363,781 0.4 0.0 0.0 0.0 2.8 Resident to ADC less than 10% ...... 60 32,585 0.5 0.0 0.2 0.0 3.1 Resident to ADC 10%–19% ...... 34 12,988 0.8 0.3 ¥0.1 0.1 3.4 Resident to ADC greater than 19% .. 12 1,529 0.4 0.1 0.2 0.1 3.1 Disproportionate share patient percent- age (DSH PP): DSH PP = 0%...... 33 4,715 0.6 0.2 0.0 0.0 3.2 DSH PP <5% ...... 142 60,645 0.3 0.1 ¥0.3 0.0 2.5 DSH PP 5%–10% ...... 294 127,295 0.3 0.1 ¥0.1 0.0 2.8 DSH PP 10%–20% ...... 393 147,404 0.4 ¥0.1 0.1 0.0 2.8 DSH PP greater than 20% ...... 256 70,824 0.6 ¥0.1 0.1 0.0 3.1 1 This column includes the impact of the updates in columns (4), (5), (6), and (7) above, and of the IRF market basket update for FY 2021 (2.4 percent), reduced by 0.0 percentage point for the productivity adjustment as required by section 1886(j)(3)(C)(ii)(I) of the Act.

4. Impact of the Update to the Outlier For the FY 2021 IRF PPS proposed continue to estimate that IRF outlier Threshold Amount rule, we used preliminary FY 2019 IRF payments as a percentage of total claims data, and, based on that estimated IRF payments are 2.6 percent The estimated effects of the update to preliminary analysis, we estimated that in FY 2021. Thus, we are adjusting the the outlier threshold adjustment are IRF outlier payments as a percentage of outlier threshold amount in this final presented in column 4 of Table 13. In total estimated IRF payments would be rule to maintain total estimated outlier the FY 2020 IRF PPS final rule (84 FR 2.6 percent in FY 2020. As we typically payments equal to 3 percent of total 39095 through 39097), we used FY 2018 do between the proposed and final rules estimated payments in FY 2021. The IRF claims data (the best, most complete each year, we updated our FY 2019 IRF estimated change in total IRF payments data available at that time) to set the claims data to ensure that we are using for FY 2021, therefore, includes an outlier threshold amount for FY 2020 so the most recent available data in setting approximate 0.4 percent increase in that estimated outlier payments will IRF payments. Therefore, based on payments because the estimated outlier equal 3 percent of total estimated updated analysis of the most recent IRF portion of total payments is estimated to payments for FY 2020. claims data for this final rule, we

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increase from approximately 2.6 percent for all IRF discharges beginning on or Bureau of Labor Statistics for a nurse to 3 percent. after October 1, 2020. practitioner and a physician’s assistant, The impact of this outlier adjustment We do not estimate that there will be as E.O. 13890 specifically identifies update (as shown in column 4 of Table a cost savings associated with our both of these practitioners, which is 13) is to increase estimated overall removal of the post-admission physician $53.50. The hourly wage rate including payments to IRFs by 0.4 percent. evaluation, as discussed in section VIII. fringe benefits and overhead is $107.00. of this final rule. While we are removing We estimate that the required face-to- 5. Impact of the Wage Index and Labor- the post-admission physician face physician visits at Related Share requirement at § 412.622(a)(4)(ii), we are § 412.622(a)(3)(iv) take, on average, 30 In column 5 of Table 13, we present not removing any of the required face- minutes each to complete. In FY 2019, the effects of the budget-neutral update to-face visits in § 412.622(a)(3)(iv). we estimate that there were of the wage index and labor-related Thus, the rehabilitation physician or approximately 1,117 total IRFs and on share. The changes to the wage index non-physician practitioners, as average 366 discharges per IRF and the labor-related share are described in section X. of this final rule, annually. A patient’s average length of discussed together because the wage will still be required to conduct face-to- stay in an IRF is 13 days. Therefore, we index is applied to the labor-related face visits with the patient at least 3 can estimate that on average, each share portion of payments, so the days per week throughout the patient’s patient receives at least six physician changes in the two have a combined stay in the IRF. Since this change does visits during their IRF admission. If effect on payments to providers. As not decrease the amount of times the each IRF has approximately 366 patients discussed in section VI.C. of this final physician is required to visit and assess per year, and on average each patient rule, we are updating the labor-related the patient, we do not estimate any cost receives at least six face-to-face visits share from 72.7 percent in FY 2020 to savings to the IRF with this change. with a rehabilitation physician that take 73.0 percent in FY 2021. an estimated 30 minutes each, annually 9. Effects of the Amendment To Allow the rehabilitation physician spends an Non-Physician Practitioners To Perform 6. Impact of the Revisions to the OMB estimated 1098 hours (366 patients × 6 Some of the Weekly Visits That Are Delineations and the 5 Percent Cap visits × 0.5 hours) completing the Currently Required To Be Performed by Transition Policy required face-to-face physician visits. a Rehabilitation Physician In column 6 of Table 13, we present Allowing a non-physician practitioner the effects of the budget-neutral update As discussed in section X. of this final to complete one of the required face-to- of the geographic labor-market area rule, we are amending the regulations at face visits for each patient beginning designations under the IRF PPS and the § 412.622(a)(3)(iv) to allow, beginning with the patient’s second week of application of the 5 percent cap on any with the second week of admission to admission and estimating the patient’s decrease in an IRF’s wage index for FY the IRF, a non-physician practitioner average length of stay is 13 days, we 2021 from the prior FY. As discussed in who is determined by the IRF to have estimate a reduction of 183 hours for section VI.D.2. of this final rule, we are specialized training and experience in rehabilitation physicians per IRF implementing the new OMB inpatient rehabilitation to conduct 1 of annually (366 patients × 0.5 hours). We delineations as described in the the 3 required face-to-face visits with estimate a reduction of 204,411 hours September 14, 2018 OMB Bulletin No. the patient per week, provided that such for rehabilitation physicians across all 18–04, effective beginning with the FY duties are within the non-physician IRFs annually (1,117 IRFs × 183 hours). 2021 IRF PPS wage index. Additionally, practitioner’s scope of practice under To estimate the total cost savings per as discussed in section VI.D.3. of this applicable state law. We believe this IRF annually, assuming the IRF was able final rule, we are applying a 5 percent final rule represents a decrease in and willing to take full advantage of this cap on any decrease in an IRF’s wage administrative burden to rehabilitation regulatory provision, we multiply 183 index from the prior FY to help mitigate physicians and providers beginning in hours by $200.00 (average physician’s any significant negative impacts that FY 2021, that is, for all IRF discharges salary doubled to account for fringe and IRFs may experience due to our on or after October 1, 2020. We estimate overhead costs) which equals $36,600. adoption of the revised OMB the cost savings associated with this We then multiply 183 hours by $107.00 delineations under the IRF PPS. change in the following way. (average non-physician practitioners The requirement at § 412.622(a)(3)(iv) salary doubled to account for fringe and 7. Impact of the Update to the CMG must currently be fulfilled by a overhead costs) which equals $19,581. Relative Weights and Average LOS rehabilitation physician; therefore, to The total estimated cost savings per IRF Values estimate the burden reduction of these is $17,019 ($36,600¥$19,581). In column 7 of Table 13, we present changes, we obtained the hourly wage Therefore, we can estimate the total cost the effects of the budget-neutral update rate for a physician (there was not a savings across all IRFs annually for non- of the CMG relative weights and average specific wage rate for a rehabilitation physician practitioners to conduct one LOS values. In the aggregate, we do not physician) from the Bureau of Labor of the 3 required face-to-face visits in a estimate that these updates will affect Statistics (http://www.bls.gov/ooh/ patient’s average length of stay of 13 overall estimated payments of IRFs. healthcare/home.htm), which is days would be $1.9 million ($17,019 × However, we do expect these updates to $100.00. The hourly wage rate including 1,117). have small distributional effects. fringe benefits and overhead is $200.00. Please note that the $1.9 million in We also obtained the average hourly burden reduction described above will 8. Effects of the Removal of the Post- wage rate for a non-physician not solely be savings to the Medicare Admission Physician Evaluation practitioner. As discussed in section X. Trust Fund. We note that all of the cost As discussed in section VIII. of this of this final rule, we defer to each state’s savings reflected in this estimate will final rule, we are removing scope of practice in determining who is occur on the Medicare Part B side, in § 412.622(a)(4)(ii) that requires an IRF to recognized as a non-physician the form of reduced Part B payments to complete a post-admission physician practitioner; however, for the purposes physicians under the Medicare evaluation for all patients admitted to of this burden reduction estimation, we Physician Fee Schedule (MPFS). the IRF, beginning with FY 2021, that is, used a combined average wage from the Physician services provided in an IRF

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are billed directly to Part B; therefore, that on average each year physicians are • How many IRFs would substitute IRFs do not pay physicians for their billing $179 million for these services non-physician practitioners for services. Therefore, the Medicare Trust ($439.56 × 366 patients × 1117 IRFs). physicians; and Fund will be saving 80 percent of the For the purposes of this estimation, if • Among the IRFs that do substitute overall cost savings and 20 percent of we allow non-physician practitioners to non-physician practitioners for the savings will be to beneficiaries due conduct one of the three face-to-face physicians, whether it will be for all to the coinsurance requirement visits beginning with the second week requirements or only for specific generally applicable to Medicare Part B during a patient’s admission with an requirements. services. We estimate that if 100 percent average length of stay of 13 days, the We did not receive any comments of IRFs allowed non-physician rehabilitation would complete only 5 regarding this request for feedback. practitioners to fulfill some of the face-to-face visits during the patient’s Therefore, we are finalizing our requirement at § 412.622(a)(3)(iv) the IRF admission. Therefore, the estimated projected savings for the portion of the overall savings to Medicare Part B total that a physician would bill per IRF proposal that we are finalizing. In the would be $1.5 million. However, we are patient for 5 face-to-face visits is absence of specific information on unsure if all IRFs will adopt this change. $366.30 ($73.26 × 5 visits). We estimate which to base a specific estimate of how We are estimating that IRFs will adopt that on average each year physicians much IRFs would be expected to this change for about 50 percent of the across all IRFs are billing $149 million substitute non-physician practitioners services provided. Therefore, we for these services ($366.30 × 366 for one of the required physician visits estimate that the overall savings to the patients × 1,117 IRFs). at § 412.622(a)(3)(iv) beginning the Medicare Trust Fund for allowing non- According to the Medicare Benefit second week of the patient’s admission, physician practitioners to fulfill some of Policy Manual, chapter 15, section 80 we are assuming that IRFs will adopt this change about 50 percent of the time. the requirement at § 412.622(a)(3)(iv) (Pub. L. 100–02), as well as, the IRF PPS Thus, the estimated overall savings to would be $750,000. website (https://www.cms.gov/ Medicare Part B will be $3 million. We We have also estimated the impacts of Regulations-and-Guidance/Guidance/ are estimating that 80 percent of that this change using the MPFS regarding Manuals/Downloads/bp102c15.pdf), will remain in the Medicare Trust Fund what a physician would bill for these non-physician practitioners are able to and 20 percent will be a savings to services versus what a non-physician bill 80 percent of what physicians bill. beneficiaries. Therefore, we estimate practitioner would bill. The MPFS Therefore, we estimate that on average $2.4 million in savings to the Medicare provides more than 10,000 physician non-physician practitioners will bill services, the associated relative value program and $600,000 in savings to $58.61 per face-to-face visit. Per IRF units, a fee schedule state indicator and beneficiaries. patient with an average length of stay of various payment policy indicators 13 days, the non-physician practitioner D. Alternatives Considered needed for payment adjustment. The will bill an estimated $58.61. Therefore, MPFS pricing amounts are adjusted to The following is a discussion of the we estimate that on average each year a reflect the variation in practice costs alternatives considered for the IRF PPS non-physician practitioner will bill $24 from area to area. For additional updates contained in this final rule. million for these services ($58.61 × 366 information regarding how to use the Section 1886(j)(3)(C) of the Act × 1,117). MPFS please visit the website at https:// requires the Secretary to update the IRF www.cms.gov/apps/physician-fee- We estimate that if 100 percent of PPS payment rates by an increase factor schedule/search/search-criteria.aspx. IRFs allowed non-physician that reflects changes over time in the The face-to-face physician visits are practitioners to fulfill some of the prices of an appropriate mix of goods considered separately payable services requirement at § 412.622(a)(3)(iv) the and services included in the covered for physicians. Therefore, we can use overall savings to Medicare Part B IRF services. the active pricing paid in calendar year would be $6 million. However, we are As noted previously in this final rule, 2020 for a national base payment. unsure that IRFs will adopt this change. section 1886(j)(3)(C)(ii)(I) of the Act There are different evaluation and Commenters suggested that states do not requires the Secretary to apply a management codes depending on the have scope of practice laws that are IRF productivity adjustment to the market complexity of the patient and the specific and at least as focused on the basket increase factor for FY 2021. Thus, duration of the visit. The current clinical training as necessitated through in accordance with section 1886(j)(3)(C) evaluation and management codes for CMS requirements for a physician to of the Act, we update the IRF the face-to-face visit in a facility are practice in an IRF. States have prospective payments in this final rule 99231 ($40.06), 99232 ($73.62), or 99233 developed scope of practice laws by 2.4 percent (which equals the 2.4 ($106.10). Therefore, we estimate that around acute care hospitals, rather than percent estimated IRF market basket the average national pricing which is a IRFs specifically, to allow NPPs to increase factor for FY 2021 reduced by standard reference payment amount for perform visits to admitted patients. a 0.0 percentage point productivity the physicians without geographic Also, since the average length of stay for adjustment as determined under section adjustment for one of the face-to-face an IRF patient is 13 days, there would 1886(b)(3)(B)(xi)(II) of the Act (as visits in a facility is $73.26. During a be limited opportunities for the NPP required by section 1886(j)(3)(C)(ii)(I) of patient’s average length of stay of 13 visit to occur. Considering the broad the Act)). days, the rehabilitation physician is permissibility under scope of practice We considered maintaining the currently required to see the patient a laws and average length of stays, we felt existing CMG relative weights and minimum of six times. The current it was appropriate to pick a midpoint in average length of stay values for FY estimated total that physicians are formulating our estimation. Therefore, 2021. However, in light of recently currently billing per IRF patient for 6 we are estimating that IRFs will adopt available data and our desire to ensure face-to-face visits is $439.56 ($73.26 × 6 this change 50 percent of the time. To that the CMG relative weights and visits). In FY 2019, we estimate that obtain more information on which to average length of stay values are as there were approximately 1,117 total base our estimates, we solicited reflective as possible of recent changes IRFs and on average 366 discharges per feedback from commenters to in IRF utilization and case mix, we IRF annually. Therefore, we estimate determine: believe that it is appropriate to update

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the CMG relative weights and average to allow the effects of our policies to be provided that such duties are within the length of stay values at this time to phased in over 2 years. non-physician practitioner’s scope of ensure that IRF PPS payments continue We considered maintaining the practice under applicable state law. to reflect as accurately as possible the existing outlier threshold amount for FY However, we believe that it is critical, current costs of care in IRFs. 2021. However, analysis of updated FY especially in light of the significant We considered not implementing the 2019 data indicates that estimated changes in health care that have new OMB delineations for purposes of outlier payments would be less than 3 occurred as a result of the PHE for the calculating the wage index under the percent of total estimated payments for COVID–19 pandemic, for Medicare to IRF PPS; however, we believe FY 2021, by approximately 0.4 percent, recognize and expand the valuable role implementing the new OMB unless we updated the outlier threshold that non-physician practitioners play in delineations will result in wage index amount. Consequently, we are adjusting assisting the rehabilitation physicians in values being more representative of the the outlier threshold amount in this implementing patients’ plan of care in actual costs of labor in a given area. final rule to reflect a 0.4 percent the IRF. We intend to monitor the We considered having no transition increase thereby setting the total outlier quality of care in IRFs closely to ensure period and fully implementing the payments equal to 3 percent, instead of that the regulatory changes we are revisions to the OMB delineations as 2.6 percent, of aggregate estimated implementing improve care provided to described in section VI.D. of this final payments in FY 2021. vulnerable IRF patients. rule. However, this would not provide We considered not removing the post- In addition, we considered amending any time for IRF providers to adapt to admission physician evaluation § 412.622(a)(3), (4), and (5) to allow non- their new wage index values. Thus, we requirement at § 412.622(a)(3)(iv). physician practitioners to perform all of believe that it is appropriate to provide However, we believe that IRFs are more the IRF coverage requirements that are for a transition period to mitigate any than capable of determining whether a currently required to be performed by significant decreases in wage index patient meets the coverage criteria for rehabilitation physicians, provided that values and to provide time for IRFs to IRF services prior to admission. these duties are within the practitioner’s adjust to their new labor market area Additionally, we believe that if IRFs are scope of practice under applicable state delineations. doing their due diligence while law. However, as discussed in section X. We considered using a blended wage completing the pre-admission screening of this final rule, we received many index for all providers that would be by making sure each IRF candidate comments from stakeholders expressing computed using 50 percent of the FY meets all of the requirements to be significant concerns about the quality of 2021 IRF PPS wage index values under admitted to the IRF, then the post- care that the vulnerable IRF patients the FY 2020 CBSA delineations and 50 admission physician evaluation is would receive if we no longer required percent of the FY 2021 IRF PPS wage unnecessary. the rehabilitation physician to lead the index values under the FY 2021 OMB We considered not amending care of the patients. Thus, we delineations as was utilized in FY 2016 § 412.622(a)(4)(i)(B) and (D) to codify determined that it would be prudent to when we adopted the new CBSA our longstanding documentation finalize only a portion of the proposed delineations based on the 2010 instructions and guidance of the policy at this time. Based on extensive decennial census. However, the preadmission screening in regulation clinical input by CMS’s medical officers revisions to the CBSA delineations text. However, we believe for the ease of and after careful consideration of these announced in the latest OMB bulletin administrative burden and being able to issues, we believe that the measured are not based on new census data; they locate the required elements of the approach that we are finalizing in this are updates of the CBSA delineations preadmission screening documentation final rule balances the commenters’ adopted in FY 2016 based on the 2010 and the review and concurrence of a concerns about maintaining the census data. As such, we do not believe rehabilitation physician prior to the IRF rehabilitation physician at the core of it is necessary to implement the admission needed for the basis of IRF the patient’s plan of care in the IRF with multifaceted 50/50 blended wage index payment in a timely fashion, we are the benefits of expanding the role of transition that we established for the should make the technical codifications non-physician practitioners, who play adoption of the new OMB delineations in regulation text. Additionally, we an important role in the based on the decennial census data in considered codifying all of our interdisciplinary team and the care of FY 2016. longstanding required elements of the complex patients. We considered transitioning the wage pre-admission screening index to the revised OMB delineations documentation. However, as discussed E. Regulatory Review Costs over a number of years to minimize the in section IX. of this final rule, we If regulations impose administrative impact of the wage index changes in a believe that removing some of the pre- costs on private entities, such as the given year. However, we also believe admission screening elements that were time needed to read and interpret this this must be balanced against the need duplicative of data collected in various final rule, we should estimate the cost to ensure the most accurate payments other documents in the patient’s IRF associated with regulatory review. Due possible, which argues for a faster medical record (such as the history and to the uncertainty involved with transition to the revised OMB physical and the individualized overall accurately quantifying the number of delineations. As discussed above in plan of care) would reduce provider entities that will review the rule, we section VI.D. of this final rule, we burden. assume that the total number of unique believe that using the most current OMB We considered not amending commenters on the FY 2021 IRF PPS delineations will increase the integrity §§ 412.622(a)(3)(iv) and 412.29(e) to proposed rule will be the number of of the IRF PPS wage index by creating allow, beginning with the second week reviewers of this final rule. We a more accurate representation of of admission to the IRF, a non-physician acknowledge that this assumption may geographic variation in wage levels. As practitioner who is determined by the understate or overstate the costs of such, we believe it will be appropriate IRF to have specialized training and reviewing this final rule. It is possible to utilize a 5 percent cap on any experience in inpatient rehabilitation to that not all commenters reviewed the decrease in an IRF’s wage index from conduct 1 of the 3 required face-to-face FY 2021 IRF PPS proposed rule in the IRF’s final wage index in FY 2020 visits with the patient per week, detail, and it is also possible that some

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reviewers chose not to comment on the managers (Code 11–9111), we estimate F. Accounting Statement and Table proposed rule. For these reasons we that the cost of reviewing this rule is thought that the number of past $110.74 per hour, including overhead As required by OMB Circular A–4 commenters would be a fair estimate of and fringe benefits (https://www.bls.gov/ (available at https:// the number of reviewers of this final oes/current/oes_nat.htm). Assuming an www.whitehouse.gov/sites/ rule. average reading speed, we estimate that whitehouse.gov/files/omb/circulars/A4/ a-4.pdf), in Table 14, we have prepared We also recognize that different types it would take approximately 2 hours for an accounting statement showing the of entities are in many cases affected by the staff to review half of this final rule. mutually exclusive sections of this final classification of the expenditures For each IRF that reviews the rule, the rule, and therefore, for the purposes of associated with the provisions of this estimated cost is $221.48 (2 hours × our estimate we assume that each final rule. Table 14 provides our best reviewer reads approximately 50 $110.74). Therefore, we estimate that estimate of the increase in Medicare the total cost of reviewing this payments under the IRF PPS as a result percent of the rule. We sought × comments on this assumption. regulation is $590,908.64 ($221.48 of the updates presented in this final Using the wage information from the 2,668 reviewers). rule based on the data for 1,118 IRFs in BLS for medical and health service our database.

TABLE 14—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURE

Category Transfers Change in estimated transfers from FY 2020 Annualized monetized transfers $260 million IRF PPS to FY 2021 IRF PPS Federal government to IRF Medicare From whom to whom? providers

Change in Estimated Costs:

Category Costs

Annualized monetized cost in FY 2021 for IRFs due to the amendment of certain IRF coverage Reduction of ≤ $3 million. requirements

G. Conclusion Puerto Rico, Reporting and as well as to modify the course of recordkeeping requirements. treatment as needed to maximize the Overall, the estimated payments per patient’s capacity to benefit from the discharge for IRFs in FY 2021 are For the reasons set forth in the preamble, the Centers for Medicare & rehabilitation process except that during projected to increase by 2.8 percent, the Public Health Emergency, as defined compared with the estimated payments Medicaid Services amends 42 CFR chapter IV as set forth below: in § 400.200 of this chapter, for the in FY 2020, as reflected in column 8 of COVID–19 pandemic such visits may be Table 13. PART 412—PROSPECTIVE PAYMENT conducted using telehealth services (as IRF payments per discharge are SYSTEMS FOR INPATIENT HOSPITAL defined in section 1834(m)(4)(F) of the estimated to increase by 2.8 percent in SERVICES Act). Beginning with the second week, urban areas and 3.0 percent in rural as defined in § 412.622, of admission to areas, compared with estimated FY 2020 ■ 1. The authority citation for part 412 the IRF, a non-physician practitioner payments. Payments per discharge to continues to read as follows: who is determined by the IRF to have rehabilitation units are estimated to Authority: 42 U.S.C. 1302 and 1395hh. specialized training and experience in increase 3.2 percent in urban areas and inpatient rehabilitation may conduct 1 ■ 3.2 percent in rural areas. Payments per 2. Section 412.29 is amended by of the 3 required face-to-face visits with discharge to freestanding rehabilitation revising paragraph (e) to read as follows: the patient per week, provided that such hospitals are estimated to increase 2.5 § 412.29 Classification criteria for payment duties are within the non-physician percent in urban areas and increase 2.2 under the inpatient rehabilitation facility practitioner’s scope of practice under percent in rural areas. prospective payment system. applicable state law. Overall, IRFs are estimated to * * * * * * * * * * experience a net increase in payments (e) Except for care furnished to ■ 3. Section 412.622 is amended— as a result of the proposed policies in patients in a freestanding IRF hospital ■ a. By revising paragraphs (a)(3)(ii) and this final rule. The largest payment solely to relieve acute care hospital (iv) and (a)(4)(i)(B) and (D); increase is estimated to be a 5.0 percent capacity in a state (or region, as ■ b. By removing paragraph (a)(4)(ii); increase for rural IRFs located in the applicable) that is experiencing a surge, ■ c. By redesignating paragraph Pacific region. The analysis above, as defined in § 412.622, during the (a)(4)(iii) as paragraph (a)(4)(ii); and together with the remainder of this Public Health Emergency, as defined in ■ d. In paragraph (c) by adding the preamble, provides an RIA. § 400.200 of this chapter, have in effect definition of ‘‘Week’’ in alphabetical In accordance with the provisions of a procedure to ensure that patients order. Executive Order 12866, this regulation receive close medical supervision, as The revisions and addition read as was reviewed by OMB. evidenced by at least 3 face-to-face visits follows: List of Subjects in 42 CFR Part 412 per week by a licensed physician with specialized training and experience in § 412.622 Basis of payment. Administrative practice and inpatient rehabilitation to assess the (a) * * * procedure, Health facilities, Medicare, patient both medically and functionally, (3) * * *

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(ii) Except during the emergency defined in § 400.200 of this chapter, to the patient’s need for intensive period described in section requires physician supervision by a rehabilitation therapy, expected level of 1135(g)(1)(B) of the Act, generally rehabilitation physician. The improvement, and the expected length requires and can reasonably be expected requirement for medical supervision of time necessary to achieve that level to actively participate in, and benefit means that the rehabilitation physician of improvement; an evaluation of the from, an intensive rehabilitation therapy must conduct face-to-face visits with the patient’s risk for clinical complications; program. Under current industry patient at least 3 days per week the conditions that caused the need for standards, this intensive rehabilitation throughout the patient’s stay in the IRF rehabilitation; the treatments needed therapy program generally consists of at to assess the patient both medically and (that is, physical therapy, occupational least 3 hours of therapy (physical functionally, as well as to modify the therapy, speech-language pathology, or therapy, occupational therapy, speech- course of treatment as needed to prosthetics/orthotics); and anticipated language pathology, or prosthetics/ maximize the patient’s capacity to discharge destination. orthotics therapy) per day at least 5 days benefit from the rehabilitation process, * * * * * per week. In certain well-documented except that during a Public Health (D) It is used to inform a rehabilitation cases, this intensive rehabilitation Emergency, as defined in § 400.200 of physician who reviews and documents therapy program might instead consist this chapter, such visits may be his or her concurrence with the findings of at least 15 hours of intensive conducted using telehealth services (as and results of the preadmission rehabilitation therapy per week. Benefit defined in section 1834(m)(4)(F) of the screening prior to the IRF admission. from this intensive rehabilitation Act). Beginning with the second week of * * * * * therapy program is demonstrated by admission to the IRF, a non-physician (c) * * * measurable improvement that will be of practitioner who is determined by the practical value to the patient in IRF to have specialized training and Week means a period of 7 consecutive improving the patient’s functional experience in inpatient rehabilitation calendar days beginning with the date of capacity or adaptation to impairments. may conduct 1 of the 3 required face-to- admission to the IRF. The required therapy treatments must face visits with the patient per week, Dated: July 23, 2020. begin within 36 hours from midnight of provided that such duties are within the Seema Verma, the day of admission to the IRF. non-physician practitioner’s scope of Administrator, Centers for Medicare & * * * * * practice under applicable state law. Medicaid Services. (4) * * * (iv) Except for care furnished to (i) * * * Dated: July 29, 2020. patients in a freestanding IRF hospital (B) It includes a detailed and Alex M. Azar II, solely to relieve acute care hospital comprehensive review of each patient’s Secretary, Department of Health and Human capacity in a state (or region, as condition and medical history, Services. applicable) that is experiencing a surge including the patient’s level of function [FR Doc. 2020–17209 Filed 8–4–20; 4:15 pm] during the Public Health Emergency, as prior to the event or condition that led BILLING CODE 4120–01–P

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